william boyland fraud case arguments

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - -X

UNITED STATES OF AMERICA :

- v. - : S1 11 Cr. 300 (JSR)

WILLIAM BOYLAND Jr., :

Defendant. :

- - - - - - - - - - - - - - - - - -X

THE UNITED STATES OF AMERICA’S MOTIONS IN LIMINE

PREET BHARARAUnited States AttorneySouthern District of New YorkAttorney for the United States

of America

GLEN G. McGORTYWILLIAM J. HARRINGTONAssistant United States Attorneys

- Of Counsel -

Case 1:11-cr-00300-JSR Document 155 Filed 10/18/11 of 33

TABLE OF CONTENTS

PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. William Boyland Jr.’s No-Show Consultancy.. . . . . . 3

B. Anthony Seminerio’s No-Show Consultancy.. . . . . . 10

MOTIONS IN LIMINE.. . . . . . . . . . . . . . . . . . . . . . 12

I. Evidence of David Rosen’s Corrupt Relationshipwith Anthony Seminerio Should Be Admitted atWilliam Boyland Jr.’s Trial... . . . . . . . . . . . . . 12

A. The Seminerio Evidence and the EventsSurrounding his Arrest and Prosecution areNecessary to Understand Boyland Jr.’s FalseExculpatory Statements to the FBI ... . . . . . . . 12

B. The Seminerio Evidence is Direct Evidence ofthe Charged Conspiracies Between Rosen andBoyland Jr... . . . . . . . . . . . . . . . . . . . 16

C. The Seminerio Evidence is Admissible Pursuantto Rule 404(b) to Show Rosen’s Motive, Intentand Plan... . . . . . . . . . . . . . . . . . . . . 19

II. Evidence of Boyland Jr.’s Fraudulent and FalsePer Diem Submissions Should Be Admitted Pursuant toRule 404(b) of the Federal Rules of Evidence . . . . . . 23

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 26


TABLE OF AUTHORITIES

CASES

Henry v. Poole,409 F.3d 48 (2d Cir. 2005).. . . . . . . . . . . . . . . 14

United States v. Aleskerova,300 F.3d 286 (2d Cir. 2002). . . . . . . . . . . . . . . 14

United States v. Carboni,204 F.3d 39 (2d Cir. 2000) . . . . . . . . . . . . . . . 17

United States v. Caputo,808 F.2d 963 (2d Cir. 1987) .. . . . . . . . . . . . . . 24

United States v. Figueroa,618 F.2d 934 (2d Cir. 1980). . . . . . . . . . . . . . . 22

United States v. Glenn,312 F.3d 58 (2d Cir. 2002).. . . . . . . . . . . . . . . 14

United States v. Gonzalez-Sanchez,825 F.2d 572 (1 Cir. 1987) . . . . . . . . . . . . . . 22st

United States v. Gordon,987 F.2d 902 (2d Cir. 1993). . . . . . . . . . . . . . . 14

United States v. Jaswal,47 F.3d 539 (2d Cir. 1995).. . . . . . . . . . . . . . . 21

United States v. Lasanta,978 F.2d 1300 (1992).. . . . . . . . . . . . . . . . . . 21

United States v. McCourt,925 F.2d 1229 (9 Cir. 1991). . . . . . . . . . . . . . 21th

United States v. Morano,697 F.2d 923 (11 Cir. 1983). . . . . . . . . . . . . . 22th

United States v. Ogando,547 F.2d 102 (2d cir. 2008). . . . . . . . . . . . . . . 14

United States v. Parness,503 F.2d 430 (2d Cir. 1974). . . . . . . . . . . . . 14, 15

ii


United States v. Paulino,445 F.3d 211 (2d Cir. 2006). . . . . . . . . . . . . . . 22

United States v. Ramirez,894 F.2d 565 (2d Cir. 1990). . . . . . . . . . . . . . . 21

United States v. Rubin,37 F.3d 49 (2d Cir. 1994). . . . . . . . . . . . . . . . 15

United States v. Williams,205 F.3d 23 (2d Cir. 2000).. . . . . . . . . . . . . . . 17

United States v. Zackson,12 F.3d 1178 (2d Cir. 1993). . . . . . . . . . . . . . . 20

STATUTES AND OTHER AUTHORITIES

18 U.S.C. § 371. . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 1349.. . . . . . . . . . . . . . . . . . . . . 1

Fed. R. Evid. 401. . . . . . . . . . . . . . . . . . . . 22

Fed. R. Evid. 402. . . . . . . . . . . . . . . . . . . . 22

Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . 20

Fed. R. Evid. 404(a) . . . . . . . . . . . . . . . . . . 21

Fed. R. Evid. 404(b).. . . . . . . . . . . . . 19, 20-22, 24

iii


PRELIMINARY STATEMENT

The Government respectfully moves in limine to seek

rulings concerning certain evidence that the Government intends

to offer at trial of New York State Assemblyman William Boyland

Jr. scheduled to begin on November 1, 2011. Boyland Jr. is

charged with conspiring with hospital executive David Rosen (1)

to commit honest services fraud, in violation of Title 18, United

States Code, Section 1349; and (2) to commit bribery and violate

the Travel Act, in violation of Title 18, United States Code,

Section 371. These charges arise from the no-show consultancy

established by Rosen for Boyland Jr. through which Rosen paid

Boyland Jr. bribes from 2003 through at least 2008 in exchange

for official acts as opportunities arose.

