UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, NOTICE OF MOTION Criminal Action No. v. WILLIAM NOJAY. PLEASE TAKE NOTICE THAT, proposed intervener The Democrat & Chronicle C'D&CT, by and through its attorneys Nixon Peabody LLP, will move this Court on a date and time to be determined by the Court, for an Order: (1) allowing the D&C to intervene for the limited purpose of asserting the public's constitutional and common law rights of access to all judicial records in this case; and (2) unsealing of those judicial records. PLEASE TAKE FURTHER NOTICE THAT, that pursuant to Local Rule of Criminal Procedure 12(b), the moving party intends to file and serve reply papers and that, if the Court does not set deadlines by order, the opposing party shall have fourteen (14) days after service of the motion to file and serve responding papers, and the moving party shall have seven (7) days after service of the responding papers to file and serve reply papers. Dated: September 19, 2016 Christopher D. Thomas Meghan K. McGuire Jenny R. Lewis 1300 Clinton Square Rochester, New York 14604 (585)263-1087 cdthomas@nixonpeabodv.com mkmcguire@nixonpeabodv.com ilewis@nixonpeabodv.com Attorneys for Proposed Intervener The Democrat & Chronicle UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK U X l I H I ) S T A I I S (>1 . W l l ' R I C A . DECLARATION OF CHRISTOPHER D. THOMAS v. Criminal Action No. WILLIAM NOJAY. CHRISTOPHER D. THOMAS, an attorney duly admitted to practice before the courts of the State of New York, affirms and states under penalty of perjury that: 1. I am a partner in the law firm of Nixon Peabody LLP, attorneys for Proposed Intervener The Democrat & Chronicle ("D&C"). As such, I am fully familiar with the facts and circumstances set forth herein. 2. I submit this Declaration in support of the D&C's Motion for an Order: (1) allowing the D&C to intervene for the limited purpose of asserting the public's constitutional and common law rights of access to the judicial records in this case (the "Noiav Judicial Records"); and (2) unsealing the Nojay Judicial Records. 3. The D&C is the hometown newspaper of Rochester, New York. As such, it is an appropriate party to assert and protect its and the public's First Amendment and common law rights to access 4. Intervention is regularly granted to provide access to judicial records, access is strongly presumed, countervailing arguments are unavailing, and continued sealing is inconsistent with public policy. 5. For more than two decades. Bill Nojay ("Mr. Nojay" or "Defendant") was one of the most prominent politicians and public figures in Western New York. 6. An outspoken lawyer. Republican politician, and arch-conservative, Mr. Nojay was a fixture at the most rarified political circles of his party, which led to a series of political appointments in the Rochester region. 7. In 1996, he was appointed by Governor George Pataki as the commissioner of the Rochester Genesee Regional Transportation Authority. 8. He also served on the Executive Committee of the Genesee Transportation Council and as the chairman of the Regional Trails Initiative Steering Committee for the Rochester region. 9. On November 6, 2012, Nojay was elected to the New York State Assembly for the 133rd Assembly District, serving parts of Monroe and Steuben Counties. 10. Most recently, he was co-chairman of Republican presidential candidate Donald Trump's New York campaign committee. 11. Outside of the political arena, Mr. Nojay wore many hats of different shapes and colors: daily conservative radio talk show host, international agricultural entrepreneur in Cambodia, and, most recently, silent participant in a group called DeWolff EPIC, which was bidding on a multi-million dollar project to renovate schools in the Rochester City School District ("RCSD"). 12. The Cambodian venture led to a fraud complaint filed against him in Cambodia. 13. The RCSD venture resulted in a convoluted series of secret maneuvers, which ultimately resulted in the collapse of DeWolff EPIC and its subsequent inability to deliver on its bid. 14. Assemblyman Nojay's legal troubles in Cambodia and growing rumors of his silent involvement in the RCSD reconstruction project caused the D&C to assign its "Watch -3- Dog" team of investigative journalists to look into Mr. Nojay's business and political dealings. True and correct copies of assorted article published by the D&C related to Mr. Nojay are attached hereto as Exhibit A. 15. While the D&C was conducting its investigative reporting, the FBI, USPS, and DOJ were apparently also conducting a criminal investigation which began to bear fruit. 16. Upon information and belief, consistent with the Federal Rules of Criminal Procedure, on or before Friday, September 9, 2016, agents of the FBI, USPS, and/or DOJ presented Magistrate Judge Hon. Jonathan W. Feldman (the "Court") with a complaint and supporting deposition(s) detailing alleged criminal wrongdoing by Mr. Nojay. 17. As they regularly do when seeking a judge's signature on an arrest warrant, the agents asked the Court to review the complaint and supporting deposition in order to assess whether there existed reasonable cause to believe a crime was committed by Mr. Nojay. 18. The Court fulfilled its judicial functions and reviewed the complaint and supporting depositions. 19. Based on their contents, the Court signed a warrant for Mr. Nojay's arrest. It was at that moment the complaint and supporting depositions became "Judicial Records" (hereinafter the "Nojay Judicial Records") in their entirety. Arraignment, movant contends, does not create the public record, the exercise of judicial function does. Additionally, pre-arraignment suicide cannot block the public's right of access to judicial records. 20. Through counsel, the Court and law enforcement officers extended a significant courtesy to Mr. Nojay of letting him turn himself in on the warrant instead of suffering the humiliation of a public arrest. . 4 . 21. Mr. Nojay was to surrender himself on Friday, September 9th at or around 9:30 a.m. for processing. 22. Mr. Nojay's arraignment on the Nojay Judicial Records was scheduled to take place in an open session of court shortly thereafter, around 10:00 a.m. 23. The public had the right to attend that arraignment and the D&C was anticipating exercising that right. 24. Upon information and belief, at about 9:20 a.m. that morning, Mr. Nojay committed suicide by fatally shooting himself. The Nojay Judicial Records have yet to be unsealed. 25. The Nojay Judicial Records would have been unsealed at the time of Mr. Nojay's arraignment. 26. And they could only have been subsequently re-sealed upon motion of an interested party pursuant to Local Rule 55 and a "substantial showing" that restricting access was necessary. 27. It is only because Mr. Nojay evaded his arrest and arraignment by committing suicide that the Nojay Judicial Records remain sealed at this time. 28. No party has moved to seal the Nojay Judicial Records pursuant to Local Rule of Criminal Procedure 55, and there has been no "substantial showing" of a need to do so. 29. But for Mr. Nojay's suicide, the Nojay Judicial Records would already be available to the public. They should be made available now. 30. The continued sealing of the Nojay Judicial Records in this case violates the fundamental principles of judicial transparency and public scrutiny. -5- 31. If the Nojay Judicial Records remain secret, people will necessarily wonder what law enforcement officials and the Court did related to Mr. Nojay. 32. There will inevitably be questions about the legitimacy of the complaint, the legitimacy of the supporting depositions, and the legitimacy of the warrant. 33. Such speculation is bad for the court system, bad for law enforcement, and bad for the public. It facilitates conspiracy theories as to what "really" happened or what the "real" reasons were for the signing of the warrant. 34. Few things are worse for the legitimacy of a judicial system. Unsealing resolves 35. Continued secrecy also causes people to speculate that a powerful, rich, white. this. Republican, conservative lawyer is getting special treatment from a justice system that is populated by powerful, rich, white, politically-connected lawyers. 36. In other words, some might believe that Mr. Nojay received preferential treatment in life (by being allowed to turn himself in instead of being arrested) and will continue to benefit from such preferential treatment in death (by being allowed to keep his alleged misdeeds hidden from the public when anyone else's judicial records would be released). 37. Mr. Nojay was allowed to turn himself in on the warrant. Many think, correctly or not, that a poor, black, powerless defendant would not have been given the same preferential treatment. Instead, he would have been arrested by US Marshals pursuant to Federal Rule of Criminal Procedure 5, and therefore would not have had an opportunity to commit suicide. 38. In that case, the defendant would be brought to court for arraignment and the judicial record in his case would have been unsealed as a matter of course, for the public to see and review, as should have happened in the case at bar. -6- 39. Continued sealing works violence on the basic precept of court legitimacy - transparency - and the perception of unequal treatment eats away at the very foundation of our legal system. 40. Mr. Nojay's suicide raises another important public policy issue. 41. The Nojay Judicial Records undeniably would have been unsealed by the Court after Mr. Nojay was arraigned. 42. Allowing the Nojay Judicial Records to remain sealed in whole or in part because Mr. Nojay committed suicide creates a real risk that other defendants, especially white collar defendants, will take their own lives in an effort to protect their legacies, prevent their lovedones' embarrassment, and prohibit the public's knowledge of their misconduct. 43. That is a strong motivator for some people - especially white men in their late 50's who are the common white collar defendants and at highest risk of suicide - to take their own lives. An article by Yeats Conwell, M.D., to that affect is attached hereto as Exhibit B. 44. To the extent an argument is made that abatement somehow impacts the above analysis, it is off base. 45. Perhaps the most timely example of abatement is the case of Former New York State Senator Thomas Libous, who was convicted in July 2015 of lying to federal investigators about using his influence to get his son a job with a well-connected Westchester County law firm and arranging for an Albany lobbyist to cover part of the salary. 46. Mr. Libous promptly filed an appeal of that conviction, but died of cancer while the appeal was pending. 47. Mr. Libous's estate subsequently filed a motion with the Second Circuit to withdraw the appeal, vacate the conviction, and remand to the District Court with orders to EXHIBIT dismiss the indictment. A true and correct copy of the Libous Estate's Motion, Case No. 15­ 3979, Dkts. 44-1 through 44-10, 08/15/2016, is attached hereto as Exhibit C. 48. The U.S. Attorney's office consented to the vacatur of Mr. Libous's conviction, conceding that, "[w]hen a defendant dies while his direct appeal is pending, ordinarily the defendant's appeal is dismissed as moot and the judgment of conviction is vacated, pursuant to the "rule of abatement." A true and correct copy of the U.S. Attorney's Opposition, Case No. 15-3979, Dkt. 49, 8/29/2016, is attached hereto as Exhibit D. 49. A similarly-notorious example of the application and effect of the abatement doctrine is the case of Ken Lay, former CEO and Chairman of Enron Corporation. 50. Mr. Lay was convicted of multiple counts of fraud and conspiracy related to his (mis)management of Enron. 51. Mr. Lay suffered a heart attack after his conviction but before he was able to file an appeal. 52. Thus, Mr. Lay's estate filed a motion to vacate his conviction and dismiss the indictment, which was granted. U.S. v. Lay, 456 F. Supp. 2d 869 (S.D. Tex. 2006). 53. In both of these high-profile cases, the defendants were convicted of crimes, filed (or intended to file) appeals, but died of natural causes before their appeals were resolved. 54. Mr. Libous and Mr. Lay's respective estates moved to abate their convictions. 55. But neither even attempted to argue that the abatement doctrine required sealing of the judicial records in their respective cases. -8- 56. In fact, those records - including the indictment and criminal complaint in the Libous case1 - are still accessible to the public via PACER. A true and correct copy of the Libous indictment is attached hereto as Exhibit E. 57. The examples of Mr. Libous and Mr. Lay easily contrast with the facts of this case and explain why abatement is inapplicable. 58. First, there is no right to abatement unless and until a defendant is convicted. Mr. Nojay was never convicted. Thus, he is totally ineligible for abatement. 59. Second, only a defendant who filed or clearly intended to file an appeal before he died can benefit from abatement. Mr. Nojay committed suicide, which demonstrates not only that he had no intention of fighting a conviction but that he had no intention of appealing it. 60. Third, abatement only affects a deceased defendant's conviction and punishment, it has never been invoked to seal judicial records. Thus, the abatement doctrine has no bearing on the D&C's present motion for access to the Nojay Judicial Records. 61. For the forgoing reasons, as well as those set forth in the accompanying Memorandum of Law, dated September 19, 2016, the D&C respectfully requests that its motion to intervene and unseal the Nojay Judicial Records be granted in its entirety. Dated: September 19, 2016 Christopher D. Thomas The indictment in the Lay case appears to have been sealed when filed, pursuant to a request by the United States government. U.S. v. Causey et al., 04-cr-00025-3, Dkt. No. 99 (S.D. Tex., July 7, 2004). -9- EXHIBIT A RCSD modernization plagued by overru •rionlies, Wl KR •,C<4?4842 5/29/16 Democrat & Chron. (Rochester, N.Y.) A16 2016 WLNR 16424842 Democrat and Chronicle (Rochester, NY) Copyright (c) 2016 Gannett May 29, 2016 Section: News RCSD modernization plagued by overruns, shifting priorities Steve Orr, Meaghan M. McDermott May 29,2016 Rochester's schools modernization program, the most costly public works project in local history, was supposed to be a transformative undertaking. Over 15 years, as much as $1.3 billion would be invested in city educational infrastructure, bringing dozens of aging school buildings up to code and into the 21st century. Rochester public-school students, many of whom come from humble backgrounds, would get the schools they deserve. "It says something to the people who are in the schools — that we are investing in the building, so we are investing in you," said former Rochester Mayor Thomas Richards, a product of city public schools who now chairs the appointed board overseeing the program. "It expresses something about our commitment to them and about our expectations." The first phase of the transformation, which cost S325 million, is now nearing completion. Richards and others say it was a success. Seven schools were fully modernized, making them the approximate equal of their counterparts in the suburbs. But in other ways, Phase I fell far short of expectations. As a Democrat and Chronicle watchdog investigation has documented, the first portion of the modernization program was beset by cost overruns, shifting priorities and everchanging leadership. "I think Phase I was a learning curve for everybody. I don't think you would point to Phase I as a major success," said Carolee Conklin, who chairs City Council's finance committee. Among the issues: The Phase I work plan was radically changed in mid-stream by the seven-member oversight board, appointed jointly by city and school district. Work at some schools was canceled or scaled back. Trouble with state-aid reimbursement forced managers to shuffle funds on the fly. RC5D modernization plagued by overru is I 'fd u jriorh' ^ . .* T6 WLNR 16424842 Changes were so poorly communicated that School Board President Van White said recently he had no idea that modernization officials had canceled virtually all modernization work at the Jefferson High building, which houses what White considers one of the most successful schools in Rochester. Some praised the program's minority and women's business component (M/WBE), but it was also the focus of an FBI investigation into reports of improprieties, and critics derided a job-training effort. Unhappiness with the M/WBE, management and funding issues prompted some political leaders to threaten to block the second phase of work, and Rochester Mayor Lovely Warren sought to overturn the board and replace the company overseeing the project, Gilbane Building Co. One of the program's most strident critics, state Assemblyman William R. Nojay, said the first phase of work was "miserably managed" to the point where Phase I tasks had to be shifted to Phase II. "They are robbing Peter to pay Paul, leaving Peter without enough money to finish his work," said Nojay, who also attended city schools. So great was the dissatisfaction with Phase I that change was demanded and Warren won more control over how things would be done in Phase II. "Phase I to me lacked oversight, lacked commitment. They got all these hundreds of millions of dollars and literally what was the benefit to the community? At certain schools absolutely there was an improvement," said Warren, another product of city schools. "But for the amount of money that was spent... we would have come out better off in the long run if we'd thought about this differently." A massive undertaking A program to modernize Rochester's aging school-building portfolio was first discussed in the early 2000s and unveiled publicly in 2006. As first conceived, it was grand in scale. Some of the city's oldest educational structures, dating to the horse and buggy days, would have been razed and eight new buildings erected in their place. But those plans crumbled amid changing priorities and long delays. It wasn't until January 2011 that a detailed plan was approved for Phase I renovation and expansion at a dozen existing schools. The first wrecking ball swung the following summer. Phase I is expected to wrap up in the coming months. By all accounts, the work that was done was done well, but there are still questions about whether it was the right work to be doing. Warren, who years ago expressed concern that the district's poor planning could cost big bucks, has seethed over what she saw in Phase I. "I've been pushing back against the district, telling them 'You need to be more aware of what's happening at those schools and what's going to happen going forward.' " she said. The district's inability to get a handle on its shrinking student population has made planning difficult. So have edicts that failing schools be closed. "To be fair to the district, this is very hard to do." said Richards. "Sitting here and saving what is this district going to look like 20 years from now — that's a tough job." But Warren and others say frequent reorganizations and a near-continual churning of new educational approaches are a plague on the project. "There's a general flip-flopping, almost schizophrenic way in which the district proceeds." White agreedExpensive expedition For example. Jean-Claude Brizard. who was the superintendent when much of the planning for Phase I was done, advocated that the World of Inquiry School 58. which traditionally had been an elementary school, be turned into an unusual K-12 expeditionary-learning institution. RCSD modernization plagued by overruns, > ,ic 'tii; r0>6 Wt MR "<64"48^ That has been done. Its S44 million price tag made World of Inquiry the most expensive project by far in Phase I. but the building on University Avenue is a showpiece and the school itself continues to be highly regarded. "How could one not be impressed with the work that was done there?" White said. "I know there were delays. But man. it appears to be worth it." There was a catchState building-construction aid is structured around traditional school formats. The state covered 85 to 98 percent of the cost of construction work at the elementary and high schools. But World of Inquiry broke that mold, and for that building's specialized needs, the state would pay only 65 percent of those costs. The district has to pay the rest — $2.5 million a year for the next 15 yearsShifting priorities Brizard also believed it would be best to place seventh- and eighth-graders in elementary schools, so during Phase I. five elementary buildings were converted to K-8 schools. But district officials are now talking about going back to the more traditional elementary-middle school approachWhen Bolgen Vargas replaced Brizard in 2011, he wanted longer school days and a school year that extended into the summer — so he decreed that air conditioning be installed in as many schools as possible. Design work had to be hastily redone to accommodate his wishes. The architects found it would cost $7.5 million to retrofit five schools, but where would the money come from? The answer was found in northwest Rochester, where S28 million in work had been planned for the Jefferson High building. The joint board nixed the Jefferson project in November 2012 and re-routed some of the money to pay for air conditioning. "These were things that were more important to the district and it was perfectly logical to do," said Tom Renauto, the joint board's executive directorWhite. who said he knew nothing of the decision, disagreed, saving Jefferson is home to the Rochester International Academy, which he termed one of the district's crown jewels. "If somebody had said to me 'air conditioning or Jefferson?' I would have said, 'How can we accommodate both?' " White saidJuggling money Plans for other high schools were turned on their heads in several ways. A total of $55 million initially earmarked for Monroe, East, Edison and Jefferson was spent elsewhereSome amount of that money -— how much isn't clear — was used to address a vexing, behind-the-scenes problem at five elementary schools and School 58: The true costs to renovate and furnish those six schools was far greater than the amount the state was willing to reimburse. This would have pushed an unacceptable portion of the cost onto the school district. Whether this was the fault of inattentive program manager Gilbane or a spendthrift Brizard administration remains unclear. A 2014 audit commissioned by the board had it both ways. After Phase I had begun, the problem was "solved" when the state Education Department let the joint board shift costs from project budgets into a catch-all category that would be eligible for reimbursement. It was a necessary artifice. Without it. the local share might have been so great that Phase I would have had to be scaled back even more than it was. (The habitually cash-strapped district had planned on covering $30 million itself and wound up on the hook for about $38 million.t And there was more. At East High, which was slated for modernization work, between $1 million and $3 million more had to be found to reconfigure the school after the Vargas administration decided to turn the failing school over to the University of Rochester for revival. Both Edison Tech and Charlotte housed two separate schools. Modernization work was done with that in mindBut no sooner did work finish than the district began planning changes. The twin schools at Edison were killed off, and one of the two institutions at Charlotte shuts its doors for good later this month. "They spent millions of dollars turning it into two schools." Warren said of Charlotte. "Now they're only going to use half of it." RCSD modenirt *; 'jy overruns, sWi y j)r-e>-!ties, 2018 WLNR 18424842 New goal: Flexibility In edu-speak. what happened at Edison and Charlotte was programmatic modernization. Translation: Work was done to make room for specific programs in vogue at the time the architects drew up their plans. When the programs changed, as they inevitably did, money was wasted. Joint board president Richards said they've taken steps to make sure this doesn't happen again. "We do what we can to make sure these schools are not designed for a particular programmatic approach," Richards said of Phase II. "We're trying to pick schools that the district feels will be with us for the long haul." This time around, the goal is to create buildings flexible enough to accommodate all sorts of programs. The master plan for Phase II, just made public, calls for work on 13 school buildings -— nine elementary schools and four secondary schools. East. Edison and Monroe, which were in Phase I, are in the new work plan again. An estimated $139 million would be spent at those three schools. (Interestingly, the master plan says work at East will be done to accommodate the innovative programs being put in place by the UR.) The state legislation that authorized Phase II included language meant to prevent Phase I's state-aid boondoggle. As a further safeguard, legislation is pending in Albany that would allow Rochester's modernization program to receive double the normal ration of state reimbursement for each elementary school in Phase II. The idea is to be able to gut and rebuild the structures in one fell swoop, rather than piecemeal as the state aid rules currently allow, officials said. The stakes are high; if the legislation doesn't pass, the district's plan for Phase II is dead in the water. Noiav. who opposes the bill, believes this double-dipping was necessitated by what he sees as bungling. "It's basically an admission that Phase I was a bust and now thev need to use Phase II funds to cover the millions of dollars of shortfall from the screw-ups," he said. Noiav. a conservative Republican from Pittsford. and Warren, a liberal Democrat from the city, have been among the most vocal critics of the modernization program. Each found fault with Phase I. When the next phase began to ramp up in 2015. each would make their presence felt — in ways that no one could have predicted. SORR@Gannett.eom MCDERMOT@Gannett.com — Index References — Company: EDISON SPA; GILBANE INC; TEGNA INC News Subject: (Children (1CH89); Education (1ED85); Educational Philanthropy (1ED14); Health & Family (1HE30); Parents & Parenting (1PA25); Philanthropy (1PH09); Social Issues (1SO05)) Industry: (Architecture (1AR60); Construction (ICOl 1); Engineering & Architectural Services (1EN06)) Language: EN Other Indexing: (Thomas Richards; Jean-Claude Brizard; Lovely Warren; Tom Renauto; William Nojay; Carolee Conklin; Van White) Edition: 1 Word Count: 1979 Vr 2016 fhotvixcn Remer- No okurn to onjonal ! 2S. (kovernvncvo Works. One epic fail, one more on the way, 2016 WLNR 1642 * 5/29/16 Democrat & Chron. (Rochester, N.Y.) A32 2016 WLNR 16424405 Democrat and Chronicle (Rochester, NY) Copyright (c) 2016 Gannett May 29, 2016 Section: Opinion One epic fail, one more on the way May 29,2016 Rochester is one-third of the way through its biggest, most costly public works project. But the cloud of dust being kicked up by construction pales in comparison to the cloud of uncertainty over who is accountable for the hundreds of millions of tax dollars being spent. Who is in really in charge of this behemoth? While that is far from the only question swirling around the city's SI.3 billion school modernization project, it is the first one that must be addressed before Phase II begins. Control over the first phase, which was launched a decade ago, was clearly lost somewhere along the way. As leaders changed and district priorities shifted, the overhaul of the city's aging school buildings turned into an abject lesson in significant waste, bungled planning, political opportunism and hostility. Those troubles are already leaking into the next round, even before the state's share of funding for it has been approved by Albany lawmakers. "People... are trying to lay this mess at my doorstep," said Mayor Lovely Warren, describing the bizarre selection process for a company to manage Phase II. "It doesn't belong here." Unfortunately, no one else is taking ownership of that mess, or many others, either. As watchdog journalists Steve Orr and Meaghan McDermott found in their six-month investigation, radical changes were made in the midst of the $325 million first phase. School board members were unaware of major decisions. The district ended up covering 25 percent, or $8 million, more in costs, with fewer buildings completed, than projected. Some of the modernized buildings don't match new programmatic needs of the district. At one point, the FBI was poking around for evidence related to the hiring of minority and women-owned businesses for the project. U.S. Attorney Preet Bharara could be investigating alleged contract-steering. Local and state politicians are at odds. The word "chaos" is an understatement when it comes to describing what happened here. One epic fnii, one -oor^ "!> -y 'V! vr ' ^5 The Rochester Joint School Construction Board, made up of seven volunteers, was technically "leading" the project. Three of its members are appointed by the mayor, and three others are named by the school superintendent-of-the-day. The seventh is a joint appointee. A contractor, in this case Gilbane Building Co., was technically "leading" the hiring, organization and oversight of architects, construction workers, movers and others who did the actual work. For reasons that this Editorial Board can't quite fathom, state Assemblyman Bill Nojay has been inserting himself into this project on a regular basis. However, we are just as perplexed about what he's done. On the flip side, the school board was largely, and inexcusably, absent. Meanwhile, administrators and teachers were shuffling students around to different buildings, negotiating for time in shared cafeterias and libraries, and boosting kindergartners up to senior-sized sinks. Parents missed sporting events and project fairs that took place in temporary schools across the city rather than their own neighborhoods. Students, most of whom face enormous challenges to begin with, were expected to enter this chaotic environment ... and do better. This city, once again, has utterly failed them. Mayor Warren, School Board President Van White, the acting school superintendent, along with any advisors they deem necessary, should immediately begin making a new plan. For the sake of students, Albany should not delay funding for Phase II. But, Rochester should not spend a penny of it until someone clearly assumes accountability for the results. — Index References — Company: GILBANE INC News Subject: (Education (1ED85); Government (1GO80); Local Government (1L075)) Industry: (Architecture (1AR60); Banking (1BA20); Commercial Banking Services (1C019); Construction (ICOll); Engineering & Architectural Services (1EN06); Financial Services (1FB7); Project Finance (IPR 11)) Region: (Americas (1AM92); New York (1NE72); North America (1N039); U.S. Mid-Atlantic Region (1MI18); USA (1US73)) Language: EN Other Indexing: (Van White; Albany; Bill Nojay; Preet Bharara; Steve Orr; Lovely Warren; Meaghan McDermott) Edition: 1 Word Count: 572 l-'mi of Docmuem •V" .