Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 1 of 33 PageID: 3456 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Honorable Susan D. Wigenton, United States District Judge UNITED STATES OF AMERICA v. Crim. No. 15-193 WILLIAM E. BARONI, JR. and BRIDGET ANNE KELLY BRIEF IN SUPPORT OF MR. BARONI’S FIRST SET OF IN LIMINE MOTIONS BALDASSARE & MARA LLC 570 Broad Street, Suite 900 Newark, New Jersey 07102 (973) 200-4066 On the brief: Michael Baldassare, Esq. Jennifer Mara, Esq. Dillon Malar, Esq. Attorneys for Defendant William E. Baroni, Jr. i Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 2 of 33 PageID: 3457 TABLE OF CONTENTS I. PRELIMINARY STATEMENT ....................................................................................... 1 II. THE JERSEY CITY ALLEGATIONS SHOULD BE EXCLUDED FROM EVIDENCE AT TRIAL. ................................................................................................... 3 A. B. Background ............................................................................................................ 3 1. The Indictment ........................................................................................... 3 2. Governor Christie’s Connection to the Jersey City Allegations. ............... 3 3. The Government’s Pattern of Blaming Mr. Baroni and Ms. Kelly for the Actions of Others............................................................................ 8 THE JERSEY CITY ALLEGATIONS SHOULD BE EXCLUDED FROM EVIDENCE. ............................................................................................ 11 III. THE VIDEO OF MR. BARONI’S TESTIMONY BEFORE THE LEGISLATURE SHOULD BE EXCLUDED PURSUANT TO RULE 403.................. 15 IV. ADDITIONAL MATTERS THAT SHOULD BE EXCLUDED FROM EVIDENCE...................................................................................................................... 17 A. V. VI. Mr. Foye’s Email ................................................................................................. 17 1. Mr. Foye’s Opinion Regarding the Ultimate Issue in this Case .............. 17 2. Mr. Foye’s Hyperbolic and Self-Serving “Concerns” ............................. 20 B. The 9/11 Photographs .......................................................................................... 20 C. “Serbia” ................................................................................................................ 22 D. Evidence Regarding an Alleged Conversation from March 2011 Should Be Excluded Under Rules 401, 402 and 403. ...................................................... 23 E. Helix and Construction Projects .......................................................................... 24 F. Ambulance Reports .............................................................................................. 25 G. Alleged School Delays ......................................................................................... 26 H. Missing child ........................................................................................................ 27 THE PROTECTIVE ORDER SHOULD BE LIFTED .................................................... 28 A. Introduction .......................................................................................................... 28 B. Good Cause No Longer Exists for the Blanket Protective Order ........................ 29 CONCLUSION ................................................................................................................ 31 i Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 3 of 33 PageID: 3458 I. PRELIMINARY STATEMENT Mr. Baroni submits this brief in support of his first set of in limine motions. The government’s pre-marked trial exhibits reveal a troubling strategy: try this case about anything and everything but Fort Lee. The government hopes to present the jury with weeks of extraneous testimony and documents, widen the scope of the evidence well beyond what is alleged in the Indictment, and lay the actions of everyone at Mr. Baroni’s feet, all the while ignoring everything that contradicts the government’s premature (and now calcified) belief of what really happened. For example, the government plans to introduce evidence from two and a half years before the alleged conspiracy began. The government wants to use every bit of irrelevant and prejudicial evidence possible, such as photographs of Mr. Baroni and others at the 9/11 Memorial Service in 2013. The government has marked dozens of exhibits related to construction in Weehawken and the upper deck of the GWB. In the Sections that follow, Mr. Baroni demonstrates why the Court should exclude all such evidence. In sum, this case should be tried based upon the allegations in the Indictment, not a pot pourri of information cobbled together from an investigation that, in the end, could not locate a viable federal prosecution. More troublingly, the government wants to blame Mr. Baroni for actions that others have already acknowledged weere not his doing. Thus, the fact that Governor Christie and others have stated that the Governor is responsible for cancelling meetings with Mayor Fulop does not matter to the prosecution. The government plans to blame Mr. Baroni. All this is even more problematic given what the government continues to ignore. Merely by way of example, the government does not want to try this case based upon things like a key text conversation between Governor Christie’s Director of Intergovernmental Affairs Christina Genovese Renna and Peter Sheridan, a staffer on Governor Christie’s re-election campaign (“CCFG”), during the Governor’s December 13, 2013 press conference: 1 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 4 of 33 PageID: 3459 Reporter: Governor, can you say with certainty that someone else didn’t on your staff or in your administration act on your behalf for the lane closures for political retribution? Governor Christie: Yeah, I have absolutely no reason to believe that, Angie, and I’ve made it very clear to everybody on my senior staff that if anyone had any knowledge about this that they needed to come forward to me and tell me about it, and they’ve all assured me that they don’t. Follow up: Your campaign chief? Governor Christie: Oh yeah. I’ve spoken to Mr. Stepien, who’s the person in charge of the campaign, and he has assured me the same thing. Contemporaneously, Ms. Renna had the following text exchange with Mr. Sheridan: Ms. Renna: “Are you listening? He just flat out lied about senior staff and Stepien not being involved.” Mr. Sheridan: “I’m listening.” Mr. Sheridan: “Gov is doing fine. Holding his own up there.” Ms. Renna: “Yes. But he lied. And if emails are found with the subpoena or ccfg emails are uncovered in discovery if it comes to that it could be bad.” D11. The government plans to admit irrelevant information while ignoring such texts (of which there are many). So too does the government plan to call witnesses like Ms. Renna with the hopes that the defense will not figure out what appears to be clear: that Ms. Renna deleted the above exchange after the Legislature had issued seven subpoenas, that she never told the Legislature about the texts, and that she testified under oath before the Legislature in a manner not consistent with the existence and deletion of those texts. The Court has broad discretion to ensure that Mr. Baroni is tried based upon actual evidence related to the Indictment. The relief requested herein will help ensure precisely that. These motions should be granted in their entirety. 