First, the Government seeks to offer limited evidence

of the corrupt relationship between David Rosen and New York

State Assemblyman Anthony Seminerio during its case-in-chief.

Seminerio, like Boyland Jr., was on Rosen’s payroll as a

“consultant,” receiving bribery payments in exchange for official

acts. The Seminerio evidence, including the fact of his arrest

and prosecution, is necessary to provide context for the false

exculpatory statements made by Boyland Jr. when interviewed by

the Federal Bureau of Investigation (the “FBI”), which the

Government will offer at trial. Furthermore, the Government

expects to elicit evidence that Seminerio was bribed by Rosen to

assist on matters involving New York State budgets and


expenditures as well as Rosen’s efforts to acquire the Caritas

Hospitals — the very same official assistance provided by Boyland

Jr. This evidence is admissible as direct proof of the charged

conspiracy against Boyland Jr. because it establishes Rosen’s

strong interest in the same official acts during the same time

period. In short, the evidence of Rosen’s payments to both

Seminerio and Boyland Jr. — at the same time and on the same

issues — is inextricably intertwined as part of a single story of

how Rosen utilized corrupt public officials in the New York State

legislature to further his interests. The evidence is also

admissible pursuant to Rule 404(b) of the Federal Rules of

Evidence because it proves Rosen’s motive, intent, and plan. The

Government must establish that Rosen joined the conspiracy with

Boyland Jr., a fact that the Government fully expects the

defendant to dispute at trial.

Second, the Government seeks to offer evidence related

to Boyland Jr.’s false and fraudulent submissions to the New York

State Assembly for per diem and travel reimbursements while

serving as a State Assemblyman, pursuant to Rule 404(b). The

Government respectfully submits this evidence — which

demonstrates an effort by Boyland Jr. to obtain monies which he

had not earned and to which he was not entitled — are directly

relevant to rebut any claim that Boyland Jr. lacked criminal

intent with respect to his no-show consultancy at Brookdale

University Hospital and Medical Center and the Urban Strategies

2


Family Care Clinic, as well as any claim of mistake or lack of

intent regarding his fraudulent submissions about his consultancy

to the New York State Legislative Ethics Committee.

For the reasons set forth below, these two categories

of evidence should be admitted at trial.

BACKGROUND

On April 7, 2011, Superseding Indictment S1 11 Cr. 300

(JSR) (the “Indictment”) was returned by a federal grand jury,

charging eight defendants, including Boyland Jr. and Rosen, with

a variety of overlapping counts related to the bribery of several

New York State public officials. The Court granted both Rosen’s

and Boyland Jr.’s severance motions, both with the Government’s

consent. As relevant to the upcoming trial of Boyland Jr., Count

Eight of the Indictment charges Boyland Jr. and Rosen with

conspiring to commit honest services fraud from in or about 2003

through in or about 2008. Count Nine charges Rosen and Boyland

Jr. with conspiring to commit bribery and violate the Travel Act

from in or about 2003 through in or about 2008. These charges

arise from the no-show consultancy job established by Rosen to

benefit Boyland Jr. from 2003 through at least 2008.

A. William Boyland Jr.’s No-Show Consultancy

At all times relevant to this case, Rosen was the Chief

Executive Officer of the MediSys Health Network (“MediSys”),

which includes Jamaica Hospital Medical Center (“Jamaica

Hospital” or “Jamaica”), Flushing Hospital, and Brookdale

3


University Hospital and Medical Center (“Brookdale Hospital” or

“Brookdale”). Rosen Trial Tr. at 42-43. In the late 1990s,1

Boyland Jr. — whose father, William Boyland, Sr. was a

long-serving Assemblyman in the State Legislature — began working

full-time as a “marketing associate” for Brookdale Hospital in

one its ambulatory care clinics, Urban Strategies. Id. at 651.

This position was prior to the takeover of Brookdale and its

entities in or about 2000, by Rosen and MediSys. Id. As a

marketing associate, Boyland Jr. worked on community outreach for

Urban Strategies, which entailed attending community events (such

as health fairs) and visiting community organizations (such as

churches and schools), in an effort to recruit patients for the

clinic. Id. at 652. By all accounts, Boyland Jr. was a less

than satisfactory employee, and he frequently did not show up for

work. See id. at 656-58. Nonetheless, by 2003, he was earning

$35,000 a year. See id. at 1590, 1768. In February 2003,

several years after MediSys’ acquisition of Brookdale, Boyland

Jr. was elected to the State Assembly seat that had previously

been held by his father. Id. at 661. After his election, even

though he continued to collect a full salary from Urban

Strategies, he pretty much stopped coming to work. Id. Instead of

Citations herein to “Rosen Trial Tr.” and “Rosen Trial1

Gov. Ex.” are references to the trial transcript pages andadmitted Government Exhibits in the trial of United States v.David Rosen, S1 11 Cr. 300 (JSR), which began before Your Honoron July 25, 2011. Most of the facts referenced in thisbackground section were found by the Court in its Findings ofFact and Conclusions of Law filed on September 12, 2011.

