Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 1 of 15 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION FOR A BILL OF PARTICULARS

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1 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 1 of 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America, - V. - Dean Skelos and Adam Skelos, S1 15 Cr 317 (KMW) ` Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION FOR A BILL OF PARTICULARS G. Robert Gage, Jr. Joseph B. Evans Gage Spencer & Fleming LLP 410 Park Avenue, Suite 900 New York, New York (212) Attorneys for Senator Dean Skelos Christopher P. Conniff Alicia Giglio Suarez Jahmila D. Williams Ropes and Gray LLP 1211 Avenue of the Americas New York, New York (212) Attorneys for Adam Skelos

2 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 2 of 15 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT...1 RELEVANT BACKGROUND...2 ARGUMENT...3 I. APPLICABLE LEGAL STANDARD... 4 II. THE COURT SHOULD ORDER A BILL OF PARTICULARS...4 A. The Superseding Indictment Fails To Specify The Acts Senator Skelos Undertook To Promote, Support, Attempt To Secure And Assist Legislation...4 B. The Superseding Indictment Fails To Specify The Acts Senator Skelos Undertook To Facilitate The Approval Of The Nassau County Contract...8 C. The Superseding Indictment Fails To Specify The Acts Senator Skelos Undertook To Foster The Expectation And Indicate That He Would Take Detrimental Action...9 D. The Government Should Be Required To Identify The Documents And Communications That Support Its Allegations...10 CONCLUSION...12 i

3 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 3 of 15 TABLE OF AUTHORITIES Cases: United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987)... 6, 11 United States v. Clarkson Auto Elec., No. 10-cr-6111G, 2014 U.S. Dist. LEXIS (W.D.N.Y. Aug. 8, 2014)... 6, 9 United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988)... 4, 10 United States v. Ghavami, No. 10-cr-1217, 2012 U.S. Dist. LEXIS (S.D.N.Y. July 13, 2012) aff d sub nom. United States v. Heinz, 790 F.3d 365 (2d Cir. 2015)... 4, 10, 11 United States v. Rajaratnam, No. 09-cr-1184, 2010 U.S. Dist. LEXIS (S.D.N.Y. July 13, 2010)... 4 United States v. Savin, No. 00-cr-45, 2001 U.S. Dist. LEXIS 2445 (S.D.N.Y. Mar. 7, 2001) United States v. Scully, No. 14-cr-208, 2015 U.S. Dist. LEXIS (E.D.N.Y. Jun. 8, 2015)... 6 United States v. Solnin, No. 12-cr-040, 2015 U.S. Dist. LEXIS 8358 (E.D.N.Y. Jan. 23, 2015) United States v. Spur Knitting Mills, Inc., 187 F. Supp. 653 (S.D.N.Y. 1960) Statutes: 18 U.S.C U.S.C U.S.C U.S.C FED R. CRIM. P. 7(f)...4 ii

4 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 4 of 15 PRELIMINARY STATEMENT Senator Dean Skelos and Adam Skelos respectfully request that the Court order the government to provide additional particulars relating to, among other things, the official acts purportedly taken by Senator Skelos in connection with the pending charges. While the government filed a lengthy Complaint, Superseding Indictment and produced millions of pages of discovery and extensive wiretap applications, nonetheless, many of the most critical aspects of the charges remain unclear. Moreover, the government s recently produced disclosure letter raises serious doubt about the validity of the charges against the defendants. Two of these allegations (i) that Senator Skelos corruptly secured a $12 million contract with Nassau County for his son s employer and (ii) then attempted to secure changes to New York s budget to benefit the employer previously appeared to be at the heart of the government s case and now appear untrue. Since these admissions directly contradict the Complaint, various press releases, and, critically, the subsequently filed Superseding Indictment which was returned a month after the government s admissions, Senator Skelos and Adam Skelos ask for more information so that they may adequately confront the charges against them. 1