2 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 5 of 33 PageID: 3460 II. THE JERSEY CITY ALLEGATIONS SHOULD BE EXCLUDED FROM EVIDENCE AT TRIAL. A. Background 1. The Indictment The government plans to introduce a great deal of evidence regarding the cancellations of certain meetings between the Governor’s Office/Port Authority and Jersey City Mayor Steven Fulop (the “Jersey City allegations”). The Indictment contains two sentences on this issue: “Wildstein’s mention of ‘Fulop’ [in a text] referred to the coordinated and deliberate refusal by the Conspirators to communicate with, meet, or respond to Steven Fulop, the Mayor of Jersey, beginning in or about late July 2013 because the Conspirators understood that Mayor Fulop was not endorsing Governor Christie’s reelection.” [ ] “‘[P]ull a faps’ referred to defendant BARONI’s and Wildstein’s strategy of scheduling a meeting that they intended all along to cancel, as they did with FAPS, Inc. (“FAPS”), a Port Authority tenant, to punish Mayor Fulop, who had represented FAPS.” Ind. at 13, 21. The Indictment has no charges based upon the Jersey City allegations. Counts One and Three allege the same single-object conspiracy: punish Mayor Sokolich for not endorsing Governor Christie for re-election. Ind. at 5. Neither of those alleged conspiracies rests on an overt act related to the Jersey City allegations. Ind. at 24-27. Count Two alleges the misuse of Port Authority property to punish Mayor Sokolich. Ind. at 28. Counts Four through Seven allege wire fraud offenses related exclusively to Fort Lee. Ind. at 31-32. Counts Eight and Nine allege civil rights violations limited to Fort Lee. Ind. at 33-36. Thus, the Jersey City allegations are truly tangential to all counts and their elements. 2. Governor Christie’s Connection to the Jersey City Allegations. The government attributes the Jersey City allegations to David Wildstein, Mr. Baroni, Ms. Kelly and the remaining “Conspirators.” Ind. at 5, 13. Thus, for the purpose of allocating criminal liability, the Jersey City allegations may only be attributed to conspirators. 3 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 6 of 33 PageID: 3461 As set forth in Mr. Baroni’s brief in support of his discovery motions, Governor Christie has acknowledged that he directed the cancellation of the meetings: Governor Christopher J. Christie advised, in substance, that: (1) after he learned that a number of his cabinet members were planning to go to Jersey City to meet with Mayor Steven Fulop, he expressed the view, although he did not recall to whom, that he did not think that the meetings needed to occur because Mayor Fulop did not merit any kind of special treatment; (2) Mayor Fulop was not a friend or an ally and was an adversary of New Jersey State Senate President Stephen Sweeney; and (3) Governor Christie did not want the meetings with Mayor Fulop to have an adverse impact on his own relationship with Senate President Sweeney. Gov’t July 22, 2015 Ltr. at 12, ¶ 3.a. 4 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 7 of 33 PageID: 3462 Moreover, the government’s pre-marked trial exhibits (when coupled with testimony and statements provided to the defense) corroborate Governor Christie’s recollection that he directed the actions, statements and inaction that comprise the Jersey City allegations. For example: On Sep 25, 2012, at 9:37 PM, Bill Stepien wrote: Continue throwing the Gov/my name around when discussing this with him (assuming it's going to end well, of course) - it's important he associate a successful conclusion to this with us From: David Wildstein 5 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 8 of 33 PageID: 3463 Sent: Tuesday, September 25, 2012 8:49 PM Subject: Fwd: FAPS Begin forwarded message: From: Steven Fulop wrote : I hope it's voidable ....pending what happens next year Thanks a lot – I know it was a pain in the ass. From: David Wildstein Bill. Thanks for your help today. It is really appreciated.Talk soon > Sent from my Verizon Wireless Blackberry 6 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 9 of 33 PageID: 3464 D9. From: To: Bill Stepien Good to hear. I give him less of a chance than most of our other targets....quite the snake. We'll see....you can't say we haven't tried! From: David Wildstein Sent: Subje ct: 9/3/2013 8:07:32 AM Re: POLITICOs Morning Score: All eyes on Syria 1 week to New York mayoral primary Paul to stump for Lonegan Christies matching funds DeMaio leaves House race Ready for Hilary readies for 2014 David Wildstein Kill it On Sep 3, 2013, at 7:24 AM, David Wildstein m> wrote: _ I have a faps meeting t his week and suspec t they will leave unhappy On Sep 3, 2013, at 7:01 AM, Bill Stepien wrote: O'Toole is mtg w him today. At his request, so he's feeling the heat. Continue to shut him out til further notice . On Sep 3, 2013, at 6:55 AM, David Wildstein > wrote: What is Fulop status?? On Sep 3, 2013, at 6:38 AM, Bill Stepien wrote: D4. 7 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 10 of 33 PageID: 3465 From: To: Sent: Subject : David Wildstein < m> Bill Stepien wrote: > It went fine.Fulop is clearly in over his head. Kevin, if you believe him,simply told him the facts of life without making ahard push for his support (which I don't care about anymore). > > Stevealso clearlycaresmost about the PortAuthority. Which we need to continue to show him off from. > > Steve left saying to Kevin 4 or 5 times, "you've given me a lot to think about” As Kevin outlined howa good relationshipwith thegovernor isbeneficial for hisfutureambition > >On Sep 3,2013,at 9:46 PM,David Wildstein » http://www.politickernj.com/68050/morris-gop-chairman-takes -freeholder-candidate-his-own-party >> Now Iam going to vote forMastrangelo. >> » How.did O’Toole/Fulopsummit go? D5. 3. The Government’s Pattern of Blaming Mr. Baroni and Ms. Kelly for the Actions of Others. The Jersey City allegations demonstrate the government’s desire to try this case based upon anything and everything unrelated to Fort Lee, as well as the government’s decision to consistently ignore all statements, actions and evidence that do not fit with its preconceived notions regarding the lane realignment. For the following three reasons, the Court should decline the government’s request to stray far afield from the allegations set forth in the Indictment. First, consider the amount of time, energy, witness testimony and exhibits that the government plans to present regarding the Helix and Construction issues, the alleged March 2011 conversation, and untold testimony and exhibits from 2012 (which the government exempted Gibson Dunn from producing). According to the government, everything that happened at the Port Authority while Mr. Baroni worked there may now be laid at his feet. According to the government, everything is relevant no matter how temporally or factually 8 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 11 of 33 PageID: 3466 attenuated it is from the lane realignments. The government does not want to focus on Fort Lee. Rather, the government wants to present the jury with a mountain of other information in the hopes that – during its three week presentation of evidence – the jury will be confused and overwhelmed. When deciding these motions, the Court should remain cognizant of that strategy and thwart it at every turn. Second, the Jersey City allegations are no more than a distraction, inserted into this case to move the focus from what the government ignored. The Court should not permit that to happen. Consider, for example, the text exchange between Christina Genovese Renna and Peter Sheridan that occurred contemporaneously with Governor Christie’s December 13, 2013 press conference.2 Reporter: Governor, can you say with certainty that someone else didn’t on your staff or in your administration act on your behalf for the lane closures for political retribution? Governor Christie: Yeah, I have absolutely no reason to believe that, Angie, and I’ve made it very clear to everybody on my senior staff that if anyone had any knowledge about this that they needed to come forward to me and tell me about it, and they’ve all assured me that they don’t. Follow up: Your campaign chief? Governor Christie: Oh yeah. I’ve spoken to Mr. Stepien, who’s the person in charge of the campaign, and he has assured me the same thing. Interim Report of New Jersey Legislature, Reid J. Schar (December 8, 2014). At the exact moment that Governor Christie spoke those words, Ms. Renna had the following text exchange with Peter Sheridan: Ms. Renna: “Are you listening? He just flat out lied about senior staff and Stepien not being involved.” Mr. Sheridan: “I’m listening.” Mr. Sheridan: “Gov is doing fine. Holding his own up there.” 