4


firing Boyland Jr., Rosen, who had agreed to bribe Seminerio

since 1999 by giving him a consulting job, requested in June 2003

the assistance of by-now-Assemblyman Boyland Jr. in lobbying a

State Department of Health official with respect to MediSys’

application for the requisite State approval for MediSys’ planned

establishment of new diagnostic and treatment center. Rosen Trial

Gov. Ex. 2300. Boyland Jr., for his part, had become

increasingly resistant to demands by supervisors at Brookdale

that he at least had to “punch in” at Urban Strategies if he

wanted to continue to receive his salary. By the fall of 2003,

Rosen addressed this issue by directing Mounir Doss, MediSys’

Chief Financial Officer, to “get [Boyland Jr.] off the payroll

. . . so he doesn’t have to punch in” and pay him “the same money

as a consultant.” Rosen Trial Gov. Ex. 2100B. In that same e-

mail, Rosen indicated that he would “develop a consulting

agreement,” id., but no written consulting contract between

MediSys and any of its entities and Boyland Jr. was ever created.

See Rosen Trial Gov. Ex. 101. By April 2004, MediSys was paying

Boyland Jr. the same salary as a “consultant” that he had

previously been receiving as a full-time employee, i.e., $35,000

a year. Rosen Trial Tr. at 743-44. He also received full

payment for the interim period between November 2004 and April

2004, even though he was essentially a no-show employee during

this period and no formal consulting agreement was in place. Id.

Over the next few years, Boyland Jr. received in excess

5


of $175,000 in consulting payments from MediSys, ostensibly to

perform community outreach and recruitment services for Urban

Strategies. See Rosen Trial Gov. Ex. 2105. In truth, however,

Boyland Jr. did not perform any material community outreach or

recruitment services for Urban Strategies during this entire

period. See Rosen Tr. Gov. Exs. 2200-2203 (lists created by

Phoebe Lane, Brookdale’s Director of Community and Government

Affairs, cataloguing Brookdale’s community outreach activities).

Indeed, among the community and outreach staff at MediSys, not a

single person was even aware that Boyland Jr. was supposedly

consulting on such matters. See Rosen Trial Tr. at 637, 661-62,

696-97, 822-23; see Rosen Tr. Gov. Ex. 2103. Instead, the

relevant MediSys staff believed that, from at least November

2003, Boyland Jr. was no longer affiliated with MediSys in any

way, either as an employee or as a consultant. See, e.g., Rosen

Trial Tr. at 661-62.

Instead, Boyland Jr. earned his fees by assisting

MediSys through official acts taken in his capacity as an

Assemblyman. Most notably, during the State budgeting process,

Boyland Jr. made repeated requests for State funding to directly

benefit MediSys and its hospitals. For instance, on February 6,

2004, Boyland Jr. sent a letter to Speaker Silver “requesting the

allocation of three million dollars” to Brookdale Hospital for

the purpose of “help[ing] this Institution provide quality health

care.” Rosen Trial Gov. Ex. 2303. As another example, on

6


February 12, 2004, Boyland Jr. sent a letter to Silver seeking

restoration of a Medicare budget cut, which would benefit

hospitals such as Brookdale. See Rosen Trial Gov. Ex. 2304. On

February 28, 2007, Boyland Jr. made a funding request of $3

million for Jamaica. Rosen Trial Gov. Ex. 2305. Some of these

funding letters arose from specific requests by Rosen to Boyland

Jr., and some were even drafted at least in part by Rosen himself

— with Boyland Jr.’s Assembly Office on at least one occasion

calling Rosen to ask him to “send the necessary letter”

requesting “$750,000 for patient billing” at Jamaica, “$1.5 m.

for equipment and [Emergency Department] renovation” at

Brookdale, as well as an unidentified amount for Flushing. Rosen

Trial Gov. Ex. 2315. None of those facilities were in Boyland

Jr.’s Assembly District, with Jamaica and Flushing being miles

away. See Rosen Trial Gov. Ex. 25. To further the object of

directing State funds to MediSys, Boyland Jr. also coordinated

meetings between himself, Rosen, and other State legislators,

including Seminerio, to discuss the State budget. See Rosen

Trial Gov. Ex. 2317, 2321, 2321A. Separately, during this

period, Rosen sought and received Boyland Jr.’s assistance with

respect to MediSys’ effort to acquire the Caritas Hospitals. See

Rosen Trial Gov. Ex. 2306. For instance, in May 2005, Boyland

Jr. — in his capacity as an Assemblyman but at Rosen’s “urgent”

request — met with representatives of Local 1199, the healthcare

workers union, in an effort to gauge its support for the MediSys

7


acquisition. Id. After the meeting, Boyland Jr. reported back

to Rosen and MediSys COO Bruce Flanz the results of his meeting

with the union. Rosen Trial Tr. at 928-29.

On an annual basis, Boyland Jr. submitted financial

disclosure forms to the New York State Legislative Ethics

Committee detailing any income earned outside the legislature.