5 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 5 of 15 RELEVANT BACKGROUND 1 On May 4, 2015, Senator Skelos and his son, Adam, were charged in a 43-page Complaint, alleging a series of public corruption-related crimes. (See Complaint). After the Complaint was officially unsealed on May 4, 2015, the United State s Attorney s Office issued a press release outlining its then-theory of the case: Dean Skelos allegedly used the power and influence of his position to help the Environmental Company that hired his son to obtain a $12 million contract with Nassau County. 2 The press that followed echoed these statements. For example, Newsday reported that State Senate Majority Leader Dean Skelos and his son were arrested Monday by federal authorities, who alleged the state s top Republican extorted bribes and campaign contributions from companies in exchange for... rigging a lucrative Nassau County environmental contract to his son s benefit. 3 On May 28, 2015, the grand jury returned a six-count Indictment alleging generally that Senator Skelos used his legislative influence to gain employment for his son, helped to secure a $12 million contract with Nassau County for his son s employer ( Nassau County Contract ), and then took steps to benefit the company legislatively. (See generally Indictment, 15(d)). 1 This motion incorporates by reference the background presented in the Defendant s Memorandum Of Law In Support Of Defendants Motion to Dismiss Counts Four and Seven of the Superseding Indictment. 2 NEW YORK STATE SENATE MAJORITY LEADER DEAN SKELOS AND SON ARRESTED ON CORRUPTION CHARGES, (last visited Sep. 3, 2015). 3 Yancey Roy and Robert E. Kessler, Senate Majority Leader Dean Skelos And Son, Adam Skelos, Face Federal Corruption Charges, Feds Say, May 5, 2015, This article has been attached to the Affidavit of G. Robert Gage Jr. ( Gage Aff. ) as Exhibit N. 2

6 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 6 of 15 On June 22, 2015, the government provided a disclosure letter ( Disclosure Letter ) 4 which substantially undercut central aspects of the government s case, including that Senator Skelos had rigged the Nassau County Contract and had directed legislation in Albany to benefit the Environmental Technology Company. These disclosures demonstrate the need for the government to explain its allegations in order for Senator Skelos and Adam Skelos to adequately prepare for trial and avoid surprise. On July 21, 2015, the grand jury returned a Superseding Indictment containing some of the same allegations which had just been contradicted in the Disclosure Letter. (See e.g., Superseding Indictment, 9, 27(d), 27(g)). On August 7, 2015, the defense served the government with a narrowly tailored bill of particulars aimed at gathering the information now sought by this motion. ( Request for Particulars ). 5 On August 17, 2015, the government largely denied the Request for Particulars agreeing to provide only the identities of alleged co-conspirators and specific wires. ( Response to Request for Particulars ). 6 Accordingly, the defense brings this motion. ARGUMENT The Superseding Indictment in this case alleges various acts of public corruption by the then New York State Senate Majority Leader Dean Skelos. As such, it seems obvious that the defense should be entitled to know what official acts the government believes Senator Skelos took, or attempted to take, in order to commit these crimes. The Superseding Indictment, though lengthy, fails to present a clear picture of these crucial facts choosing instead to rely upon 4 The June 22, 2015 Disclosure Letter has been attached to the Gage Aff. as Exhibit A. 5 The August 7, 2015 Request for Particulars has been attached to the Gage Aff. as Exhibit O. 6 The August 17, 2015 Response to Request for Particulars has been attached to the Gage Aff. as Exhibit P. 3

7 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 7 of 15 ambiguous terms such as facilitated, pressured, fostered the expectation and threatened. The factual underpinning of these terms is largely left unexplained. Defendants are entitled to know specifically what the government intends to argue at trial on this key issue so that it can effectively prepare its defense. I. APPLICABLE LEGAL STANDARD Ambiguity in criminal charges serves no useful purpose in the administration of justice. Under Rule 7(f) of the Federal Rules of Criminal Procedure, the accused is entitled to a bill of particulars if it is necessary for him to identify with sufficient particularity the nature of the charge[s] pending against him, thereby enabling [him] to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense. United States v. Ghavami, No. 10-cr-1217, 2012 U.S. Dist. LEXIS 97931, at *7 (S.D.N.Y. July 13, 2012) aff d sub nom. United States v. Heinz, 790 F.3d 365 (2d Cir. 2015). The decision to grant a motion for a bill of particulars lies within the sound discretion of the district court. United States v. Davidoff, 845 F.2d 1151, (2d Cir. 1988) (reversing for denial of bill of particulars where indictment alleged a conspiracy). In complex cases, as here, the need for a bill of particulars is even more critical. See United States v. Rajaratnam, No. 09-cr-1184, 2010 U.S. Dist. LEXIS 70385, at *3 (S.D.N.Y. July 13, 2010)(ordering a bill of particulars). II. THE COURT SHOULD ORDER A BILL OF PARTICULARS A. The Superseding Indictment Fails To Specify The Acts Senator Skelos Undertook To Promote, Support, Attempt To Secure And Assist Legislation The first seven requests in the defendants Request for Particulars essentially seek the manner in which Senator Skelos promoted, supported, attempted to secure and assisted legislation relating to Developer-1, the Environmental Technology Company and the 4