^M6 Thomson Teukvo. ?vo chum to OOOULO I hS. GovermYuou. Worl.s Politics, personalities delay Phase II of school modernization, 2016 Si" If 424474 5/29/16 Democrat & Chron. (Rochester, N.Y.) A17 2016 WLNR16424474 Democrat and Chronicle (Rochester, NY) Copyright (c) 2016 Gannett May 29, 2016 Section: News Politics, personalities delay Phase II of school modernization Steve Orr, Meaghan M. McDermott May 29, 2016 A web of suspicion and accusation has entangled the start-up of the second phase of Rochester's giant school modernization program, raising questions about the leadership of the $1.3 billion undertaking. A six-month Democrat and Chronicle investigation has found that even before the first shovelful of dirt was turned on Phase II projects, an internal beef triggered a lawsuit and a request for an investigation by crusading U.S. Attorney Preet Bharara into alleged improprieties. Bharara, based in Manhattan, has made headlines for rooting out corruption in Albany and in recent weeks has turned his attention to improper lobbying, attempts to steer contracts to favored companies and undisclosed conflicts of interest surrounding massive state construction and economic development projects. In private, similar allegations have arisen here. They center on the process that began more than a year ago to select a company to oversee the second phase of the modernization program, in which $435 million is to be spent on 13 city schools. Insiders offer dueling theories on what they allege is contract-steering — either that the selection of program managers was swayed to mask financial mismanagement in the first phase of work, or to give the job to a politically connected startup company. That company, DeWolff Epic LLC, was at the heart of the controversy. It was backed by Mayor Lovely Warren, who says she liked the fact that an African-American woman would have helped run it. Covertly, another politician — state Assemblyman William Nojay — had helped create DeWolff Epic and was to be involved in its operation. Politics, personalities delay Phceo I' of r^^e~rr*!^ation, 201R \**LNR •<6'!34^?4 But after the dust settled, the firm that Warren had ferociously criticized for its handling of Phase I of Gilbane Building Co. and Savin Engineers landed the contract and is on the job today. a collaboration Blair Horner, legislative director of the good-government advocate New York Public Interest Research Group, said he was not surprised to hear still more complaints about how a big money contract was awarded. "Do companies believe they have to have inside connections in order to get government contracts? Sadly, they do think that because of New York's relatively opaque processes," he said. "And it's not surprising that lobbyists and other hot­ wired officials use their contacts to generate business." Selecting a manager The complex school modernization program is led by the Rochester Joint School Construction Board, a volunteer body of seven members who are appointed by city and school district leaders. The joint board, as it's called, has precisely one full-time staff member. It must rely on a hired program manager to act as its eves and ears, and to help hire, organize and police the architects, construction contractors, movers and many other companies involved in the program. In the $325 million first phase of the school modernization program, the task was done by Rhode Island-based Gilbane. assisted by Savin Engineers, a much smaller firm based in Westchester County. Some, like former mayor Tom Richards, who chairs the joint board, were largely satisfied with the work that Gilbane/Savin did in Phase I. Others, not so much. Among the naysavers was Mayor Warren, who criticized Gilbane on several frontsShe publicly and vociferously expressed her desire that a different company be hired for the next phase of work. With that as a background, the process of selecting a Phase II program manager began early last year. It was supposed to take just a few months. It took until the end of the year. From the beginning, the Joint School Construction Board was divided. On one side were three members appointed by the school superintendent, led by Richards, who was named to the joint board not long after he lost a bitter mayoral primary race to Warren in 2013. On the other side were three members appointed by Warren, one a city employee and two outside businessmen. Not long after the selection process began, one of the outsiders quit in frustration and the other was removed by Warren. Warren replaced them with city employees. A seventh person, appointed jointly by the mayor and superintendent, was the swing voteGuiding document 'tilted' The board planned to conduct a nationwide search for a program manager. But the document drafted to guide that process. written by Richards and others in February 2015, was crafted so that only Gilbane and other companies with experience in similar large school projects could qualify. The language was taken from New York state legislation, and Richards said it was not meant to favor anyone in particularWarren begs to differ, saving, "To me it was being tilted toward Gilbane." She demanded that original document be withdrawn, and it was. Drafts of a new version appeared, sent over from City Hall. They contained new language stating that the program manager applicants didn't need to have experience in major school construction projects so long as their affiliates or subcontractors did. This language had the effect of broadening the field, allowing a wider range of companies to apply. Even a startup with no track record would qualify if it chose the right partners. The new drafts also contained language that wasn't consistent with the state authorizing legislation; it read as if it had been cut and pasted from some other sourceBoard members asked who had written the drafts and got vague answers. Richards said he and some other joint board members felt something was amiss. "We can't have it looking like it's favoring one company or is influenced by someone who has an interest in the outcome," Richards said recentlyUnbeknownst to Richards, the drafts had been written or edited by Republican state Assemblyman Bill Nojay. He left digital fingerprints in the document, and he acknowledged his involvement when asked about it by the Democrat and Chronicle. Politics, personalities delay Phase II of school modernization, 2018 WLNR 16424474 Noiav, a lawyer by profession, said he'd found the original document on the joint board's website. He, too, had concluded it was out-of-step with the state legislation, giving the program manager too many responsibilities. So he "rewrote the sections they screwed up." Nojay said the drafts reached the joint board via other parties to whom he'd given them, including Robert Scott Gaddv. a lobbyist engaged by the school district with whom Noiav was friendly. As the Democrat and Chronicle has reported. Gaddv and Nojay collaborated behind the scenes in 2013 to help Lovely Warren get elected mayor. Warren and Noiav said in separate interviews that the mayor had nothing to do with Nojav's rewriting of the job specs. And Noiav's involvement was never disclosed to the joint board, some of whose members were unsettled. "There's an integrity issue," Richards said. "Even though I didn't know who the hell was proposing it. that was a concern — who the hell was proposing it? It was something we had to be careful about." DeWolff Epic is born In mid-April 2015, the joint board finalized a request for proposals and formed a selection committee to review the responsesOnly four were received. One was from a large firm from Buffalo, LPCiminelli — currently embroiled in the Buffalo Billion investigation and a lawsuit over its handling of a $1.3 billion schools modernization program there. Another bid came from a large Long Island company, LiRo Group. A third was from Savin and Gilbane. the program manager for Phase I of the school modernization program. The fourth proposal was from an outlier — DeWolff Epic LLC, a newly formed conglomeration of a half-dozen architectural and management companies, including a firm based in New Jersey led by Barbara Armand. Armand. who is African-American, is prominent in East Coast construction-management and minority-business circles. Carlton "Bud" DeWolff. who is in the latter days of a long, distinguished architectural career in Rochester, said the idea for the company arose when he was approached by "some high-profile members of the community." He spurned them once, but thev returned and convinced him to assemble the new company. DeWolff, coyly, would only hint that Noiav was among those who approached him. Noiav confirmed it. Frustration with the "debacle of Phase I" and the desire to "do it right" in Phase II drove the idea, he said. The architect said he was given the impression that Warren supported his efforts. The mayor angrily denied it, saving she had no idea DeWolff Epic was being formed. "People... are trying to lay this mess at inv doorstep. It doesn't belong here." DeWolff recruited companies both local and out-of-state to join the team, which he intended to head. "I assembled an orchestra with some great musicians. I was only the conductor. I would organize and keep it going," he said. Nojay. who has known DeWolff for many years and done legal work for him, said he helped organize DeWolff Epic and would have served as associate counsel, doing internal legal work. He told the Democrat and Chronicle he would have done no program manager work. A surprising selection Richards said he and his allies on the joint board had no idea that a member of the state Assembly had an active role in one of the proposing companies. Asked what he would have done had he known. Richards declined to comment. Richards said he found the DeWolff proposal lacking. Board ally Robert Brown, a retired Laborers Union leader, was more blunt, saving it was "the worst proposal, period." Indeed. Warren provided a copy of the rankings to the Democrat and Chronicle that the selection committee gave each applicant's written proposal, and DeWolff Epic was dead last. The mayor's appointees rated the company poorly, and the mayor herself had them secondWarren said it wasn't until the applicants were interviewed that she realized that Barbara Armand was a leader of the DeWolff team. She'd met Armand months earlier and been impressed. "I believed in talking to her that she understood the complexities of what was happening here in Rochester, and she had the skills and compassion to do what had been promised (but not delivered) in Phase I." Warren said. The mayor said she told her appointees to the joint board that "I think we should give her a chance." With that endorsement, the selection committee chose DeWolff Epic for the $20 million contract. The five entities required to approve the selection — the mayor, the superintendent, city council, the school board and the joint board itself — began to schedule their votes. The joint board, the bellwether of the group, cast its ballots Sept. 2. Richards was resigned to the choice. "They vote for who thev vote for. That's the world we live in." he said. Poiit; t vi j'U" > uoir.y Phase i! of ^ o^vt t i ; On the strength of "ayes" from the three city employees and swing voter Joe Brown, DeWolff Epic was ratified as program managerMembers of the DeWolff team were gobsmacked, DeWoIff admitted. "A little bit to mv surprise, we won." A sudden resignation The final approval needed for DeWolff Epic — sign-off by Rochester's City Council — was scheduled for the evening of Sept. 16. But that vote was never taken — because the chairman of the joint board. Tom Richards, had received a stunning email at precisely 10:01 that morning. Barbara Armand — the linchpin of the DeWolff consortium — had quit, and she largely blamed Noiav for her departure. "Bill Nojay's active participation in the process made me increasingly uneasy. To thwart his interference, I pressed for complete control over the Program Management process, which led to such an impasse that I had no option but to resign." Armand says in an email to Richards obtained by the Democrat and Chronicle. Armand expressed concerns about DeWolff s health, corporate governance and insurance. She also complained that Noiav was forming a separate company. ROC EPF, "to provide IT. Admin and office space. I was never comfortable with that arrangement." DeWolff said Armand was completely off-base with her concerns for his health, and Noiav said he had no intention of meddling. Creation of ROC EDP was simply a way to handle costs efficiently, he saidHe said keeping ultimate control in the hands of DeWolff. his lawyers and his accountants, rather than ceding it to Armand. was a way to guarantee transparency. "It was clear to everyone what the structure was to be." he said. DeWolff defended Noiav. saving his motives were altruistic. "He was doing this to really help the children in the schools. I really believe him on that." Asked if she had a problem with an Assemblyman working for a company she was backing for the work. Warren noted that state lawmakers are allowed to do outside workBut she also noted that conflicts involving "outside work" are drawing a great deal of scrutiny these days. "Would I have necessarily done that? Probably not." In her email. Armand also complained that Noiav had failed to produce a written opinion that he claimed to have from New York's Legislative Ethics Commission, stating that his involvement in the company posed no conflict of interest with his legislative post. A copy of the opinion by the commission's executive director. Lisa Reid, provided to the Democrat and Chronicle by Noiav earlier this week, does state there was no "substantial conflict" between his legislative post and the DeWolff Epic job. Reid wrote that Nojav should keep his name off the proposal to be submitted to the joint board so as not to influence their decision. She also said he should report his involvement in DeWolff Epic on his annual financial disclosure form. But Noiav told the newspaper he did not include DeWolff Epic on the form, which was filed earlier this month, because it was legal work from which he derived no income. Blair Horner of NYPIRG said it appears Noiav did the right thing by seeking an ethics opinion "so they can call the balls and strikes. But, we believe allowing lawmakers to moonlight causes problems. I'm sure once competitors for the contract heard his name that sure raised a lot of eyebrows." Barbara Armand. meanwhile, is keeping mum. Dewolff. Noiav. Warren and others involved sav they have been unable to reach her since she quit. Armand also did not respond to phone messages, emails or postal letters from the Democrat and Chronicle or to visits to her Cherry Hill. N.J, office by a reporter. DeWolff Epic disintegrates With Barbara Armand gone. Richards and then other group members pulled the plug on DeWolff Epic. "What was obvious to me ••. was that this group we had picked had fallen apart." Richards said. Although DeWolff Epic found a replacement for Armand. its pleas to be reconsidered for the role steering Phase II of the program were spurned. The joint board instead returned to the other original candidates and within a few weeks, it had settled on a choice that was, in some ways, just as surprising as DeWolff Epic had been. Politics, personalities delay Phase II of school modernization, 2016 WLNR 16424474 Board members said they found good reasons to avoid picking either of the other two contenders so the job would go to Savin and Gilbane. The decision was driven bv the Richards contingent on the board, who had never had a problem with Gilbane and Savin. "Gilbane — those people are smarter than anybody in the country when it comes to renovating schools," Brown said. "But Lovely didn't like 'em. She had to eat crow." Indeed, the mayor signed off on Gilbane and Savin only grudgingly, "We met with them and I flat out told them 'Look, you were my last choice.'" Warren recalled. She was assuaged bv assurances that Savin, not Gilbane. would take the lead in Phase II. This distinction was lost on the remnants of the DeWolff Epic team. "It's the same people doing the same functions. There's not a niekle's worth of difference." said C. Allen Reeve, a construction law specialist in Pittsford who would have been De Wolff Epic's chief counsel. He filed a legal challenge in state Supreme Court to the joint board's selection of Savin/Gilbane, but lost. The group eventually was given a contract that could pay them up to $27 million over six years for Phase II work. Richards said contract terms were tightened to address an issue identified in Phase I bv clarifying the group's responsibilities. Conspiracy theories emerge In the wake of the sudden switch from DeWolff to Gilbane. conspiracy theories emerged. Warren threw cold water on the notion advanced in private bv some, that she was trying to help Noiav and his colleagues succeed with DeWolff Epic. Both deny they were working together and insist thev never once spoke about DeWolff Epic or the Phase II program manager job. "My sole support for the DeWolff Epic team was built around Barbara Armand and what she could bring to the table." she said. The idea that she backed DeWolff Epic to help out Noiav is flat wrong, the mayor said. "If that was the case I would have continued to support the team without Barbara Armand. You see what I mean?" Meanwhile, the DeWolff team has pondered why Armand would turn her back on the job in Rochester. The belief is that "someone got to her," as Noiav put it. and persuaded Armand to drop out. "She really wanted to do this job, and she needed it." "Bud" DeWolff said. "I assigned a fee to her of $4.5 million. That's nothing to sneeze at. It really shocked all of us. "There's a lot of speculation that she was offered a more lucrative position." Likewise, the DeWolff team is suspicious of the mayor. "All we know about Lovely Warren's actions are that she did a 180-degree turn, from being outraged about the mismanagement of the Phase I work to then voting to ensure the same people who were responsible for the mess got the contract for ... Phase II." Noiav saidHe and others point to extra state aid announced for the city at about the same time the mayor was endorsing Savin/Gilbane. Some in Albany may have arranged the aid to help an ally, the theory goes. "It smells bad, but welcome to New York politics." Noiav saidAssembly Majority Leader Joseph Morelle, (D-Irondequoit), said he helped arrange extra aid to the city after the mayor came to Albany and expressed a need for it. He was incredulous at the suggestion that something else motivated him. "I had no relationship—with Gilbane." he said. "That is just complete fantasy." Warren, almost sputtering, dismissed the notion as "completely inaccurate." "I can't even believe that ••• I don't have anything to say about that." she said. "It's so ludicrous." Ludicrous or not, the DeWolff Epic team took their suspicions to Bharara. the federal prosecutor in Manhattan, in a 70-page packet sent in November. A cover letter signed bv C. Allen Reeve accused the joint board of acting in a "clearly irrational, preferential and improper manner." That allegation is similar to an ongoing probe by Bharara's office into claims that carefully crafted bid requests were used in efforts to throw work to politically-connected construction firms in the so-called Buffalo Billion project and in the Albany area. A new round of subpoenas was sent out by Bharara's office in that probe earlier this month, reaching even as far as some of Gov. Andrew Cuomo's most trusted advisers. The DeWolff Epic letter, however, has drawn no response. Reeve and others say. PciK'- ^ ' "" x V o "io' ' s The disclosure forms also did not list Wellsource Nutrition, a firm in which Nojay and a Pennsylvania man, Ralph Briggs, were partners. Nojay said this company also did not need to be disclosed because he derived no income from it. "Back in 2013 I spent some time with the staff lawyers going thru this. The answer is no," Nojay said, referring to whether Wellsource and Gosala should have been cited on the filings. Wellsource, incorporated in 2012, was formed to purchase Pennfield, a financially struggling animal-feed company in Pennsylvania that was about to file for bankruptcy. The $15.6 million deal was announced in late 2012. But Wellsource reneged on its promise to buy Pennfield, and that company's corporate successor eventually filed suit against Wellsource, Nojay and Briggs. The case, which is still pending in U.S. Bankruptcy Court in Philadelphia, is seeking payment of up to $9.75 million. Separately, an Ohio feed and grain company that invested in the Wellsource-Pennfield deal has obtained a $972,000 legal judgment against Nojay and Briggs. That judgment is on file in the Monroe County Clerk's office. Another Nojay company that made news two years ago when it led to an indictment in Cambodia was mentioned on the Assemblyman's financial disclosure statements. Nojay and other owners of that company, Texas-based Akra Group, have been charged in criminal court in Phnom Penh with defrauding a Cambodian investor out of $1 million. A Cambodian-American businessman went on trial on trial last summer, and Nojay and two other American codefendants were tried in absentia. The trial was adjourned for further investigation, according to a July 2015 report in The Cambodia Daily. — Index References — Company: AKRA GMBH; PENNFIELD SCHOOLS COUNTIES OF CALHOUN AND BARRY STATE OF MICHIGAN News Subject: (Bankruptcies (1BA08); Business Management (1BU42); Corporate Events (1CR05); Crime (1CR87); Extortion & Blackmail (1EX95); Financial Fraud (1FI18); Fraud (IFR30); Social Issues (1SO05)) Region: (Americas (1AM92); Asia (1AS61); Cambodia (1CA93); Eastern Asia (1EA61); Far East (1FA27); Indo China (1IN61); North America (1N039); Pennsylvania (1PE71); Southeast Asia (1S064); U.S. Mid-Atlantic Region (1MI18); USA (1US73)) Language: EN Other Indexing: (Wellsource Nutrition) (Ralph Briggs; Lovely Warren; William Nojay; Sheldon Silver) Edition: 1 Word Count: 567 Nojay trial delayed again in Cambodia, 2016 WLNR 20571921 7/6/16 Democrat & Chron. (Rochester, N.Y.) A5 2016 WLNR 20571921 Democrat and Chronicle (Rochester, NY) Copyright (c) 2016 Gannett July 6, 2016 Section: News Nojay trial delayed again in Cambodia Steve Orr July 6,2016 The Cambodian fraud trial of state Assemblyman William Nojay, a former U.S. ambassador to the United Nations, and two other men has been delayed again, according to a news report from the southeast Asian country. The Cambodia Times reported Tuesday that the trial, which was supposed to resume Monday, had been put off after the alleged victim asked that the judge in the case be removed. The victim, a wealthy Phnom Penh dentist who claimed she was swindled out of S1 million, filed a complaint asserting a conflict of interest because the judge and a key witness were friends, the newspaper reported. Nojay and his co-defendants are accused of persuading the dentist to invest in their company, which was going to process and export rice. The dentist, Dr. Lykuong Eng, said the company took her money, then ceased operations. Eng said the witness who was friendly with the judge helped persuade her to invest in the company, according to the Times. The trial began a year ago but was adjourned when the judge said more investigation was needed. Nojay, a Republican who lives in Pittsford, represents an Assembly district comprising southern Monroe County, all of Livingston County and northwestern Steuben County. One of the co-defendants is Sichan Siv, a native of Cambodia who grew up in the United States and served as U.N. ambassador under President George W. Bush. Lawyers for Nojay and his co-defendants have said the matter was a failed business endeavor, not a case of fraud. Nojay also told the Democrat and Chronicle last week that the defendants had evidence of corruption in the case. The matter that led to the adjournment Monday appears to be different from the allegations tht Nojay aired last week. SORR@Gannett.com •— Index References — Nojev •? v,') > WLNR 2C5? 1321 Company: TEGNA INC News Subject: (Corruption, Bribery & Embezzlement (1EM51); Crime (1CR87); Fraud (1FR30); Social Issues (1SO05)) Region: (Asia (I AS61); Cambodia (1CA93); Eastern Asia (1EA61); Far East (1FA27); Indo China (1IN61); Southeast Asia (1S064)) Language: EN Other Indexing: (George Bush; Lykuong Eng; William Nojay) Edition: 1 Word Count: 296 Nojay trial in Cambodia to start, 2016 WLNR 20234183 7/2/16 Democrat & Chron. (Rochester, N.Y.) A17 2016 WLNR 20234183 Democrat and Chronicle (Rochester, NY) Copyright (c) 2016 Gannett July 2, 2016 Section: News Nojay trial in Cambodia to start Steve Orr July 2, 2016 New York state Assemblyman William R. Nojay, a Pittsford Republican, is one of four defendants about to stand trial for criminal fraud in the southeast Asian country of Cambodia. Court proceedings are scheduled to begin on the Fourth of July, according to a news report Friday from Phnom Penh. Nojay, who has become a prominent supporter of presidential contender Donald Trump, told the Democrat and Chronicle Friday that he expects to be exonerated. Nojay and three other men who formed a company to process and export rice from Cambodia stand accused of obtaining a S1 million investment from a wealthy Cambodian, then shutting the company down. The news report from the Khmer Times said the money was wired to a bank account controlled by Nojay but never invested in the company, Akra Agricultural Partners. One of Nojay's co-defendants is Sichan Siv, a prominent native of Cambodia who grew up in this country and became a White House aide and the United States ambassador to the United Nations under President George W. Bush. The prosecutor in the case said Akra Agricultural Partners was an empty shell and the endeavor was a fraud, according to the Khmer Times story. Lawyers for the defendants, however, have consistently denied the allegations and call the case a simple business deal gone bad. Nojay said the court session Monday will consider a defendants' motion to dismiss the charges. The criminal case went to trial a year ago but was put on hold when the presiding judge decreed that more investigation was needed. Since that time, Nojay asserted Friday, the defendants have obtained evidence of alleged corruption involving the investor who claims to have been victimized, Eng Lykuong. Nojay trial in "n niw ia to - o, C IV" t*? 202341 S3 "We have found records that she (Lykuong) bribed the original judge and he has been removed from the bench, his clerk was arrested for corruption and his personal assistant has fled into the countryside," Nojay said. Whether the defendants' counter-allegations make any difference in the outcome of their case remains to be seen, though numerous articles do describe the court system in Cambodia as quite corrupt. As was the case in the first trial last year, Nojay will not make an appearance in the Phnom Penh courtroom next week. He and two other defendants who are Americans are being tried in absentia. The fourth defendant, a Cambodian-American, is expected to be present. Should Nojay be convicted, it is not clear what sort of sentence might be imposed or how it could be enforced. The United States has no extradition treaty with Cambodia, according to a document posted by the State Department. The Cambodian case is not the only legal entanglement in which the assemblyman has found himself. As the Democrat and Chronicle reported in May, Nojay is a co-defendant in a $9.75 million civil fraud suit in Pennsylvania that revolves around promised investments in an animal-feed company and has a judgment for nearly $1 million filed against him in relation to another feed company. Those cases were included in a Democrat and Chronicle investigative package that highlighted other unusual business dealings by the Pittsford Republican, including his little-known involvement in a company that sought a lucrative contract in the Rochester school modernization program and his use of a Florida company to perform work on behalf of Democrat Lovely Warren when she ran for Rochester mayor in 2013. SORR@Gannett.com — Index References — Company: TEGNA INC News Subject: (Corruption, Bribery & Embezzlement (1EM51); Crime (1CR87); Criminal Law (1CR79); Financial Fraud (1FI18); Fraud (1FR30); Government Litigation (1G018); Legal (1LE33); Social Issues (1SO05)) Region: (Americas (1AM92); Asia (1AS61); Cambodia (1CA93); Eastern Asia (1EA61); Far East (1FA27); Indo China (1IN61); New York (1NE72); North America (1N039); Southeast Asia (1S064); U.S. Mid-Atlantic Region (1MI18); USA (1US73)) Language: EN Other Indexing: (Akra Agricultural Partners) (George Bush; Donald J. Trump; Donald Trump; William Nojay; Phnom Penh.Nojay) Edition: 1 Word Count: 567 lojay faced charges invoiving trust fund handled as attorney, 2016 WtNR 27590253 9/10/16 Democrat & Chron. (Rochester, N.Y.) A17 2016 WLNR 27590253 Democrat and Chronicle (Rochester, NY) Copyright (c) 2016 Gannett September 10, 2016 Section: News Nojay faced charges involving trust fund handled as attorney Gary Craig , Steve Orr September 10, 2016 Assemblyman Bill Nojay, who died by suicide Friday morning, had been scheduled to appear Friday in U.S. District Court to face fraud-related charges connected to a trust fund he handled as an attorney, according to sources familiar with the case. Before the scheduled court appearance, Nojay contacted his lawyer via text message and said he planned to take his life, the sources say. The attorney contacted police, who went to Riverside Cemetery, where Nojay fatally shot himself at his family burial plot before police could intervene. Nojay has been at the middle of various controversies recently. Fie was a silent partner in a company that won a tentative contract to oversee the second phase of the $1.3 billion Rochester schools modernization project. And he was one of four defendants in a fraud trial in Cambodia, where Nojay and three other men formed a company to process and export rice. The four were accused of obtaining a S1 million investment from a wealthy Cambodian, then shutting the company down. While multiple media outlets Friday linked Nojay's criminal charge to either the school modernization or the Cambodia project, the Cambodian case had nothing to do with it. And while agents reportedly found the alleged fraud as an offshoot of an investigation into the modernization program, the criminal charge had nothing to do with that matter either. Instead, Nojay was to be criminally charged in connection with the alleged disappearance of funds from an account he managed for a longtime client and friend, architect Carlton "Bud" DeWolff, sources said. DeWolff said Friday afternoon that the FBI had informed him several weeks ago that $1.8 million from the escrow account had been traced to Nojay, who had access to the money as DeWolffs lawyer. At first the FBI thought DeWolff was involved in diverting the funds but DeWolff said he convinced them that he had not been. It's unclear how much of the money Nojay was accused of embezzling. Nojay faced charg s • >->ndled as attorney, 2018 WIMR 27530253 The funds originated from a major project for which DeWolff provided architectural services — the King Hussein Center for Biotechnology and Cancer, a large medical complex near Amman, Jordan. The funds in the escrow account were intended to pay for DeWolffs services. DeWolff said Friday that in recent weeks Nojay had returned much of the money that had been taken from the escrow account. A Democrat and Chronicle investigation published in May laid out another link between Nojay and DeWolff — mutual involvement in a company that sought and won a multimillion-dollar program-management contract for the Rochester school modernization effort. Nojay helped conceive and create the company, which was known as DeWolff EPIC, though he took steps to keep his involvement a secret. Largely on the strength of support from Mayor Lovely Warren, DeWolff EPIC was chosen for the program manager job. But the deal fell apart when another principal in the company abruptly quit, saying she was "uneasy" with Nojay's degree of involvement and uncomfortable with his plan to start a separate company that would have been paid to provide services to DeWolff EPIC. DeWolff said he believed Nojay was involved in the company only to do good for Rochester's students and he wasn't out to profiteer. But DeWolff said he was contacted by the FBI shortly after the Democrat and Chronicle's investigation was published and said he was surprised by things the agents told him about Nojay's supposed plans for DeWolff EPIC. The Democrat and Chronicle confirmed from a law-enforcement source that federal investigators were looking into the school modernization matter. In interviews conducted this spring, the two said they'd known each other for 30 years. Nojay had acted as legal counsel to DeWolff from time to time, and DeWolff had done architectural work for several organizations on whose board Nojay sat. DeWolff said he was devastated by Nojay's death. "I'm still in shock," he said Friday afternoon. "He was always an upstanding person. He always treated me good up until this Jordan thing." The federal fraud charge was sealed Friday morning. Criminal complaints and indictments are sometimes sealed and not released publicly with an agreement that the accused will appear in court. Then, in court, the criminal charge is unsealed and becomes public. However, with Nojay never formally charged in court, it is unclear whether the complaint will be unsealed. GCRAIG@Gannett.com SORR@Gannett.com — Index References — Company: ROCHESTER RESOURCES LTD; TEGNA INC Nojay faced charges involving trust fund handled as attorney, 2018 WLNR 275?