2 December 13, 2013 saw a great deal of activity. For a detailed timeline, see the Interim Report at 104-07. Available at www.njleg.state.nj.us/legislativepub/lsi_report.asp. 9 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 12 of 33 PageID: 3467 Ms. Renna: “Yes. But he lied. And if emails are found with the subpoena or ccfg emails are uncovered in discovery if it comes to that it could be bad.” D11.3 The government has ignored these texts notwithstanding the content (the import of which is obvious) and the attendant circumstances. For example:  All available information strongly indicates that Ms. Renna deleted those texts and never turned them over to the Legislature or the U.S. Attorney’s Office. For example, the texts produced by Ms. Renna between Mr. Sheridan and her stop on October 26, 2013 and start again on December 19, 2013. Thus, there are 54 days of texts missing from Ms. Renna’s response to the Legislature’s and federal grand jury subpoenas. Interestingly, Ms. Renna’s texts with other people are not missing between those dates. Mr. Sheridan’s document production (where these Rennadeleted were discovered) contains the full text exchange, as well as many others from before and after December 13, 2013. D11.  While under oath before the Legislature, Ms. Renna testified, “I didn’t hold anything back with Chris Porrino, didn’t hold anything back with Gibson Dunn, not holding anything back today.” Of course, Ms. Renna did hold something back from Mr. Porrino: her texts stating that the Governor lied. Ms. Renna held those texts back from Gibson Dunn and stated that Renna recalled listening to the Governor’s December 13, 2013 press conference but she was doing other things and was not watching closely. D20. As for holding back from the Legislature, Ms. Renna did not disclose the texts in 3 The time stamp differs from the time of the press conference because the texts are tracked with UTC time. 10 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 13 of 33 PageID: 3468 which she repeatedly states that the Governor lied. She also did not disclose that she deleted them.  It is unclear when Ms. Renna deleted the texts, i.e., whether was it before or after the U.S. Attorney’s Office publicly announced its investigation on January 9, 2014, or before or after she received her grand jury subpoena. The government has produced no forensics from Ms. Renna’s phone to demonstrate that a search for the deletion date was conducted. In any event, it is certain that at the time the texts were deleted there were seven subpoenas outstanding from the legislature, i.e., the December 12, 2013 document subpoenas to Wilstein, Baroni, Nunziato, Foye, Fulton, Licorish, and Durando. See Interim Report at 100. As such, a subpoena was in place at the time of the deletion.  Gibson Dunn never asked Governor Christie, Ms. Renna, Mr. Sheridan or Ms. Egea about these texts.   Interestingly, when Ms. Renna chose to disclose an email she had deleted on December 13, 2013, she brought it to the attention of Regina Egea who, as is well known, deleted numerous texts she exchanged with Governor Christie during critical moments of PA employees before the Legislature. B. THE JERSEY CITY ALLEGATIONS SHOULD BE EXCLUDED FROM EVIDENCE. The Federal Rules of Evidence, “should be construed … to the end of ascertaining the truth and securing a just determination.” Fed. R. Evid. 102. When coupled with the Rules applied in the following discussion, Rule 102 presents the most basic reason why the Jersey City allegations should be excluded. First, Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 14 of 33 PageID: 3469 Second, and not surprisingly given that the Indictment has a mere two sentences on this topic, the Jersey City allegations are inadmissible under Rules 401 and 402, i.e., those allegations are not relevant. No count is based upon those allegations. No overt act is alleged related to the Jersey City allegations. Those allegations stem from events orchestrated by Governor Christie. Those allegations are focused for the most part on a timeframe before the alleged conspiracy began on August 13, 2013. The allegations relate to a different town. When coupled with the first reason, supra, it is clear that the Jersey City allegations are simply not relevant to a single element of a single count in the Indictment. Third, even if otherwise admissible, the Jersey City allegations are inadmissible under Rule 403, which states: The court 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. A district court has “broad discretion to determine the admissibility of relevant evidence in response to an objection under Rule 403.” United States v. Balter, 91 F.3d 427, 442 (3d Cir. 1996). That discretion is exercised engaging in a balancing test, and “[l]ike any balancing test, the Rule 403 standard is inexact, requiring sensitivity on the part of the trial court to the subtleties of the particular situation.” United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986). The inquiry “to determine if evidence is prejudicial also requires a factintensive, context-specific inquiry.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 12 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 15 of 33 PageID: 3470 (2008). In addition to weighing the factors set forth in the rule, the court should “plac[e] the result of that assessment alongside similar assessments of evidentiary alternatives.” Old Chief v. United States, 519 U.S. 172, 185 (1997) (citing 1 McCormick 782, and n. 41 (suggesting that Rule 403’s “probative value” signifies the “marginal probative value” of the evidence relative to the other evidence in the case); 22 C. Wright & K. Graham, Federal Practice and Procedure § 5250, pp. 546–547 (1978) (“The probative worth of any particular bit of evidence is obviously affected by the scarcity or abundance of other evidence on the same point”)). The Jersey City allegations have minimal, if any, probative value. Much of the evidence precedes August 13, 2013, the date on which the alleged conspiracy purportedly began. The Indictment alleges no overt acts regarding Jersey City. No charged offense has anything resembling a pattern requirement as in a RICO offense. The Jersey City allegations claim a quid pro quo (preferential treatment for FAPS in exchange for an endorsement), while the Indictment charges retribution for a failure to endorse. That distinction is significant because the former, if proven, would establish criminal liability on both sides of the equation, whereas the latter would seem – at this juncture – to limit criminal liability to one side. And, as noted, Governor Christie’s role in the events upon which the Jersey City allegations are based demonstrate that those allegations are minimally – if at all – probative of the charges. Against this scant probative value, the Court must evaluate the danger for unfair prejudice, confusion and a waste of time. As the Supreme Court has explained, “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief, 519 U.S. at 180 (citing J. Weinstein, M. Berger, & J. McLaughlin, Weinstein’s Evidence ¶ 403[03] (1996)). The Jersey City allegations are not “specific proof to the offense charged,” because, as noted, all the counts focus on Fort Lee from on and August 13, 2013, rather than starting in the fall of 2012. The offenses charged contain no pattern requirement. Indeed, it appears that the Jersey City allegations make claim of a different crime, quid pro quo (a FAPS deal for an endorsement), involving others and not Mr. Baroni and 13 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 16 of 33 PageID: 3471 Ms. Kelly. And, of course, permitting the jury to hold the Governor’s actions against Mr. Baroni and Ms. Kelly is precisely the type of “improper basis,” against which Rule 403 protects. See Fed. R. Evid. 403 advisory committee’s note. The Governor’s role in, and the potentially criminal liability of others stemming from