Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 1 of 7 VIA ECF Honorable Gregory H. Woods United States District Court Judge Southern District of New York 500 Pearl Street New York, NY 10007 Meringolo Law 375 Greenwich Street New York, New York 10013 (212) 941-2077 / (212) 202-4936 fax www.meringololaw.com December 4, 2018 Re: United States v. James Grant, et al., 16-CR-468 (GHW) Dear Judge Woods: On behalf of defendant James Grant in the above-captioned matter, we write in response to a letter motion, dated November 1, 2018, submitted by the City of New York s Law Department seeking to quash a subpoena served on Mayor William de Blasio. Per the Court s Order, we submit our response as we near the conclusion of Jona Rechnitz s testimony, which has provided us a more comprehensive basis on which to oppose the motion to quash. Furthermore, in the recent days, Mayor de Blasio has been publicly discussing Mr. Rechnitz, describing him as a very troubled person who s committed crimes and has lied incessantly. 1 By the Mayor s own public admissions, he has information about Mr. Rechnitz that is directly relevant to the issues here. For the following reasons, we submit that Mayor de Blasio s testimony is directly relevant to a number of matters to which Mr. Rechnitz testified and his testimony would not fall within any exclusion under Rule 403 of the Federal Rules of Evidence. While we assert that Mayor de Blasio s testimony is directly relevant under Rule 401, it can also be properly admitted as impeachment evidence, namely, to show Mr. Rechnitz s bias, and secondarily, to impeach by contradiction. Mr. Rechnitz s Testimony Relevant Facts Since the inception of this case, Mayor de Blasio s name has been inextricably intertwined with lead cooperator, Jona Rechnitz, due to Mr. Rechnitz s allegations that he engaged in illegal campaign donations and political corruption. Though not a charged act 1 See Exhibit A, De Blasio Won t Say Whether He Destroyed Emails in Alleged Bribery Scandal, New York Post, November 30, 2018. 1
Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 2 of 7 in the indictment, Mr. Rechnitz alleges to have committed these acts with Jeremy Reichberg. As Mr. Rechnitz stated under oath at his plea hearing: I also agreed with that same friend to make contributions and to arrange for contributions by others to political campaigns. I expected, based on an implicit understanding, that if I requested a favor or assistance from any of those officers or beneficiaries of my political contributions, that I would receive favorable treatment for myself and others as a result of my gifts and contributions With respect to political contributions, I expected for my conversations with the fundraiser that I would receive favorable municipal treatment. 2 An extensive (and very public) investigation was conducted as to Mayor de Blasio but no criminal charges were brought. The Mayor has openly acknowledged the allegations, and made public statements rebuking Mr. Rechnitz s claims, calling the cooperator a liar and a felon. 3 Nonetheless, based on Mr. Rechnitz s plea allocution as well as his testimony in prior proceedings, defense counsel had viable reason to believe that his alleged dealings with the Mayor would also be elicited on direct examination in the present case. As such, we subpoenaed Mayor de Blasio to appear and testify at trial as well as produce any and all communications in his possession between himself and Mr. Rechnitz. On behalf of Mayor de Blasio, the City of New York s Law Department promptly filed a motion to quash the subpoena. The motion asserts that the Mayor does not have unique first-hand knowledge of information regarding Mr. Rechnitz s credibility or character and in any event, the Mayor s testimony concerning Mr. Rechnitz s reputation for truthfulness should be excluded as cumulative. See Mayor de Blasio s Motion to Quash, dated November 1, 2018, at 2 (Dkt. #374). The motion further argues that any testimony that the Mayor could offer would be about collateral matters. Id. at 3. Because the full relevancy of the Mayor s testimony would not be realized until Mr. Rechnitz testified, the Court ordered defense counsel to respond to the motion to quash after Mr. Rechnitz s testimony concluded. Although Mr. Rechnitz, as of the date of this letter, is still on cross examination, he has testified about the Mayor quite considerably. His testimony serves as further reason why Mayor de Blasio s testimony is offered for reasons beyond impeachment purposes or character evidence. Rather, he will serve to directly rebut the testimony of Mr. Rechnitz that was elicited to form the background of the crimes charged. In this case, Mr. Rechnitz has testified (despite prior inconsistent testimony to the contrary) that Mr. Reichberg was involved with him in many of his schemes, one of 2 See United States v. Rechnitz, 16-CR-389 (RJS) (S.D.N.Y.) Plea Transcript, March 15, 2017. 3 See October 28, 2017 Transcript, Exhibit B of Mayor de Blasio s November 1, 2018 Motion to Quash (Dkt. # 374). 2
Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 3 of 7 which involved an attempt to curry favor with politicians. Tr. 2576. Originally a supporter of Bill Thompson for the Democratic mayoral candidate, Mr. Rechnitz testifies that [w]e got in with Bill de Blasio once he secured the party s nomination. Tr. 2578. Mr. Rechnitz testifies that, after meeting Mayor de Blasio s chief fundraiser, Ross Offinger, he began to raise money for the campaign with Mr. Reichberg. Tr. 2580. Aside from donating the maximum individual amount allowable, Mr. Rechnitz testifies that he and Mr. Reichberg committed to raising $100,000. Tr. 2584-5. In a meeting between Mr. Rechnitz, Mr. Reichberg, Mr. Offinger, and Fernando Mateo (the individual who introduced Mr. Rechnitz to Mr. Offinger), Mr. Rechnitz allegedly made clear that in exchange for the fundraising efforts, we wanted access, we wanted influence, and we wanted a lot of access. When we called, we wanted results. Tr. 2585. Mr. Rechnitz testifies that he developed a close relationship with Mayor de Blasio after an initial meeting at his office. As he states, [w]e were emailing each other, we would have phone calls, I d call him about his general issues in the city, and we had emails going back and forth with one another. Tr. 2586. Mr. Rechnitz concedes that although he had asked the Mayor about committees on which they wanted to be placed, they never spoke about actual results through his office. Tr. 2587. After Mayor de Blasio won the New York City mayoral election, Mr. Rechnitz describes him and Mr. Reichberg as being excited because they were very substantial donors, had an in with his chief fundraiser, and had their own relationship with Bill de Blasio at that point. Tr. 2587. Mr. Rechnitz and Mr. Reichberg were subsequently appointed to an inaugural committee. Mayor de Blasio also asked Mr. Rechnitz to donate to a campaign to keep the New York State Senate under Democratic control, to which Mr. Rechnitz donated the maximum allowable amount of $102,000 to have the effect that I m his guy. Tr. 2589. Mr. Rechnitz further testified to various private matters to which the Mayor allegedly offered his assistance such as: a vacate notice served on his wife s cousin who ran a preschool; a friend who owned a building identified as a potential location for a police precinct and wanted to sell without giving the NYPD first right of refusal; and a friend who was receiving incorrect water bills. Tr. 2590-2591. Mr. Rechnitz sought assistance for his own issues as well, when a tenant of his was illegally renting his property on AirBnB. Tr. 2591. Mr. Rechnitz surmised that he violated election laws when donating to Mayor de Blasio s campaign because he obtained the money through straw donors who he was illegally reimbursing. Tr. 2592. Mr. Rechnitz alleges that Mr. Reichberg was aware of these activities and that they were part of it together. As part of his scheme to influence, Mr. Rechnitz also testified that he had numerous discussions with Mayor de Blasio about former NYPD Chief of Department, Philip Banks. In light of his relationship with the Chief and his desire to get close with high ranking NYPD officials, Mr. Rechnitz extensively lobbied to have Mr. Banks promoted to Police Commissioner. As Mr. Rechnitz testified: I met and emailed Mayor de Blasio several times about making Phil Banks the next commissioner, we thought that 3
Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 4 of 7 he was a good choice, and we had communicated that to him on several occasions. Tr. 2860. The government admitted into evidence several emails between Mr. Rechnitz and the Mayor discussing the possibility of Mr. Banks becoming the Police Commissioner. See GX1038, 1039, 1041, and 1050. Mr. Banks eventually resigned upon the Mayor s choice of William Bratton for the Police Commissioner position. Despite Mr. Rechnitz s email pleas to the Mayor on behalf of Mr. Banks, he could not get his position as Chief of Department back. Aside from its substance, this portion of testimony is particularly relevant because it exposed emails that the press claims the Mayor s office failed to produce in response to last year s Freedom of Information Law requests. Since Mr. Rechnitz s testimony, news outlets have been pointing out the discrepancies and deletions between the government exhibits and the Mayor s previous email productions. 4 During his weekly appearance on WNYC Radio, in response to the question of whether he deleted certain emails with Mr. Rechnitz, the Mayor responded that: I get lots of emails and anything consequential, anything that has to do with government business, we try and move it over to the government side, preserve the ones that need to be preserved. 