*""'** News Subject: (Corruption, Bribery & Embezzlement (1EMS 1); Crime (1CR87); enmmat Law (1CR79); Fraud (1FR30); Judicial Cases & Rulings (1JU36); Legal (1LE33); Social Issues (1SO05)) Industry: (Architecture (1AR60); Construction (ICOl 1); Engineering & Architectural Services (1EN06)) Region: (Arab States (1AR46); Asia (1AS61); Cambodia (1CA93); Eastern Asia (1EA61); Far East (1FA27); Indo China (1IN61); Jordan (1J078); Middle East (IMI23); Southeast Asia (1S064)) Language: EN Other Indexing: (Lovely Warren; Bill Nojay; Carlton DeWolff) Edition: 1 Word Count: 727 HIGH PROFILE: BILL NOJAY, 2003 WLNR 17389008 2/16/03 Democrat & Chron. (Rochester, N.Y.) 1 2003 WLNR 17959008 Democrat and Chronicle (Rochester, NY) Copyright © 2003 Gannett February 16, 2003 Section: National HIGH PROFILE: BILL NOJAY February 16, 2003 Man on the move The Republican pundit, activist, lawyer and transit center promoter is everywhere. But where is he going? DQMetro BY STAFF WRITER GARY CRAIG HE READS TO A GROUP OF CHILDREN. He inspects strawberries for a senior citizen. He stands at a barren corner of downtown Rochester, watching as a computer-generated bus terminal and office building magically spring up around him. "Pretty neat, huh?" Bill Nojay says in the TV ad, noting that this downtown renaissance could start with a new transit center. In those promotions last year for the Rochester-Genesee Regional Transportation Authority, its chairman, Nojay, is casually dressed, bespectacled and avuncular. He comes across as a professorial Mister Rogers. Could this be the same fellow that Mayor William A. Johnson Jr. last year called a "predator"? Or whom Rep. Louise Slaughter referred to as a "very strange public servant"? Granted, Johnson (who declined to comment for this story) and Slaughter are both Democrats, and Nojay is a Republican. But when the subject of a conversation is Nojay, the tenor of the talk is more visceral than political. Nojay's supporters contend that his true aim is the public good and that he'll do what he believes to be right - by the force of his convictions or sheer force. His detractors claim he is a Machiavellian man on a power grab who tends to make public discourse simply coarse. HIGH PROFILE: BILL NOJAY, 2003 WLNR 17959008 All of which begs a bigger question: How did this guy get to be so controversial? Nojay, a 46-year-old native Rochesterian, doesn't hold elected office. He is a corporate and tax lawyer. He is an active volunteer. And before Nojay, who the heck had any idea who chaired the RGRTA? "Bill Nojay truly believes that to just achieve (appointed or elected) office . . . it's not acceptable just to be there and sit in that chair," said RGRTA Chief of Staff Mark Aesch. "You have to do something to make the world a better place, or what you perceive to be a better place." Nojay tends to inject himself prominently in any debate, said City Council President Lois Giess, a Democrat. "He's quite persuasive and sometimes it's the power of the personality," she said. "He can articulate an argument as well as anybody that I've heard, and he thinks quickly on his feet." Asked whether Nojay carries political power in this community, Giess said, "I'm not sure whether he actually has it or not - but he gives you the sense that he does." And what does Nojay say? "I think that individuals can make a difference." Brother's keeper As a sixth-grader in the Major Achievement Program at School 22, Nojay engaged in what he calls his "first act of political rebellion." His school fenced off an area of the playground for use by teachers, taking away space the students once had. Nojay launched a petition drive for the removal of the fence. "That particular class was very, very active, and Bill was one of the leaders of the class," said Richard Adamus, one of Nojay's elementary teachers. To get to School 22, Nojay rode the Regional Transit Service buses from his Furlong Street home, on Rochester's east side. He would change buses downtown, where dozens of riders would be huddled, shivering in the winter. Nojay said that those frigid days - coupled with his research showing that Rochester transit planners have talked about a downtown bus terminal for three decades - is the impetus for his unrelenting push for a downtown transit center. "This was before Polarguard, and I don't think I've ever felt so cold as when I was standing on those downtown street corners," Nojay said in a recent e-mail. (For this story, Nojay answered questions through interviews and his characteristically prolific e-mails. After explaining that he'd changed Nogaj to Nojay because that's how his birth name is pronounced, he sent four more e-mails, one with Web sites showing the ancestral connections between the Nogajs and Genghis Kahn.) When young, Nojay shared a room with his older brother. Rob was severely disabled by cerebral palsy, extreme mental retardation and, in his final years, multiple sclerosis. He died four years ago. Nojay's parents - Norman Nogaj, a finance manager for Eastman Kodak, and Kay, a teacher - structured their lives around care for Rob. A grandmother and a great-aunt lived in the house to help out. Friends encouraged the family to place Rob in an institution, to ease the family's burden. HIGH PROFILE: BILL NOJAY, 2003 WLNR 17959 The Nogajs refused. "Their approach was 'This is family, this is Rob, this is a responsibility we have,'" Nojay said. Little in their lives was not shaped by Rob's presence. They hopped from church to church and denomination to denomination - Presbyterian, Baptist, Lutheran - in search of those with the most welcoming arms and the best programs for the disabled. "Wherever we went, (Rob) went," Kay Nogaj said in an interview at the Brighton home of the couple, who are now retired. "And if he wasn't welcome, we wouldn't go." For Bill, it was as if he were the older, protective brother. "As a child, the only time I got into fights was when some kid on the block did something to Rob," he said. "That was something you just didn't do, a line no one crossed without my responding." Columbia, Cambodia For junior and senior high, Nojay transferred to The Harley School, a private school in Brighton. There he played sports, headed the high school debate team ("He was pretty good at that; wasn't too good at baseball," his father said), chaired the "Walk for Water" fundraiser and interned in the office of then-Mayor Thomas P. Ryan Jr., a Democrat. In the summers, Nojay visited Europe, the Middle East and Asia as an exchange student. That affinity for travel was key to a friendship years later. While at Columbia University Law School in the early 1980s, Nojay befriended fellow student Sichan Siv, a Cambodian refugee. Siv lost most of his family during the Khmer Rouge's genocide in the mid-1970s and was forced into slave labor before escaping to the United States. Siv shared with Nojay his passion to reclaim his homeland and to see democracy thrive there. And Nojay constantly pressed Siv for more insight into Cambodia, which by then had fallen under the control of the Vietnamese. "(Nojay) was interested in democracy, he was interested in freedom, and he became strongly committed to helping Cambodia become free," Siv, now a U.S.-appointed ambassador to the United Nations Economic and Social Council, said in a recent telephone interview. After graduating from law school, Nojay worked as an attorney in New York City. He kept in touch with Siv and worked to promote the Khmer People's National Liberation Front, a guerrilla outfit that hoped to reclaim Cambodia from the Vietnamese. Siv connected Nojay with KPNLF leaders, and in 1985 Nojay traveled to the Thai-Cambodian border to gauge the likelihood the guerrillas could succeed. Using credentials as a photojournalist - his photographs would be used in a 1985 article in Soldier of Fortune - Nojay visited a KPNLF camp and occasionally traveled into Cambodia. "We rode motorcycles through minefields," Nojay said. "There was a path and on either side you could get blown up." Later, convinced that the KPNLF could retake Cambodia, Nojay worked with Siv and others to successfully lobby for congressional funding for the guerrillas. HIGH PROFILE; BILL NOJAY, 2003 VVLNR 17359008 The KPNLF ultimately ousted the Vietnamese. And Siv and Nojay remain close. "One thing I can say about Bill is I can trust him with my life," Siv said. Power points In the mid-1980s, Nojay returned to Rochester as a lawyer. He married Kathleen Rogers in 1985; they later adopted two Korean children, Matthew and Elizabeth. (Nojay and Kathleen are now divorced and share custody.) Nojay says he did not think then that he would be heading toward a life in politics. But a high school friend, Pam Baker, contacted him in the late 1980s about meeting with a group of young Republicans concerned that the party was wilting. Among that group was Stephen J. Minarik III, who now chairs the Monroe County Republican Party. Minarik tapped Nojay as the campaign treasurer for County Executive Jack Doyle, who later selected Nojay for the RGRTA board. The position of chairman, which is unpaid, gave Nojay his current public platform. He has used it to lobby for the transit center and, in what engendered the ill will between Nojay and the mayor, to challenge whether the planners of a Rochester-Toronto high-speed ferry truly had the private financing to make the project happen. The RGRTA might not sound like a typical political springboard, but then Nojay is not a typical RGRTA chairman. He doesn't hesitate to jump into a political imbroglio - indeed, his critics say he often invites friction. "I'm told on a daily basis that somebody has had a run-in with him," said Slaughter, the staunches! opponent of RGRTA's bus terminal proposal. When a downtown neighborhood activist questioned the terminal scheme, Nojay wrote to him that his comments were "asinine" and colored by "smug condescension" about bus riders. While substituting as a host on Bob Lonsberry's radio show on WHAM-AM (1180), Nojay referred to Mayor Johnson as "Commodore Johnson" and said, "Rochester needs new leadership." Nojay maintains that he turns fiery only if pushed too far. His detractors - especially Johnson and Slaughter - rarely get challenged by the media, he said. "Both are wasting time and money for our community, and people rarely call them on it," he said. Doyle, who has had his own tussles with Johnson, sees a kindred spirit in Nojay: "I think he's taking a bum rap from a lot of people because he's been out in front on a lot of issues." Some Democrats predict that Nojay will be less of a public force when Doyle, who decided not to seek re-election, steps down after this year. "He's kind of a message carrier (for Doyle)," County Legislator H. Todd Bullard, D-Rochester, said of Nojay. Nojay, who once was a disc jockey on a late-night radio rock show, has become a regular guest on local television and radio shows. When he showed up in the RGRTA ads last year, Democrats railed that he was trying to parlay the publicly funded exposure - the ads cost $240,000 - into a run for office. "For anybody to spend . . . public money to advertise himself is very troubling to me," Slaughter said. HIGH PROFILE; BILL NOJAY, 2003 WLNR 17959008 Nojay points out that he did not run for Congress as many predicted nor is he running for county executive this year, as others suspected he would. He said he very publicly backed the downtown bus terminal because he believes in the project. But some critics say Nojay's depiction of himself as a high-minded public servant is off the mark. Instead, they say, he uses his power for retribution against those who cross him or his political brethren. Some local activists point to Nojay's role as chairman of the state's Interest on Lawyers Account Trust Fund, which supports nonprofit agencies that serve the poor. Since Nojay assumed the chairmanship in 1999, IOLA has eliminated funding for the Public Interest Law Office of Rochester. PILOR represents the Center for Disability Rights in a lawsuit against RGRTA over the service's Lift Line operation for the disabled. Bruce Darling, who heads the center, said he is sure the funding cuts were payback for the lawsuit. Nojay, who now recuses himself on votes for Rochester agencies, said IOLA rerouted revenue to organizations that more directly help needy clients. As the lawsuit wound through the courts, the center mounted an anti-Nojay protest at one public hearing, with activists wearing buttons that referred to him as "No Joy." Asked about the protest in light of his brother's disabilities, Nojay said, "There are a lot of ironies in public life, and I don't want to comment on that particular incident." The long run Dan Meyers, president of the A1 Sigl Center, has seen a different Bill Nojay from the public official lampooned as "No Joy." A longtime volunteer at the A1 Sigl Center, Nojay has worked closely with the disabled there. "In terms of his passion for our mission and our work and his involvement and his commitment," Meyers said, "there is a very pure burning heart." Nojay is also in training as a dispatcher with the Pittsford Volunteer Ambulance. He is a director of the Genesee Waterways Center and the Vietnam Veterans Memorial of Monroe County Inc. Volunteerism was preached in his household, Nojay said. His mother, at age 74, is now one of Gov. George Pataki's appointees to a mental health and mental retardation services advisory board. "The people I admire most in life are the men and women who decide what the right thing is to do, and then do it," Nojay said. "You just have to be prepared to persevere for the long run." Within political circles, a virtual cottage industry has sprung up trying to foresee Nojay's future. Will he run for political office? Will he try to scuttle the ferry, despite the fact that the city ultimately bypassed RGRTA as a funnel for state funds for the project? Will he get his way with the bus terminal? Within the past two weeks, new RGRTA ads have begun airing, again pushing the proposal for a downtown bus terminal. Despite the criticism leveled at him last year, Nojay is again featured prominently in the ads. Inevitably, the ads will trigger new speculation about Nojay's plans. One person not surprised is longtime civic activist Edward "Ted" Curtis, who helped organize those young Republicans in the late 1980s. HIGH PROFILE: BILL NOJAY, 2003 WLNR 17959033 "Of that gang, most of them were, and still are now, guys who were into the operations and administration, the inside stuff," Curtis said. "I think Nojay was much more of an upfront guy, the kind who says, d don't mind getting a little more ink on this (because) I've got ambitions.' "I don't think anybody could figure out what (the ambitions) were then, and I don't think anybody still can." E-mail address: gcraig@ DemocratandChronicle.com PHOTO CAPTIONS Transportation Authority Chairman Bill Nojay, a recent guest on WXXI-TV's Need to Know program, has figured prominently in the downtown bus terminal project and the high-speed ferry. JAMIE GERMANO staff photographer Young Bill Nojay, left, poses with disabled brother Rob, father Norman Nogaj and uncle Bill Randtke. Nojay's parents structured their lives around care for Rob, who died four years ago. Nojay family photo Nojay chats with a friend, WHAM talk show host Curt Smith, during a break while he was a guest on Smith's show. He also has filled in at the station for host Bob Lonsberry. JAMIE GERMANO staff photographer As an assistant coach with the Pittsford Mustangs, Nojay explains a drill to the young soccer players, including daughter Elizabeth, first child on left. Nojay also is a longtime volunteer at the A1 Sigl Center, working closely with the disabled. JAMIE GERMANO staff photographer Bill Nojay Born: Nov. 24, 1956, in Rochester. Family: Divorced; two children. Lives in Pittsford. Education: BA in computer science, Colgate University; law degree and MBA, Columbia University. Career: Corporate lawyer, Coudert Brothers in New York City, 1982-84; tax lawyer, Nixon, Hargrave, Devans & Doyle in Rochester, 1984-91; corporate lawyer, Rochester office of Hiscock & Barclay LLP, 1993-present. Appointments: Chairman, Greater Rochester Metro Chamber of Commerce's International Business Council, 1986-88; chairman, Rochester-Genesee Regional Transportation Authority board, 1996-present; chairman, Interest on Lawyer's Account Fund, 1999-present; counsel, Greater Rochester Sports Authority, 2001-present. Other activities: Treasurer, Friends of Jack Doyle campaign committee; director, Genesee Waterways Center; chairman, A1 Sigl Center Housing subsidiary. HIGH PROFILE: BILL MOJAY, 2003 WENK 17959008 PHOTO CAPTION Bill Nojay, age 20. Nojay family photo In his words *"I try not to be offensive, I will never say something to be provocative or controversial." * "You can't be distracted or discouraged by naysayers. You have to keep working toward your goals." * "This community fools itself a lot by either ignoring continuing problems or putting our heads in the sand." In their words * "He's a person who operates with a singlemindedness of purpose. If you disagree, he is not one who is easily inclined to change his mind. It's not that he's self-promoting. He takes on tasks with a kind of zeal." - Ted O'Brien, former Monroe County Democratic Party chairman * "I'm told on a daily basis that somebody has had a run-in with him. ... I think he's in the wrong line of work." - Rep. Louise Slaughter, D-Fairport * "When Bill puts his heart and soul into something, it's truly his heart and soul. He does it with a passion." - Pam Baker, campaign aide to Rep. Thomas Reynolds, R-Clarence, Erie County * "Bill's been at the forefront of a number of different big projects that have come down the pike... with some controversy, like the transit center and the fast ferry. ... When you try to do things instead of sitting back on your hands, you tend to make some friends and some enemies." - Stephen J. Minarik III, Monroe County GOP chairman * "He's well-informed on the issues. I think he would be a very good elected official. He's not afraid to take on difficult issues." - Jack Doyle, Monroe County executive * "He got his power during the Doyle administration. Whoever's the new county executive will want their own people." -Todd Bullard, county legislator, D-Rochester - Index References — Company: COLGATE UNIVERSITY; REGIONAL TRANSPORTATION AUTHORITY; UNITED NATIONS; COLUMBIA UNIVERSITY; MIDDLE EAST COLLECTION HIGH s IAV "^A-AO lft#« MO < "?O£0^^ News Subject: (Social Issues (1SO05); Government (1GO80); Local Government (1L075); Nou-rroni Organizations (1N022); Company Profiles (1C063); Public Affairs (1PU31); Political Parties (1P073); Business Management (1BU42)) Industry: (Railroads (1RA98); Transportation (1TR48); Passenger Transportation (1PA35); Land Transportation (1LA43); Passenger Railroads (1PA89); Busing (1BU35)) Region: (Far East (1FA27); New York (1NE72); Americas (1AM92); USA (1US73); Vietnam (1VI02); Cambodia (1CA93); Indo China (1IN61); North America (1N039); Eastern Asia (1EA61); Asia (1AS61); Southeast Asia (1S064)) Language: EN Other Indexing: (AL SIGL CENTER; AL SIGL CENTER HOUSING; BA; COLGATE UNIVERSITY; COLUMBIA UNIVERSITY; COLUMBIA UNIVERSITY LAW SCHOOL; COMMERCE; CONGRESS; COUNTY; DEMOCRAT; DEMOCRATS; EASTMAN KODAK; FAMILY: DIVORCED; GENESEE REGIONAL TRANSPORTATION AUTHORITY; GENESEE WATERWAYS CENTER; GOP; HARGRAVE; HARLEY SCHOOL; IOLA; KPNLF; MONROE COUNTY; MONROE COUNTY DEMOCRATIC PARTY; MONROE COUNTY INC; MONROE COUNTY REPUBLICAN PARTY; NATIONAL LIBERATION FRONT; NIXON; NOGAJS; NOJAY; PILOR; PITTSFORD; PITTSFORD MUSTANGS; PITTSFORD VOLUNTEER AMBULANCE; PUBLIC INTEREST LAW OFFICE; READS; REGIONAL TRANSIT SERVICE; REGIONAL TRANSPORTATION AUTHORITY; REPUBLICANS; RGRTA; ROCHESTER; ROCHESTER SPORTS AUTHORITY; TRANSPORTATION AUTHORITY; TV; UNITED NATIONS; VIETNAM VETERANS MEMORIAL; WEB; WHAM) (Bill; Bill Nojay; Bill Randtke; Bob Lonsberry; Bruce Darling; Commodore Johnson; Coudert Brothers; Council; County; Curt Smith; Curtis; Dan Meyers; Devans Doyle; Doyle; Elizabeth; Europe; Genghis Kahn; George Pataki; Giess; Granted, Johnson; Greater Rochester Metro Chamber; HIGH PROFILE; Inevitably; Jack Doyle; Johnson; Kathleen; Kathleen Rogers; Kay Nogaj; Legislator H. Todd Bullard; Lois Giess; Louise Slaughter; Mark Aesch; Matthew; Meyers; Minarik; Mister Rogers; Nogaj; Nogajs; Nojay; Norman Nogaj; Pam Baker; Richard Adamus; Rob; Sichan Siv; Siv; Slaughter; Social Council; STAFF WRITER; Stephen J. Minarik; Ted O'Brien; Thomas P. Ryan Jr.; Thomas Reynolds; Todd Bullard; Volunteerism; William A. Johnson Jr.) Word Count: 3450 EXHIBIT S klc: 5 "f a n d Suicide ® w ^ t # ^ j> ? /" 55 27/26 n/a 43.9 184.6 - 4.4 85 153 > 65 46/39 84/69 113.1 63.1 28.6 43.1 70 100 > 60 32/38 43/57 50.0 59.2 36.3 n.s. 86 > 50 63/23 63/23 44.6 47.7 12.2 n.s. 0.2 10.7 3,6 2002 (11 Chiu et at 2004 (12) Conwell et al. 2009 (13) >1 5,9 n.s. Included both suicides and medically serious suicide attempts. (preferring the familiar to the novel, blunted affective adulthood (e.g., bereavement, retirement, and dis­ and hedonic responses) were associated in one ret­ ability), stressors that lead to social disconnectedness rospective case-conrrolled study of suicide in later life are particularly salient. Beautrais reported that se­ (17). A separate study found that anankastic (ob­ rious relationship problems distinguished older sessional) and anxious traits were also associated adults with near fatal suicide attempts from controls with late life suicide (9). in New Zealand (10), and in both Sweden (21) and the U.S (22, 23), family discord was significantly more common in the lives of older adult suicides Axis III: PHYSICAL HEALTH than a matched, living comparison sample. Social A variety of physical illnesses have also beenshown connectedness appears also to serve as a protective in both retrospective psychological autopsy and re­ factor. Individuals who report a strong family con­ cord linkage studies to be associated with suicide (18-20). Specific illnesses most frequently identi­ nection are less likely to report suicide ideation (24). In other retrospective studies older adult suicides fied as risk factors include malignancies and central were significantly less likely to have a confidante nervous system disorders (e.g., epilepsy, spinal cord than controls (25), more likely to live alone than injury, Huntington's disease), chronic obstructive their peers in the community (26), and less likely to pulmonary disease, congestive heart failure, and participate in community activities (23), be active in chronic pain. The impact of physical illness may be organizations, or have a hobby (21). cumulative. In a retrospective case/control study of late-life suicide, J uurlink and colleagues showed that the relative risk ofsuicide increased with the number Axis V: FUNCTIONAL IMPAIRMENT of comorbid physical disorders (19). Compared Because physical illness and functional limitations with patients with no identified illness, for example, are rhe norm in older people, assessment of func­ patients with three illnesses had over three times tional capacity and any resulting disablement is higher relative risk of suicide (odds ratio=3.5, 95% a necessary component of comprehensive geriatric 0=2.9—4.2); patients with five illnesses were at al­ assessment. Evidence now shows that functional most six times greater risk 0=4.4-7.4). limitations and disablement make substantial in­ (odds ratio=5.7, 95% dependent contributions to suicide risk in older people, and therefore represent potential targets for Axis IV: SOCIAL CONTEXT 4 preventive interventions. In their case-controlled study of suicide in later life, Waem and colleagues Studies comparing older adults who took their reported a significant association between suicide own lives with matched controls show that social and need for help with activities of daily living in factors determine suicide risk independent of psy­ those over age 75 years (27). Tsoh and colleagues chiatric illness.In addition to losses common in older found that older adults who had attempted or Wimcr 201,1, V o l X J , N o . I FOCUS IH i ; J O U R N A L O f I .IHU. O N Q H I A I t N I N G I N I' S Y C I H A I " I t V CONWELL completed suicide had greater functional impair­ POINTS OF ACCESS ment than nonsuicidal older adult controls (28), and our group has reported that deficits in in­ In order to design effective preventive inter­ strumental activities of daily living significantly ventions, one must know not only characteristics differentiated suicides from controls, even after ac­ that place older adults at risk for suicide that are counting for presence of psychiatric disorders (13). amenable to change, but also where older adults with Hospitalization for medical or surgical reasons as these risk characteristics can be most efficiently well as use of visiting nurse or home health aide identified and engaged in prevention activities. services increased risk as well. Findings of Dom- Older people at risk for suicide seek help from mental brovski and colleagues highlight more specifically healthcare providers far less often than younger and the role ofneurocognitive deficits in late life suicidal middle aged cohorts. On the other hand, one-quarter behavior as well (29). They have reported impaired to a third of older adults who took their own lives reward/punishment learning in older adult suicide were seen in a primary care practitionersoffice within attempters, but not ideators, positing that older the last week of life, and a half to three-quarters adults who attempt suicide over-emphasize present within the last month (12, 33, 34). Primary care, reward/punishment contingencies to the exclusion therefore, represents one important setting in which of past experiences. More research is clearly needed to detect at-risk elders and intervene. Another is that links studies of brain structure and functioning, home health and community-based long-term care using refined measures of discrete cognitive pro­ supports and services, clients of which have been cesses and carefully characterized samples of older shown also to have a high prevalence of mood dis­ adults with and without suicidal behavior. orders and suicidal ideation as well as physical illness burden, functional impairment, and other social stressors (35-38). Given the large number of older OTHER adult men who are veterans, a group at even greater Given that such a high proportion of older adults who die by suicide used a firearm, it is important to risk for suicide, Veterans Service Organizations and Veterans Health Administration facilities are likely know whether access to guns is itself a risk factor. We to compared gun ownership gramming as well. and storage among be important venues for prevention pro­ matched samples of older adults who killed them­ selves and living controls (30). Suicides were sig- PREVENTIVE INTERVENTIONS nificaxitly more likely ro have a handgun in the home; easy access to long gutis did not distinguish The Institute of Medicine classifies preventive interventions into three types (39). The first, the groups. and has been most familiar to clinicians, is "indicated" pre­ postulated to explain the increased risk for suicide vention, which targets individuals at high risk with Access to and familiarity with firearms observed among veterans of the armed forces at all detectable symptoms of major psychiatric illness ages (31). The elevated risk associated with veteran and/or other proximal risk factors for suicide. The sratus is particularly pertinent to suicide prevention second is "selective" preventive interventions, which in later life because two thirds of men over age 65 target asymptomatic or presympromatic individuals have sewed in the military (32). or groups with distal risk factors for suicide, or who One final point warrants emphasis for clinical have a higher than average risk ofdeveloping mental practice. Research that specifically examines the disorders due to presence of more distal factors. impact on suicide risk of interaction between factors Finally, there are "universal" preventive inter­ is scarce. Nonetheless, clinicians should be in­ ventions that address risk in an entire population creasingly concerned about their older patients, not irrespective of the risk of any individual or sub­ only as the number and severity of risk factors for group. "Multilevel" preventive interventions refer to suicide within any domain rises, but as the number of those approaches that combine components from domains represented in the individual's risk assess­ more than one level (for example, a combination of ment increases as well. Figure 2 illustrates common indicated and selective interventions.) scenarios among older adults at the areas of interface between domains of risk. Where a larger number of Table 2 lists published studies in which suicidal ideation or behavior in older adults was the targeted domains overlap, risk is increased. Where all five outcome. Of eight studies listed, five are best char­ domains are represented, referred to here as the area acterized as indicated interventions (40—44), one as of highest convergent risk, the likelihood of suicide is l+kely-te-be greatest. focuri.p.s^'clihir/yonlinc.ori) a selective approach (45), one universal (46), and one multilevel (47). Because suicidal ideation and behavior are uncommonly expressed in later life, FOCUS Winter 2013, Vol. XL No. 1 CONWHX their study is challenging and, as a result, the evi­ a "black box" warning for the use of antidepressant dence base for preventive interventions is limited. medications in this age group. Less widely appreci­ Further complicating interpretation of the available ated was the finding that among those research evidence that is avadafekr-relarionships between subjects over the age of 40, risk of suicidal ideation suicidal ideation and behavior in later life