the Jersey City allegations will tend “to affect adversely the jury’s attitude toward [Mr. Baroni and Ms. Kelly] apart from its judgment as to [their] guilt or innocence of the crime charged.” United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). For all these reasons, the jury should not be invited, therefore, to consider the Jersey City allegations when determining whether the government has proven its case beyond a reasonable doubt.4 Lastly, the Jersey City allegations are a waste of time in what will be a long trial in any event. There is no need for additional exhibits and witnesses on an issue so minimally probative. To the extent this trial is unnecessarily lengthened, it will inure to the defendant’s detriment, not the government’s. That is so because the defense case comes last and the longer the jury has been seated, the more they want to go back to their lives. If the Jersey City allegations add even three or four days to the trial, it is too much and come the close of the government’s case, will prejudice the defendants. Given the scant probative value, this waste of time carries significant weight and warrants exclusion of the Jersey City allegations. * * * * For all these reasons, the Jersey City allegations should be excluded from evidence. This exclusion should extend to testimony as well as the pre-marked trial exhibits. 4 This analysis supports excluding the Jersey City allegations based on concerns for jury confusion. 14 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 17 of 33 PageID: 3472 III. THE VIDEO OF MR. BARONI’S TESTIMONY BEFORE THE LEGISLATURE SHOULD BE EXCLUDED PURSUANT TO RULE 403. On November 25, 2013, Mr. Baroni testified before the New Jersey Legislature.5 The government claims that during that testimony Mr. Baroni made false statements as part of a “cover-up.” Mr. Baroni’s testimony was fully transcribed and fully recorded (audio), while portions of it were taken on two videos. The audio recording is the official record made for and maintained by the Legislature. Neither the portions of the videos nor the transcription are the official record. For the following reason, the videos should be excluded from evidence under Rule 403. Mr. Baroni’s testimony before the Legislature is relevant; however, the incomplete videos are the least probative version of that testimony. The videos are not complete. Nor are they taken on a stationary camera. Indeed, one version continually focuses on a blond woman in the audience and moves all about the room. The government wants to show the jury the video for one reason and one reason only: combative. in the sphere of political theater, Mr. Baroni looks The back-and-forth between Mr. Baroni and, for example, Assemblyman Wisniewski is politics, plain and simple. Their facial expressions, arm gestures and body language are not, in any way, probative. Indeed, the interaction between Mr. Baroni and the politicians is no more than attorneys fighting it out in court only to have a drink together that evening. But the government wants to show it to the jury because the video – in the eyes of the government – just makes Mr. Baroni look bad. It is not his words that interest the government, but everything else, all of which is unduly prejudicial. The words are what matter. Mr. Baroni is not charged with being aggressive and defending himself against attacks from politicians who do not like him or who want to put on a show for the cameras in a high-profile matter. The words are probative. And in this setting, the most probative version of those words are on the complete official record made and maintained 5 A copy with the two videos the government wants to play for the jury will be supplied directly to Chambers. 15 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 18 of 33 PageID: 3473 by the Legislature: the audio recording. That is what the jury should hear to determine whether or not Mr. Baroni’s testimony helps the government carry its burden. On the other side of the 403 balancing come the certainty of delay and waste of time. If the jury is to see the sparring on that video, Mr. Baroni will show the jury numerous other twohour videos with similar aggression from the legislators, witnesses and so on. In other words, Mr. Baroni will be forced to put that video in context and that, indeed, will take hours. Under no circumstances should the government show the jury that video in a vacuum. Mr. Baroni will be forced to subpoena numerous legislators to trace the prior relationships between Mr. Baroni and those interrogating him. That will give the necessary context to the video. Mr. Baroni will need others to explain just what happens at the hearings with respect to the press there, the reporting, and how the political winds and deals affect the public spectacle of democracy. Context will take precious time, wasted because there is a more probative, less prejudicial and more expeditious way to present Mr. Baroni’s testimony to the jury. 16 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 19 of 33 PageID: 3474 IV. ADDITIONAL MATTERS THAT SHOULD BE EXCLUDED FROM EVIDENCE. The following exhibits and testimony regarding the following topics should be excluded from evidence:  The portions of Government Exhibit 1131, in which Patrick Foye proclaims his opinion that state and federal laws were broken (i.e., the ultimate issue for the jury), as well as his hyperbolic, unfounded, and self-serving concern that patients were delayed getting to a hospice facility. D16.  Government Exhibits 1104 and 3014-3046, contain photographs from the September 11, 2013 9/11 Memorial Service.  The portions of Government Exhibits in which Mayor Sokolich is referred to as “Serbia.”  Government Exhibit 2095, the 141 pages of ambulance reports from the week of the closures. (Not included here for HIPAA concerns, but available for delivery to Chambers.)  Claims that children in Fort Lee were late for school based upon the lane realignments. The bases upon which each of these should be excluded are discussed in the following Sections. A. Mr. Foye’s Email 1. Mr. Foye’s Opinion Regarding the Ultimate Issue in this Case On the morning of September 13, 2013, Patrick Foye circulated an email regarding the lane realignment. D16. In the email, Mr. Foye states, “I believe this hasty and ill-advised decision [to reduce the lanes from three to one] violates Federal Law and the laws of both states.” Mr. Baroni asked the government to redact this sentence based on the reasons set forth below. The government refused, necessitating a motion for something that, in all candor, the 17 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 20 of 33 PageID: 3475 prosecution should have readily agreed to given the black letter law demonstrating that Mr. Foye’s opinion is inadmissible. While reserving all rights to challenge the admission of this document at trial, the aforementioned sentence regarding federal and state law should be redacted based upon Federal Rule of Evidence 701, i.e., the Rule governing opinion testimony by lay witnesses like Mr. Foye. That Rule states: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. As discussed in detail herein, Mr. Foye’s opinion regarding whether the lane realignment violated federal and state law – the ultimate issue in this case -- fails to satisfy subsections (b) and (c) of Rule 701, supra. First, Mr. Foye’s opinion will not be helpful to the jury in understanding his testimony or in determining a fact in issue. Indeed, “seldom will be the case when a lay opinion on an ultimate issue will meet the test of being helpful to the trier of fact since the jury's opinion is as good as the witness’ and the witness turns into little more than an ‘oath helper.’” Hirst v. Inverness Hotel Corp., 544 F.3d 221, 226 (3d Cir. 2008) (quoting Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir. 1986)). The introduction into evidence of Mr. Foye’s legal opinion “may distract jurors from their task of drawing an independent conclusion” regarding the defendants’ guilt or innocence. Hester v. BIC Corp., 225 F.3d 