See Rosen Trial Gov. Exs. 420-427. In these financial disclosure

forms, Boyland Jr. made numerous false statements regarding his

consultancy including references to where his office was located

and what tasks he performed for Brookdale Hospital. See id. In

addition, on every annual form, Boyland Jr. failed to claim any

salary earned from his consultancy, or that his employer,

Brookdale Hospital, was “licensed by any state or local agency,

was regulated by any state regulatory agency or local agency, or,

as a regular and significant part of the business or activity of

said entity, did business with, or had matters other than

ministerial matters before, any state or local agency.” Id. In

many instances, Boyland Jr. wrote “N/A” in response to this

question, and in others, left it blank entirely. See id.

Finally, when the Legislative Ethics Committee advised Boyland

Jr. that his disclosure forms from 2002 through 2008 needed to be

amended to reflect, inter alia, his income from Brookdale

Hospital, Boyland Jr. filed amended forms which falsely indicated

that his income from Brookdale as between $5,000 and $20,000,

rather than the $35,000 he in fact received. See Rosen Trial

8


Gov. Ex. 421A-426A; Rosen Trial Tr. 743-44, 1590, and 1768. All

of these lies served to disguise the true nature of this criminal

relationship.

Rosen also made false statements about Boyland Jr.’s

consultancy with MediSys. In both a Vendex form submitted to the

City in 2004, and in a Vendor Questionnaire Report submitted to

the State in 2006, Rosen failed to disclose that Boyland Jr. was

being paid by MediSys. See Rosen Trial Gov. Exs. 53, 64. In

2007, Rosen, whether because he had become aware of Boyland Jr.’s

disclosures to the Legislative Ethics Committee or otherwise,

finally did disclose in a Vendex form that MediSys was paying

Boyland Jr. as a consultant. See Rosen Trial Gov. Ex. 56.

However, even in that disclosure, Rosen, to hide his previous

failure to disclose, misrepresented to the City that the

consultancy began in January 29, 2006, rather than November 2003,

or at the latest, April 2004. See id.; see also Rosen Trial Tr.

at 601-02. A few weeks before the filing of the 2007 Vendex, an

unidentified person directed the payroll department to falsify

MediSys’ personnel records to make it look like Boyland Jr.

became a MediSys consultant in 2006, after Tracy Boyland, Boyland

Jr.’s sister, left her position on the City Council. Rosen Trial

Tr. at 544-45. Tracy Boyland had previously secured large

quantities of city funds for Brookdale Hospital. See Rosen Trial

Gov. Ex. 2003, 2400.

9


B. Anthony Seminerio’s No-Show Consultancy

The evidence at the Rosen trial revealed that his

relationship with William Boyland Jr. was not the first time

Rosen hired a sitting legislator on the payroll in exchange for

that legislator’s official assistance. In the late 1990s, after2

years of assisting Rosen and Jamaica Hospital, New York State

Assemblyman Anthony Seminerio asked Rosen to hire him as a

“consultant,” but this was simply a cover for Rosen’s payment of

Seminerio bribes in exchange for official acts as opportunities

arose. Rosen directed MediSys to hire Seminerio as a

“consultant” to Jamaica Hospital Medical Center, see Rosen Trial

Gov. Ex. 1102.

Rosen directed these financial benefits to Seminerio so

that Seminerio, in his official capacity as an Assemblyman, would

continue taking action favorable to Rosen and MediSys. Seminerio

was not in fact being paid to consult on any non-New York State

business, in truth and in fact, and as Rosen well knew, the only

meaningful assistance that Seminerio provided as a consultant was

assistance Seminerio provided in his capacity as an Assemblyman

by, among other things, holding himself out to third parties as

acting in his official capacity for the benefit of MediSys,

sponsoring legislation to benefit MediSys and directing state

money to MediSys, and lobbying State officials on behalf of

The Government sets forth this fuller narrative here in2

support of its motion. At trial, the Government will only seekto offer a small subset of this evidence, as discussed below.

10


MediSys, for example, lobbying State officials to allow MediSys

to take over the Caritas Hospitals located in Queens. See, e.g.,

Rosen Trial at 237, 309-311, 914-17, 943-45, 948-50, 951-52,

1555, 1604, 1618; Rosen Trial Gov. Ex. 1120, 1222, 1225B, 1245A,

1246A, 1248, 1306R, 1305R, 1307R, 1309R, 1320R, 2501. The link

between the payments and official action was demonstrated most

tellingly in conversations or communications in which Seminerio

and Rosen discussed Seminerio’s assistance to MediSys on State

matters and then, in the very same conversations or

communications, discussed making payments to Seminerio.

Additionally, the salaried MediSys employees responsible for the

sort of work Seminerio was purportedly paid to perform as a

consultant were unaware that Seminerio was, in fact, being paid

to consult in connection with such work. See id. at 251, 264,

267.

Thus, the evidence for the better part of a decade,

David Rosen employed two New York State legislators, William

Boyland Jr. and Anthony Seminerio, on his payroll, not for

legitimate consulting work, but rather to perform official acts

to benefit Rosen and MediSys, as opportunities arose.