have yet to or behavior emerging during the drug trials was be fully defined. For example, do wishes for an early significantly reduced. death and thoughts of taking one's own life carry the Early findings indicate the likelihood that psy­ same risk of future suicide or suicide attempts? Who chosocial interventions may be effective in reducing among those older persons with histories of prior suicidal ideation in older adults as well. Heisel and suicidal behavior is most likely to take his own life? colleagues, for example, demonstrated in a case series It is premature, therefore, to assume that inter­ of suicidal older adults that thoughts of killing ventions effective in addressing suicidal ideation will themselves significantly diminished over the course have the same effect on attempted or completed of treatment with adapted interpersonal psycho­ suicide in later life. therapy (IPT) (42). More definitive trials of IPT as well as cognitive behavioral therapy for high risk STUDIES OF INTERVENTIONS THAT TARGET SUICIDAL IDEATION The PROSPECT and IMPACT studies were rigorously conducted randomized controlled trials STUDIES OF INTERVENTIONS THAT TARGET SUICIDE AND SUICIDE ATTEMPTS designed to test whether primary care-based col­ Because of complex ethical and logistical con­ laborative depression care management for older straints, no randomized controlled trials have yet adults was more effective than enhanced care as usual been reported in which the outcome was attempted in reducing suicidal ideation among older adults with or completed suicide. Four trials listed in Table 2, major depression and dysthymia (48, 49). Both however, provide some indication of potential effect studies found significantly greater improvement in of selective, universal, and multilevel approaches depressive symptoms and suicidal ideation in those tested by less rigorous methods. De Leo and col­ who received the care management intervention leagues, for example, reported results of the Tele- (40, 41). In neither study were there sufficient sui­ help/Tele-check intervention in which older adults cide attempts to examine the effectiveness of de­ at risk for adverse physical and mental health out­ pression care management on suicidal behavior. comes were provided telephone-based access to Given the importance of primary care as a venue for supportive services (45). Both on-demand and suicide risk management in later life, and because service-initiated contact by social workers with at- integrated approaches to the management of comorbid mental illness and chronic physical dis­ risk elders was associated over 11 years of in­ tervention delivery with significantly fewer suicides orders have been shown so effective (50, 51), the than would have been expected in a comparable wider dissemination of primary care-based collab­ population (standardized mortality ratio of 0.167). orative depression care management is a promising The intervention is best characterized as a selective approach to addressing late-life suicide. Whether approach because it targeted a group with risk suicide deaths can actually be reduced remains to be characteristics of functional impairment and social determined. isolation rather than individuals at high risk. Ecological studies of medication prescribing rates and their association with suicide mortality have In five separate studies Oyama and colleagues tested multilevel approaches to suicide prevention suggested that antidepressant administration is an that combined varying elements of indicated, se­ effective indicated preventive intervention (52-54). lective, and universal preventive interventions for Interpretation of the findings remains a subject of older adults in rural Japanese villages. Components debate, including in older adults, however (55, 56). included depression screening for older adult resi­ Stone and colleagues reported results of a large dents, referral to either a general practitioner or meta-analysis of Food and Drug Administration mental health specialist for those who screened (FDA) positive, engagement of older adults in group ac­ data from 372 randomized, placebo- medications tivities, and community-based psychoeducational (43). The data revealed a statistically greater risk that sessions. Suicide rates in the intervention villages controlled 6 elders are ongoing. trials of antidepressant suicidal ideation would emerge in adolescents and were then compared with demograpbically similar young adults during the course of treatment with regions. Merging the five studies using meta-analytic active medication than placebo. These findings methods (47), the investigators found that when contributed to the institution by the FDA of follow up was conducted by a psychiatrist, the Winter 2013. Vol. XI, No. 1 F O C U S THR JOURNAL OF LIFELONG LEARNING IN PSYCHIATRY CONWM.L Table 2, Interventions Associated With Suicide Risk Reduction in Later Life Study Design Prevention Approach8 Randomized controlled trial Indicated IMPACT: Primary care- 9e%yvith major based depression depression/ care management; tx dysthymic 895 algorithms; patient, controls family, provider education Alexopoulos Randomized et at, controlled 2009; trial Bruce etal,. 2004 (U.S.A.) _ (41) Indicated PROSPECT: Primary 32^witti mood care-based disordersi279 controls depression care management; treatment algorithms; patient, family, provider education Heisel et al., 2009 (Canada) (42) Case series Indicated Stone etal., 2009 (U.S.A.) (43) Meta­ analysis Study Intervention Participants Age Outcome Assessed Effect" a 60 Suicidal ideation Resolution of suicidal ideation: 0R=0.7 (95% 0=0.4-0.8) : 60 Suicidal ideation For patients with major depression, resolution of suicidal ideation at 24 months: 0R=3.2 (95% 0=1.1-9.5) 11 referrals from IPT to improve social functioning + existing clinicians/medical treatment staff > 60 Suicidal ideation Pre/post reduction in suicidal ideation score: p=0.01 Indicated Antidepressant medications 372 randomized, placebo-controlled trials, with 99,231 randomized subjects with affective disorders (50%) or other psychiatric conditions (50%) > 18 Decreasing risk of Suicidal newly emerging ideation suicidal ideation with (or behavior age: <25 yrs: [14%]) 0R=1.62 (95% 61=0.97-2.71); 25­ 64: 0R=0.79 (95% 61=0.64-0.98); >65:0R=0.37 (95% 01=0.18-0.76) Oyama et at., Meta­ 2008 analysis (Japan) (47) Multilevel Depression screening, psychoe,ducation workshops, referral, follow-up, treatment by psychiatry or primary care Five quasi-experimental studies comparing regions with and without intervention. Men: 20,598 person years; women: 28,437 person years De Leo et at, Ecological 2002 study (Italy) (45) Selective Men: 2,983 women: 24 hr. access to supports as needed; 15,658 weekly phone contact Chan etal., Cohort study Indicated Primary care-based gatekeeper training, referral to geropsychiatry, care management, active aftercare for suicide attempters. 351 suicide attempters received intervention (66 preintervention), all diagnoses Ecological study Universal Relative change in handgun suicides in states that implemented gun control legislation versus those with no new policy implementation. Aliases Handgun All 50 U.S. states, vital suicides statistics data reports of suicides from 1985 through 1997 Uniitzer etal., 2006 (U.S.A.) 2011 (Hong Kong) (44) Ludwig & Cook, 2000 (U.S.A.) (46) a Indicated: b0R=odds 65 Suicide Psychiatrist follow-up: men: IRR=0.3 (95% 61=0.1-0.7), women: iRR=0.3 (95% 61=0.2-0.6); GP follow-up: men: n.s., women: IRR=0.4 [0.2-0.6] : 65 Suicide For women, standardized mortality ratio=16.7% (2.0%59.9%); for men: n.s. Suicide and suicide attempt 2-year suicide rate: p=0.028; reattempt rates: p=n,s. 2:65 Rate reduction per 100,000 population: -0.92 (95% Cl=1.43 to -0.42) tor those > 55 years. No difference for homicide rates or overall suicide rates. targeting high-risk individuals; selective: for individuals or groups with more distal risk factors; universal: targeting a population. ratio; !RR=incidence rate ratio. Locus,p.sych iarryoniinc.org FOCUS Winter 2013. Vol. XI, No, 1 C' O N W f X l . suicide incidence rate ratios in intervention areas promising approaches to late life suicide prevention were significantly reduced for both men and at all levels-indicated, selective, and universal. women. When general practitioners provided the depression care, however, the significant effect was found only for older EFERENCES female participants. In­ terestingly, more detailed analysis of the Tele-help/ Tele-check intervention also revealed an effect only for women (45). R 1. Braver F: George Eastman: A Biography. Baltimore, MD, Johns Hopkins 2. Centers for Disease Control and Prevention: Web-based Injury Statistics University Press, 1996 Query and Reporting System (WiSQARS). 2010 (October 4,2012j; Available Chan and colleagues reported results of an in­ dicated preventive intervention in Hong Kong in from: http:/Avww.cdc.gov/injury/wisqars/index.htrnl 3. ganization. 2010 (October 4, 2012}; Available from: http;//www.wbo.int/ which older adults who survived a suicide attempt were referred to a multicomponent prevention program that included psychiatric evaluation and care and ongoing care management (44). They mentaLhealth/preventioa^suicide/suicidepreventtor)/ 4. 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Uniitzer J, Katon W, Callahan CM, Williams JW Jr, Hunkeler E, Harpole L, Dfl, Weber C: Major depression in elderly home health care patients. Am J Depression and its correlates among older adults accessing agingservices. 38. Bruce ML, Ten Have TR, Reynolds CF 3rd, Katz H, Schulberg HC, Mulsant BH, 56. Helgason T, Tdmasson H, Zoega T: Antidepressants and public health in Stone M, Laughren T, Jones ML, Levenson M, Holland PC, Hughes A, Iceland. Time series analysis of national data. Br J Psychiatry 2004; 184: Hammad TA. Temple fl Rochester G; Risk of suicidality in clinical trials of 157-162 NOTES focus.psychuicrvoniind.org FOCUS Winter 2013, Vol. XI, No. 1 AUTHOR QUERIES AUWTIOR PLEASE ANSWER ALL QUERIES There are no queries in {his artidc. EXHIBIT Case i . .•yCC Document 44-1, 08/15/2016, 1C- 6'):, Paqel of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Nuinber(s) . 15-3979 Caption [use short titlol Motion for: withdrawal of direct appeal, vacatur of judgment, United States v. Thomas W. Libous dismissal of the indictment, return of fine and special assessment and, insofar as is necessary, substitution of the Executrix Set forth below precise, complete statement of relief sought: withdrawal of the direct appeal, vacate the judgment and remand to the District Court with orders to dismiss the indictment and return the fine and special assessment and, insofar as is necessary to effect relief, to substitute the Executrix, Frances M. Libous, for Thomas W. Libous MOV IN LARTY: Thomas W. Libous Plaintiff J Defendant Appellant/Petitioner Appellee/Respondent / . Paul DerOhannesian ;FY MOV ING ATTORNEY: . United States OPPOSING PARTY: OPPOSING ATTORNEY: Benjamin Allee/James McMahon [name of attorney, with firm, address, phone number and e-mail] 677 Broadway, Suite 707 300 Quarropas St., White Plains, NY 10601 Albany, New York 12207 (914) 993-1936; (914) 993-1962 (518) 465-6420; paul@derolaw.com james.mcmahon@usdoj.gov; benjamin.r.allee@usdoj.gov Court-Judge/Agency appealed from: NYSD, Hon. Vincent L. Briccetti FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Please check appropriate boxes: Has movant notified opposing counsel (required by Local Rule 27.1): / Yes No (explain): Has request for relief been made below? V.XC Y OS No Has this relief been previously sought in this Court? Yes No Requested return date and explanation of emergency:^ Opposing counseFs position on motion: Unopposed [ •/ [Opposed Don't Know Does opposing counsel intend to file a response: •Yes No <•/ [Don't Know Is oral argument on motion requested? •Yes I Y I No (requests for oral argument will not necessarily be granted) I las argument date of appeal been set'? I Signature of Moving Attorney: /s/ Paul DerOhannesian II Form T-1080 (rev. 12-13) I Yes [7 No If yes, enter (iate:_ ,.t„. 08/15/16 Date: Service bv: buCM/ECF I I Othe: Other [Attach proof of service] ase 1^979, Document 4472, 08/15/2016, 18^691, Paqel of IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT UNITED STATES OF AMERICA, Appellee, -v- No. 15-3979 THOMAS W. LIBOUS, Defendant-Appel lant. DECLARATION OF PAUL DEROHANNESIAN H. ESQ. Paul DerOhannesian II, Esq., an attorney duly admitted to practice law in the Courts of the State of New York and the United States Court of Appeals for the Second Circuit, under penalty of perjury, do hereby declare: I. I am a member of the bar of this Court and a principal of the law firm of DerOhannesian & DerOhannesian, counsel to Defendant-Appellant Senator Thomas W. Libous. I respectfully submit this Affirmation in support of Defendant-Appellant's motion for withdrawal of the direct appeal, and remand to the Southern District with order to vacate the judgment, and return of fine and special assessment, and insofar as is necessary to effect relief, to substitute the Executrix of Senator Libous' estate, Frances M. Libous, for Thomas W. Libous. I am fully familiar with the facts and circumstances relative to this matter and application. 2. Following a trial by jury, on July 22, 2015, Senator Libous was convicted in the Southern District of New York of one count of violating 18U.S.C. § 1001. Case i. Document 44-2, 08/15/2016, ID-.601, Page2 of 4 3. On November 24, 2015, Senator Libous was sentenced, in pertinent part, as follows: two years' probation with six months" home confinement, a $50,000.00 fine special assessment. hereto as Exhibit A. and a $100 A true and accurate copy of the sentencing transcript is attached A true and accurate copy of the Judgment in a Criminal Case is attached hereto as Exhibit G. 4. 1 filed Defendant-Appellant's Notice of Appeal on December 8, 2015. See Dkt. Nos. 1-1, 1-2. The Notice of Appeal challenged both the conviction and the sentence. I also filed this Court's so-called "Form B" advising that 1 would be ordering a transcript of the Jury Selection which was held on July 13, 2015. Dkt. No. 9. The Jury Selection transcript was the only portion of the trial transcript that had not previously been requested. 5. Although I requested the transcript from the court reporter in December 2015, with a follow-up request in January 2016, my office did not receive a copy of the transcript until May 25, 2016. Senator Libous' appeal is pending. In the interim, I filed several letters with the court advising of the delay. Dkt. Nos. 25, 28, 28, 30-34. 6. Due to his declining health, on May 3, 2016, the trial court Ordered that Senator Libous' home confinement be discontinued. 7. On May 3, 2016, while awaiting the Jury Selection transcript. Senator Libous passed away following a long battle with prostate cancer. See Dkt. No. 34. A true and accurate copy of Senator Libous' redacted Death Certificate is attached hereto as Exhibit B. My office is representing the estate. 8. By decree of the Broome County Surrogate's Court dated May 25, 2016, Frances M. Libous, Senator Libous' wife, was appointed as the executrix of the estate of Thomas W. Libous. A true and accurate copy of the redacted Certificate of Appointment of Executor, 2 Case 1, ..-979, Document 44-2, 08/15/2016, 1S3WB91, PageS of 4 dated May 25, 2016, is attached hereto as Exhibit D. A true and accurate copy of the redacted Letters Testamentary is attached hereto as Exhibit E. I am the attorney for the Estate of Thomas W. Libous. 9. Mrs. Libous supports the instant motion. To the extent necessary to effect this motion, Mrs. Libous asks that she be substituted for her husband, Thomas W. Libous, in this proceeding to seek the relief requested. 10. Any funds returned as a result of the accompanying motion will be deposited in Senator Libous' estate and distributed in accordance with his Last Will and Testament. 11. Portions of the Jury Selection transcript were received on May 9 and 16, 2016, with the final portion received on May 25, 2016. 12. I communicated our intention to file the instant motion to Assistant United States Attorneys James McMahon and Benjamin Allee. The Government advised that it opposes Senator Libous' request for the return of the fine but takes no position on Senator Libous' remaining requests. 13. Attached as Exhibit C is a true and accurate copy of the receipt for payment of the fine and special assessment. 14. Attached as Exhibit F is a true and accurate copy of the Satisfaction of Judgment, filed in the Southern District on January 11, 2016. 15. The accompanying Memorandum of Law sets forth the facts and legal rationale demonstrating that Senator Libous is entitled to the relief as set forth in the Motion Information Statement. Case ' : "79, Document 44-2, 08/15/2016, 18'»«*o91, Page4 of 4 I declare, under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct. Dated: August 12,2016 Albany, New York Respectfully submitted. By: /s/ Paul DerOhannesian 11 Paul DerOhannesian II DerOhannesian & DerOhannesian 677 Broadway, Suite 707 Albany, New York 12207 (518) 465-6420 Attorneys for Thomas W. Liboits and the Estate of Thomas W. Lihous as represented by the Executrix, Frances M, Libous 4 {Zigzag i??g?i Qi??am??m 414:8? ?E?z?l?fEQEi?i @Eiggal a? {:33 EXHIBIT A Case IS-.a 79, Document 44-3. 08/15/2016, 1346 J\. Page2 of 63 15bOLIE*nsS 1 Sentence UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x 2 3 UNITED STATES OF AMERICA, 4 v. 5 14 Cr. 440(VB) Sentence THOMAS W. LIBOUS, Defendant. 6 7 x White Plains, N.Y. November 24, 2015 11:10 a.m. 8 9 Before: 10 THE HONORABLE VINCENT L. BRICCETTI, 11 District Judge 12 APPEARANCES 13 14 15 16 PREET BHARARA United States Attorney for the Southern District of New York JAMES McMAHON BENJAMIN R. ALLEE Assistant United States Attorneys 17 18 19 DerOHANNESIAN & DerOHANNESIAN Attorneys for Defendant PAUL DerOHANNESIAN DANIELLE R. SMITH 20 21 22 23 24 25 MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 1 Case 1C, e ej. Document 44-3, 08/15/2016, loo- -«1. Page3 of 63 ISbOLIBmsS Sentence 1 THE COURT: 2 THE DEPUTY CLERK: 3 Good morning, everybody. United States of America against Thomas Libous. 4 5 Will counsel please note their appearance for the record. 6 MR. McMAHON: 7 Good morning, 8 James McMahon and Benjamin Allee, Assistant United 9 2 Yes. your Honor. States Attorneys, for the United States. 10 THE COURT: 11 MR. DerOHANNESIAN: Paul DerOhannesian and Danielle R. 12 Good morning. Smith for the defendant, Thomas L. Libous. 13 THE COURT: 14 Have a seat. 15 Okay. Okay. Good morning. This matter is on for sentencing today, the 16 defendant having been found guilty, after a jury trial, of 17 making false statements to the FBI, in violation of Title 18, 18 United States Code, Section 1001. 19 I've reviewed the following materials in preparation 20 for sentencing: 21 October 6th, 2015, prepared by Nicole Brown Martin, U.S. 22 Probation Officer Nicole Brown Martin; I've reviewed defense 23 counsel's sentencing memorandum dated October 20th, 2015, as 24 well as the letters and materials attached thereto, including a 25 letter from the defendant; I've also reviewed a number of The revised presentence report dated MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15^379, Document 44-3, 08/15/2016, 1840091, Page4 of 63 ISbOLIBmsS 3 Sentence 1 letters which were suhmitted directly to chambers — in other- 2 words, not submitted by either side — all of which I've 3 provided to counsel, and all of which will be filed in the ECF 4 docket. 5 Let me just list than for the record. There was an 6 undated, unsigned letter that I received on September 28th, 7 2015. 8 Brown; a letter dated October 5th, 2015, from Robert Lester; a 9 letter dated October 11, 2015, from the Oquaga, O-Q-U-A-G-A, 10 11 12 13 14 There was a letter dated October 5th, 2015, from Jennie Lake Improvement Association. It's possible that one was suhmitted with your brief. I'm not sure. MR. DerOHANNESIAN: No, you're correct. That was filed directly with the Court. 15 THE COURT: 16 MR. DerOHANNESIAN: 17 THE COURT: It was filed directly with the Court. Okay. Yes. A letter dated October 7, 2015, 18 from Stacey Holmes, H-O-L-M-E-S, and a letter dated October 25, 19 2015, which was unsigned. 20 21 22 23 I've also reviewed the government's sentencing memorandum dated November 9th, 2015. Okay. Has anything else been submitted that I failed to mention? 24 MR. McMAHON: 25 MR. DerOHANNESIAN: Not from the government. No, your Honor. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 4 Case lb*sy79. Document 44-3, 08/15/2016, 1 >i< oil. PageS of 63 ISbOLIBmsS Sentence 1 THE COURT: 2 And Mr. DerOhannesian, have you read the presentence 3 Mr. DerOhannesian? report and discussed it with your client? 4 MR. DerOHANNESIAN: 5 THE COURT: 6 presentence report? THE DEFENDANT: 8 THE COURT: 9 THE DEFENDANT: 10 THE COURT: I have, your Honor. And, Mr. Libous, have you read the 7 11 Okay. I have, your Honor. Have you discussed it with your attorney? Yes, sir. Mr. McMahon, have you read the presentence report? 12 MR. McMAHON: 13 THE COURT: Yes, I have. All right. The presentence report 14 calculates the sentencing range as follows: 15 Base Offense Level is 6 under Guidelines Section 2B, as in boy, 16 1.1(a)(2). 17 is a two-level — I'm sorry. 18 characteristic. 19 two-level upward adjustment for abuse of a position of public 20 trust. 21 is 8, the Criminal History Category is I, based on zero 22 criminal history points. 23 the sentencing range is zero to six months' imprisonment. 24 25 It says that the There is one specific offense characteristic, which It's not a specific offense It's an adjustment under Section 3B1.3, a So that according to the PSR, the final Offense Level And therefore, according to the PSR, This is an odd case in which the supervisory release range and the probation range are two different ranges. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 The 5 Case I S - v 7 9 . Document 44-3, 08/15/2016, JD'e mi, Pageo of 63 ISbOLIBmsS Sentence 1 supervisory release range, according to the PSR, is one to 2 three years. 3 eligible, is one to five years. 4 $5,000. 5 The probation range, for which the defendant is And the fine range is $500 to I will note that the fine ranges generally have been 6 amended by the guidelines that are in effect as of November 1, 7 2015, raising basically the guidelines fine ranges. 8 there's a provision — I don't have the exact quote, but 9 there's a provision in the new guideline which says that the However, 10 new guidelines do not apply to cases in which the offense was 11 committed prior to the enactment of the guideline. 12 words, the new guidelines don't apply, even though they are in 13 effect as of November 1. All right. 14 15 Does the government have any objection to the factual statements in the presentence report? MR. McMAHON: 16 17 So in other No, not to the factual statements, your Honor. THE COURT: 18 All right. Now, I see from the 19 presentence report — specifically, at Pages 17 and 18 — that 20 the defendant has objections to certain aspects of the both 21 factual and legal statements in the presentence report. 22 prepared to resolve those if you want me to. I'm So the first one says — this is on Page 17 of the 23 24 PSR. It says, "Defense counsel objects to the defendant's 25 seven false statements as written, because they differ from the MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case ISbOLIBmsS j ">?. Document 44-3, 08/15/2016, 18 'k c?l, Page? of 63 Sentence 1 statements as charged to the jury." 2 Paragraph 22 of the PSR. And this is a reference to 3 Are you pressing that objection? 4 MR. DerOHANNESIAN: 5 6 I'll rest on my papers, your Honor. 6 THE COURT: All right. I'm not sure that you said 7 anything in your memorandum about that, but it is in the PSR. 8 So I want to make sure the record is complete. 9 I agree with the Probation Officer. The Probation 10 Officer says, "The seven false statements, as written in the 11 report, are consistent with the charge to the jury." 12 the report specifies the parties involved. 13 the PSR now. 14 identify the participants, because they are relevant, and it 15 provides clarity to the reader. 16 will remain unchanged." 17 However, I'm reading from "We thought it was important to be detailed and I agree with that. Accordingly, this paragraph Also, all of the allegations that 18 are referenced in Paragraph 22 were supported by the evidence 19 at trial. 20 Okay. The next objection is, it says Paragraphs 7 and 21 31. 22 help his son get a job were" — quote — "'corrupt'" — end 23 quote. 24 25 "Defense counsel objects that the defendant's actions to And the Probation Officer's response was, quote, "We believe that the statements in the presentence report are MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 7 Case IS ...»79, Document 44-3, 08/15/2018, 15 5. ,51. PageS of 63 15bOLIE*nsS Sentence 1 accurate. This objection is based upon the assertion that the 2 defendant is innocent and exercised his right to a trial. 3 such, we have added this information to a footnote at Paragraph 4 7." As Now, I'm just going to hold off on that for a moment 5 6 and hear both lawyers address that. Probation's response kind 7 of misses the point a little bit, because Mr. Libous obviously 8 was convicted only of making a false statement. 9 convicted of any offense related specifically to the episode 10 involving his son's job at the law firm. 11 pass on this one for the moment. 12 minute. 13 He was not Anyway, I'm going to We'll address that again in a We will address it, but not right this second. The next one — this is on Page 18 — says 14 Paragraphs 8, 9 and 10, "Defense counsel objects to" — quote, 15 "'speculative and unfounded allegations of fact'" — end quote 16 — "as reflected in the offense conduct." 17 say, Paragraphs 8, 9 and 10 of the PSR. And that's, as I And the Probation Officer says, "We believe that the 18 19 statements in the presentence report are correct. 20 conduct was compiled based on a thorough and careful review of 21 trial testimony and case material available to the Probation 22 Office." 23 The offense And I can understand why the defense would object, 24 because the defense pleaded not guilty, and Mr. Libous is not 25 conceding that any of these allegations are true. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 8 Case 1j--Document 44-3, 08/15/2016, 18-4 m) 1, Paget) of 63 ISbOLIBntsS 1 2 Sentence I assume that's the basis of your objection, essentially. 3 MR. DerOHANNESIAN: 4 THE COURT: Yes, your Honor. But it's not correct to say that these 5 things are speculative and unfounded, in light of the evidence 6 at trial. 7 record myself; specifically, Pages 421 to 425 of the trial 8 record. 9 elsewhere, but there's no question that the statements In other words, I went back and reviewed the trial There may be other references to these things 10 contained in Paragraphs 8, 9 and 10 are supported by the trial 11 record, at least at Pages 421 to 425; maybe elsewhere, as well. 12 So to the extent there is an objection, that objection is 13 overruled. 14 The next objection is more of a legal objection. It 15 says in Paragraph 31, "Defense counsel objects to the two-level 16 increase for abuse of trust, because the report assumes that 17 the defendant abused the position of trust simply because he 18 was a New York State Senator, and further argues that it is 19 warranted only where the defendant is concealing the offense." 20 And the Probation Officer's response is, "We believe 21 that the two-level increase was appropriately applied. 22 defendant was an elected public official who was entrusted by 23 his constituents to honest services. 24 material, Libous used his position of authority to improperly 25 secure his son a job. The Based upon review of case When he was questioned by authorities MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case lc wr% Document 44-3, 08/15/2016, ISbOLIBmsS 9 Sentence 1 about his wrongdoing, he lied." 2 PSR. 3 C PagelO of 63 So that's a quote from the I also need to address that separately, and we will 4 get to that. 5 it right now. 6 further if they need that. 7 We'll get to that in a minute. I'm not resolving I'll give both sides an opportunity to be heard And then finally, Paragraph 81 says, "Defense counsel 8 believes that the defendant should be afforded a downward 9 variance due to his medical condition." 10 And then Probation says, "We recognize that the 11 defendant is terminally ill. Paragraph 82 reflects a downward 12 variance may be warranted, given the defendant's poor physical 13 health." 14 And again, that strikes me as a bit odd, because the 15 guideline range, whether it's Level 6 or Level 8, is zero to 16 six months. 17 go. 18 where within the guidelines the defendant should be sentenced. 19 But it's not a downward variance or departure or anything like 20 that, because the guideline range includes zero. And as I 21 stated earlier, for this particular offense, probation is 22 authorized under the guidelines. 23 I'm missing something, I don't need to say anything more about 24 that. 25 I'm not sure how much further below zero you can So that's sort of a — you know, it's an argument as to MR. DerOHANNESIAN: So I don't know. You're correct. So unless But at the time I MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case ISbOLIBtnsS i'O. Document 44-3, 08/15/2016, 13-:^ m 4 Pagell of 63 Sentence 10 1 file these objections, I don't know if I'm going to be facing 2 some other enhancements that will take us outside that range. 3 That's why I did that, as a prophylactic measure. 4 5 THE COURT: Perfectly okay. But you both agree that I don't need to say any more about that? 6 MR. McMAHON: Yes. 7 MR. DerOHANNESIAN: 8 THE COURT: All right. 9 All right. Are there any other factual statements? Yes. Thank you. 10 We'll get to the abuse of trust. 11 the word "corrupt." 12 lot about both of those things. 13 just a moment, is there anything else in the PSR that I haven't 14 ruled on already that you object to? 15 MR. DerOHANNESIAN: We'll even get to the use of Because I know both sides have spoken a But putting those aside for I do. I don't think it's a major 16 point nor affects the ultimate sentence, but I just want it to 17 be clear that there's the phrase "net worth" that's used in 18 this document. 19 the following reasons. 20 report, most of these assets are joint, not just with a spouse, 21 but with other individuals. 22 report correctly notes, for example, that there is a term life 23 insurance, and under generally recognized accounting 24 principles — 25 And it actually does not reflect net worth for THE COURT: As correctly noted in the probation They are not his. The probation That would not be part of net worth. MARY M. 3TATEN, CSR, RPR, RMR (914) 390-4027 I jL. Pagel2 of 63 Case ': . . ; \ Document 44-3, 08/15/2016, /. C ISbOLIBmsS 1 agree. 2 3 4 5 11 Sentence MR. DerOHANNESIAN: worth. — that should not be part of net. There was one policy — THE COURT: Unless it's a cash value. But that's not what we're talking about. 6 MR. DerOHANNESIAN: 7 THE COURT: 8 MR. DerOHANNESIAN: 9 And also, even a primary residence should not be That's correct. It's a death benefit you're talking about. That's correct. 10 viewed primarily as a net asset, since if one were to sell that 11 property, one would need to pay for housing expenses, which 12 would be a liability. 13 recognize that. 14 15 16 The SEC recognizes that, accountants And I just want to point out again, it's very clear that most of these assets are also joint. So it's not so much the information that's in the 17 report, but the phrase "net worth." 