178, 182 (2d Cir. 2000). For this reason alone, the sentence at issue should be redacted. Second, Mr. Foye’s opinion regarding alleged violations of the law is based upon “specialized knowledge within the scope of Rule 702,” i.e., legal expertise. As the government has not identified Mr. Foye as an expert, the admission of his legal opinion here clearly 18 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 21 of 33 PageID: 3476 contravenes Rule 701, subsection (c). For this reason as well, the sentence at issue should be redacted from Mr. Foye’s email. Mr. Foye’s legal opinion, whether in documentary or testimonial form, should also be excluded based upon Federal Rules of Evidence 401, 402, and 403. Federal Rule of Evidence 401 states that evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401. Federal Rule of Evidence 402 commands that “Irrelevant evidence is not admissible.” Federal Rule of Evidence 403 states: The court 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. In terms of Rules 401 and 402, Mr. Foye’s opinion regarding the supposed violation of federal and state laws should be excluded because it is not relevant. In other words, Mr. Foye’s opinion about the ultimate issue in the case does not have “any tendency to make a fact more or less probable than it would be without the evidence.” Fed. R. Evid. 401(a). Even assuming arguendo that Mr. Foye’s legal opinion is somehow relevant, it should nonetheless be excluded pursuant to Rule 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. Permitting Mr. Foye, the sitting Executive Director of the Port Authority, to opine about alleged violations of the law would be incredibly prejudicial to the defense because there is a substantial risk that the jury will give such opinion an inordinate amount of weight in their decision-making process. Likewise, Mr. Foye’s legal opinion may confuse and mislead the jury such that they question whether they may reach a conclusion that deviates from Mr. Foye’s. Therefore, the 19 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 22 of 33 PageID: 3477 Court should order that the sentence at issue in Mr. Foye’s email be redacted (and exclude any testimony regarding that legal opinion). 2. Mr. Foye’s Hyperbolic and Self-Serving “Concerns” In his September 13, 2013 email, Mr. Foye states: “I pray that no life has been lost or trip of a hospital- or hospice-bound patient delayed.” Under Rule 403, that sentence should also be redacted from Mr. Foye’s email. The sentence is minimally probative; it is simply an expression of Mr. Foye’s purported concerns relating to the lane realignment and does not make any fact in the case more or less probable in this context. That statement, however, is unduly prejudicial. Given its hyperbolic nature, with its mention of the lives possibly being lost and hospice-bound patients being delayed, there is a significant risk that it will provoke an emotional response in jurors and lead them to decide this case on an improper basis. And it bears noting that there is no evidence whatsoever that anyone died as a result of the lanes being reduced, or that any patients were delayed in getting to a hospice. There is some evidence of scant and minor delays in ambulance service, but that evidence does not justify the introduction of Mr. Foye’s exaggerated expression of concern. For all these reasons, the sentence at issue should be redacted from Mr. Foye’s September 13, 2013 email. B. The 9/11 Photographs The government has marked 34 photographs of Governor Christie, Mary Pat Christie, David Wildstein, David Samson, Mr. Baroni, and others at the 9/11 memorial service on September 11, 2013 at the World Trade Center. Many of those pictures show the participants sharing fleeting smiles amidst the services to honor and recall those lost on that terrible day of national tragedy. Putting aside the government’s attempt to exploit the emotions associated with 9/11, those photographs should be excluded for a number of reasons under Rule 403. First, the 20 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 23 of 33 PageID: 3478 photographs are probative of nothing. Mr. Baroni has never denied that he attended the ceremonies or that he spoke with Governor Christie and Wildstein. Second, the photographs freeze a few moments in time that are not reflective of that day, thereby giving the jurors the appearance that Mr. Baroni, the Governor, and others did not take the memorial service seriously. Given the emotions we all feel regarding 9/11, showing such photographs to the jury is the definition of “undue prejudice.” “Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). Indeed, the 9/11 photographs should be excluded under Rule 403 because they will “suggest decision on an improper basis [such as] an emotional one.” Fed. R. Evid. 403 advisory committee’s note. Lastly, as the Court knows, jury selection in this case will begin on September 12, 2016, and the trial will commence thereafter, while emotions still stir from the then-very recent memorial services. There is simply no reason to show the jury those photographs. Third, the 9/11 photographs prominently feature David Samson. As the Court knows, Mr. Samson’s very recent guilty plea received a great deal of press. One article mistakenly reported that Mr. Samson pled guilty in connection with the Fort Lee lane realignment: David Samson, a close associate of Gov. Chris Christie of New Jersey, will plead guilty Thursday to a felony in connection with the federal prosecution of the intentional tie-up of traffic at the George Washington Bridge in 2013 Several other articles referred to “Bridgegate” when reporting on Mr. Samson’s plea, i.e., “Key Bridgegate Figure to Accept Guilty Plea,” “Bridgegate’s Samson Pleading Guilty to Felony Charge”. Thus, there is yet another reason to conclude that the 9/11 photographs (probative of nothing) will lead the jurors to believe that Mr. Baroni must be guilty in this case because yet another person, in addition to Wildstein, has pled guilty. * * * 21 * Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 24 of 33 PageID: 3479 – as Mr. Baroni suggested to the government – be replaced with Mayor Sokolich. Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 25 of 33 PageID: 3480 Such a slight alteration would not change the meaning of any of the message, nor would it affect the government’s theory of this case. D. Evidence Regarding an Alleged Conversation from March 2011 Should Be Excluded Under Rules 401, 402 and 403. The government plans to introduce evidence regarding an alleged conversation between David Wildstein and Mr. Baroni during March 2011. Ind. at 7. The Indictment alleges that in March 2011, Wildstein told Mr. Baroni that “they could use the Local Access Lanes as leverage against Mayor Sokolich.” Id. at 7. That is the lone sentence regarding March 2011 in the Indictment. For the following reasons, all evidence regarding that alleged conversation should be excluded under Rules 401, 402 and 403. The alleged March 2011 conversation should be excluded because it is not relevant to any charges. The Indictment explicitly alleges that the conspiracy charged in Count One did not begin until two and a half years later, on August 13, 2013. Ind. at 5, ¶ 2. Moreover, the “Summary of the Conspiracy” begins in August 2013. Ind. at 5. All of the alleged overt acts are dated on or after August 13, 2013. Ind. at 24-27. Every single remaining Count allegedly began on August 13, 2013. This alleged conversation is simply not probative of what happened over two years later. Indeed, there is not one allegation made on any date between March 2011 and August 13, 2013. Thus, the government’s theory is that Wildstein and Mr. Baroni had this conversation that began a conspiracy, then they went dark for over two years without any communication or acts, only to start this up again in August 2013. At some point, such allegations become too temporally attenuated to be probative of a later alleged agreement. Here, too much time passed and the conversations should be excluded under Rule 401 