8 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 8 of 15 Malpractice Insurance Administrator. (Request for Particulars, 1-7). These requests have two core components. First, the defense is seeking to have the government identify all legislation that it plans to rely upon at trial to demonstrate that Senator Skelos committed a corrupt act. The reason for this request is straightforward. The legislation at issue can be complicated and nuanced. For example, the Rent Act of 2011 is 73 pages long, and has a substantial legislative history. If a piece of legislation is raised for the first time at trial (or in the shadow of trial) it would be impossible for the defense to be fully and adequately prepared to address such legislation on the fly. With regard to Developer-1, the Complaint and Superseding Indictment identify certain pieces of legislation, although neither provide an exhaustive list. (Complaint, 33 ( for example:... ); Superseding Indictment, 27(b) ( including but not limited to... )). The Complaint and Superseding Indictment also make general references to design-build authorization, 7 public private partnerships ( P3 ), 8 stormwater funds and hydraulic fracturing regulations in connection with the allegations relating to the Environmental Technology Company. Moreover, the Superseding Indictment references renewals in 2012 and 2015 of legislation that gives special protection to medical [mal]practice insurers from being liquidated by New York State even when operating a negative balance sheet. (Superseding Indictment, 27(h)). While these references provide some guidance, the defense is entitled to know 7 Design-build authorization allows for the same private entity to perform the design and build portions of a municipal project. 8 A P3, or public-private partnership... typically involves the private entity making an investment in [a public] project in return for an ownership interest, managing ongoing project operations, and earning revenue from such operations. (Complaint, 42(c) n. 10). 5

9 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 9 of 15 whether they represent the complete list of the relevant legislative activity allegedly performed by the Senator as part of these alleged crimes. This would include all legislation the government will seek to introduce at trial with regard to Developer-1, the Environmental Technology Company and the Malpractice Insurance Administrator. The government should also be required to identify within these pieces of legislation, the portion(s) which it alleges Senator Skelos corruptly influenced. See United States v. Scully, No. 14-cr-208, 2015 U.S. Dist. LEXIS (E.D.N.Y. Jun. 8, 2015)(ordering a bill of particulars where defendant was allegedly engaged in hosting a website that sold misbranded medical products that the government contended were fraudulent. The Court ordered the government to identify which of the drugs were misbranded and how they were misbranded). Second, despite the enormous volume of discovery provided by the government there is still no clear notice of what Senator Skelos actually did to promote, support, or assist in any corrupt or criminal way. The statutes at issue, i.e., 18 U.S.C. 1951, 1952, 1349 and 666, all require a connection between the allegedly elicit payments and official actions. 9 For this reason a specification sufficient to identify the corrupt acts is critical. In the context of this case, this is not a request for evidence but rather for core information necessary to defend the allegations. See United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987); United States v. Clarkson Auto Elec., Inc., No. 10-cr-6111G, 2014 U.S. Dist. LEXIS , at *13 (W.D.N.Y. Aug. 8, 2014)(collecting cases). The mere use of corruption buzzwords deny the defendants the particularity needed to defend the charges against them. See Clarkson Auto Elec., Inc., 2014 U.S. Dist. LEXIS , at *13 (ordering bill of particulars to further provide particularization ). By way of example, according to the Superseding Indictment, Senator Skelos promoted and voted. 9 The two charged conspiracies relate to extortion claims under the Hobbs Act and the honest services fraud. 6