18 that's relevant for our sentencing purposes, but I did want to 19 point that out. 20 THE COURT: And again, I don't think Well, the reason why financial condition 21 is relevant is because of questions about financial penalties. 22 And so yes, it is relevant. 23 everything you say is true, Mr. Libous has a very substantial 24 net worth. 25 when you say "joint," that doesn't mean that you divide it in However, I would say that even if Is it exactly $3.4 million? I don't know. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Now, Case 15-. '/9, Document 44-3, 08/15/2016, l-u . 11, Pagel3 of 63 ISbOLIBmsS 1 half. 2 it. Sentence It means it's joint. I own it, and somebody else owns We both own it. 3 MR. DerOHANNESIAN: 4 know, business partners with others. THE COURT: 5 But it's not fifty-fifty. Let me ask you about this. Bank accounts; three joint, one individual, $532,000 and change. 7 that is available to Mr. Libous? 8 here. 10 MR. DerOHANNESIAN: How much of That's what it says right Those are his bank accounts, and those are joint. 11 (Conference between defendant and attorney) 12 MR. DerOHANNESIAN: 13 14 15 But you That's also — 6 9 12 That includes his retirement account, yes. THE COURT: Okay. But in other words, if he wanted to, he could access that $532,000. 16 MR. DerOHANNESIAN: Yes. 17 And that's why I said this is not necessarily the most 18 dispositive issue here, though it may be a technical point. 19 And again, I introduced this topic by saying I don't think it's 20 the most relevant for what we're here for today, but I wanted 21 to make it clear. 22 THE COURT: Well, the financial condition is relevant. 23 But the precise details about what his total net worth is are 24 less relevant, so long as — and I think everybody agrees he's 25 a person of substantial total net worth who has liquid assets. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15- _. 7% Document 44-3, 08/15/2016, L" - ISbOLIBmsS -1 Pagel4 of 63 1 It says here, bank accounts $532,000 and change. 2 IRA is liquid, in the sense that you can access it. 3 have to pay tax on the money you take out of it, but you can 4 access it. 5 MR. DerOHANNESIAN: 6 THE COURT: I mean, an You may Correct. It is not unavailable to you. He's 7 obviously older than 59 and a half, so there's no penalties 8 associated with that. Would you agree with my description of that? 9 10 MR. DerOHANNESIAN: 11 THE COURT: 12 MR. DerOHANNESIAN: 13 13 Sentence I do. All right. That is the only comnent I wish to make. 14 Thank you. 15 THE COURT: 16 MR. McMAHON: 17 The only thing I would note is, on the sentencing Anything the government wishes to add? No, your Honor. 18 recorrmendation portion, the fine range is actually, I believe, 19 for a Level 8, which is what they have here. 20 thousand to $10,000 under the 2009 guidelines. THE COURT: 21 You know what? It's actually a You're absolutely right. 22 So the PSR itself is wrong, in that if you assume it's Level 8, 23 it is — 24 What did you say? 25 MR. McMAHON: A thousand to — A thousand to ten thousand. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-..,'79, Document 44-3, 08/15/2016, 1 ISbOLIBmsS 1:. PagelS of 83 14 Sentence 1 THE COURT: 2 MR. McMAHON: 3 THE COURT: 4 MR. McMAHON: 5 THE COURT: 6 MR. McMAHON: 7 THE COURT: A thousand to ten thousand? Yes. That's if it's Level 8. That's if it's Level 8. If it's Level 6, it's 500 to 5,000. That is correct here, yes. All right. Well, I haven't made a finding 8 yet as to what the final offense level is, and I will do that. 9 But basically, what you're saying is that the PSR is wrong. 10 You're not disagreeing with the PSR's conclusion that it's 11 Level 8, but you're saying that if it is Level 8, then the 12 guideline fine range is a thousand to ten thousand. 13 MR. McMAHON: 14 THE COURT: 15 I think Mr. McMahon is right about that. It still begs the question of what the guideline range is. 16 17 Exactly right. MR. DerOHANNESIAN: I've reviewed this issue, and I agree, your Honor. 18 THE COURT: All right. 19 All right. Okay. 20 MR. DerOHANNESIAN: 21 THE COURT: 22 Thank you, Mr. McMahon. Anything else, Mr. DerOhannesian — No, your Honor. — other than the two we've left to the side for moment? 23 All right. Let's address the "abuse of position of 24 public trust" enhancement. 25 applies. The government obviously thinks it The Probation Officer agrees. Mr. Libous does not MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 13 C), Document 44-3, 08/15/2016, 13 ISbOLIBmsS 1 - C. PagelO of 63 15 Sentence agree. Now, you both addressed this issue at some length in 2 3 your respective sentencing submissions. 4 that, or you can add to it, whatever you want to do. 3 So you can rest on It's your objection, Mr. DerOhannesian, so why don't 6 you go first, if there's anything you wish to add. You're not 7 required to. I'm just giving you the opportunity to, if you 8 wish. 9 MR. DerOHANNESIAN: In addition to what I said in my 10 papers, I'd like to point out that the cases that the 11 government cites in support of its enhancement in their brief, 12 because we didn't submit a reply, when you look at them, 13 actually, for example, United States versus Lewis, they make 14 our point, which is that the — THE COURT: 15 16 I'm sorry. of their brief — 17 MR. DerOHANNESIAN: 18 THE COURT: 19 MR. DerOHANNESIAN: 20 THE COURT: 21 Okay. 22 Yes. — that that's referred to? 23. All right. Hold on one second. Sorry to interrupt. It see now. U.S. against Lewis. 23 Go ahead. 24 MR. DerOHANNESIAN: 25 Can you just tell me what page These cases actually make our point that the false statements must be designed to cover up an MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-v /79, Document 44-3, 08/15/2016, 18-;v. 11. Pagel? of 63 ISbOLIBmsS Sentence »v 16 1 underlying crime. And for example, Lewis is a good example, as 2 the parenthetical of the prosecutors note. The false statement 3 was designed to evade detection of her thefts. 4 our point. 5 used, and that's the only thing I wanted to point out, is that 6 I think these cases actually support our position. And I think that's how this enhancement has been THE COURT: 7 And that was Do you agree, Mr. McMahon, that I would 8 first have to find that there was an underlying crime before I 9 could apply the "abuse of position" — or Mr. Allee — the 10 "abuse of position of trust" enhancement? I mean, he wasn't 11 charged with it, but your allegation is that it's all part of 12 relevant conduct, and if it's part of relevant conduct, then, 13 in effect — I think you're saying this — the prior 14 transaction was a crime which he covered up with the false 15 statements, that he abused his position of trust to do so. 16 MR. ALLEE: Yes. 17 THE COURT: I think that's what you're saying. 18 MR. ALLEE: Yes. 19 THE COURT: All right. 20 We agree with that, your Honor. So anything you want to add to this? 21 MR. DerOHANNESIAN: 22 THE COURT: 23 already submitted, Mr. Allee? 24 MR. ALLEE: 25 Mr. DerOhannesian just said. No. Anything you want to add to what you've Well, I don't agree with what MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15 _ ."J, Document 44-3, 08/15/2016, 18 C. ISbOLIBnsS Sentence PagelS of 63 17 1 THE COURT: Go ahead. 2 MR. ALLEE: So the cases that we cited are directly on 3 point to support the government's position. The abuse of 4 position of trust is connected to the relevant conduct here, 5 which is the defendant's participation in the bribery scheme 6 which is itself a crime, although uncharged, and not one that 7 resulted in a conviction for which we're here today. The three cases are examples where, contrary to the 8 9 defendant's briefing, the enhancement was applied to uncharged 10 conduct. 11 evasion case, where the "abuse of trust" enhancement applied to 12 the underlying embezzlement, which did not result in a 13 conviction. 14 other two circuits, one of which is Lewis, same thing. 15 16 17 Freeberg is a Second Circuit case. That was a tax And the other, the unpublished cases from the So I disagree with that argument. But other than that, we're happy to rest on our papers. THE COURT: Well, I think that Mr. DerOhannesian — 18 forgive me if I'm misinterpreting your argument. 19 is a little more subtle than that. 20 convicted of any crime in connection with the episode back in 21 2005, 2006. 22 is saying is, there's not enough evidence in the record for me 23 to even conclude that there was a crime by even a 24 "preponderance of the evidence" standard. 25 His argument Obviously, he wasn't Everybody agrees on that. What Mr. DerOhannesian I think that's what you're saying. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15 .. 79, Document 44-3, 08/15/2016, i84w0i, PageiO of 63 ISbOLIBmsS Sentence 1 MR. DerOHANNESIAN: 2 THE COURT: 18 Yes. You still have to have a crime that you' re 3 concealing. 4 there is. 5 that the underlying offense was a crime that he was covering up 6 later on. And the government's position is: There's plenty of evidence in the record to suggest Is that where we're at? 7 Well, yes, His position isn't just that 8 there has to be an actual conviction. 9 has to be a crime, which not necessarily meaning there is a 10 conviction. His position is, there You're saying there was a crime. 11 MR. ALLEE: Right. 12 THE COURT: He's saying that there wasn't. 13 MR. ALLEE: We agree with the legal argument that 14 relevant conduct has to be criminal conduct. 15 underlying bribery scheme and the defendant's participation in 16 it, is a crime. 17 services fraud statute. 18 proof demonstrated that, certainly, by a preponderance of the 19 evidence. It's a violation of Section 666 and the armed And our position is that the trial 20 THE COURT: 21 MR. DerOHANNESIAN: 22 THE COURT: 23 24 25 But here, the And you disagree with that. Okay. Very much so. I think I've heard enough. I've read your respective positions. Are there any other objections of any kind that the government has to anything in the presentence report? MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1870691, Page20 of 63 ISbOLIEttisS Sentence 1 MR. McMAHON: 2 THE COURT: 3 MR. DerOHANNESIAN: 4 THE COURT: 5 6 19 No, your Honor. Mr. DerOhannesian? No, your Honor. All right. Let me address the "abuse of position of trust" matter first. I decline to apply the two-level enhancement for abuse 7 of trust tinder Section 3B1.3. 8 defendant abuses a position of public trust in a manner that 9 significantly facilitates the commission or concealment of the 10 11 That section provides that if a offense, two levels are added. Here, the defendant did occupy a position of public 12 trust, obviously. 13 FBI agents investigating the circumstances of Matthew Libous's 14 job at the Mangone law firm — was not facilitated 15 significantly or otherwise by that position. 16 sometimes even to federal investigators, whether they occupy 17 positions of public trust or not. 18 not facilitate the lying at all. 19 But the offense of conviction — lying to People lie The defendant's position did He just lied. To put it another way, the defendant's lies were 20 themselves the crime. It's circular logic to say that the lies 21 facilitated the lies or facilitated concealment of the lies. 22 None of the examples in the application notes of 3B1.3 — and 23 I've read than all, and there are quite a few — is at all like 24 this case. 25 in getting his son a job at the law firm was part of the And the suggestion that the defendant's involvement MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page21 ot 63 ISbOLIBmsS Sentence 20 1 relevant conduct of the offense of conviction, when the offense 2 of conviction was lying to federal agents four and a half years 3 after the fact, is a stretch I am unwilling to make. 4 It might be different if the defendant had been 5 convicted in connection with getting his son the job. 6 wasn't. 7 that episode. 8 record, which I think is more than sufficient to support the 9 conviction, the conviction in this case, but I don't think the He He wasn't even charged with a crime in connection with And I'm not prepared to conclude, based on the 10 record is sufficient to support a conclusion that Mr. Libous 11 conmitted a crime in 2005, 2006. 12 There are all sorts of witnesses who didn't testify 13 that had relevant information about that. 14 there's anything wrong with that, because — in other words, 15 there's nothing wrong with the government's failure to call 16 certain witnesses who clearly have relevant knowledge: Fred 17 Hiffa, for example, Michael Santangelo, Nick Spano, Matthew 18 Libous. 19 have relevant knowledge. 20 defendant himself has relevant knowledge. 21 Of course, that's perfectly all right. 22 against him. 23 He wasn't required to testify. 24 least five witnesses who had relevant knowledge — who have 25 relevant knowledge of the underlying events who did not And I'm not saying Those are all people who, without any question, would None of them testified. The He didn't testify. He didn't testify. I'm not holding it He didn't have to testify. But the point is, there were at MARY M. STATEN, GSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016. 1840691, Page22 of 63 ISbOLIBmsS Sentence 1 21 testify. And there's no way that I'm going to conclude, based 2 3 on this inadequate record, that he committed a crime back in 4 2005. 5 charged with a crime. I'm not going to do that. And as I say, he wasn't even 6 So look. The crime here, lying to federal agents, is 7 serious enough without consideration of this sentencing 8 enhancement. 9 this before — they try to squeeze round pegs into square Sometimes I feel that parties try to — I've said 10 holes. 11 enhancement doesn't fit this fact pattern. 12 apply it. 13 This is another example of it. It doesn't fit. This So I decline to It's basically, I sustain the defendant's objection. All right. Based on my review of the presentence 14 report and my own evaluation of the guidelines, I find and 15 conclude that the final Offense Level is 6, and Criminal 16 History Category I, which yields a sentencing range of zero to 17 six months' imprisonment. 18 There has been no motion for any guidelines-based 19 departure from, the applicable range. 20 motion for a departure, I want to let the parties know that I 21 am considering imposing a fine substantially above the fine 22 range — and the fine range here is 500 to $5,000 — 23 substantially above the fine range here, on the ground that a 24 fine within the range would not be adequately punitive. 25 putting everybody on notice of that. Now, although there is no MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 So I'm Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page23 of 63 ISbOLIBmsS Sentence 1 All right. 22 And the issue about the use of the word 2 "corrupt," I'm sure that you're going to discuss in anything 3 that you'd like to say prior to my imposition of sentence. 4 I'll also hold off on that. 5 issue. 6 more about it. So It's not really a guidelines It's more of a — well, I don't want to say anything 7 Does the government wish to be heard on sentencing? 8 MR. McMAHON: 9 And that's exactly what I was going to talk about, Yes. 10 because to us, your Honor, this case is about corruption. 11 evidence showed that the defendant arranged for a $50,000 12 secret payoff from a lobbyist who regularly appeared before him 13 and lobbied him as the Chairman then of the State Senate's 14 Transportation Committee. 15 also about lying to the FBI to cover that conduct up. 16 us, that's corrupt by any definition of that word. 17 It's about that. The And this case is And to Mr. I.ibous knew that. He knew that what he was doing 18 was wrong at the time he was doing it. The evidence showed 19 that. 20 create the appearance that the $50,000 payment, or payments, 21 split up 12 different ways in 12 different months, were legal 22 fees. 23 payments to hide their real purpose. 24 25 The evidence showed that Mr. Libous told Mangone to And in doing that, he was essentially laundering those Mr. Libous lied about it again, when he was questioned about it by the FBI in 2010, thus leading to his conviction. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page24 of 63 ISbOLIBmsS Sentence 23 1 And then, as our sentencing memo shows, Mr. Libous lied about 2 it again in 2012 after this allegation became public when 3 Anthony Mangone testified about it at the Innabi trial. 4 Despite knowing that it was wrong, the defendant has 5 yet to acknowledge that what he did was wrong. 6 his public comments, even the comments he made on the 7 courthouse steps after his arraignment. 8 most clearly in the letter that he wrote to the Court a few 9 weeks ago. 10 You see that in You see that, though, Now, that letter, which is, you know, in the record, 11 it's only one page. 12 important letters the defendant ever wrote. 13 chance to address this Court directly before the sentencing 14 before your Honor walked out that door this morning. 15 addressing it to the Court when the Court is considering his 16 fate. 17 hadn't filed our sentencing memo yet. 18 our position about his final sentence would be. 19 he's writing that letter, he's thinking that your Honor is 20 deciding between a custodial or a noncustodial sentence. 21 what he chose to say in that — 22 23 But it's (obviously one of the most It's his one And it's Because at the time the defendant wrote that letter, we THE COURT: And he didn't know what I'm still deciding. So at the time And I'm still considering whether it should be custodial or noncustodial. 24 MR. McMAHON: 25 THE COURT: Exactly. Exactly. I'm not bound by any position that the MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page25 of 63 ISbOLIBmsS Sentence 1 24 government takes; or that the defendant takes, for that matter. 2 MR. McMAHON: 3 But what he chose to say in that very, very important And that's exactly right, your Honor. 4 letter, as your Honor is considering his fate, is that he 5 minimized his conduct, ignored the $50,000. 6 his lies to the FBI. 7 He never addressed, What's missing, also, is an apology to his 8 constituents for abusing the trust they placed in him when they 9 re-elected or elected him and sent him to the State Senate 14 10 times over 28 years. 11 State of New York for taking a $50,000 payoff from a lobbyist 12 who's looking to get business for their transportation industry 13 clients. 14 no acknowledgment of the truth. 15 refused to admit at this point in his life what really happened 16 here. 17 the defendant under Section 3553(a), which ordinarily would 18 call for a custodial sentence to reflect a real need — and 19 reflects a real need for specific deterrence. 20 There's no apology to the people of the There's no expression of remorse at all. And there's And instead, the defendant And that tells you a lot about the characteristics of There's a need for general deterrence here, too. Your 21 Honor will remember on the day when the jury panel came in here 22 and you asked them, you know, "Has anyone read stories about 23 politicians being arrested or charged with crimes?" and they 24 all laughed. 25 brought them up here one at a time individually and asked them That's quite a telling reaction. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 If we had 25 Case 15-3979, Document 44-3, 08/15/2016. 1840691, Page26 of 63 ISbOLIBntsS Sentence 1 if they thought it was funny, I doubt very few of them would 2 really have thought it was amusing. 3 Yorkers think that what's going on in our state capital and all 4 of the corruption that we're seeing up there these days think 5 that's funny. 6 won't be solved with just one case. It's not. I don't think too many New It's a real problem up there. It 7 THE COURT: 8 First of all, I don't recall it as being sort of, you 9 Let me interrupt for you for one second. know, uproarious laughter. I recall it as being sort of an 10 ironic tittering among seme of the people on the panel, and not 11 all of than. 12 And I also recall that I took great pains to ensure, 13 during the course of the jury selection process, that no one 14 was prejudiced against the defendant or in favor of the 15 government as a result of what they might have heard in news 16 media reports at any time during their lives. 17 very careful voir dire, and I am convinced with certainty that 18 the jury that was selected was a fair and irtpartial jury. 19 So you may continue. 20 MR. McMAHON: So you did a So I mean, there is a public perception 21 that — we were very careful in choosing our jury. 22 we had an impartial jury here. 23 perception that corruption in Albany generally is a problem. 24 And this Court can use this case to start sending a message 25 about the problem of corruption in Albany. And that's what And I think But there is a public MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page27 of 63 ISbOLIBmsS 26 Sentence 1 we're asking you to do. 2 And this case is one vehicle, and only just one vehicle. 3 not going to solve the entire problem, but it's one vehicle by 4 which the Court can send a message that corruption won't be 5 tolerated. 6 We need to deter that as best we can. It's The other message that your Honor can send here goes 7 more directly to the offense of conviction. Your Honor can 8 send a message that lying to the FBI is a serious problem, and 9 it's a crime, and it won't be tolerated. Because no one has 10 to — if the FBI shows up at your door, as your Honor well 11 knows, you don't have to talk to them. 12 know that. You don't have to talk to than. 13 to talk to than, you cannot lie. 14 at your door, even if you're just a witness, an innocent 15 witness, they're looking to investigate serious crimes, 16 corruption being one of them. 17 mislead than, and to effectively obstruct than in an 18 investigation of a serious crime that we're trying to figure 19 out the truth of what happened. 20 I think most Americans But if you choose Because when the FBI shows up And it is a serious offense to So as we said in our sentencing memo, we believe for 21 the need for specific deterrence — and general deterrence, 22 especially — this case would call for a custodial sentence 23 ordinarily, but your Honor knows our position with respect to 24 the defendant's health. And we did that. 25 expert who reviewed the defendant's medical records and came up We retained our own MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page28 of 63 ISbOLIBmsS 1 with her conclusion that matched that of the defendant's 2 doctors. 3 27 Sentence But we do ask that your Honor send a message by 4 imposing as significant a sentence as possible, including a 5 substantial fine. 6 recommendation. And otherwise, we agree with probation's 7 Thank you, your Honor. 8 THE COURT: 9 Mr. DerOhannesian, do you wish to be heard? Thank you, Mr. McMahon. 10 MR. DerOHANNESLAN: 11 The sentencing guidelines that you have computed take 12 into account, I believe, the factors that Mr. McMahon has just 13 articulated. 14 addressed, including whether it's the seriousness of the 15 offense, the question of acceptance of responsibility, the 16 defendant never sought that adjustment or credit for that. 17 That hasn't been an issue in this case. 18 factor would be computed. 19 that is why we have — where we are, at Level 6. 20 I do. And why I believe all those issues that he has That's where that He doesn't get credit for that, and But I also think Mr. McMahon made a good point about 21 jury selection. I remember it the way Mr. McMahon does. I 22 remember the laughter. I remember what you did, which I 23 thought was tremendous at the time, in terms of trying to 24 negate that. And yet, as I sit here and stand here today, I 25 feel the problem is that when you defend a case like this, MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 28 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page29 of 63 ISbOLIBmsS Sentence 1 there are outside forces and influences, where press 2 conferences and other individuals' behaviors and statements 3 about the group that my client belongs to, has an iirpact. 4 don't believe that this case or this sentencing should be a 5 proxy for all the ills of the political culture at the Capital 6 in Albany. 7 So as you've done, I agree, the guidelines range is 8 zero to six months. 9 sufficient, but not greater than necessary. 10 I The guidelines offer a sentence which is I'd point out that tinder the Bureau of Prisons' 11 policy, as recently modified by the Bureau under the direction 12 of former Attorney General Holder, that Tom Libous would be 13 eligible for compassionate release, were he given a custodial 14 sentencing. 15 But I think before we talk about the medical 16 condition, it's important to talk about who he is as an 17 individual, since those are very relevant characteristics, and 18 not something that is really addressed by the prosecution, 19 because if there were negative aspects of his character and 20 personal background, I think we would have heard then. 21 there was uncharged conduct that was relevant for your 22 consideration, we would have heard that. If there's something 23 he had done in his life as an official or personal, we would 24 have heard that. 25 If So I think he has 62 years of a balance sheet that are MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, PageSO of 63 ISbOLIBmsS 29 Sentence 1 worth looking at, and is relevant to an assessment of 2 sentencing and punishment. 3 anything he did as an elected official, "Well, gee, he should 4 be doing that as an elected official," I'd like point out a few 5 comments about his service as an elected official. 6 And while it's very easy to dismiss He has been praised in the letters that we submitted 7 from the nation's Capitol to the state Capital. 8 constituents, it's community leaders, Congressmen, the FBI 9 Director: 10 It's They've all recognized Tom Libous's community service as an elected official. 11 But what he did as an elected official, you'll note in 12 the records and as an individual, wasn't just because he was an 13 elected official. And if you look at the work he's done with 14 the developmentally disabled, I believe it's Paul Van Savage 15 made the notation that, "Sure. 16 and support our events. 17 stay, and he would actually talk and meet with the 18 developmentally disabled." 19 advocating in the area of developmental needs, even after he 20 was chairman of that committee, he fought hard. 21 it's Harvey Rosenthal, the head of the New York State 22 psychiatric Rehabilitation Association, pointed out that Tan 23 Libous took courageous stands. 24 when the Legislature and media were pushing for a return to 25 involuntary treatments, Tom Libous fought that. Many elected officials may come Tom would go beyond that. He would And when it came for lobbying and And I think He didn't just advocate. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Even Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page31 of 63 ISbOLIBmsS 1 30 Sentence He did use his position to go beyond the traditional 2 things that legislators do, like setting up a books program to 3 help those children to develop better reading skills, and 4 again, beyond what would ordinarily be done by an elected 5 official. 6 But I think it would be wrong just to focus on Tcm as 7 an elected official and what he did as an elected official, 8 just like it's wrong for the prosecution to not at all look at 9 Tcm, the individual. I think you have evidence in the record 10 here that go back to Ton as a teenager, which reflects the 11 person he is today, 62 years of age. 12 raise money for a Polish immigrant who didn't have the money to 13 call his family back in Poland. 14 years that has continued to this day, that he goes above and 15 beyond what he has to do as a human being: Helping a young 16 girl to purchase prom tickets so she could attend a prom. 17 That's him as an individual. 18 As a teenager, he helped That started in his teen-age And I think it's also very irrportant to look at even 19 in the last few years, as he battled his cancer, you'll note 20 how many people have submitted letters talking about Tom going 21 out of his way to help than deal with their diagnosis of 22 cancer. 23 letters talking about Tcm taking the time to help them feel 24 better. 25 circumstances, because he not only has his illness, he's had There's at least four individuals who've submitted Tcm has been doing that under the most difficult of MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 31 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page32 of 63 ISbOLIBmsS Sentence 1 these legal proceedings and the weight of these proceedings at 2 the same time. 3 still can find the time to do that and help people, even though 4 he's no longer an elected official. 5 But he still found the time to do that. And he You know, Tom has been honest and hard-working, 6 trustworthy and a person of integrity. And those aren't my 7 words. 8 president to a federal judge, to constituents, describing Tom 9 and who he is. Those are words from many people, from the bank And I point out that none of what we've 10 described about Tom as an individual has been rebutted by the 11 prosecution in their memorandum. 12 all that would contradict this, we would have heard that, we 13 would have seen that. 14 And if there was anything at The problem with the prosecutor's ccnunents like the 15 memo is, it presents Tom as a one-dimensional person, defined 16 simply by his status as an elected New York State Senator. 17 They don't look at the whole person. 18 case in the context of a much larger life, a life that has been 19 filled with service. 20 or was one, and that is a factor to consider, he shouldn't be 21 treated differently. 22 taken away the factors of 3553 that go into determining an 23 appropriate sentence. 24 25 They don't look at this And while he is a New York State Senator He shouldn't be given — he should not be And I would ask, as I said, that this not be a substitute for our beliefs and concerns about some other MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 32 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page33 of 63 ISbOLIBtnsS Sentence 1 problem that may be taking place in the Legislature or in our 2 elected or political system. 3 messages. 4 When you look at this record, the community needs more people 5 like Tom Libous, and not fewer. 6 the political system are not better off with Tcm Libous's 7 departure. 8 9 This is not about sending This is not a proxy for all the ills of the Capital. And I submit that Albany and Now, Tcm has suffered the loss of his position. a position that he loved. It's It's a position that — you can tell 10 by the letters that not only did he love it, the constituents 11 loved him, the public loved him. 12 itself an enormous punishment which can be considered as part 13 of the collateral consequences of this action. 14 And that loss of position is And Ton has touched many lives. And what he's done 15 has benefited not only the public at large, but I think many 16 private individuals, which gets lost very easily. 17 not the trial. 18 chance to consider that. 19 But this is This is the sentencing, at which time we get a I submit that even without considering Tern's medical 20 condition, that a sentence of straight probation would be 21 sufficient in this case. 22 of two, three, four, five years would be a life sentence of 23 probation for Tom Libous, given the facts of this case. I would submit that even a sentence 24 But we must look at Tom's condition. 25 in the last year, his condition has changed markedly. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 The reality is, We knew 33 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page34 of 63 ISbOLIBmsS Sentence 1 in June, just before trial, that he had come close to death in 2 April. 