5 It is unknown the extent to which the Mayor s email communications with Mr. Rechnitz has been preserved or deleted. The Existing Emails Between Mayor de Blasio and Mr. Rechnitz Issues of deletion aside, there are numerous emails between Mayor de Blasio and Mr. Rechnitz that illustrate that a relationship existed between the two that would put Mayor de Blasio in a position to offer relevant testimony. As extracted from Mr. Rechnitz s email account, the Mayor sent him an email, dated January 1, 2014 (the day of his inauguration), thanking him for his support. As the Mayor states: Today we celebrated our dream. I couldn t be more proud to have you by my side. Thank you for your support and more importantly, your friendship. Please call me tomorrow to setup a meeting for early next week. I need you to accept the position I offered you. Love you brother. See Exhibit B at 1. The Mayor also sent Mr. Rechnitz his well wishes on June 2, 2014 upon Mr. Rechnitz welcoming a new baby. Id. at 2. Along with a Happy Thanksgiving message sent on November 26, 2013, the then Mayor-elect directed Mr. Rechnitz to Please call me when you can. Important! Id. at 4. In addition, pursuant to defense counsel s subpoena request for communications, the Mayor s office has provided a number of email exchanges between Mayor de Blasio and Mr. Rechnitz. Although heavily redacted, the emails demonstrative the nature of their relationship and consist of, among others, the following 6 : 4 https://www.nytimes.com/2018/11/29/nyregion/emails-bill-de-blasio-rechnitzdonors.html 5 https://nypost.com/2018/11/30/de-blasio-wont-say-whether-he-destroyed-emails-inalleged-bribery-scandal/ 6 All emails collectively referred to as Exhibit C. 4
Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 5 of 7 1) A January 8, 2014 email from Mr. Rechnitz to Mayor de Blasio suggesting that he attend the NYPD s Compstat meetings (as well as a follow-up email on February 25, 2014 in which Mr. Rechnitz states, Heard you took my suggestion. ) 2) A February 26, 2014 email invitation inviting Mr. Rechnitz to a Gracie Mansion reception; 3) Two emails dated April 1, 2014 from Mr. Rechnitz to Mayor de Blasio offering a suggestion for the Department of Buildings Commissioner; 4) An April 28, 2014 email from Mr. Rechnitz requesting to be on a committee that combats police corruption; 5) A June 29, 2014 email from Mr. Rechnitz asking When do I start? on the commission to combat police corruption; 6) A September 30, 2014 email from Mr. Rechnitz asking if Mayor de Blasio would like him to set up a meeting with Prime Minister Netanyahu. Mayor de Blasio s Personal Knowledge is Relevant to the Facts at Issue As a lay witness, testimony in the form of an opinion is admissible if it is rationally based on the witness s perception and helpful to determining a fact in issue. Fed. R. Evid. 701. Based on Mayor de Blasio s emails alone, it is inarguable that he shared a relationship with Mr. Rechnitz the exact nature of which is in dispute and as such, possesses personal knowledge as to that relationship. Most concerning, because it has now been established that the Mayor did not preserve a number of emails, he is the only person who can testify about the exact nature of these communications. We submit that the Mayor s personal perceptions of Mr. Rechnitz and the nature of their relationship is relevant to several facts at issue. The Federal Rules of Evidence permit the introduction of relevant evidence that is, evidence that has any tendency to make a fact more or less probable than it would be without the evidence; and... is of consequence in determining the action. Fed. R. Evid. 401. To be relevant, evidences need only tend to prove the government s case, and evidence that adds context and dimension to the government s proof of the charges can have that tendency. United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997). Evidence is relevant as direct 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) (internal quotation marks omitted) (quoting United States v. Gonzalez, 110 F.3d at 942). Evidence of bad acts may similarly be admitted as direct evidence of the crime charged when it is offered to provide the jury with the complete story of the crimes charged such as when the evidence demonstrates the context of certain events relevant to the charged offense. United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994). Such evidence is instead direct evidence of the charged crime. United States v. Martoma, 2014 WL 31191 at *2 (S.D.N.Y. Jan. 6, 2014). 5
Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 6 of 7 In the instant matter, Mr. Rechnitz s testified that he violated the election laws together with Mr. Reichberg. The purpose of this testimony, which is obviously prejudicial to Mr. Grant as a co-defendant, was admitted, among other motives, to establish background evidence of Mr. Rechnitz s relationship with Mr. Reichberg. However, in light of Mr. Rechnitz s plea allocution, which lumps together the bribery of NYPD officers and politicians in one hodgepodge assortment of honest services fraud, the illegal campaign donations go beyond mere background evidence or prior bad acts. Rather, this activity is a crime to which Mr. Rechnitz pled guilty, and according to his testimony, a scheme conducted in coordination with Mr. Reichberg for the same purpose and with the same motive as the alleged bribery of NYPD officers. As such, any allegations against the