11


MOTIONS IN LIMINE

The Government respectfully moves in limine to seek

rulings concerning certain evidence that the Government intends

to offer at trial.

I. Evidence of David Rosen’s Corrupt Relationship with AnthonySeminerio Should Be Admitted at William Boyland Jr.’s Trial.

As described above, Anthony Seminerio was involved in a

long-standing bribery conspiracy with David Rosen, which ended in

the wake of Seminerio’s arrest on September 10, 2008, his

prosecution in this District, and his guilty plea and conviction

on March 26, 2009. From 1999 through 2008, Rosen bribed

Seminerio in the form of phony consultant fees in exchange for

his official actions on a variety of issues, including the

acquisition of necessary state funds and financial relief from

the state legislature, and lobbying of other state officials in

connection with a MediSys’ attempt to take over the Caritas

Hospitals. These are the same specific issues for which Rosen

paid phony consultant fees in exchange for Boyland Jr.’s

assistance during the same time period. The Government submits

that, for the reasons below, the evidence of Seminerio’s corrupt

relationship with Rosen should be admitted at Boyland Jr.’s trial

in the Government’s case-in-chief.

A. The Seminerio Evidence and the Events Surrounding hisArrest and Prosecution are Necessary to UnderstandBoyland Jr.’s False Exculpatory Statements to the FBI.

The jury will learn that, on or about December 16,

12


2009, after Seminerio had been prosecuted in this District, the

FBI conducted an interview of William Boyland Jr. Based on the

evidence the Government expects to offer at trial, it is clear

Boyland Jr. lied to the FBI about numerous things related to his

consultancy, including David Rosen’s role in the defendant’s

consulting relationship — lies that the evidence will show were

motivated by the fact that Anthony Seminerio had already been

arrested for a similar corrupt consulting relationship with

Rosen.

During his interview with the FBI, Boyland Jr. stated

that he was only employed for approximately two years at

Brookdale Hospital following his election to office, when in fact

he remained on the hospital payroll until at least 2008, well

after his 2003 election. Boyland Jr. told the FBI that the terms

of his employment did not change after he assumed office, and

that he remained a W-2 employee and was never a consultant.

Witness testimony and documents offered at trial will demonstrate

that Boyland Jr. was specifically made a consultant by Rosen so

he no longer had to physically punch in at work to be paid.

Boyland Jr. told the FBI that he never set up meetings with the

Department of Health or local politicians in furtherance of

Brookdale’s business, when he had set up at least one such

meeting. As for David Rosen, Boyland Jr. said he did not have

conversations directly with Rosen regarding changes to his

employment following his election, when evidence offered at trial

13


will prove otherwise.

As an initial matter, it is clear Boyland Jr.’s

statements can be offered by the Government at trial as false

exculpatory statements. The Second Circuit long ago declared it

“axiomatic” that “exculpatory statements, when shown to be false,

are circumstantial evidence of guilty consciousness and have

independent probative force.” United States v. Parness, 503 F.2d

430, 438 (2d Cir.1974); see also Henry v. Poole, 409 F.3d 48 (2d

Cir. 2005) (citing the “axiomatic” language from Parness). And

the Second Circuit has consistently and repeatedly reaffirmed

that proposition, explaining that although false exculpatory

statements by a defendant do not alone prove guilt, they provide

circumstantial evidence of the defendant’s consciousness of guilt

that may strengthen inferences supplied by other pieces of

evidence. See, e.g., United States v. Glenn, 312 F.3d 58, 69 (2d

Cir. 2002); United States v. Aleskerova, 300 F.3d 286, 294 (2d

Cir. 2002); United States v. Gordon, 987 F.2d 902, 907 (2d Cir.

1993).3

The Second Circuit has cautioned that “[w]hile false3

exculpatory statements made to law enforcement officials arecircumstantial evidence of a consciousness of guilt and haveindependent probative force ... falsehoods told by a defendant inthe hope of extricating himself from suspicious circumstances areinsufficient proof on which to convict where other evidence ofguilt is weak and the evidence before the court is as hospitableto an interpretation consistent with the defendant's innocence asit is to the Government's theory of guilt.” United States v.Ogando, 547 F.3d 102 (2d Cir. 2008) (citation omitted). Here,however, the evidence of Boyland Jr.’s guilt is not weak orexclusively circumstantial.

14


The Government should be permitted to prove the fact

that Boyland Jr. provided false exculpatory statements regarding

Rosen and his consultancy. Indeed, the evidentiary value of

Boyland Jr.’s false exculpatory statements can only be

established if the Government is permitted to prove up the false

nature of those exculpatory statements. And precedent of this

Circuit supports the Government’s right to prove the false nature

of Boyland Jr.’s statements. See, e.g., Parness, 503 F.2d at 438

(“exculpatory statements, when shown to be false, are

circumstantial evidence of guilty consciousness” (emphasis

added)); United States v. Rubin, 37 F.3d 49, 52 (2d Cir. 1994)

(consciousness of wrongdoing can be inferred by exculpatory

statement ultimately proven false).