10 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 10 of 15 (Superseding Indictment, 27(c))(emphasis added). An explanation as to what steps Senator Skelos allegedly took to promote is necessary to provide proper notice to Senator Skelos of the charges against him and to permit him to adequately prepare his defense. As such, the government should be required to answer the following requests: 1. Identify each legislative proposal favorable to Developer- 1 referenced in 27(b) of the Superseding Indictment and specify how Dean Skelos supported such legislation Identify all real estate legislation sought by and favorable to Developer-1 referenced in 27(c) of the Superseding Indictment and specify how Dean Skelos promoted such legislation. 3. Identify all legislative initiatives adverse to Developer-1 referenced in 27(c) of the Superseding Indictment and specify how Dean Skelos rebuffed such initiatives. 7. Identify each piece of legislation referenced in 27(h) of the Superseding Indictment related to the Malpractice Insurance Administrator and how Dean Skelos supported such legislation. (Request for Particulars, 1-3, 7). Similarly, the government should be required to specify how Senator Skelos attempted to secure changes to New York State s budget (i) to include additional funding for stormwater infrastructure projects; and (ii) to authorize design-build contracts. (Superseding Indictment, 9, 27(g)). This request is particularly necessary given the government s acknowledgements in its Disclosure Letter regarding this legislation. The Superseding Indictment further alleges that Senator Skelos attempted to secure changes to the budget to include additional funding for stormwater infrastructure projects... which would have benefited the Environmental Technology Company and Adam Skelos. (See Superseding Indictment, 9, 27(g)). But the government now acknowledges that 10 Other than the Rent Act of (Superseding Indictment, 27(b)). 7

11 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 11 of 15 Dean Skelos did not spearhead any effort to create a clean water infrastructure fund or otherwise allocate budget funds specifically for stormwater or water infrastructure in the budget and public officials other than Dean Skelos were requesting that budget funds be allocated to water infrastructure projects across the State. (Disclosure Letter, II). In light of the clear contradiction between the allegations in the Superseding Indictment and the Disclosure Letter, we are entitled to a specification regarding the government s charges. As such, the government should be required to answer the following requests: 5. Specify how Dean Skelos attempted to secure changes to New York State s budget to include additional funding for stormwater infrastructure projects. (Superseding Indictment, at 27(g); see also June 22, 2015 Discovery Letter, at II). 6. Specify how Dean Skelos attempted to secure changes to New York State s budget that would have authorized design-build contracts. (Superseding Indictment, at 27(g); see also June 22, 2015 Discovery Letter, at II). (Request for Particulars, 5-6). B. The Superseding Indictment Fails To Specify The Acts Senator Skelos Undertook To Facilitate The Approval Of The Nassau County Contract Requests eight through ten of the Request for Particulars seek the manner in which Senator Skelos allegedly facilitated the approval of the Nassau County Contract. (See Request for Particulars, 8). Once again, the government s acknowledgement in its Disclosure Letter significantly undermines its original theory and creates the need to specify the conduct alleged. The Disclosure Letter states [t]he Government does not at present intend to offer evidence or otherwise argue that there was bid-rigging or other illegality with respect to awarding the contract to [the Environmental Technology Company], and interviews conducted 8

12 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 12 of 15 by the Government, including with (Nassau County), (Nassau County), (Nassau County Department of Public Works ( DPW )), (DPW), (NIFA), and, do not establish the existence of any unlawful conduct in the bidding process. (Disclosure Letter, I). Yet, the Superseding Indictment still contends that Dean Skelos facilitated the approval of it. (Superseding Indictment, 27(d)). Simply put, if there was no bid-rigging or other illegality with respect to awarding the [Nassau] contract and interviews with seven witnesses do not establish unlawful conduct in the bidding process it is impossible to understand how Senator Skelos facilitated the approval of the contract as part of a criminal scheme. (Request for Particulars, 8). As such, the government should be required to answer the following request: 8. Specify how Dean Skelos facilitated the approval of the contract referenced in 27(d) of the Superseding Indictment. (See also June 22, 2015 Discovery Letter, at I). C. The Superseding Indictment Fails To Specify The Acts Senator Skelos Undertook To Foster The Expectation And Indicate That He Would Take Detrimental Action Requests eleven and twelve seek the manner in which Senator Skelos fostered the expectation that he would take official action favorable to and would refrain from taking official action to the detriment of Developer-1 and the Environmental Technology Company. (Request for Particulars, 11-12). We again note that despite the voluminous discovery there is no explanation of what Senator Skelos actually did to foster these expectations. The failure of the government to provide the requested specification not only impairs the preparation of the defense but leaves the defense guessing about this phrase which is inherently ambiguous. See Clarkson Auto Elec., 2014 U.S. Dist. LEXIS , at *13 (requiring further particularization). 9