3 severely incapacitated. 4 have subsequent treatment, and make it to trial. 5 that's really amazing that he demonstrated the strength that he 6 did charing trial. 7 He wasn't even able to travel back home here. He was He was able to gather the strength, And I think And the one thing that I don't know if you noticed, 8 during trial, it wasn't easy. There were times that you 9 thought I wanted a break for me. It wasn't, bait I knew what he 10 was going through on one of those days. And you thought it was 11 for me I wanted it. 12 night. 13 coming forward to defend himself and assert his innocence. I saw Tom during the breaks, I saw him at And it wasn't easy. And he had the toughness to endure His condition has deteriorated since the trial. 14 It 15 has deteriorated since the time he met with Probation. And I 16 think the probation report noted that it was likely that there 17 could be changes in his condition. His life today revolves around medical treatment. 18 For 19 example, I have his schedule for the next week. He has eight 20 appointments at Sloan Kettering in the next week. 21 what's going to be required as part of his treatment. 22 what his life is. And it can change at any time, in terms of 23 what he must be doing. 24 when and where he must go — when he must go for treatment or 25 care. That's That's The reality is that Tom doesn't know MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016. 1840691, Page35 of 63 ISbOLIBmsS Sentence 34 1 I would submit that in his final days, Tom should be 2 permitted to do certain things like visit his elderly father, 3 who is in a nursing heme; visit his son Matt, who is not — 4 that Tom should be permitted to visit his son, Matt. 5 his doctor has suggested to him, he should begin getting his 6 affairs in order, and he should be permitted to do that and all 7 that entails. 8 9 And as In the context of all that we've outlined, your Honor, I believe that Tom Libous merits a sentence within the 10 guidelines of straight probation, and a fine, and that would be 11 sufficient, but not greater than necessary. 12 And I thank you for giving me the time to address you. 13 THE COURT: 14 You know, you mentioned that it's difficult to defend Thank you, Mr. DerOhannesian. 15 a case like this. 16 It's also difficult to be a defendant in a case like this. 17 was never a defendant, but I did a lot of work defending people 18 who were defendants in criminal cases. 19 what you're talking about. 20 It's difficult to defend any criminal case. I So I certainly know But you know, the most difficult thing — and you did 21 a completely professional and competent job in defending the 22 case. 23 government's witness — witnesses, I should say, particularly 24 the cooperating witness, Mr. Mangone. But you know, there was 25 an elephant in the room, in the courtroom, then, and there You were effective during the trial cross-examining the MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 35 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page36 of 63 ISbOLIBmsS Sentence 1 still is to this moment, that you really never addressed. 2 I think the reason you never addressed it is because you 3 just — there's just no way to really explain it. 4 And Now, of course, during trial, you had no obligation to 5 do anything. 6 nothing. 7 based on the argument that the government has not proved the 8 case beyond a reasonable doubt. You could have just sat on your hands and done And it's perfectly appropriate to defend the case Nothing wrong with that. 9 I mean, essentially, what your defense was, was that 10 you really can't trust this cooperating witness for all sorts 11 of good reasons. You really can't — not that you're 12 telling — not that you were saying that the agent, the FBI 13 agent, was a liar, but you really can't trust even his 14 recollection of the interview, because it was four and a half 15 years later, and actually, the trial was five years later. 16 There was no transcript made. 17 that. 18 saying he's a liar, but you are challenging the reliability of 19 his testimony, just like you were challenging the reliability 20 of Mr. Mangone's testimony. 21 There was no recording made of It's basically you're not challenging — you're not You were also saying, you know, "Where are all the 22 other witnesses? 23 this case who testified was Mr. Mangone." 24 other words, all the things you did at trial were fine. 25 they were completely consistent with your obligation as a The only witness with direct knowledge of That's true. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 In And Case 15-3979. Document 44-3. 08/15/2016. 1840691, Page37 of 63 ISbOLIBmsS Sentence 1 36 lawyer. But here was the elephant in the room, and you never 2 3 addressed then, and you never haven't addressed today, which is 4 this $50,000. 5 lobbying firm that lobbies your client while he occupied a very 6 senior position in the New York State Senate — indeed, I'm 7 told that he was Chairman of the Senate Transportation 8 Committee at the time. 9 your client; in effect, handing over $50,000 to your client's What's up with that? How does it happen that a What's up with a lobbyist who lobbies 10 son, just because. 11 able to address that. 12 trial. 13 all that great. 14 law firm did any work for that money." 15 That, I think, was a problem you had fron the get-go, and you 16 still have a problem, because you haven't addressed it 17 directly, which is, there's no innocent explanation for that. 18 He didn't do any work — the law firm didn't do any work for 19 that money. 20 this job, and overpaid, didn't do any work for that money. 21 was just a transfer of funds fron the lobbying firm to Matthew 22 Libous. 23 his son needed a higher-paying job; in other words, he needed 24 to step up his lifestyle somewhat. 25 What's the deal with that? You were never You kind of made a halfhearted effort at You said, "Well, the records at the law firm weren't And you know, we don't really know whether the But you know. Cane on. Matt Libous, who was plainly underqualified for It And the context was, according to your client, that You still haven't addressed that. You know, I'm MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page38 of 63 ISbOLIBmsS Sentence 1 sitting here thinking, "Well, I'm waiting." 2 anything about it in your brief. 3 anything about it in his letter. 4 37 You didn't say Your client didn't say You know, I don't agree with everything that the 5 government has said. 6 don't use that term, but there are many things that the 7 government has said that I agree with, but not everything. 8 one thing that I definitely agree with is this total lack of 9 acknowledgment that there was this $50,000 wealth transfer from You know that I haven't rolled over — I 10 a lobbyist, a lobbyist who lobbied your client, to your 11 client's son, for which there was no consideration. 12 put it that way. 13 But We might You're right when you say in your brief, and your 14 client also said in his letter, that there was no proof that 15 your client received anything directly or that he provided 16 any — that he took any actions specifically in response to 17 that money — in other words, to the money going to the son — 18 or even that he did anything, in terms of referring state 19 business to the law firm. 20 That's true. 21 looking at it around the edges. The elephant in the room is 22 the $50,000 itself. 23 forget that it happened. There's none of that evidence. None of that is here. But it's all kind of No one would forget that. No one would 24 So I don't know if you want to say anything more. 25 MR. DerOHANNESIAN: I do. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page39 of 63 ISbOLIBmsS Sentence 1 THE COURT: You're not required to. 38 As I say, you've 2 done your job well, and I respect you for that. 3 the problem is, you just couldn't — I don't know what the jury 4 was thinking, but I think you had a jury sitting there thinking, "Well, what's up with that $50,000? But I think What's the 6 innocent explanation for that?" 7 you know, now today, we're in a different context, because then 8 you weren't required to explain anything. 9 And they never heard it. And I do know — I mentioned earlier that I have seme 10 experience defending these cases. And I know that the hardest 11 thing about being a defense lawyer is reconciling the legal 12 reality — which is that the defendant has no burden of proof, 13 the defendant is presumed innocent, the defendant doesn't have 14 to do anything — with the practical reality of trying to win a 15 case. 16 to present something other than "the government didn't prove 17 their case." 18 narrative, something that the jury can latch onto and say, "Oh, 19 it didn't happen the way the government said it happened. 20 happened a different way." And when you're trying to win a case; usually, you need Usually, you need to present an alternative Now, you didn't do that here. 21 It There's nothing wrong 22 with it. 23 But I'm struck — I was struck then, and I'm struck now, about 24 the total absence of an explanation of what was up with that. 25 You did the best you could under the circumstances. And it's relevant, because when he's questioned about MARY M. STATEN, GSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page40 of 63 ISbOLIBmsS Sentence 39 1 it, of course, he says, "I didn't have anything to do with Matt 2 getting the job, and I don't recall" — well, he said whatever 3 he said. 4 anything involving the law firm, the lobbying firm. 5 know what you're talking about." 6 said to the agent. 7 But he basically said, "I had nothing to do with I don't That's the gist of what he So if you'd like to address that 50,000 — that 8 elephant in the room, you're welcome to do that now, but you' re 9 not obligated to. 10 MR. DerOHANNESIAN: Judge, at trial, I believe we did 11 address it. 12 record is that Mr. Hiffa knew Matt Libous since he was a child. 13 14 And it would be my position today, the undisputed THE COURT: So he gave him a gift of $50,000? I wish I knew people like that. 15 MR. DerOHANNESIAN: It wasn't a gift. When you become 16 a lawyer, I'd like to give you business. 17 had, as the trial records show, done business with 18 Mr. Mangone's firm. 19 there. 20 which he had already used on a labor matter. 21 suggestion is made, I think, by the prosecution and your 22 comments, that there was like no work performed for this, it's 23 interesting that they can lose or destroy records, and it has 24 no consequences. 25 His lobbying firm There had been a business relationship That is not unusual, that he would go to that law firm, And when the There was no — THE COURT: Why didn't you get the records? MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 How about Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page41 of 68 ISbOLIBmsS Sentence 40 1 getting the records? 2 fine line here. 3 proof. 4 with that. But you know, you're trying to tell me, "Well, 5 there's another narrative," but you didn't present that 6 narrative. 7 subpoenaed Fred Hiffa. You could have subpoenaed their records 8 or other people that might know something about that, or other 9 lawyers at the firm. There's a whole bunch of people out there. 11 about that. Again, I'm walking a You have a right to point to the absence of You have a right to do that. 10 12 You could have. You could have. There's nothing wrong If you wanted to, you could have I can list about ten people who might know something None of them were presented at the trial. Which, you know, doesn't mean that the government 13 didn't prove beyond a reasonable doubt that your client lied 14 when he said, "I don't know nothing about nothing. 15 know anything about this job. 16 getting the job. 17 Hiffa. 18 I don't I had nothing to do with him I wasn't involved in getting the money frcm I didn't do any of that." But the evidence is sufficient to support that. I've 19 already said that in my decision — 20 MR. DerOHANNESIAN: 21 THE COURT: 22 You're not really convincing me that there's this Right. — to your post-trial motion. 23 alternative narrative. And I'11 say again, you're not required 24 to, but there's this thing that's just kind of right there. 25 Right between you and Mr. McMahon, there's an elephant standing MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page42 of 63 ISbOLIBmsS Sentence 1 right there. 2 there. And you're not really explaining what he's doing MR. DerOHANNESIAN: 3 41 And, Judge, I can't subpoena 4 records that don't exist. What I could do is subpoena records 5 that show that he was working in November and December, which 6 they didn't produce. 7 show that Matt was, in fact, doing depositions and working. 8 That's what I could do. 9 later I'm being asked to go back? They concealed those, the records that That's what existed. How many years How many years to try to get 10 records and proof? 11 record. 12 information here that just wasn't available because an 13 individual is asked about something that happened five years 14 earlier. 15 a dinner that he had five years earlier perhaps, at that time, 16 as we pointed out. 17 And that was part of what I argued. 18 And I pointed that out. And Matt was working there. All that is in the And there was a lot of Can you remember everything? And he doesn't remember I think that's being a normal human being. I don't think $50,000 was outrageous in this case, if 19 he was working, and if he was doing the job. 20 they didn't like the job. 21 agree with this characterization. 22 imposing a burden on us when say, "Why didn't you call 23 Mr. Hiffa as a" — 24 25 THE COURT: They didn't say And again, maybe Mr. Hiffa doesn't No, no. And again, I think you are I'm not. I'm just saying you never — that you never presented an alternative narrative. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1340691, Page43 of 63 ISbOLIBmsS Sentence 42 1 You were not required to present an alternative narrative. 2 not putting any burden on you. 3 sentencing. But you know, now we're here at By the way, what you did do at trial was fine. 4 I'm You 5 attacked the credibility of the principal witness. You did so 6 effectively. 7 testimony. 8 argument that these events occurred so many years earlier, how 9 could someone possibly remember all those details, et cetera. 10 You attacked the reliability of the agents' You did so effectively. That's fine. That's all good lawyering. So no, no. 11 You know, you made the I'm not imposing a burden on anybody. But 12 what Mr. McMahon said is true, which is, "What's up with the 13 $50,000?" 14 compellingly sort of — you know, I never heard an explanation 15 for that. That struck me as — I'm searching for the right 16 word — as being something other than regular. And, you know, I've never heard, you know, a MR. DerOHANNESIAN: 17 And remember, my client wasn't 18 involved in that work relationship, either. 19 Libous. 20 I believe, that explained not only that he was working there, 21 but isn't it suspicious that these people, with all these other 22 credibility problems, can't even produce their time sheets and 23 time records that a law firm is required to keep for any of the 24 individuals. 25 That was a law firm. THE COURT: That was Matt But we did present a narrative, Those are all legitimate arguments. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page44 of 63 ISbOLIBmsS Sentence 1 MR. DerOHANNESLAN: 2 THE COURT: 3 That's right. But that's an absence of proof. That's not an alternative narrative. That's my only point. And you're not required to. 4 43 I said it about five 5 times now. You're not required to do it. 6 missing piece in all this, from the defense perspective. 7 trial, it's one thing. 8 And I still really haven't heard anything. At But now we're dealing with sentencing. And I got your client's letter. 9 But it's this It says what it says. 10 He didn't say anything about the $50,000. What he says is, 11 "There's no proof that I" — I'll say it exactly. 12 sent business to the law firm that hired my son. 13 propose any bills that would benefit the lobbyist that hired 14 the law firm." Okay. 15 certainly had an opportunity to say something more than that in 16 his letter. "I never I did not That's fine, so far as it goes. But he By the way, he's still going to have an opportunity if 17 18 he wishes. Doesn't have to, but he has the opportunity to 19 speak to me about what's up with the $50,000. 20 number. 21 hundred dollars or even 10,000. 22 which really didn't go to the law firm. 23 lawyer, who was, you know, right out of law school and plainly 24 unqualified for the job. 25 alone $150,000. It's a lot of money. It's a big It's not 5,000 or a couple of It's $50,000 to a law firm, It really went to the He was unqualified at $100,000, let MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page4S of 63 ISbOLIBnsS Sentence So you know, you're stuck. 1 You've got a tough row to 2 hoe in this particular area. 3 work with. 4 witnesses, and pointing out the absence of proof, the absence 5 of records and so forth. You had a lot to work with there. 6 Absence of certain witnesses testifying, you did fine with 7 that. 8 Gets you most of the way, but not all the way. 10 The other stuff, you had lots to You had a lot to work with on cross-examining But it doesn't quite get you tip the hill all the way. MR. DerOHANNESIAN: 9 And the $50,000 narrative is one that Mr. Mangone is the author of. THE COURT: 11 No, no, no, no. There's actual 12 documentary proof that that money was paid to Matt Libous. 13 There was a step in between, but it was paid to Matt Libous. 14 MR. DerOHANNESIAN: 15 THE COURT: 16 MR. DerOHANNESIAN: 17 No. To the firm. Libous. I know it went to the firm. And again, that goes back for work, for working as a lawyer. THE COURT: 18 How about after he stopped working as 19 lawyer? What about those payments? 20 Libous. He wasn't even working there anymore. 21 22 23 44 MR. DerOHANNESIAN: They still kept on to Matt I disagree. I think the proof was that he continued to work there. But again, my client is not going have the inside 24 knowledge of that. They've interviewed, as I point out at 25 trial, that Mr. Hiffa and others and the witness they called, MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page46 of 63 ISbOLIBmsS Sentence 45 1 Mr. Ostroff, I think, supported our narrative and our position, 2 which is, "Don't ask me these questions. 3 want to know what Matt Libous was doing." Ask Mr. Hiffa, if you Now, the jury maybe didn't want to hear that, maybe. 4 5 I can't help that. But there was testimony. 6 explanation for what was going on here. And again, our 7 position has been that the narrative of Mangone was not to be 8 believed or trusted, nor should it be. THE COURT: 9 I understand that. There was an And I'll say again 10 that I thought that, without a doubt, the defense that you 11 presented was a competent, professional defense. All right. 12 13 I think we've talked enough about that, unless there's anything else you want to add. If not, I want to tell Mr. Libous that if you would 14 15 like to speak, if you'd like to present any information 16 whatsoever before I impose sentence, now would be the time to 17 do so. 18 to sit. If you're more comfortable sitting down, you're welcome 19 THE DEFENDANT: 20 THE COURT: 21 THE DEFENDANT: 22 THE COURT: 23 THE DEFENDANT: No, I can stand. Okay. I have a short statement to read. That's fine. Go right ahead. Your Honor, my physical condition, as 24 you can see from my doctor's records, has worsened since the 25 last time you saw me. Most of my energy is now devoted to MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page47 of 63 ISbOLIBmsS 1 taking care of my nodical needs, various appointments, which 2 are unpredictable. 3 I agree with my attorney that in the time I have 4 remaining, I would like to visit my father in the nursing home, 5 and my son, Matt, if and when I'm able to do so. 6 cane to see me. 7 8 Neither can Each of those visits would mean a lot to me. And as my doctor's reccnmendfid, I would also like to take care of my affairs in the months ahead. 9 Also, at this time, I would like to express my sincere 10 appreciation and love to my family and friends, to all the 11 people who wrote letters on my behalf, not just for the 12 sentencing, but also for the ones I am still receiving from 13 people wishing me well and praying for me. Thank you to 14 everyone who has taken time from their life to support me. 15 I hope you find, Judge, that the letters help you 16 landerstand how I have spent my life, and who I am as a person. 17 If I can think of one positive thing that has come out 18 of all this, it is that most people die without ever knowing 19 whose lives they have touched, what good they have done, and 20 who truly has loved than. 21 know. Because I've gone through this, I 22 Thank you, your Honor. 23 THE COURT: 24 And you know, I sentence a lot of people. And one 25 46 Sentence Thank you, Mr. Libous. thing 11ve learned is that these letters that get submitted to MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3. 08/15/2016. 1840691, Page48 of 63 ISbOLIBmsS 47 Sentence 1 the Court are often at the end of day — whether they persuade 2 me one way or the other is one thing, but at the end of the 3 day, those letters are extremely gratifying for people like 4 yourself in this situation to receive. You're not the first 5 person who has been in this situation. 6 times. 7 8 9 I've seen it many And they deserve to be thanked. And to the extent any of those folks are here today, your friends or family, I thank you for coming. Mr. Libous, Mr. McMahon, Mr. DerOhannesian, I am not a 10 politician. I've never been an elected official. 11 journalist. I'm not a talking head on TV. 12 interest in any of those jobs whatsoever. 13 comment on the political culture in Albany, about which I have 14 no personal knowledge, or even to define that which is 15 "corrupt" — I put the word in quotes — and that which is not. 16 My job is simply to ensure the fair and just resolution of this 17 criminal case — that's all, that's the entirety of my job — 18 and, since Mr. Libous has been convicted after a fair trial 19 before a properly instructed jury, to impose a sentence 20 sufficient, but not greater than necessary, to comply with the 21 purposes of sentencing set forth in Section 3553(a) of Title 18 22 of the United States Code. 23 I'm not a And I have no My job is not to So I am not prepared to conclude that what the 24 defendant did to get his son a job using the financial 25 resources of a lobbying firm that lobbied the defendant was MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2018, 1840891, Page49 of 63 ISbOLIBmsS 48 Sentence 1 corrupt. 2 not saying it was corrupt. 3 defendant did in return, either for the lobbying firm's 4 largess, or for the law firm's willingness to hire and overpay 5 an underqualified young lawyer who happened to be his son. 6 I'm not saying that it wasn't corrupt, but I'm also I'm not aware of anything the Indeed, as I said earlier, Mr. Libous was not here 7 charged or convicted of a crime in connection with that 8 episode. 9 heard the whole story about that episode. And I've also said earlier, I know that I haven't There are a number 10 of people who certainly have relevant knowledge of these events 11 who did not testify at the trial. 12 names before: 13 Libous, even the defendant himself. 14 say the defendant had no obligation to testify. 15 he didn't testify is not being held against him in any way. 16 And there may well be good reasons why I didn't hear from the 17 other witnesses. 18 whole story about the defendant's involvement in getting his 19 son a job at Mr. Mangone's law firm. 20 going to go so far — and I said this earlier — as to say that 21 what Mr. Libous did was corrupt or that it was a crime or — 22 well, those are the two things that I'm not prepared to say, 23 because I just don't know. 24 25 Mr. Hiffa, Mr. Santangelo, Mr. Spano, Matt And certainly again, I'll The fact that But the fact remains that I haven't heard the And therefore, I am not I don't have enough information. But here's what I do know. Mr. Libous. I mentioned some of the Here's what I do know, When you were asked about these events by the two MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 49 Case 15-3979. Document 44-3, 08/15/2016, 1840691, PageSO of 63 ISbOLIBmsS Sentence 1 FBI agents, you knew what they were getting at, and you 2 deliberately and repeatedly denied any knowledge or involvement 3 in that episode. 4 responsibility for something you knew was, at the very least, 5 highly suspicious, questionable, difficult to explain in an 6 innocent way. 7 And you did that to avoid having to take It was not just a lie about getting your son a job, as 8 some of your supporters have suggested in some of the letters 9 that I've reviewed. It was a lie about how you got a lobbying 10 firm, that regularly lobbied you as Chairman of the Senate's 11 Transportation Conmittee, to surreptitiously pay your son's 12 salary. 13 In other words, what you did was disgraceful. And you didn't have to lie. You know, you could have 14 just asked the agents for their business cards and told them 15 you'd have your lawyer call them back. 16 in that moment that the truth was going to be hard to explain 17 as innocent, even if your lawyer was the one doing the 18 explaining. 19 investigation, and you really just wanted to cut the 20 investigation off at the pass. 21 choice you made was to lie in order to obstruct that lawful 22 criminal investigation. 23 all that I care about today. 24 a crime deserving of punishment. 25 But you knew, you knew You knew there was an active criminal So you made a choice, and the And when you did that — and that's When did you that, you committed So the only question now is how much punishment. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 And Case 15-3979, Document 44-3, 08/15/2016, 1840691, PageSl of 63 ISbOLIBmsS 50 Sentence 1 that's a question solely for me to decide. And in deciding it, 2 I've considered all of the factors set forth in 3 Section 3553(a). 4 The guideline range is zero to six months' 5 imprisonment. 6 total lack of remorse or acceptance of responsibility, I would, 7 under normal circumstances, be inclined to impose a six-month 8 jail sentence. 9 reflect the seriousness of the offense, promote respect for the Given the blatant nature of your lies and your That would be a just punishment, and would 10 law, and afford adequate deterrence to others similarly 11 situated. 12 But I'm not going to do that, not because you don't 13 deserve it, but solely because of your precarious health and 14 grave prognosis. 15 doctor who reviewed your medical records, all agree you suffer 16 from terminal prostate cancer that has aggressively 17 metastasized to your spine, lungs and liver, as well as 18 persistent infections resulting from chemotherapy. 19 also agree that you likely have less than one year to live. 20 So under the unique circumstances of this case, it Your doctors, as well as the government's Sadly, they 21 would be cruel to sentence you to jail. 22 cruelty business. 23 could not provide adequate care, but certainly, without a 24 doubt, incarceration would increase your risk of developing 25 complications, thereby hastening your demise. And I'm not in the I'm not convinced that the Bureau of Prisons MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 And my concern, Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page52 of 63 ISbOLIBmsS 51 Sentence 1 my very real concern, is that it would separate you from your 2 family at the end of your life, and I won't do that to you, and 3 I won't do it to than. 4 doing this because of your record of public service or 5 charitable activities. 6 But I want to make clear that I'm not You know, civic good works by an elected official 7 whose job it is to engage in civic good works, in my mind is 8 not a mitigating sentencing factor here. 9 constituents elected you to do 14 times, evidently, and what It's what your 10 the taxpayers paid you to do. 11 charitable efforts by a successful and affluent man, while 12 certainly laudable — and they are laudable here, especially 13 with respect to the disabled individuals that you've helped — 14 are not particularly relevant, because such efforts are fairly 15 typical for successful and affluent men. 16 That was your job. And You know, your lawyer's focus for sentencing purposes 17 on your civic good works and charitable efforts is misplaced. 18 It's almost, almost, not quite, but it's almost as if he's 19 saying that you did your job really well, and therefore, it's 20 okay for you to have used your influence to obtain favors for 21 your family, for lobbyists and lawyers, to have tried to 22 obstruct a legitimate investigation into the relevant 23 circumstances of those favors. 24 25 But it's not okay. And I'm also a bit put off by the notion that the loss of your job is a mitigating factor. It just isn't. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 You know, 52 Case 15-3979, Document 44-3, 08/15/2016, 1840691, PageSS of 63 ISbOLIBmsS Sentence 1 you had that job because you were periodically elected to serve 2 the public and your constituents. 3 entitlement. 4 every two years. 5 job part way through a two-year term as a result of the felony 6 conviction. 7 something for which you deserve sympathy. 8 9 It wasn't a lifetime As a matter of fact, you had to run for election So here, what happened is that you lost your And to me, that's something that is hardly As I said, I'm not going to sentence you to jail. I am going to sentence you to probation and six months of heme 10 confinement, however, to be enforced by electronic monitoring. 11 And the term of probation will be two years. 12 Now, to be clear, the six months of heme 13 confinement — essentially, your lawyer said this and you've 14 said this — will be difficult for you and hard for you to deal 15 with. 16 be punitive. 17 You'll be allowed to leave home for medical treatment. 18 I'll make it clear that you be allowed to leave heme, within 19 reason, to visit your elderly father and your son. 20 not going to be allowed to leave home for pleasure, not during 21 this six-month period. 22 because you're not going to jail. 23 Well, it's intended to be difficult. It's intended to Because it is intended to restrict your freedom. And But you're And it's intended to be that way, But if I'm to inpose a sentence, putting aside the 24 question of general deterrence — that's an inportant factor, 25 of course — but if I'm going to inpose a sentence in a case MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 53 Case 15-3979, Document 44-3, 08/15/2016. 1840691, Page54 of 63 ISbOLIBmsS Sentence 1 like this, it had better be one that is not only just, but 2 promotes respect for the law. And I don't want to promote 3 disrespect for the law by giving you a slap on the wrist. So 4 the heme confinement is difficult. 5 difficult. 6 punitive. 7 It's supposed to be It's supposed to be punitive. It's designed to be Now, I'm also going to impose a significant fine. The 8 Probation Officer recommends $5,000, which is at the top of the 9 guideline range that they said applied. Actually, the 10 guideline range at Level 8 would be 10,000. 11 the top of the range is $5,000. 12 $5,000 is way too low and not nearly sufficient to ensure an 13 overall adequate punishment, given that I'm not imposing a jail 14 sentence in a case that ordinarily would warrant a jail 15 sentence. 16 But at Level 6, That's true. But I believe So the amount of fine that I intend to impose is 17 $50,000. 18 substantial net worth, millions of dollars and more than 19 $500,000 in liquid assets. 20 you have the ability to pay a $50,000 fine, and no one has 21 given me any suggestion otherwise. 