As part of the proof that Boyland Jr.’s statements were

false, the Government will argue that Boyland Jr. clearly

believed that he needed to distance himself from Rosen and from

his consultancy because it was precisely the same type of

criminal relationship for which Seminerio had been prosecuted.

In other words, Boyland Jr.’s motivation to lie about Rosen’s

involvement in his consultancy was not innocent, but a deliberate

attempt to hide the true nature of his relationship given that

the Government had already prosecuted Seminerio for such a

corrupt relationship with Rosen. Indeed, Boyland Jr.

specifically referenced Seminerio in his statement to the FBI,

and stated that he and Rosen never discussed Seminerio’s criminal

15


case and any changes in his employment that could result. As

such, the evidence of Seminerio’s consultancy and his prior

prosecution is necessary context to understanding the

deliberately false inculpatory nature of Boyland Jr.’s

statements. For all these reasons, the Government should be

permitted not only to introduce Boyland Jr.’s statements to the

FBI, but also to prove Boyland Jr.’s statements were false, and

to show what motivated him to lie.

B. The Seminerio Evidence is Direct Evidence of theCharged Conspiracies Between Rosen and Boyland Jr.

As described above, the Government expects to present

evidence that Boyland Jr. assisted Rosen on matters involving New

York State budgets and expenditures as well as Rosen’s efforts to

acquire the Caritas Hospitals. In order to support the

Government’s contention that Rosen had a strong interest in these

issues, the Government will offer evidence that Rosen also paid

Seminerio for assistance on these same matters at the same time.

This evidence is admissible as direct proof of the charged

conspiracies between Rosen and Boyland Jr., because it

establishes Rosen’s interest in the same official acts provided

by Boyland Jr. and is inextricably linked to the story of how

Rosen sought to further his agenda in Albany at the time he was

paying Boyland Jr. Indeed, Rosen’s corrupt relationships with

Boyland Jr., and Seminerio, form the basis of the single honest

services fraud scheme of which Rosen was recently tried and

16


convicted.

Evidence of other criminal acts — here, the bribing of

Seminerio by Rosen — is often admitted to explain the background,

formation, and development of the illegal relationships among co-

conspirators. See United States v. Williams, 205 F.3d 23, 23-34

(2d Cir. 2000) (in conspiracy prosecution, government is usually

allowed considerable leeway in offering evidence of other

offenses “to inform the jury of the background of the conspiracy

charged, to complete the story of the crime charged, and to help

explain to the jury how the illegal relationship between the

participants in the crime developed”). Evidence of uncharged

criminal activity is not considered “other crimes” evidence “if

it arose out of the same transaction or series of transactions as

the charged offense, if it is inextricably intertwined with the

evidence regarding the charged offense, or if it is necessary to

complete the story of the crime on trial.” United States v.

Carboni, 204 F.3d 39, 44 (2d Cir. 2000). Here, in order to fully

understand Boyland Jr.’s corrupt relationship with Rosen, it must

be placed in the context of Rosen’s broader scheme. These two

aspects of Rosen’s scheme — Seminerio’s no-show consultancy and

Boyland Jr.’s no-show consultancy — are inextricably intertwined

and necessary to complete the story of the crime on trial.

It should be made clear that the Government is not

attempting to conduct a mini-trial of Anthony Seminerio or David

Rosen within Boyland Jr.’s trial. On the contrary, the evidence

17


that the Government anticipates seeking to offer is limited to

the following:

• The Seminerio had a consulting contract, which explains in

part Rosen’s statement in a September 11, 2003 e-mail (Rosen

Trial Gov. Ex. 2100B) that he would get a contract for

Boyland Jr.

• A summary chart and bank records showing that Rosen paid

Seminerio about $40,000 per year during the time Boyland Jr.

was a consultant.

• Documents which demonstrate Seminerio assisted with loan

forgiveness, secured financing, and discretionary funds for

MediSys’ benefit.

• Emails and correspondence showing among other things that

Rosen asked Seminerio to intercede with the Speaker of the

Assembly in relation to various legislative issues including

MediSys’s designation as a long term managed care

organization.

• Testimony from Dennis Whalen that Seminerio lobbied him to

award the Caritas Hospitals to David Rosen in 2008.

• E-mails showing that Boyland Jr. organized a meeting with

Rosen, Seminerio and a State Senator to discuss the New York

State budget in 2006.

• Testimony from certain hospital employees that they are

aware of no bona fide consulting services provided by

Seminerio or Boyland Jr. during the time that Boyland Jr.

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was a consultant, including witnesses who filled the

functions for which Seminerio and Boyland Jr. purportedly

were hired to consult.

For reasons including a concern for judicial efficiency, the

Government does not intend to offer any wiretap or consensual

recordings regarding the Seminerio relationship with Rosen. Nor

will the Government seek to offer any evidence with respect to

Rosen’s corrupt relationship with Kruger, except to rebut any

unexpected defense arguments.

Thus, the Government intends to offer these limited

pieces of evidence to provide the jury with information about

Seminerio’s relationship with Rosen.