13 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 13 of 15 Similarly, the Superseding Indictment alleges Senator Skelos made statements to CW-1 and others that he would take detrimental action to real estate developers who did not support him by, among other things, making contributions to his campaign fund. (See Superseding Indictment, 12). However, it fails to identify the statements allegedly made by Senator Skelos and the others regarding this allegation. See United States v. Davidoff, 845 F.2d 1151, (2d Cir. 1988) (requiring the government to identify the alleged victims of extortionate schemes); United States v. Solnin, No. 12-cr-040, 2015 U.S. Dist. LEXIS 8358, at *35 (E.D.N.Y. Jan. 23, 2015) (ordering a bill of particulars requiring the Government to identify victims of an alleged fraud). As such, the government should be required to answer the following requests: 11. Specify the statements made by Dean Skelos to CW-1 and others that he would take detrimental action against real estate developers who did not support him by, among other things, making contributions to his campaign fund. (Superseding Indictment, at 12). 12. Specify the acts taken by Dean Skelos to foster[] the expectation that Dean Skelos would take official actions favorable to and would refrain from taking official action to the detriment of Developer-1 and the Environmental Technology Company. (Superseding Indictment, at 9). (Request for Particulars, 11-12). D. The Government Should Be Required To Identify The Documents And Communications That Support Its Allegations The government has made 33 productions consisting of 173 GB of data and 64 hours of recorded conversations. The production is well into the millions of pages. However, the government does not fulfill its obligation merely by providing mountains of documents to defense counsel who [a]re left unguided as to the charges against them. See United States v. Ghavami, No. 10-cr-1217, 2012 U.S. Dist. LEXIS 97931, at *9 10

14 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 14 of 15 (S.D.N.Y. July 13, 2012) (citing United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987) (holding that the government did not provide adequate notice of charges by producing mountains of documents to defense without specifying which documents were falsified)); United States v. Savin, No. 00-cr-45, 2001 U.S. Dist. LEXIS 2445, at *3, 9-10 (S.D.N.Y. Mar. 7, 2001) (in a conspiracy case the Court ordered a bill of particulars where the government produced 85 boxes of documents, which contained 100,000 pages because in order to adequately understand the nature of the charges against him, [Defendant] will be forced to comb through this veritable mountain of documents and to attempt to guess which are alleged by the government to have been improper). The fact that a defendant may have some, or even all the information requested, does not necessarily defeat his right to a bill of particulars... a defendant is presumed to be innocent and hence, [] it must be assumed he is ignorant of the facts on which the pleader founds his charges. United States v. Spur Knitting Mills, Inc., 187 F. Supp. 653, 654 (S.D.N.Y. 1960) (granting bill of particulars holding that the defendant is entitled to this information in order properly to prepare to meet the charges and to avoid surprise upon the trial. ). In United States v. Solnin, the Court held that disclosure by the government to the Defendant of the identities of the alleged victims and the corresponding s and/or items underlying the charged counts, is necessary to enable the Defendant to prepare for trial and to prevent surprise. No. 12-cr-040, 2015 U.S. Dist. LEXIS 8358, at *35 (E.D.N.Y. Jan. 23, 2015). Here too, the corresponding s and/or items underlying the charged counts are necessary to enable Senator Skelos to prepare for trial and to prevent surprise so the government should be forced to identify the documents it relies upon. See id. at *35. Given the sheer amount of documents provided to the defendants, the complexity and time period covered by the charges, and the nearing trial date of November 16, 2015, an 11

15 Case 1:15-cr KMW Document 23 Filed 09/04/15 Page 15 of 15 identification of the documents and communications that the government contends are unlawful is necessary to enable Senator Skelos and Adam Skelos to prepare for trial. CONCLUSION Senator Skelos and Adam Skelos respectfully request that their application for a bill of particulars be granted to ensure that they receive a fair opportunity to confront the charges against them and to prepare for trial. 11 Dated: September 4, 2015 New York, New York Respectfully submitted, By: /s/ G. Robert Gage, Jr. G. Robert Gage, Jr. Joseph B. Evans Gage Spencer & Fleming LLP 410 Park Avenue, Suite 900 New York, New York (212) Attorneys for Dean Skelos By: /s/ Christopher P. Conniff Christopher P. Conniff Alicia Giglio Suarez Jahmila D. Williams Ropes and Gray LLP 1211 Avenue of the Americas New York, New York (212) Attorneys for Adam Skelos 11 Defendants respectfully reserve the right to file further motions to dismiss the Superseding Indictment after receiving the specifications sought herein. 12