and 402. Even if the Court concludes that the alleged March 2011 conversation is probative, it is only minimally so. The danger for jury confusion and wasting time substantially – and easily outweighs the slight probative value. Conspiracy law is occasionally difficult even for lawyers to comprehend. The Court will instruct the jury on conspiracy law, but there is no need to make it even more confusing by telling the jury about a conversation from March 2011, but that the 23 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 26 of 33 PageID: 3481 conspiracy did not begin for another two and a half years, and that nothing happened in between. Moreover, the March 2011 conversation is simply a waste of time and cumulative. The government has, and plans to use, ample other evidence regarding the alleged conspiracy that occurs much closer in time, i.e., from the summer of 2013. Thus – whatever value the government places on this alleged conversation – it is cumulative. As for wasting time, the more topics about which David Wildstein testifies, the longer he will be cross-examined by lawyers for Mr. Baroni and Ms. Kelly. That is to say nothing about adding time to his direct and/or the need for a defense case to address that alleged conversation. It is worth noting that the government now relies upon events alleged to have happened in March 2011, yet the government was only too happy to ease Gibson Dunn’s burden by limiting the original 2010 subpoena date to post-January 1, 2013. Again, the government’s concern for Gibson Dunn’s well-being outweighed anything resembling a search for the truth. The Court denied Mr. Baroni’s motion for documents post-2010. Gibson Dunn repeatedly referred to that subpoena as seeking “blunderbuss” discovery. The government – having turned a blind eye to discovery prior to January 1, 2013 and having made sure not to join Mr. Baroni’s motion for more information – now seeks happy to expand the timeframe. If this were not a criminal case with very high stakes, the government’s actions would be laughable. This motion should be granted and any evidence of the alleged conversation should be excluded. E. Helix and Construction Projects The government plans to try this case based largely on temporally and factually unrelated evidence regarding construction on the helix ramp at the Lincoln Tunnel in Weehawken and other construction matters (the “Helix and Construction cases”). A review of the government’s pre-marked trial exhibits exemplifies just how much court time will be devoted to these ancillary matters: HELIX – 1002, 1003, 1005, 1008, 1009, 1010, 1011, 1012, 1014, 1015, 1027, 1031, 1034, 1037, 1038, 1044 24 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 27 of 33 PageID: 3482 GWB REPLACEMENT and CONSTRUCTION – 1056, 1057, 1058, 1059, 1060, 1067, 2017, 2018, 2019, 2020, 2021, 2022, 2023, 2025, 2026, 2027, 2028, 2029, 2030, 2031, 2032, 2033, 2034, 2035, 2036, 2037, 2038, 2039, 2040, 2041, 2042, 2043, 2044, 2045, 2046, 2047, 2050, 2051, 2052, 2053, 2054, 2055, 2056, 2057, 2059, 2060, 2061, 2063, 2064, 2065, 2066, 2067, 2068, 2069, 2070, 2071, 2072, 2073, 2074, 2075, 2076, 2077, 2079, 2081, 2082, 2083, 2084, 2085, 2086, 2087, 2088, 2089, 2090, 2093, 2094, 2096, 2099, 2100, 2102 SOUTH MARGINAL NJDOT PROJECT – 59, 61 OUTERBRIDGE CROSSING PAVING PROJECT – 1050, 1053, 1054, 1067 PULASKI SKYWAY PROJECT – 2078, 2080 “MOVIE SHOOT” – 2098 Thus, in addition to the Jersey City allegations, the government plans to take untold days presenting evidence far afield from the allegations in the Indictment in the hopes that the jury will be overwhelmed by information only to conclude that the defendants’ must be guilty because of all the information – however tangential – presented. As gatekeeper, the Court should not permit that to happen, if only to avoid lengthening the defense case that will be necessitated to answer the Helix and Construction cases. Not to mention that the government seeks to confuse the jury by presenting evidence of a Lincoln Tunnel Helix construction project even though the allegations regarding Fort Lee do not involve a construction project, but, by the government’s own indictment, a traffic study. The government knowingly conflates the two out of either ignorance or a desire to confuse the jury. F. Ambulance Reports Government Exhibit 2095 is a 141-page document comprised of internal records from the Fort Lee Ambulance Corp. Those records should be excluded. First, it is not apparent – as it should be when assessing relevance – the government’s intended use for these records. Until the government can articulate some plausible basis for relevance, Exhibit 2095 should be excluded under Rules 401 and 402. Second, these records are unduly prejudicial. There is no need to show the jury 141 pages of ambulance records simply to enflame the jurors and invite an evaluation of the based upon a purely emotional reaction. See Rule 403. Moreover, Exhibit 25 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 28 of 33 PageID: 3483 2095 is cumulative because there are ample reference to ambulances and alleged delays in other likely admissible evidence such as emails, texts, and testimony. G. Alleged School Delays The government wants to lead the jury to believe that children were late to school based upon the lane realignment. E.g., Ind. at 9. Any such testimony should be excluded because the evidence is clearly to the contrary. Specifically, Thus, where testimony is so directly contradicted, it is insufficient to claim, as the government no doubt will, that discrepancies go to weight. There is simply no good faith basis for the government to elicit testimony regarding children being late because of the lane realignment. And, even if there was, delaying children is far more prejudicial than probative because – to be sure – allegations that the charges negatively affected children will lead the jury 26 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 29 of 33 PageID: 3484 to evaluate the evidence based upon an emotional reaction. That is explicitly precluded by Rule 403. H. Missing child The Court should exclude all evidence relating to an alleged missing child, later found, during the lane realignment. The government has marked certain exhibits that make reference to a missing child, e.g., an email from Tina Lado, but there does not appear to be any evidence substantiating this incident. Thus, the evidence at issue is minimally probative of any issue in the case. The “missing child” evidence is unduly prejudicial, however, given the emotional response the jurors are likely to have to the suggestion of a child victim of the lane closures. Accordingly, pursuant to Rule 403, evidence relating to a missing child should be excluded. 27 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 30 of 33 PageID: 3485 V. THE PROTECTIVE ORDER SHOULD BE LIFTED A. Introduction “Our judicial process is generally an open one that permits the public to attend trials and view judicial records.” U.S. v. Wecht, 484 F.3d 194, 206 (3d Cir. 2007). The openness of our judicial system “promotes public confidence,” “diminishes possibilities for injustice, incompetence, perjury, and fraud,” and “provide[s] the public with a more complete understanding of the judicial system.” Id. (citing Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir.1988)). Only in limited circumstances should a court restrict or close judicial processes to the public. Id. The issuance or continuance of a protective order restricting the public’s access to the judicial process is only justified if “good cause” exists pursuant to Rule 16 of the Federal Rules of Criminal Procedure. United v. Wecht, 484 F.3d at 210-11 (citing Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). “‘Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing.’” Id. (emphasis added) (quoting Pansy, 23 F.3d at 786). “It is well-established that a district court retains the power to modify or lift confidentiality orders that it has entered.” Pansy, 23 F.3d at 784. When determining whether to modify or lift a protective, order the Court should use the same balancing test that is used in determining whether to grant such orders in the first instance. The Third Circuit Court of Appeals has identified the factors to be considered, including: 1) whether disclosure will violate any privacy interests; 2) whether the information is being sought for a legitimate purpose or for an improper purpose; 3) whether disclosure of the information will cause a party embarrassment; 28 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 31 of 33 PageID: 3486 4) whether confidentiality is being sought over information important to public health and safety; 5) whether the sharing of information among litigants will promote fairness and efficiency; 6) whether a party benefitting from the order of confidentiality is a public entity or official; and 7) whether the case involves issues important to the public. Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). B. Good Cause No Longer Exists for the Blanket Protective Order The Court issued a protective order on the discovery materials in this case on July 7, 2015. (See Protective Order, ECF No. 22.) The Protective Order provides that “[t]he Confidential Discovery Materials shall be used by defense counsel only in the preparation of the defense in this case” and that “[t]he Confidential Discovery Materials shall not be disclosed by defense counsel to anyone other than the Defendants and any agent working at the direction of defense counsel in this matter (collectively, together with defense counsel, the ‘Defense’).” (Protective Order, ECF No. 22, ¶¶1-2.) The protective order concerns the use of materials produce by the Government which contain the following categories of information: (1) information of a personal nature including, but not limited to, marital and other intimate relationships, minor children, and personal financial matters; (2) individually identifiable health information protected under the Health Insurance Portability and Accountability Act and information regarding individuals’ medical conditions; (3) personal contact information such as home addresses, home telephone numbers, personal cell numbers, and personal email accounts; (4) information about governmental and business matters that are not related to the allegations contained in the Indictment; and (5) the applications and affidavits in support of search warrants obtained during the investigation (the “Confidential 29 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 32 of 33 PageID: 3487 Discovery Materials”). (Protective Order, ECF No. 22 at p.1). Good cause no longer exists for the continuance of this protective order as to categories 4 and 5 in the above list or as to Jenks, Giglio and other materials. Protective Orders are not entered into in order to permit trial in secret. See e.g., Wecht, 484 F.3d at 206. Upon the issuance of the Protective Order, neither the Court nor the parties contemplated the continued protection of these materials up until the start of trial. In fact, the Protective Order states that “[t]he Defense may disclose the Confidential Discovery Materials for use at trial, subject to Fed. R. Crim. P. 49.1 and any other applicable law or rules.” (Protective Order, ¶5.) Furthermore, the Government itself anticipated the lifting of this Protective Order upon the eve of trial, stating in its Brief in Support of its Motion for a Protective Order: In any event, the public’s interest in these proceedings will eventually be served by an open and public trial. The Government has an obligation to present all admissible evidence to prove its case; the defense has an obligation to use all admissible material in zealously contesting the charges; and the public has an unquestioned right of access to trial proceedings. That constellation of interests will erase any remaining privacy right in the admissible evidence. At present, however, the Discovery Materials are not trial evidence, and the public has no right of access to them. (ECF No. 14, at 10.) The Defendants’ trial is set to begin in just over one month. Shortly, over the course of trial, discovery materials and the identities of witnesses will be made public. Accordingly, the Protective Order should be modified as it no longer serves a legitimate purpose with trial approaching in such a short time. Accordingly, the Protective Order should be modified with respect to the information about governmental and business matters that are not related to the allegations contained in the Indictment and to the applications and affidavits in support of search warrants obtained during the investigation as well as to the Jenks and Giglio materials. 30 Case 2:15-cr-00193-SDW Document 151 Filed 08/10/16 Page 33 of 33 PageID: 3488 VI. CONCLUSION For the foregoing reasons, the Court should grant all the relief requested. Mr. Baroni respectfully joins Ms. Kelly’s in limine motions. Respectfully submitted, BALDASSARE & MARA, LLC By: Michael Baldassare By: Jennifer Mara BALDASSARE & MARA, LLC 570 Broad Street Newark, New Jersey 07102 Telephone: (973) 200-4066 Facsimile: (973) 556-1076 Attorneys for Defendant William E. Baroni, Jr. Dated: August 9, 2016 31 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 1 of 22 PageID: 3489 . g t , , , s t Lo) Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 4 of 22 PageID: 3492 To: david. Subject: Re: POLITICO’s Morning Score: All eyes on Syria — 1 week to New York mayoral primary — Paul to stump for Lonegan — Christie’s matching funds — DeMaio leaves House race — Ready for Hillary readies for 2014 From: Bill Stepien wrote: I have a faps meeting this week and suspect they will leave unhappy On Sep 3, 2013, at 7:01 AM, Bill Stepien wrote: What is Fulop status?? On Sep 3, 2013, at 6:38 AM, Bill Stepien wrote: = GOVERNMENT EXHI BI T 223 D4 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 5 of 22 PageID: 3493 Subject: Re: Morris GOP Chairman takes on freeholder candidate from his own party Politicker NJ From: David Wildstein Exactly as it was explained. On ice. On Sep 4, 2013, at 6:35 AM, Bill Stepien wrote: > It went fine. Fulop is clearly in over his head. Kevin, if you believe him, simply told him the facts of life without making a hard push for his support (which I don't care about anymore). > > Steve also clearly cares most about the Port Authority. Which we need to continue to show him off from. > > Steve left saying to Kevin 4 or 5 times, "you've given me a lot to think about"As Kevin outlined how a good relationship with the governor is beneficial for his future ambition > > On Sep 3, 2013, at 9:46 PM, David Wildstein wrote: > >> http://www.politickernj.com/68050/morris-gop-chairman-takes-freeholder-candidate-his-own-party >> Now I am going to vote for Mastrangelo. >> >> How did oToole/Fulop summit go? GOVERNMENT EXHI BI T 224 D5 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 6 of 22 PageID: 3494 Subject: Re: FAPS From: David Wildstein Received(Date): Tue, 25 Sep 2012 21:55:07 -0400 To: Bill Stepien Thank you for explaining to me what our objective is. But no worries, bringing in Tomofsky to close :-) seriously, this is close to done, but not yet complete. Still some things can still go wrong. Will let you know if we need help with Samson. On Sep 25, 2012, at 9:37 PM, Bill Stepien wrote: Continue throwing the Gov/my name around when discussing this with him (assuming it's going to end well, of course) - it's important he associate a successful conclusion to this with us From: David Wildstein To: Stepien Bill wrote: I hope it's voidable....pending what happens next year Thanks a lot - I know it was a pain in the ass. From: David Wildstein Bill. Thanks for your help today. It is really appreciated. Talk soon > Sent from my Verizon Wireless BlackBerry > GOVERNMENT EXHI BI T 74 D9 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 10 of 22 PageID: 3498 To: david.wildstein Received(Date): Wed, 28 Nov 2012 16:38:42 -0800 (PST) From: Bill Stepien > Subject: Re: To: David Wildstein < > Good to hear. I give him less of a chance than most of our other targets....quite the snake. We'll see....you can't say we haven't tried! From: David Wildstein 'i:r;~:~·.:::;tffiif&F~I' ·'-""''-"' ·£Gd'~,~~-' §"!; ''i~;:~ N .. Incoming No SMS In box Pete Sheridan 17036247570 12/19/201311 :12:19 PM I can't believe you're a "happy holidays" family and not merry Christmas. Godless. Outgoing IOutgorng No No SMS SMS Outbox Outbox Pete Sheridan Pete Shendan 17036247570 17036247570 12/19/2013 9:59:14 PM 10/26/2013 7.09.43 PM 0 ., For what 1! s worth, Amanda s reans are way more flared than mrne . x . Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 13 of 22 PageID: 3501 ASSEMBLYMAN WISNIEWSKI: A few days later. And, if I’m correct, your interview memo says that you spoke to Mr. Porrino for about two hours. MS. RENNA: Two, two-and-a-half hours, yes. ASSEMBLYMAN WISNIEWSKI: So I’m trying to understand. Your conversation with your four direct reports was relatively brief. You really didn’t gain a lot of information from Bridget Kelly. What took two-and-a-half hours? Because in your answers to your questions, you basically said there really wasn’t a lot more to talk about. MS. RENNA: Well, respectfully, we’ve been here for several hours. (laughter) Chris Porrino is a very good lawyer, asks a lot of very detailed questions, and I answered them. I mean-ASSEMBLYMAN WISNIEWSKI: What were the questions? MS. RENNA: memo. Everything discussed in the Gibson Dunn I didn’t hold anything back with Chris Porrino, didn’t hold anything back with Gibson Dunn, not holding anything back today. ASSEMBLYMAN WISNIEWSKI: Did he ask you about your interchange with Bridget Kelly about that e-mail that she had asked you to delete? MS. RENNA: Yes, we talked about that at length. ASSEMBLYMAN WISNIEWSKI: Okay. And did he talk to you about the do-not-call mayors, or the mayors whose names shall not be spoken? MS. RENNA: We talked a bit about IGA. As I said, Chris was unfamiliar with it, so I sort of had to explain to him what IGA did day-to- 182 D13 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 14 of 22 PageID: 3502 MS. RENNA: I think that’s a fair way to put it, yes. SENATOR WEINBERG: Okay. And you got those instructions from Mr. Stepien and/or Ms. Kelly. MS. RENNA: Who received, yes, advice from counsel’s office on it. That’s my understanding. SENATOR WEINBERG: And they received advice from the Governor’s Counsel Office on-- What did they transmit to you that they received advice about? MS. RENNA: That I’m not specifically sure, and I don’t know specifically if it was the Governor’s Counsel. I assume it was. Again, I don’t know. SENATOR WEINBERG: Well, you referred to counsel. Do you know which counsel? MS. RENNA: Well, there are also attorneys that work for the reelection campaign. I just don’t know what attorneys specifically they got advisement from, but I was told that it was cleared with counsel’s office. They were very particular to make sure all the things that we did -- and this wasn’t just IGA, this was every department in the Governor’s Office -- was following the letter of the law in how we were conducting ourselves. You know, a lot of people on the IGA staff worked on other political campaigns previously, or had been in roles like this before in other government offices. You know, the nights and weekends directive is something that mirrored what a lot of people had experienced in other legislative offices or on other campaigns. So the advisement was there, and I think the staff -- the majority of the staff felt comfortable with that advice. 35 D14 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 15 of 22 PageID: 3503 MS. RENNA: I wanted to be able-- If she asked me, if it came up again in conversation, I wanted to be able to tell her in good faith that I did what she asked me to do. But I also knew that I had never been asked to do anything like that before. I felt the request could have been inappropriate. And, candidly, I was uncomfortable with it. So I did what she asked me to do, but I protected myself as well. That’s the way I look at it. ASSEMBLYMAN WISNIEWSKI: Why do you use the term you protected yourself? MS. RENNA: I mean, being asked to delete an e-mail is a strange request and a unique request. And, you know, in four years of working in IGA, I was never asked to do anything that I felt uncomfortable with. ASSEMBLYMAN WISNIEWSKI: You thought it was wrong? MS. RENNA: And I just thought it was-- I thought it was strange; I thought it was strange. And I felt she was paranoid -- that’s really what I felt. ASSEMBLYMAN WISNIEWSKI: This strange request -- the next morning, you were at work? MS. RENNA: Yes. ASSEMBLYMAN WISNIEWSKI: Did you talk to anybody in terms of somebody who oversees ethics, or law, or chief counsel, or anybody like that and say, “Hey, I just want to let you know I got this strange request.” Did you talk to anybody? MS. RENNA: I did not. ASSEMBLYMAN WISNIEWSKI: Why not? 94 D15 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 16 of 22 PageID: 3504 Foye, Patrick Subject: Foye, Patrick Friday, September 13, 20137:44 AM Fulton, Cedrlck; Durando, Robert Baroni, Bill; Dunne, Joseph P.; Koumoutsos, Louis; Zipf. Peter; Samson, David; 'Rechler, Scotr; Buchbinder. Darrell Fort Lee eastbound access to GWB Importance: High From: Sent: To: Cc: After reading last night's media pendings, I made Inquiries and received calls on this matter which Is very troubling. Here is what I learned: reversing over 25 years of PA GWB operations, the three lanes in Fort lee eastbound to the GWB were reduced to one lane on Monday of this week without notifying Fort Lee, the commuting public we serve, the ED or Media. A decision of this magnitude should be made only after careful deliberation and upon sign off by the ED. Reports are that Fort Lee has experienced severe traffic delays engulfing the entire Fort Lee area since Monday. I am appalled by the lack of process, failure to inform our customers and Fort Lee and most of all by the dangers created to the public interest, so I am reversing this decision now effective as soon as TBT and PAPD tell me it is safe to do so today. I am making this decision for the following reasons: 1. This hasty and Ill-advised decision has resulted in delays to emergency vehicles. I pray that no life has been lost or trip of a hospital- or hospice-bound patient delayed. 2. This hasty and ill-advised decision has undoubtedly had an adverse effect on economic activity in both states. That is contrary to the directive we have from our Governors to do everything possible to create jobs in both States. 3. I will not allow this hasty and ill-advised decision to delay the travels of those observing Yom Kippur tonight or the holidays to follow. 4. I belleve this hasty and Ill-advised decision violates Federal Law and the laws of both States. To be clear, I will get to the bottom of this abusive decision which violates everything this agency stands for; I intend to learn how PA process was wrongfully subverted and the public interest damaged to say nothing of the credibility of this agency. Finally, I am open to consrdering changes to each of our facilities If there Is a case to be made that change will benefit the public interest. In the case of the Fort lee eastbound access lanes, approval of this action will require: 1. Written sign off by TBT, Traffic Engineering and PAPD. That sign off was not sought or obtained here. 2. Prior discussion with the local government and a communication plan and plenty of advance notice to the commuting public. That did not occur here. 3. Consideration of the effects on emergency vehicles and sign off by PAPD. That did not occur here. 4. Consideration of the financial impact on the PAin terms of 0/T. That too did not occur here. Cedric and Bob-please let this group know when access to three lanes in Fort Lee can be restored as soon as possible today. This Is a matter of public safety and time is of the essence. Pat GOVERNMENT EXHI BI T 1131 PA- GWB- 000010 PA- PF- 000010 D16 Case 2:15-cr-00193-SDW Document 151-1 Filed 08/10/16 Page 20 of 22 PageID: 3508 D20 1,2118(576,36)220036118/9/2016 12:00:00 AM22:51:30.0728956