C. The Seminerio Evidence is Admissible Pursuant to Rule404(b) to Show Rosen’s Motive, Intent and Plan.

To the extent the Court believes that Rosen’s corrupt

relationship with Seminerio is not admissible as direct or at

least background evidence of the charged conspiracies between

Boyland Jr. and Rosen, it should be admitted as “other act”

evidence under Rule 404(b) of the Federal Rules of Evidence. The

evidence of Rosen’s corrupt relationship with Seminerio proves

Rosen’s participation in a broad scheme to bribe public officials

— including both Seminerio and Boyland Jr. — and is highly

probative evidence of Rosen’s motive, intent, and plan to pay

bribes. This is relevant at Boyland Jr.’s trial because the

Government must establish that Rosen joined a conspiracy with

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Boyland Jr. — a fact that the Government fully expects the

defendant to dispute. The Government respectfully submits that

the Seminerio evidence would still be admissible pursuant to Rule

404(b) even if the acts concerned matters wholly separate from

the official assistance that Boyland Jr. provided — for example,

hypothetically, bribes Rosen paid many years ago to unrelated

politicians, on unrelated issues — but the fact that these acts

occurred during the same time period on the same legislative

issues makes them even more probative.

Rule 404(b) of the Federal Rules of Evidence provides

for the admission of evidence of other acts where they are

relevant to such things as “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). It is well-established that

evidence of “other crimes, wrongs or acts” is admissible under

Rules 404(b) and 403 if such evidence is relevant to some issue

at trial other than the defendant’s propensity to commit the

crime charged, and if the probative value is not substantially

outweighed by the risk of unfair prejudice. See, e.g., United

States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) (such

evidence is admissible if it is (1) advanced for a proper

purpose; (2) relevant to the crimes for which the defendant is on

trial; (3) more probative than prejudicial; and (4) if requested,

admitted subject to a limiting instruction); United States v.

Jaswal, 47 F.3d 539, 544 (2d Cir. 1995); United States v.

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Ramirez, 894 F.2d 565, 568 (2d Cir. 1990) (citing Huddleston v.

United States, 485 U.S. 681, 691-92 (1988)). The Second Circuit

has repeatedly endorsed the “inclusionary” approach to the

admission of other act evidence, under which “evidence of prior

crimes, wrongs or acts is admissible for any purpose other than

to show a defendant’s criminal propensity.” United States v.

Lasanta, 978 F.2d 1300, 1307 (1992) (emphasis in original)

(citations omitted). Here, the evidence of the Rosen-Seminerio

relationship has no bearing on Boyland Jr.’s “propensity” to do

anything.

While it certainly most frequently comes up in the

context of a defendant’s other acts, Rule 404(b) applies to

situations even when the defendant is not the perpetrator of the

“other acts” in question. Rule 404(b) explicitly provides that

evidence of other crimes is not admissible to prove the character

of “a person,” but may be admissible for numerous other

delineated purposes. This is in contrast to Rule 404(a) which

makes reference to an “accused,” a “victim,” and a “witness,”

suggesting that Congress considered the term “person” — and the

analysis triggered by Rule 404(b) — to apply to individuals

beyond a trial defendant. See United States v. McCourt, 925 F.2d

1229 (9 Cir. 1991) (concluding that Rule 404(b) applies toth

third parties). By contrast, however, other courts have found

that it is not necessary to apply the Rule 404(b) rubric to

“other acts” evidence when the defendant’s conduct is not at

21


issue. See United States v. Morano, 697 F.2d 923 (11 Cir.th

1983) (“Rule 404(b) does not specifically apply to exclude

evidence because it involves an extraneous offense committed by

someone other than the defendant. The evidence was not

introduced “to show that the defendant has a criminal disposition

and that he can be expected to act in conformity therewith,” so

the policies underlying Rule 404(b) are inapplicable) (citing

United States v. Krezdorn, 639 F.2d 1327, 1333 (5th Cir.1981)

(dictum)); United States v. Gonzalez-Sanchez, 825 F.2d 572, 580

n.17 (1 Cir. 1987) (Rule 404(b) does not exclude evidence ofst

prior crimes of persons other than the defendant)).

Whether the Court determines that it needs to consider

the evidence of Rosen’s intent under Rule 404(b) or merely as

relevant direct evidence under Rules 401, 402, and 403, it is

clear that Rosen’s intent, motive, and plan will squarely be at

issue at Boyland Jr.’s trial. As such, the Government should be4

entitled to present evidence of Rosen’s corrupt intent and common

plan with respect to Seminerio on the same issues for which he

A defendant may avoid introduction of such evidence by4

clearly and unequivocally removing the relevant issue from thecase. See United States v. Figueroa, 618 F.2d 934, 942 (2d Cir.1980). See also United States v. Paulino, 445 F.3d 211, 222 (2dCir. 2006) (noting that a defendant “may not ‘use ambiguitytactically’” and upholding admission of Rule 404(b) evidence incase where defendant declined to take an explicit position onknowledge at trial and instead “left [the defense position on theissue] ambiguous”) (citations omitted). Here, legitimacy of theconsulting arrangement and the intent of the two co-conspiratorsto enter into a criminal agreement is certainly at issue.

22


paid for Boyland Jr.’s assistance — the state budget, financial

assistance and relief for MediSys entities, and the acquisition

of the Caritas Hospitals.