Mayor are inexplicably intertwined with the evidence admitted concerning the instant offenses. The complexity of this multi-faceted conspiracy is further compounded by the fact that Mr. Rechnitz s testimony is false. As defense counsel has stated on numerous occasions, it does not believe that Mr. Rechnitz s interactions with Mayor de Blasio constitute bribery or any other illegal conduct. Aside from sweeping generalities, Mr. Rechnitz does not offer specific testimony that in exchange for his donations, the Mayor acted in his official capacity to remedy any particular personal dispute. Rather, he was put in touch with different departments to get an answer to questions. Tr. 2591. In other words, Mr. Rechnitz was given the same treatment that any other civilian would ostensibly receive when contacting the Mayor s office with a problem. Based on the Mayor s public comments, we expect him to testify that no official acts, as defined by the governing honest services fraud laws, were undertaken in exchange for bribes or donations. This would discredit Mr. Rechnitz s entire testimony concerning his alleged political corruption schemes while also calling into question the propriety of his plea allocution. In addition, the Mayor s rebuttal of Mr. Rechnitz s version of events would be directly relevant to the larger fact at issue whether Mr. Rechnitz and Mr. Reichberg conspired together in a bribery scheme. Because the alleged bribery of NYPD officers and politicians was presented in such an intertwined light with Mr. Rechnitz and Mr. Reichberg working together to gain access and results in both instances it follows that evidence discrediting one scheme is relevant to the discrediting of the other. Therefore, Mayor de Blasio s personal knowledge as to his relationship with Mr. Rechnitz is extremely relevant to the crimes charged. Although Rule 403 of the Federal Rules of Evidence may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence, Fed. R. Evid. 403, the Mayor s motion to quash does not articulate any particular exclusionary basis but for the assertion his testimony would be cumulative. However, as explained above, the Mayor s testimony is sought for the exact opposite reason his personal knowledge is so unique and unavailable through other witnesses that his appearance is necessary and indispensible. Therefore, we submit no justifiable exclusion applies. 6
Case 1:16-cr-00468-GHW Document 444 Filed 12/04/18 Page 7 of 7 Mayor de Blasio s Testimony Impeaches Mr. Rechnitz The Mayor s motion to quash alleges that his testimony would be used for impeachment purposes on a collateral matter. We submit this reasoning is incorrect. Any party, including the party that called the witness, may attack the witness s credibility. Fed. R. Evid. 607. While extrinsic evidence offered for impeachment on a collateral issue is usually excludable, United States v. Purdy, 144 F.3d 241, 245 (2d Cir. 1998), the bias of a witness is not collateral and can be proven by extrinsic evidence. United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976). Similarly, extrinsic evidence can be used to contradict a witness s prior testimony. United States v. Beverly, 5 F.3d 633, 639 (2d Cir. 1993). While we maintain that the Mayor s testimony is a rebuttal to direct evidence that forms the basis and background of the crimes charged, it also serves a secondary purpose of directly contradicting Mr. Rechnitz s testimony. Namely, the Mayor will be contradicting Mr. Rechnitz s assertion that a bribery scheme existed and that he received any special treatment or official mayoral action in exchange for his donations. Likewise, we expect the Mayor s testimony to also shed light on Mr. Rechnitz s own biases and motives. As evident in their email exchanges, Mr. Rechnitz was, by all accounts, desperate to be politically influential. As he already testified, the appearance of wealth and power was extremely important to him. His conduct was largely dictated by this motive. As such, it is very likely that the Mayor s testimony will further expose Mr. Rechnitz s underlying biases and true reasons for cooperating. Lastly, though we believe the Mayor s testimony has direct relevancy above and beyond opinions on character, we submit that his testimony would nonetheless be proper to establish Mr. Rechnitz s character. Under Rule 405, evidence of a person s character can be proved by testimony about his reputation or in the form of opinion. Mayor de Blasio s personal wealth of information on Mr. Rechnitz makes him an ideal candidate to testify about such matters. Again, while we submit the Mayor s testimony will be elicited for purposes of its direct relevancy to the crimes charged, it would be permissible, despite the Mayor s assertion to the contrary in his motion to quash, to also offer opinions as to Mr. Rechnitz s character. Conclusion For the foregoing reasons, we respectfully request that the Court deny Mayor William de Blasio s motion to quash. Respectfully submitted, /s/ John Meringolo, Esq. CC: All counsel (via ECF); the New York City Law Department (via email) 7