22 full immediately. 23 According to the presentence report, you have a very There's no doubt in my mind that The fine shall be paid in Now, I will note a certain poetic justice in the 24 amount of the fine. 25 arranged for the lobbying firm to hand over to the law firm to $50,000 is the amount of money that you MARY M. STATEN, GSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, PageSS of 63 ISbOLIBmsS 54 Sentence 1 be passed along to your son, so that he would have a 2 sufficiently high-paying job. 3 supplement the $100,000 that the law firm was already paying 4 Matthew. 5 your efforts, due to your efforts, the lobbyist gave $50,000 to 6 your son, so that he would have the lifestyle you wanted him to 7 have. 8 to have to disgorge that amount. 9 The $50,000 was designed to You may not have personally got the money, but due to So under these circumstances, it's appropriate for you And for record, I do not view this fine amount as an 10 upward departure, as those words are defined in the guidelines, 11 but rather as an upward variance from the guidelines fine 12 range. 13 fine amount would be appropriate under the circumstances I've 14 just described. 15 sentence, a fine within the 500 to $5,000 range would be 16 woefully inadequate, because then, the combined sentence would 17 not sufficiently reflect the seriousness of the offense, 18 promote respect for the law, provide just punishment or afford 19 adequate deterrence. 20 important to me is promoting respect for the law. 21 But even if it was viewed as an upward departure, the The point is that in the absence of a jail And of all of those, the one that's most One last thing for the record. I would impose the 22 same sentence, even if I had applied the two-level "abuse of 23 trust" enhancement. At Level 8, the sentencing range is still 24 zero to six months. Mr. Libous's medical condition is still 25 his medical condition, either way. So a sentence of two years' MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page56 of 63 ISbOLIBmsS 55 Sentence 1 probation, with a special condition of six months' heme 2 confinement, plus a $50,000 fine, is the appropriate sentence, 3 even at Level 8. 4 But as I say, I find it's Level 6. So the bottom line is, that in view of the nature and 5 circumstances of the offense and the history and 6 characteristics of the defendant, the sentence I intend to 7 impose is sufficient, but not greater than necessary, to 8 reflect the seriousness of the offense, prcmote respect for the 9 law, and provide just punishment for the offense, as well as to 10 afford adequate deterrence to criminal conduct. 11 12 Mr. MCMahon, do you know of any legal reason why the sentence should not be imposed as stated? 13 MR. McMAHON: 14 THE COURT: 15 I do not. Mr. DerOhannesian, do you know of any legal reason why the sentence should not be imposed as stated? 16 MR. DerOHANNESIAN: 17 THE COURT: 18 It is the judgment of this Court that you be sentenced I do not, your Honor. Mr. Libous, please stand. 19 to a term of two years' probation, with a special condition of 20 six months' home confinement. 21 22 23 The standard conditions of probation 1 to 13 shall apply. The following mandatory conditions shall apply — they 24 are on Page 22 of the PSR — as follows; these are the 25 mandatory conditions: MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, PageS7 of 63 ISbOLIBmsS 1 2 or local crime. The defendant shall not illegally possess a controlled substance. 5 6 The defendant shall not possess a firearm or a destructive device. 7 8 The defendant shall refrain from any unlawful use of a controlled substance. 9 The mandatory drug testing condition is suspended, 10 based on the Court's determination that the defendant poses a 11 low risk of future substance abuse. 12 13 And the defendant shall cooperate in the collection of DMA, as directed by the Probation Officer. 14 15 56 The defendant shall not ccmmit another federal, state 3 4 Sentence In addition, the following special conditions shall apply; they're on Page 23 of the PSR: 16 1. The defendant shall comply with conditions of 17 location monitoring for a period of six months, which program 18 may include electronic monitoring and voice identification. 19 During this time, you will remain at your place of 20 residence, except for employment and other activities approved 21 by your Probation Officer. 22 medical treatment and reasonable visits to your father and to 23 your son. 24 Officer will not be uninformed about that. 25 And that will specifically include That will be in the judgment, so that the Probation You will maintain a telephone at your place of MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page58 of 63 ISbOLIBmsS Sentence 1 residence without call forwarding, a modem, caller ID, call 2 waiting or portable cordless telephone for the above period. 3 4 57 Location monitoring shall ccmnence on a date to be determined by the Probation Officer. And the defendant shall pay the cost of location monitoring on a self-payment or 6 co-payment basis, as directed by the Probation Officer. 7 2. The defendant shall not incur new credit charges 8 or open additional lines of credit without the approval of the 9 Probation Officer until the defendant has paid the fine in 10 full, as well as the special assessment, which I'll get to in a 11 moment. 12 13 14 15 16 3. The defendant shall provide the Probation Officer with access to any requested financial information. 4. The defendant is to report to the nearest Probation Office immediately. And there's one here in this building on the ground 17 floor in the lower lobby. 18 imnediately. 19 And you're directed to report there However, the final condition is that the defendant 20 will be supervised by his district of residence, which, as I 21 understand it, is the Northern District of New York. 22 have no problem with the Northern District doing the 23 supervision in this case. 24 25 And I As I said, I am imposing a fine of $50,000, which is payable immediately. MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page59 of 63 ISbOLIBmsS Sentence 1 Restitution is not applicable here. 2 I am imposing the mandatory special assessment of 3 58 $100, which is due immediately. 4 The foregoing constitutes the sentence of the Court. 5 You may have a seat, sir. 6 Mr. Libous, I need to inform you that you have a right 7 to appeal your conviction and sentence in this case. 8 unable to pay the cost of an appeal, you may apply for leave to 9 appeal without payment of cost. If you're The notice of appeal must be 10 filed within 14 days after the entry of judgment. 11 if you do wish to appeal, you must advise your attorney to 12 prepare and file a notice of appeal immediately. 13 request, the Clerk will inmediately prepare and file a notice 14 of appeal on your behalf. 15 16 underlying indictments here. MR. McMAHON: 18 THE COURT: 19 MR. McMAHON: 20 MR. DerOHANNESIAN: 22 23 24 25 Or if you I don't think there are any open counts or any 17 21 Therefore, Right? There are not, your Honor. Anything else that we need to do today? Not from the government. Judge, I would just request under Rule 38, a stay of the sentence pending appeal. THE COURT: A stay of the sentence pending appeal on what basis? MR. DerOHANNESIAN: On the basis that, given his limited life expectancy, it would cause irreparable harm to MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 59 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page60 of 63 ISbOLIEhisS Sentence 1 impose a sentence, pending a resolution of the appellate 2 process. 3 THE COURT: 4 while people are appealing. 5 have the right to appeal. Well, sentences get carried out routinely And if you want to appeal, you 6 What's the government's view on that? 7 MR. McMAHON: Judge, I don't believe what 8 Mr. DerOhannesian just said will meet the standard for bail 9 pending appeal. 10 THE COURT: 11 appeal. He's out. 12 sentence imposed. Well, he didn't ask for bail pending He's saying he just doesn't want the 13 MR. McMAHON: 14 THE COURT: Well, to me, it's analogous. Okay. The short of it is that I'm not 15 going to do that. Rule 38(d) says, "If the defendant appeals, 16 the Court may stay a sentence of probation. The Court must set 17 the terms of the stay." And I see no basis to do that here. 18 I'm certain, at least in my own mind — although, obviously, 19 Mr. Libous has a right to have the proceedings reviewed by the 20 Court of Appeals. 21 doubt that the evidence was sufficient to support the verdict, 22 that the defendant received a fair trial, that the jury was 23 properly instructed, that all the proceedings relating to the 24 sentencing are both procedurally and substantively proper. 25 sentence in this case is, in my view, although it's a guideline But in my own mind, I have absolutely no MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 The Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page61 of 63 ISbOLIBmsS Sentence 1 sentence, it is within the guidelines, it's a sentence below 2 that which I would ordinarily have inposed, but for the 3 defendant's medical condition, which was discussed at great 4 length. 5 imposition of sentence. And I just don't see any basis whatsoever to stay the 6 So that application is denied. 7 Anything else that you'd like to raise, 8 60 Mr. DerOhannesian? 9 MR. DerOHANNESIAN: One moment. 10 (Conference between defendant and attorney) 11 MR. DerOHANNESIAN: Could I ask that as a condition of 12 probation he also be permitted contact with his lawyer, whether 13 it's on criminal matters or personal matters? 14 THE COURT: Well, first of all, he can contact anybody 15 he wants. 16 that purpose, I mean, yes. 17 Amendment. 18 attorney will be allowed. 19 If you're asking me if he can leave his hone for I mean, I'm not trumping the Sixth So reasonable opportunities to visit with his But you see, here's the thing. His attorney is not in 20 home confinement. 21 one way to do that is for the attorney to visit him. 22 not going to preclude him from visiting his attorney. So if he wants to visit with his attorney, But I'm 23 Your Probation Officer will explain what you need to 24 do to notify them of any trips outside your heme which you're 25 permitted tinder the heme confinement condition: MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Medical Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page62 of 63 ISbOLIBmsS 61 Sentence 1 treatment for sure, reasonable visits to your father and to 2 your son, and reasonable visits to your attorney. Although I 3 would urge you to handle that in a different way, which is to 4 say that your attorney can meet you or you can speak to him on 5 the phone — that works pretty well — or through e-mail or 6 through other means of coinnunication. 7 judgment, if that's what you're asking. But I'll put that in the 8 MR. DerOHANNESIAN: 9 And did you indicate a time for payment of the fine? THE COURT: 10 Yes. Immediately, which I think is, under the 11 rule, 30 days. But I think it should be done immediately. 12 Let's put it that way. 13 He can pay it immediately. I'm not giving him an installment plan. 14 All right. Anything further? 15 MR. DerOHANNESIAN: 16 THE COURT: No, your Honor. All right. Mr. Libous, you have been a 17 gentleman throughout this process. You have done what 18 Mr. DerOhannesian mentioned earlier: 19 condition, you made no complaints, you made no specific 20 requests. 21 for a comfortable chair, which we were happy to provide. 22 pretty sure I gave you one of our chairs from chambers during 23 the trial. 24 you in this position. 25 anything I said for my thinking that I'm — that I don't have Notwithstanding your I think the only request you made at some point was But you've been a gentleman. I am. I'm And I'm sorry to see I don't want to you mistake MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 Case 15-3979, Document 44-3, 08/15/2016, 1840691, Page63 of 63 ISbOLIBmsS Sentence 1 compassion for your situation — I do — and for your family. 2 I do. 3 4 So all I can say is: Good luck to you. 5 Thank you all. 6 Have a nice day. 7 THE DEPUTY CLERK: 8 I wish you the best. All rise. This Court will be in recess. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MARY M. STATEN, CSR, RPR, RMR (914) 390-4027 62 3f 2 EXHIBIT 1' 1 2l^Case '"-J ; OEPARTHgNr Of HEALTH f tuomas w. i.ibous ^ • uJl, Page2 of 2 __ I x:' R *< :o SfAifc r«L«. NUMJU-R r-j—j— p—— »w York p-}'\ '•• ?•* franees in 1 ia San ford iCa t ner t m 2016 AI 1 , f Calvarv f'addad i. > r e Cemetery 1-51 3 East Main St. , F.ndienrr, New York ' Marx if. /2 ,1 ^ ^ ^ 1 Ma7T~4-~T *rfAm£L, LJm.. €udj~" ^ :- dST ' • 4 '' , ^^ 1 ' J?.. > ! i 'if - < L 309 1 10 J 2016: fklkJAJ-. C**(&*£Ld" 25 mm u mmpmm m mmmmQ mmcm - m •• cmmimwmHms timmiw pimmm m mtmui ummm ad a* tt€ tifn-g,(Une sticJ Racg and du- .jPjftttllRi 1 UA iJJY I fill 0'¥U i auses siaM, /£^ • !l3^5C?d JpdL^lC'/ m t * .J id*? I '3 R'fp iloVtefriAcra St- Us iM ; l A... [law !•. 55" ios feiiw ; y^i ^ _J I. t .SMtta TOft 4£:, tot It I ' l e s t afr i5 .0>"T^tMl.yl UiO M. C^.U-St OP ffCAXH tanaeT 3 lilflLJi p"l 391? Page} Sf 2 EXHIBIT Cage menem OSHEZMSE 18a Page: EXHIBIT Case l. S')79, Document 44-6, 08/15/2016, lowo91f Page2 of 2 Certificate# 22321 Surrogate's Court of the State of New York Broome County Certificate of Appointment of Executor File#: 2016-331 IT IS HEREBY CERTIFIED that Letters in the estate of the Decedent named below have been granted by this court, as follows: Name of Decedent: Thomas W Libous Domicile: County Of Broome Fiduciary Appointed: Mailing Address: Frances M Libous Date of Death: May 3, 2016 Type of letfers Issued: LETTERS TESTAMENTARY Letters issued On: • May 25, 2016 and such Letters are unrevoked and in full force as of this date. Dated. May 25, 2016 , IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed tne seal of the Broome County Surrogate's Court at Binghamton, New York, WITNESS, Hon, David H, Guy, Judge of the Broome County Surrogate's Court. Ajhkipu4:k Rebecca A Malmquist, Chief Clerk Broome County Surrogate's Court This Certificate is Not Valid Without the Raised Seal of the Broome County Surrogate's Court 8 gl,P&gelsf2 EXHIBIT Case ,979. Document 44-7, 08/15/2016, Pacie2 of 2 On the Date Written Below LETTERS are Granted by the Surrogate's Court, State of New York as follows: Fib#; 2016-331 N a me of Decedent: Thomas W Libous Domicile of Decedent: County Of Broome Fiduciary Appointed: Mailing Address Frances M Libous Letters Issued: LETTERS TESTAMENTARY Date of Death: May 3, 2016 THESE LETTERS, granted pursuant to a decree entered by the court, authorize and empower the above-named fiduciary or fiduciaries to perform all acts requisite to the proper administration and disposition of the estate/trust of the Decedent in accordance with the decree and the laws of New York State, subject to the limitations and restrictions, if any, as set forth above. Dated: May 25, 2016 IN TESTIMONY WHEREOF, the seal of the Broome County Surrogate's Court has been affixed. WITNESS, Hon David H. Guy, Judge of the Broome County Surrogate's Court. Rebecca A Malmcn.'st Chief Clerk These Letters are Not Valid Without the Raised Seal of the Broome County Surrogate's Court Attorney: Paul DerOhannesian II DerOhannesian & DerOhannesian 677 Broadway, Suite 707 Albany NY 12207 ?13 ?Cumem 44%?8, 08/1312813 Page: a? 2 EXHIBIT CSsst7:_L,-^-GQ43OeyB]e!ia0felia0Mas/2Bii^l Ei^Ofi, f:l?ai^ bbt 1 PREET BHARARA United States Attorney for the Southern District of New York BY; KATHLEEN A. ZEBROWSKi 86 Chambers Street New York, New York 10007 Telephone No.: (212) 637-2710 Fax No,: (212) 637-2717 UNTIED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, SATISFACTION OF JUDGMENT Plaintiff, 14CR440(VB) Satisfaction is acknowledged between United States of America, plaintiff, and Thomas Fibous. defendant, for the fine in the amount of $50,000.00 and the special assessment in the amount of SIOO.OO amounting in all to the sum of $50,100.00. Judgment entered in the Judgment Book of the United States District Court for the Southern District of New York on the 24lh day of November 2015. PREET BHARARA United States Attorney for the Southern District of New York / By: ' "kaitrieIXX^ Assistant United States Attorney STATE OF NEW YORK) COUNTY OF NEW YORK) On the day of January 2016, before me personally came KATHLEEN A. ZEBROWSKI, Assistant United Slates Attorney for the Southern District of New York, to me knownXnd known to me to be the indivtdualilescQbed in and who executed the foregoing 4«sm^wnt,and ackn^ciedge that she. "ATH 1 '' 'Vnrk " Notary No. 01",A^0ZI2courV Qualified ifXX W.ay 5 Commission E>.p're~ Case Seaman: xii-Q, @83152?2815? 1 ?391? Page: 0? 7" EXHIBIT ; a - .. '9. Document 44-9, 08/15/2016. 1ohu691, Page2 of 7 Case 7:14-cr•00440-VB Document 83 Filed 11/25/15 Page 1 of 5 A* .* «Rev jud^nKnt m .i < "f j/iimtil < avc Sheet 1 UNITED STATES DISTRICT COURT Southern Dtstnct of New York JUDGMENT IN A CRIMINAL CASE UNITED S I A n/S OF AMERICA v. THOMAS W LIBOUS Case Number: 14 CR 440 (VB) I SM Number 71204-054 Paul DerObannesian. II, Esq. iWfcndamN Aucmcv THE DEFENDANT: Q pleaded guilty to couni(si Q pleaded nolo contendere to count(,v) which was accepted by the court. 0 w as found guilty* on eountt s) ^ after a plea of not guilty. lite deiendant is adiudicated guilty of these offenses; Title & Section 18:1001 Offense EnUed Nature of Offense Fafs® statements to tfts F.B.I. 6/24/2010 Count 1 of this judgment. The sentence is imposed pursuant to The defendant is sentenced as provided in pages 2 through the Sentencing Keform Act of 1984. Cj The defendant has been found not guilty on count(s) • Countt s) • is • are dismissed on the motion of the United Stales, It is ordered that the defendant must notify the United States attorney for this district within 30 davs of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notifv the court and United States attorney of material changes in economic circumstances. 11/24/2015 Dale i»! ImfHmiion •Mure «»!' fud^c Vincent L. Bnccetti. U.S.D.J. Nanw and I illc c! Judge 11/24/2015 DMc Case .1. yJ79, Document 44-9, 08/15/2018, lo PageS of 7 Case 7:14-cr-00440-VB Document 83 Filed 11/25/15 Page 2 of 5 \1 I .'HH i«»> »< !•=. iihi.itkRl •>: s!„,i ; i-t.,..ii i 'I - ! • ' H t i l m i l NOAM ~ 2 •! S THOMAS W LIBOOS l \ si \l \tHI-R; 14 CR 440 (VB) PROBATION I IK- Uc'cisdaiH i> hcidn -.ctik-nicii lu pntlutHMt kir a Icrm ul Two years, with a special condition of six months' home continement OK* 1c emiant Iwll not commit jnothcr ksicral. slate or local crime. I he dcTctid.iiit shall nol unlaw lull) possess a controlled substance I he Jcfcndant simll retrain iroin am unimst'ul use of a controlled substurcc The dctendam shall subinit to one dmu test \s ithm I > das s of placemenl on probation and at least two periodic Jrue tests thereat er. as detemiiiied in the conn " * " ia i he above drug testing coridiiion is suspended, based on the court's detenu mat ion that the delendunt poses a loss risk of hiturc siiisstance abuse .< v» . i ,•/ ,1/ ,v , [ he deknd^n! shalf fnii posses a fsreann, aniininiiiu>n, destructive JCMCC. or any other dangcrmiA weapon, a hc-A. thtppiuahu t Z) 1 lie detvndani shall cooperate in the collei tion of UNA as directed bs the probation olTicer u >V,« o/ • ' I be dctendam shall eomph ssnh the requirements of the Sex Offender Registration ami Noliiication Act (42 U.S.C. j 16101. er set/ ) as directed b) the probation officer, the Bureau of Prisons, or any state sex"offender registration agent) it! which he or she resides. m arks, is a student, or was cons icted of a qualif) trig offense. «Ava <>.ipptu afrh-, • I he Jetendant shall parncipate in an approved program for domestic violence, <0/10* tiufipluufrh-1 If this judgment imposes a tine or rest tunion. it is a condition of probation that the defendant pas in accordance is ith the Schedule of Pas ments sheet of This judgment. I he defendant must complv with the standard conditions that have been adopted by (his court as welt as «ith ans additional conditions on the attached page STANDARD CONDITIONS OF SUPERVISION I1 he defendant shall not lease the 1udict.1l district witlunit the permission of the court or prubatum uflker: 2) lie delendaiil shall report to the probatton olfteer m a manner and trequenc) directed b) the court or probation officer: ?1 he delendant shall answer truthfull) all inquiries by the probation olfteer and follow- the instructions of the probation officer. ti he detenduni shall suppon his or her dependents and meet other family responsibilities. 5) 61 71 Si l> 'lie defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other .icceptable reasons; " " he defendant shall nol if) the probation officer at least ten days prior to any change in residence or employment; he defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use. distribute, or administer any controlled -.tthxtance or nnx paraphernalia related to any controlled substances, except as prescribed by a physician: * he delendant shall mtt ,'iequeiit places where controlled substances are illegal!) sold. used, distributed, or administered. 1 the dctendam shall not associate w uh an) persot cj;. cd 111 criminal ucttv it) and shall not associate with am person cunv teleJ ol a eiom unless giantcd pei inissiini n, do so by the pronation oflicci. f 0; :lie defendant shall pcnrnl a ->robatioii ol fiver to 1 tstt him or her at any time at home or elsewhere and siiali permit eonfiscatton ot am, t.omrahand observed in plain \ lew ol the probation ollkcr. I I) 1 he dctendam shall notify the probation officer w ithin scxetm -two hours of being arrested or questioned by a law enforcement officer; !2l the defendant shall not enter into any agreement to act as an informer or a special agent o f a law enforcement agency without the permission of the conn; and ' " ' " " I 7i .is Uuected by the probation officer, (he defendant shall notify third parties ol risks that max be occasioned^by the defendant's criminal record or personal hisiorx or characleristies and shall permit the probation officer to make such notitications and to confirm the vie tenJam s compliance ssnh such notdicatton requirement. Case ") .'9, Document 44-9, 08/15/2016, icmGOl, Paqe4 of 7 , . Case 7:14-cr-00440-VB Document 83 Filed 11/25/15 Page 3 of 5 > - DM! {Kcv I" i *>> iudymcnt tn -i ( rinun.U ! 5f;cct K • Ptehitfion luJuncjU I'.IOC 3 1 5 i>[ FliNDAN F: THOMAS W LIBOUS < AS! NUMBflR: 14CR440(VB) S P E C I A L CONDITIONS O F S U P E R V I S I O N 1 The defendant shall comply with the conditions o f Location Monitoring for a period of six months, which program may include electronic monitoring or voice Identification. During this time, the defendant will remain at his place of residence except for employment and other activities approved by his Probation Officer, specifically including medical treatment, and reasonable visits to his father (William Libous) and his incarcerated son (Matthew Libous), as well as attorney visits The defendant will maintain a telephone at his place of residence without call forwarding, a modem, caller ID. call waiting, or portable cordless telephones for the above period. Location Monitoring shall commence on a date to be determined by the Probation Officer. The defendant shall pay the costs of Location Monitoring on a self-payment or co-payment basis as directed by the Probation Officer. 2 The defendant shall not incur new credit charges or open additional lines of credit without the approval of the Probation Officer until payment in full of the S50.000 fine is made. 3. The defendant shall provide the Probation Officer with access to any requested financial 4. The defendant is to report to the nearest Probation Office immediately. 5 The defendant shall be supervised by his distnct of residence information. Case .,979, D o c u m e n t 4 4 - 9 , 08/15/2016, . * : t PaqeB of 7 Case 7:14-cr-00440-VB Document 83 Filed 11,25/15 Page 4 of 5 iKc* 10- i 5) Itiddriwnt in .»1 ftniuwi Sheet 5 - • i rinuiid Mimcfon PciuHtcv DU- LNDAST: 4 '" Utdgiltcnt — IT THOMAS W, U B O U S C'.ASLi NUMBMR: 14 CR 440 (V8) CRIMINAL MONETARY PENALTIES f he Jct'cuiiant m u s l pay the tola! criminal monetary penallie.s under the schedule ot payments on Sheet ft Assesniu'in TOTALS ? I S R o t i t u ' i an Fine 1 0 0 00 S l lie determination of a-stitution is deterred until 50,000.00 S 0 00 AnwiuleJ Jutignicm m a { 'riminai An C'cisv i.ft' will be entered after such Jetcrmmution. Q The defendaiit must make restitution {including community restitution) to the following payees in the amount listed below. If the defendant makes a partial payment, each pacee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below However, pursuant to IS u S.C § 3664 file defendant must pay interest on restitution and a tine o! more than SlJtX.t. unless the restitution or line is paid in full before the ti tecifth day after the date the judgment, pursuant to IS U.S.C. § 3612(0 All of the payment options on Sheet 6 may be subject to penalties tor delinquency and default, pursuant to IS U.S.C". $ j6l2f : M NDANT: THOMAS W LIBOUS < wsi: Ni'Mnru: u cr 440 (VB) hu! S( HFDILF. OF P A YM ENTS f f .i\ inu assessed die dclciuian!'s ;ihili(\ A £3 i.umpMtm paiinem of S • not later than C m actordancc to p.i_\, pa) men! ot'lhc lolal vriniin.il im>nctar> pcnallic-. i> due .w Inlkm > 50,100 00 due mmicdiateh, balance tine , or f. !_] I). "™ I , or B • I'ajmcw U» begin iimncdiatcl) (nw\ be combined «iih t" • I'aytnent in equal e I) • Paymenl m equal a- e y , »tv(A. mimthh ih.jik/iv ,,f u-oro, to eommcnec e l ; belou. or •('. LJ I), or Jj F belou i. or i/mrrri'Wi / installinenis ol' S over a period o f o- v )>> or ''ii . tin.-i alter She dale of thin judianem: or momhh iinmh rh, < inslailmcms of S ntomh\ ,»• iror,,., to commence o- e JO <•> *>> J.n o alter release frrmi over a period of imprisonmenl to a term ot supers tsion; or K O Payment during the term of supervised release will commence within u> g .W m .in«. after release Irotn imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or F 0 Special instructions regarding the pay ment of criminal monetary penalties' I ' n less the court has cxpresslv ordered otherwise, if this judgment imposes imprisonment, navment of criminal monetary penalties is due during impriMinment All criminal tnonctarv penalties, except those payments made througn. the federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court fhe defendant shall receive credit for ail payments previously made toward any criminal monetary penalties imposed. O Joint and Several I Jelendant and Co-Detcndant Names and Case Numbers and corresponding payee, if appropriate umluJmg Jr/rthJom num,>. I otal Amount. Joint .md Several Amount, lJ f h e defendant sltall pay the cost of prosectition. 0 I be defendant shall pay the iollowmg court costtsj: Q 1 h e defendant shall forfeit the delendanf s interest in the following property to the I inited States: Pay ntcnts shall be applied in the Iollowmg urdet I I t .issessment. (2i testitution principal. ( ' ) restitiittoti interest. (4i tine principal. < s i tine isiterest tht comimmity reslitulton. i~t penalties, and (8) costs, indudtng cost ot proseeution and court costs Case •. a" Document 44-10, 08/15/2016, 10- Jl, Pagel of 13 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT UNITED STATES OF AMERICA, Appellee, No. 15-3979 THOMAS W. LIBOUS, Defendant-Appellant. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT-APPELLANT'S MOTION FOR WITHDRAWAL OF THE DIRECT APPEAL AND VACATUR OF JUDGMENT AND REMAND TO THE DISTRICT COURT WITH ORDERS TO DISMISS THE INDICTMENT AND RETURN THE FINE AND SPECIAL ASSESSMENT, AND, INSOFAR AS IS NECESSARY, TO SUBSTITUTE THE EXECUTRIX FOR THOMAS W. LIBOUS Paul DerOhannesian II, Esq. Danielle R. Smith, Esq. DerOhannesian & DerOhannesian 677 Broadway, Suite 707 Albany, New York 12207 (518) 465-6420 Attorneys for Thomas W. Libous and the Estate of Thomas W. Libous as represented by the Executrix, Frances M. Libous Case k- ... "9, Document 44-10, 08/15/2018, 1 Page2 of 13 TABLE OF CONTENTS STATEMENT OF FACTS 1 ARGUMENT 3 I. Defendant-Appellant's Motion For Withdrawal Of The Direct Appeal, Vacatur Of Judgment And Dismissal Of The Indictment Should Be Granted 3 II. Defendant-Appellant's Motion For Return Of The Fine And Special Assessment Should Be Granted 4 CONCLUSION 9 i Case 1- ji'9, Document 44-10, 08/15/2016, 1,- ..-"M, PageS of 13 TABLE OF AUTHORITIES Cases Cobalt Multifamily Investors I, LLC v. Shapiro, 9 F. Supp. 3d 399 (S.D.N.Y. 2014) Durham v. United States. 401 U.S. 481 (1971) Rita v. United States. 551 U.S. 338 (2007) United States v. Christopher. 273 F.3d 294 (3d Cir. 2001) United States v. Corsev. 723 F.3d 366 (2d Cir. 2013) United States v. Cossev. 632 F.3d 82 (2d Cir. 2011) United States v. Dudley. 739 F.2d 175 (4th Cir. 1984) United States v. Juwa. 508 F.3d 694 (2d Cir. 2007) United States v. Logal, 106 F.3d 1547 (11th Cir. 1997) United States v. Lopez. 572 Fed. Appx. 1 (2d Cir. June 2, 2014) United States v. Parsons. 367 F.3d 409 (5th Cir. 2004) United States v. Schumann. 861 F.2d 1234 (11th Cir. 1988) United States v. Wright. 160 F.3d 905 (2d Cir. 1998) 4 3 8 5 8 8 5 8 5 4 5, 6, 9 5,9 3, 4, 9 Statutes 18 United States Code § 1001 18 United States Code § 3553 1 7 Rules Federal Rule of Appellate Procedure 4 Federal Rule of Appellate Procedure 43 3 9 ii Case C .e7:\ Document 44-10, 08/15/2016, iCDl, Page4 o f 1 3 STATEMENT OF FACTS On July 22, 2015, Defendant-Appellant Thomas W. Libous ("Senator Libous") was convicted in the Southern District ofNew York of one count of violating 18 U.S.C. § 1001. See Declaration of Paul DerOhannesian II ("DerOhannesian Declaration"), %2. At sentencing, held on November 24, 2015, the trial court concluded that Senator Libous should be properly adjudicated as an "Offense Level [] 6, and Criminal History Category I, which yield[ed] a sentencing range of zero to six months' imprisonment," and a "fine range . . . [of] 500 to $5,000." Exhibit A, 21:15-17, 22.' "[UJnder normal circumstances" the trial court would have "be[en] inclined to impose a six-month jail sentence," but given the medical consensus that Senator Libous "likely ha[d] less than one year to live," the judge ruled that a jail sentence "would be cruel." Id. at 50:4-51:5. The judge therefore sentenced Senator Libous "to a term of two years" probation, with a special condition of six months* home confinement." jd. at 55:18­ 20; see also Exhibit G. Such a sentence was within the guidelines. The trial court also imposed a fine, but unlike the probation and home confinement sentence, the judge opted to go far outside the sentencing guidelines. Specifically, the judge imposed a fine of $50,000 together with a special assessment of $100. Exhibit A, 53:16-22, 58:2-3; see also Exhibit G. The court found that this fine was "poetic justice" because "$50,000 [wa]s the amount of money that [Senator Libous] arranged for the lobbying firm to hand over to the law firm to be passed along to" Senator Libous' son, Matthew Libous. Exhibit A, 53:23­ 54:1. The trial court further reasoned "that in the absence of a jail sentence, a fine within the 500 to $5,000 range would be woefully inadequate, because then, the combined sentence would not sufficiently reflect the seriousness of the offense, promote respect for the law, provide just 1 All Exhibits are attached to the DerOhannesian Declaration. 