Furthermore, the Government submits that this evidence

is far more probative than prejudicial under the analysis of Rule

403. The extent to which Rosen was willing to go to secure

certain assistance for MediSys and its hospitals, including the

payment of bribes, is highly probative of Rosen’s intent and plan

to extend a no-show consulting job to Boyland Jr. in exchange for

his official assistance on these issues. As this evidence

reflects on Rosen’s intent and motivation, not Boyland Jr.’s,

Boyland Jr. is not prejudiced in a way that “other act” evidence

of a defendant often can be unduly prejudicial and thus any

prejudice is easily outweighed by its probative value. To the

extent that a limiting instruction is necessary, one could be

fashioned to address any possible unfair prejudice.

II. Evidence of Boyland Jr.’s Fraudulent and FalsePer Diem Submissions Should Be Admitted Pursuant toRule 404(b) of the Federal Rules of Evidence.

The Government has obtained evidence during the course

of its investigation which revealed that Boyland Jr. has made

regular submissions to the New York State Assembly for per diem

and travel reimbursements which were fraudulent and false.

Specifically, on numerous occasions while in office, Boyland Jr.

personally submitted claim forms which reflect trips to Albany

when, in fact, he was present elsewhere. One example of such a

23


fraudulent statement was regarding March 10, 2011, when Boyland

Jr. claimed per diem expenses, but had, in fact, spent the entire

day in Federal Court in Manhattan being presented on the instant

charges. The Government provided notice to the defense of its

intention to offer such evidence on October 3, 2011. Last week,

the Government received documents from the Assembly reflecting

the Boyland Jr.’s submissions and has already produced them in

discovery to the defense. It is currently reviewing them to

determine the relevant instances of the false submissions it

hopes to present at trial. The per diem form reflecting the

March 10, 2011 reimbursement request, by way of example, is

attached hereto as an exhibit.

The Government respectfully submits that this evidence

is squarely relevant in this case and admissible for at least two

specific purposes under Rule 404(b). First, the evidence of the

per diem payments goes directly to prove Boyland Jr.’s intent to

engage in a bribery conspiracy through a no-show consulting job.

See United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987)

(“[w]here intent to commit the crime charged is clearly at issue,

evidence of prior similar acts may be introduced to prove that

intent.”). The trial defense will certainly challenge Boyland

Jr.’s criminal intent in receiving over $175,000 in consulting

fees in exchange for no legitimate consulting work, but rather in

exchange for his official actions as opportunities arose. Both

Boyland Jr.’s reimbursement claims and his acceptance of bribes

24


go to the heart of Boyland Jr.’s intent to fraudulently utilize

his official position to obtain monies to which he was not

legitimately entitled.

Second, the evidence of the per diem payments goes

directly to prove absence of mistake with respect to specific

acts of concealment undertaken by Boyland Jr. in connection with

the charged conspiracies. As described above, the evidence will

show that from 2003 through 2009, Boyland Jr. made annual

financial disclosures to the New York State Legislative Ethics

Committee regarding his position at Brookdale Hospital. In these

forms, Boyland Jr. made numerous false statements or omissions

about the nature of his work, the location of his office, the

salary he received, and whether his employer had any specific

business with the State of New York. The evidence will further

reflect that, in 2009, Boyland Jr. filed numerous amendments upon

consulting with the Committee representative because his prior

submissions were incomplete, but those amendments regarding his

salary were also false. The proposed evidence of Boyland Jr.’s

false and fraudulent per diem reimbursement claims would rebut

any argument that untruthful statements on the financial

disclosure forms were the product of some sort of mistake or

carelessness by showing other clear examples of false statements

that Boyland Jr. deliberately submitted to benefit himself.

Thus, for the forgoing reasons, the Government

respectfully submits that the evidence of Boyland Jr.’s false and

25


fraudulent reimbursement claims to the State Assembly should be

admitted.

CONCLUSION

For the reasons stated above, the Government

respectfully submits that the Court should grant the motions to

admit evidence of David Rosen’s corrupt relationship with Anthony

Seminerio, and evidence of William Boyland Jr.’s false and

fraudulent reimbursement claims to the New York State Assembly.

Dated: New York, New YorkOctober 18, 2011

Respectfully submitted,

PREET BHARARAUnited States AttorneySouthern District of New York

By: __/s/______________________________Glen G. McGortyWilliam J. HarringtonAssistant United States Attorneys

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CERTIFICATE OF SERVICE

On October 18, 2011, I served one copy of the

Government’s In Limine Motions by electronic mail on the

following:

Richard H. Rosenberg, Esq.Michael K. Bachrach, Esq.Counsel for William Boyland, Jr.217 Broadway, Suite 707New York, NY 10007(212) 586-3838/(212) 962-5037 (fax)

I declare under penalty of perjury that the foregoing

is true and correct. 28 U.S.C. § 1746.

Dated: New York, New YorkOctober 18, 2011

__/s/______________________________Glen G. McGortyWilliam J. HarringtonAssistant United States Attorneys(212) 637-2505/2331/1079

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EXHIBIT A