1 Case li» .a. 7 9. Document44-10, 08/15/2016, D, .r 'I, PageS of 13 punishment or afford adequate deterrence." kf at 54:14-19. Senator Libous' request to stay the sentence pending appeal fid. at 58:20-21) was denied ( Id. at 60:6). Per the trial court's order that he make payment "immediately," Senator Libous paid the tine and special assessment on December 3, 2015. kf. at 61:9-13; Exhibit C; see also Exhibit F. On December 8, 2015, Senator Libous timely filed a notice of appeal as well as this Court's so-called "Form B," advising that he would be ordering a transcript of the Jury Selection, held on July 24, 2015, which was the only transcript trial counsel had not yet requested. Dkt. Nos. 1-1, 1-2, 9. The transcript request was transmitted to the court reporter. DerOhannesian Declaration, f5. There was a significant delay in receiving the transcript and over the next several months Senator Libous filed several letters updating this Court on the status of his request, id-l see also Dkt. Nos. 25, 27, 28, 30-34. In accordance with Local Rule 31.2(a)(1)(A), Senator Libous did not "notify the clerk in writing of the deadline [he] requested] for [the filing of] appellant's brief as he was not yet in "receipt of the last transcript." Due to his declining health, on May 3, 2016, the trial court discontinued Senator Libous' home confinement. DerOhannesian Declaration, 1[6. Later that day, Senator Libous passed away following a long battle with prostate cancer. See Dkt. No. 34; see also Exhibit B. Senator Libous' trial attorneys are representing his estate and his wife has been named Executrix. DerOhannesian Declaration, f8; see also Exhibits D, E. The transcript was received shortly thereafter. 2 DerOhannesian Declaration, 15. For the following reasons, Senator Libous together with the Executrix of his estate respectfully submit that this Court grant the instant motion to withdraw the appeal and remand * Specifically, portions of the Jury Selection transcript were received on May 9 and 16, 2016, with the final portion received on May 25, 2016. DerOhannesian Declaration, f 11. 2 Case 15-.. CC Document 44-10, 08/15/2016, 3 2. ,..,•31, Page6 of 13 the matter to the district court with orders to vacate the judgment and return the fine of $50,000/ Furthermore, to the extent necessary, Mrs. Libous, the Executrix, asks that she be substituted for her husband, Thomas W. Libous, in this proceeding to seek the relief requested. 4 ARGUMENT I. Defendant-Appellant's Motion For Withdrawal Of The Direct Appeal, Vacatur Of Judgment And Dismissal Of The Indictment Should Be Granted As discussed above. Senator Libous was sentenced on November 14, 2015, and duly filed his Notice of Appeal on December 8, 2015, within the fourteen days proscribed by the Federal Rules of Appellate Procedure. Dkt. No. 1-1; Fed. R. App. P. 4(b)(1)(A). Unfortunately, Senator Libous passed away while his appeal was pending. DerOhannesian Declaration, f7; see also Exhibit B. For the following reasons. Senator Libous respectfully submits that this Court should enter an Order remanding the matter and directing the trial court to vacate his conviction. It is well settled that the defendant's "death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception." Durham v. United States, 401 U.S. 481, 483 (1971) (citations omitted). considerations underlie this rule of abatement. "Two First, the interests of justice ordinarily require that [a defendant] not stand convicted without resolution of the merits of an appeal. Second, to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served." United States v, Wright, 160 F.3d 905, 908 (2d Cir. 1998) (citations and internal quotations omitted). J Senator Libous is also seeking a return of the $100 special assessment. Ail returned funds will be deposited in Senator Libous' estate and distributed in accordance with his Last Will and Testament. DerOhannesian Declaration, f 10. 4 The Government opposes Senator Libous' request for return of the fine but takes no position on Senator Libous' remaining requests. 3 Case 15-. . D o c u m e n t 44-10, 0 8 /15/2016, 1.;., ui, Page? of 13 In other words, where, as here, a defendant dies pending the direct appeal of his criminal conviction as of right, his conviction must be vacated and the indictment dismissed. See Wright, 160 F.3d at 908 (citation omitted) ("upon receiving notice of a defendant-appellant's death during the pendency of his direct appeal as of right, we normally vacate the judgment and remand to the district court with instructions to dismiss the indictment"); see also United States v. Lopez. 572 Fed. Appx. 1, at *2 (2d Cir. June 2, 2014) (the defendant died pending appeal and this Court therefore "granted his counsel's motion to withdraw the appeal, and remanded to the district court with instructions to dismiss the indictment" (citation omitted)); Cobalt Multifamily Investors 1. LLC v. Shapiro. 9 F. Supp. 3d 399, 403 n.l (S.D.N.Y. 2014) (noting that the defendant in the related SEC criminal action "died during pendency of his appeal from the criminal conviction" and that "[h]is conviction and the underlying indictment were therefore dismissed") (citation omitted)). Accordingly, Senator Libous respectfully requests that this Court withdraw his appeal and vacate the judgment and that this Court remand the matter to the trial court with Orders to dismiss the indictment. See Wright, 160 F.3d at 908 (citation omitted) ("upon receiving notice of a defendant-appellant's death during the pendency of his direct appeal as of right, we normally vacate the judgment and remand to the district court with instructions to dismiss the indictment"). Finally, as set forth below, Senator Libous maintains that the fine and special assessment must be returned to his estate. II. Defendant-Appellant's Motion For Return Of The Fine And Special Assessment Should Be Granted The holdings of circuit courts throughout the United States make clear that had Senator Libous passed away prior to remitting the fine, that payment would have abated along with his conviction. This is required under the doctrine of abatement. See United States v. Dudley, 739 4 Case I Document 44-10, 08/15/2016,I, PageS of 13 F.2d 175, 176 (4th Cir. 1984) ("It is not disputed by the government that death abated (a) the imposition of prison terms, (b) the levy of a fine, and (c) the addition of a special parole term. Such sanctions are purely penal. They, consequently, were extinguished by [the defendant's] death, requiring ultimately that the case be remanded as to them, with direction to vacate ab initio, as abated, the criminal proceedings." (citation omitted)); United States v. Christopher. 273 F,3d 294, 298 (3d Cir. 2001) ("'A penal provision, such as a criminal forfeiture, abates with the conviction."). In other words, the Government would not be permitted to recover the fine and special assessment from Senator Libous' estate. See United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983) ("Death pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception. . . . If the sentence included a fine, this rule of abatement ab initio prevents recovery against the estate." (internal citations omitted)). Accordingly, the only question is whether, because Senator Libous complied with the court's order that he remit payment "immediately," he should be treated more harshly than defendants who delayed or ignored payment. For the following reasons, Senator Libous, and his estate, respectfully submit that the only just answer must be no. 5 One of the fundamental rationales behind the abatement doctrine "asserts that the state should not punish a dead person or his estate." United States v. Parsons, 367 F.3d 409, 413 (5th Cir. 2004). This is because "[u]nder the doctrine of abatement . . . the defendant "stands as if he never had been indicted or convicted.'" United States v. Logal, 106 F.3d 1547, 1552 (11th Cir. 1997) (quoting United States v. Schumann, 861 F.2d 1234, 1237 (11th Cir. 1988)). To allow Senator Libous' fine to stand would violate this principle of law. ^ Senator Libous is unaware of any Second Circuit precedent on this issue. 5 Case .5-. Document 44-10, 08/15/2016, 13v...ul, PageO of 13 Furthermore, due to his passing, Senator Libous was not afforded an opportunity to challenge either his conviction or the above sentencing guidelines fine. Allowing the fine to remain despite Senator Libous' valid challenges to his sentence, discussed below, would allow the Government to ''enjoy the fruits of an untested conviction." Parsons, 367 F.3d at 414. As previously discussed, the trial court adjudicated Senator Libous as an "'Offense Level [] 6, and Criminal History Category I, which yield[ed] a sentencing range of zero to six months' imprisonment," and a "fine range . . . [of] 500 to $5,000." Exhibit A, 21:15-17, 22. Senator Libous' sentence "of two years' probation, with a special condition of six months' home confinement," was therefore within the guidelines. Id, at 55:18-20. However, the trial court imposed a fine of $50,000, which went ten times outside the guideline range of $500 to $5,000. Id. at 53:16-22. Senator Libous maintains that the trial court considered inappropriate factors when imposing this sentence. In determining an appropriate sentence, courts are directed to consider the factors set forth in 18 U.S.C.§ 3553(a), which include the following: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established . . . (5) any pertinent policy statement. . . (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. 6 Case L "v ... n. Document 44-10, 08/15/2016, 1,, 18 ,-s I. ;5 vialO of 13 U .S.C. § 3553(a). A sentence outside the guidelines, as occurred here, requires the trial court to "state in open court the reasons for its imposition of the particular sentence" as well as "the specific reason for the imposition of a sentence different from [the guidelines], which reasons must also be stated with specificity in a statement of reasons form." 18 U.S.C. § 3553(c); see also Gall v. United States, 552 U.S. 38, 50 (2007) ("If [the trial court] decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one."). According to the trial court, the $50,000 fine was "poetic justice" because "$50,000 [wa]s the amount of money that [Senator Libous] arranged for the lobbying firm to hand over to the law firm to be passed along to" Senator Libous' son, Matthew Libous. Exhibit A, 53:23-54:1. Clearly, "poetic justice" is not an appropriate basis to impose a fine that is ten times outside the guidelines. 18 U.S.C. § 3553(a). Furthermore, the trial court's passing reference to a few of the factors, without elaboration or discussion, 6 is patently insufficient to justify such a great departure. As this Court has made clear, "the judge must explain enough about the sentence for a reviewing court both to understand it and to assure itself that the judge considered the principles enunciated in federal 6 Specifically, the trial court stated "that in the absence of a jail sentence, a fine within the 500 to $5,000 range would be woefully inadequate, because then, the combined sentence would not sufficiently reflect the seriousness of the offense, promote respect for the law, provide just punishment or afford adequate deterrence." Exhibit A, 54:14-19. 7 -Jl, Page11 of 13 statutes and the Guidelines." United States v. Corsev. 723 F.3d 366, 374 (2d Cir. 2013) (citing Rita v. United States. 551 U.S. 338, 357 (2007)). Accordingly, Senator Libous maintains that the trial court's reliance on "poetic justice" alone, or at the very least in conjunction with the court's failure to clearly articulate a proper basis for a tine so far outside the guidelines, raise serious questions as to whether the sentence was justified. Indeed, this Court has, on several occasions, remanded for further proceedings where, as here, it was unclear whether the sentence was based on proper or improper factors. See United States v. Cossev. 632 F.3d 82, 88-89 (2d Cir. 2011) (remanding where it was unclear whether the trial court based the sentence on appropriate or inappropriate factors); Corsev, 723 F.3d at 376 ("In a case clouded by the possibility of error, we feel it appropriate to give the District Court an opportunity to clarify its thinking."); United States v. Juwa, 508 F.3d 694, 699­ 700 (2d Cir. 2007) (remanding where there was "uncertainty from both the sentencing transcript and the written order surrounding whether and to what extent the district judge based his sentencing enhancement on the assumption that Juwa had engaged in multiple instances of sexual abuse, as opposed to the single instance to which [the defendant] had anticipated pleading guilty in state court"). Unfortunately, Senator Libous was denied the opportunity to raise the foregoing arguments and challenge the propriety of his sentence. Based on the foregoing. Senator Libous respectfully submits that there is no justifiable basis for the Government to keep the fine Senator Libous paid for a conviction that now must abate with his passing. Accordingly, Senator Libous requests that this Court enter an Order remanding to the district court with directions to vacate the judgment and return the fine. Furthermore, to the extent necessary, and in accordance with Rule 43 of the Federal Rules of 8 Case 15-- . 9. Document 44-10, 08/15/2016, 1; _ . i Pagel2 of 13 Appellate Procedure, Mrs, Libous, the Executrix, asks that she be substituted for her husband, Thomas W. Libous, in this proceeding to seek the relief requested. CONCLUSION The death of a defendant pending appeal abates the entire criminal proceeding "from its inception." Wright, 160 F.3d at 908 (quoting Durham, 401 U.S. at 483). abatement focuses on sanctions that are punitive, such as fines. The rationale of Prior proceedings associated with the case is extinguished leaving a defendant "as if he never had been indicted or convicted." Schumann, 861 F.2d at 1237. Under the finality principle, a defendant should not be labeled guilty until he exhausts his opportunity to appeal and challenge the appropriateness of rulings and findings and resolution of the merits of his appeal. Wright. 160 F.3d at 908. Under the rationale underpinning the abatement doctrine, the government should not "enjoy the fruits of an untested conviction," Parsons, 367 F.3d at 414, and its penal impact, particularly one imposing a fine ten times outside the guidelines. Because Thomas Libous is deemed never to have been convicted or even charged, the penal aspect of his conviction (the fine and special assessment) should abate along with the conviction itself. WHEREFORE Defendant-Appellant respectfully submits that this Court grant his motion to withdraw his appeal, vacate the judgment, and remand to the Southern District of New York with Orders to dismiss the indictment and return the fine and special assessment, and that insofar as is necessary to effect relief, Mrs. Libous, the Executrix, be substituted for her husband, Thomas W. Libous, in this proceeding, together with such other and further relief that this Court deems just and proper. 9 Case 15- • , 5 Document 44-10. 08/15/2016, 18401191, PagelS of 13 Dated: August 12,2016 Albany, New York /s/ Paul DerOhannesian 11 Paul DerOhannesian II, Esq. Danielle R. Smith, Esq. DerOhannesian & DerOhannesian 677 Broadway, Suite 707 Albany, New York 12207 (518)465-6420 Attorneys for Thomas 11". Libons and the Estate of Thomas W. Libons as represented by the Executrix, Frances M. Libons 10 EXHIBIT Case 15-3979, Document 49, 08/29/2018, 1852006, Paqel of 17 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT -X UNITED STATES OF AMERICA, Appellee, AFFIRMATION v. No. 15-3979 THOMAS EIBOUS, Defendant-Appellant. STATE OF NEW YORK COUNTY OF WESTCHESTER SOUTHERN DISTRICT OF NEW YORK X ) : ) ss.: BENJAMIN ALLEE, pursuant to Title 28, United States Code, Section 1746, hereby affirms under penalty of perjury: 1. I am an Assistant United States Attorney in the Office of Preet Bharara, United States Attorney for the Southern District of New York, and I represent the Government in this appeal. I submit this affirmation in response to the appellant's motion (1) to withdraw his appeal, (2) for vacatur of his conviction, and (3) for return of his fine payment to his estate. 1 For the reasons set forth below, the Government consents to the withdrawal of the appellant's appeal and vacatur of his conviction, but opposes return of his fine payment to his estate. 2 1 Libous's counsel also moves to substitute in the executrix of the estate, Libous's wife Frances M. Libous, as the party to this appeal, if necessary. The Government takes no position on this request. 2 Libous also seeks return of his $100 Special Assessment. The Government opposes this request for the same reasons set forth below with respect to the fine. 1 Case 15-3979, Document 49, 08/29/2016, 1852006, Page2 of 17 STATEMENT OF FACTS 2. Libous appeals from a judgment of conviction entered on November 25, 2015, in the United States District Court for the Southern District ofNew York, by the Honorable Vincent L. Briccetti, United States District Judge, following a jury trial. 3. On July 1, 2014, Indictment 14 Cr. 440 (VB) (the "Indictment") was unsealed. The Indictment charged Libous in one count with making false statements to Special Agents with the Federal Bureau of Investigation ("FBI") who were conducting a criminal investigation of public corruption, in violation of Title 18, United States Code, Section 1001. A. The Trial 4. On July 22, 2015, at the conclusion of an eight-day trial, a jury found Libous guilty of making false statements to the FBI. At trial, the evidence clearly demonstrated that Libous, then a New York State Senator, made false statements to the FBI during an interview on June 24, 2010. (PSR f 7). 3 Libous made the false statements to cover up his corrupt conduct in connection with efforts to find his son, Matthew Libous, a job at a law firm. (PSR f 7). At the time of those efforts, in Fall 2005, Libous was the chairman of the Senate's Transportation Committee, and in that capacity regularly dealt with a transportation lobbyist, his friend Fred Hiffa. (PSR if 8). Libous also was acquainted with Anthony Mangone, a Westchester lawyer who was also a staffer to another State Senator, Nicholas Spano, with whom Libous was close. (PSR if 9). 5. The evidence at trial further showed that during phone calls and meetings at restaurants and elsewhere in Fall 2005, Libous arranged with Hiffa and Mangone that Mangone's 3 PSR" and "Presentence Report" refer to the Presentence Investigation Report prepared by the United States Probation Office (the "Probation Office") in connection with Libous's sentencing. 2 Case 15-3979, Document 49, 08/29/2016, 1852006, Page3 of 17 firm would hire Libous's son and pay him $150,000 and the cost of a leased Range Rover. (PSRff 8-21). Of that sum, $50,000 came from Hiffa's lobbying firm. (PSR If 12-15). Because Libous was worried about the public perception of a lobbying firm that lobbied him paying money to his son, Hiffa's payments were routed through Mangone's law firm, with the law firm in turn creating a false retainer agreement with Hiffa's lobbying firm. (PSR f 13). The other $100,000 and the Range Rover were paid and paid for by Mangone's firm, even though that compensation exceeded that provided to more senior lawyers at the firm. (PSR ^ 21). Even after Libous's son propositioned a partner's wife at the law firms holiday party, Mangone's firm was still persuaded to hire Matthew Libous and to pay these sums, in part because Libous had promised to help the firm get new business. (PSR f 11, 16-20). Once hired, Libous's son's performance at the law firm was poor, and Libous did not refer work to the law firm. (PSR f 21). In September 2006, the law firm dismissed Libous's son. (PSR f 21). Payments from Hiffa's lobbying firm to Libous's son, routed through the law firm, thereafter continued until the entire $50,000 was paid. (PSR f 15). 6. The evidence at trial further showed that, on June 24, 2010, FBI agents interviewed Libous as part of its investigation into the arrangement whereby Libous's son was hired by Mangone's law firm and paid in part by Hiffa's lobbying firm. (PSR f 22). During the interview, Libous made the following false statements, each of which was charged as materially false in the Indictment: a. He could not recall how his son began to work at the law firm. b. No deals were made to get his son the job at the law firm. c. He was not aware that the lobbying firm had paid any part of his son's salary at the law firm. d. He never promised to refer work to the law firm. 3 Case 15-3979, Document 49, 03/29/2016, 1852006, Page4 of 17 e. He was not involved in his son's decision to work at the law firm. f. He had no personal or business relationship with the law firm. g. He did not know of any relationship between the law firm and the lobbying firm. (PSR TJ 22). 7. On October 1, 2015, Judge Briccetti denied Libous's post-trial motions for acquittal or a new trial pursuant to Rules 29 and 33 of Criminal Procedure. (Memorandum Decision, at 1-7 (District Court Docket Entry 67)). In denying the motions, Judge Briccetti noted that "[t]he Court has no doubt about the soundness of the verdict." (Id., at 6). B. The Sentencing 8. On November 24, 2005, Judge Briccetti sentenced Libous to a term of two years' probation, with a special condition of six months' home confinement. (Judgment of Conviction at 2 (attached to Appellant's motion as Exhibit G)). Judge Briccetti also sentenced Libous to pay a fine of $50,000, and the mandatory special assessment of $100. (kL at 4). 9. At sentencing, Judge Briccetti acknowledged having reviewed the submissions of the parties and the Presentence Report. (Sentencing Transcript at 2-3 (attached to Appellant's motion as Exhibit A) (hereinafter "Sent. Tr.")). Judge Briccetti confirmed that the parties had reviewed the Presentence Report, and then addressed objections to it by the defense. (Sent. Tr. 4-22). Among the objections was that the Probation Office, in setting forth Libous's financial condition including assets totaling approximately $3.8 million and liabilities totaling approximately $430,000, referred to the approximately $3.45 million difference as "net worth," which the defense claimed was an improper term to use for describing that financial situation. (Sent. Tr. 11). Judge Briccetti found that the applicable Guidelines range was zero to six months' 4 Case 15-3979, Document 49, 08/29/2016, 1852006, PageS of 17 imprisonment, and a $500 to $5,000 fine, based on an Offense Level 6 and Criminal History category I. (Sent. Tr. 14, 21). Judge Briccetti notified the parties that he was considering imposing a fine substantially above the range, "on the ground that a fine within the range would not be adequately punitive." (Sent. Tr. 21). 10. Judge Briccetti then heard from counsel for the Government and defense, and from the defendant himself. (Sent. Tr. 22-46). The defense argued at sentencing that Libous should not be sentenced to imprisonment, in part because he was in extremely poor health. (Sent. Tr. 32-34, 45-46; see also defendant's Sentencing Submission at 18-23, 26-28 (District Court Docket Entry 73)). The Government emphasized, among other things, the seriousness of Libous's offense of lying to FBI agents who were investigating allegations of public corruption involving secret payments totaling $50,000 by a lobbying firm to Libous's son, and the need for the sentence imposed to send a message that would deter others from like conduct. (Sent. Tr. 22-27; see also Gov't Sentencing Submission at 13-24 (District Court Docket Entry 76)). The Government argued that the conduct called for a custodial sentence, although, in light of Libous's serious health difficulties, the Government was not seeking a custodial sentence. (Sent. Tr. 26). 11. Judge Briccetti then imposed sentence and explained his reasoning. (Sent. Tr. 46-62). Judge Briccetti described that Libous's crime was not just a lie about getting [his] son a job ... It was a lie about how [Libous] got a lobbying firm, that regularly lobbied you as Chairman of the Senate's Transportation Committee, to surreptitiously pay your son's salary. . . . And you didn't have to lie. ... You knew there was an active criminal investigation, and you really just wanted to cut the investigation off at the pass. So you made a choice, and the choice you made was to lie in order to obstruct that lawful criminal investigation. . . When you did that, you committed a crime deserving of punishment. (Sent. Tr. 49). Judge Briccetti concluded, "In other words, what you did was disgraceful." 5 Case 15-3979, Document 49, 08/29/2016,1852006, PageS of 17 (Sent. Tr. 49). 12. Judge Briccetti then noted that, in considering how much punishment to impose, he considered all of the factors set forth in Section 3553(a). (Sent. Tr. 46-55). He noted that the Guidelines range was zero to six months' imprisonment, and "[gjiven the blatant nature of [Libous's] lies and [his] total lack of remorse or acceptance of responsibility, [Judge Briccetti] would, under normal circumstances, be inclined to impose a six-month jail sentence. That would be a just punishment, and would reflect the seriousness of the offense, promote respect for the law, and afford adequate deterrence to others similarly situated." (Sent. Tr. 50). Judge Briccetti declined, however, to sentence Libous to a term of imprisonment because of Libous's poor health. (Sent. Tr. 50-51). Instead, Judge Briccetti imposed the sentence of two years' probation, with a special condition of six months' home confinement. (Sent. Tr. 52-53). 13. Judge Briccetti then turned to the fine. (Sent. Tr. 53-54). He noted that the Probation Office recommended the maximum fine within the Guidelines range, which was $5,000. (Sent. Tr. 53). However, he concluded that a fine of that amount is way too low and not nearly sufficient to ensure an overall adequate punishment, given that I'm not imposing a jail sentence in a case that ordinarily would warrant a jail sentence. ... The point is that in the absence of a jail sentence, a fine within the 500 to $5,000 range would be woefully inadequate, because then, the combined sentence would not sufficiently reflect the seriousness of the offense, promote respect for the law, provide just punishment or afford adequate deterrence. And of all of those, the one that's most important to me is promoting respect for the law. (Sent. Tr. 53, 54). 14. In imposing the $50,000 fine, Judge Briccetti noted that Libous had "substantial net worth, millions of dollars and more than $500,000 in liquid assets. There's no doubt in my mind that you have the ability to pay a $50,000 fine." (Sent. Tr. 53). Judge Briccetti 6 Case 15-3979, Document 49, 08/29/2016, 1852006, Page? of 17 then noted "a certain poetic justice in the amount of the fine," because $50,000 was the same amount that Libous arranged to be paid to his son by Hiffa's lobbying firm. (Sent. Tr. 53-54). Judge Briccetti further explained, "So under these circumstances, it's appropriate for you to have to disgorge that amount." (Sent. Tr. 54). 15. At the conclusion of the sentencing, Libous requested a stay of the sentence pending appeal. (Sent. Tr. 58). Libous's counsel argued, "given his limited life expectancy, it would cause irreparable harm to impose a sentence, pending a resolution of the appellate process." (Sent. Tr. 58-59). Judge Briccetti, fully aware of Libous's medical condition, denied the motion, quoting a portion of Rule 38 of the Federal Rules of Criminal Procedure, and describing that while Libous had the right to appeal, Judge Briccetti had "absolutely no doubt that the defendant received a fair trial, that the jury was properly instructed, [and] that all the proceedings relating to the sentencing are both procedurally and substantively proper." (Sent. Tr. 59-60). C. The Appeal 16. On December 8, 2015, Libous filed a timely notice of appeal. Libous did not move this Court for a stay of the sentence pending the appeal. 17. On January 11, 2016, a satisfaction of judgment was entered in the District Court, reflecting that Libous had paid the $50,000 fine. (Satisfaction of Judgment, attached to Appellant's motion as Exhibit F). 18. Thereafter, Libous's appeal remained pending, but Libous did not submit briefing or a briefing schedule. Rather, Libous postponed such scheduling and briefing in a series of eight transcript update letters submitted to the Court between January 27, 2016, and May 17, 7 Case 15-3979, Document 49, 08/29/2018, 1852006, Page8 of 17 2016. (2d Circuit Docket Entries 25, 27, 28, 30, 31, 32, 33, 34). In the letters, Libous's counsel described that they had yet to receive the transcript of one of the trial days, that of jury selection.4 4 Defense counsel gave the following explanations for the delay of the receipt of the transcript until May 2016: • "We requested a copy of the jury selection transcript by electronically filing this Court's 'Form B' on December 21, 2015. We subsequently received a telephone call from the court reporter asking that we fax her the standard Southern District transcript request form, which we did on December 23, 2015. We have contacted the court reporter to follow-up on our request and she informed us that she was ill for several weeks. We have renewed our request to her." (Jan. 27, 2016 Letter (2d Circuit Docket Entry 25)). • "We have not yet received the jury selection transcript we requested in December 2015. ... As indicated in our previous letter, we also renewed our request to the court reporter on January 27, 2016." (Feb. 23, 2016 Letter (2d Circuit Docket Entry 27)). • "We have not yet received the jury selection transcript we requested in December 2015. . . . We have attempted to contact the court reporter via phone and email to request a status update, but as of the filing of this letter, we have not received a response." (March 8, 2016 Letter (2d Circuit Docket Entry 28)). • "We have not yet received the jury selection transcript we requested in December 2015. We did, however, receive a response to our inquiries from the court reporter on March 10, 2016, advising that she had been ill and hoped to provide us with the transcript by the end of this week." (March 22, 2016 Letter (2d Circuit Docket Entry 30)). • "We have not yet received the jury selection transcript we requested in December 2015. In response to our request for a status update, the court reporter advised that her trial should conclude this week and hopes to provide us with the transcript next week." (April 5, 2016 Letter (2d Circuit Docket Entry 31)). • "We have not yet received the jury selection transcript we requested in December 2015. In response to our request for a status update, today the court reporter advised that her trial should conclude Wednesday and hopes to provide us with the transcript by the end of this week." (April 19, 2016 Letter (2d Circuit Docket Entry 32)). • "We have not yet received the jury selection transcript we requested in December 2015. We have been unable to reach the court reporter for a status update." (May 3, 2016 Letter (2d Circuit Docket Entry 33)). • "We have received a portion of the jury selection transcript we requested and the court reporter anticipates completing the remainder of the transcript later this week. We also wish to advise the Court that our client, Senator Libous, has unfortunately passed away after a long battle with prostate cancer. We anticipate submitting the relevant motions to dismiss in the near future." (May 17, 2016 Letter (2d Circuit Docket Entry 34)). 8 Case 15-3979, Document 49, 03/23/2018, 1852008, Page9 of 17 19. On May 3, 2016, Libous died. (Certificate of Death, attached to Appellant's Motion as Exhibit B). 20. On July 15, 2016, this Court ordered counsel for Libous to file a motion to dismiss the appeal or to propose a date to submit the appeal brief. (2d Circuit Docket Entry 39)). 21. On August 12, 2016, counsel for Libous filed the instant motion (and cured the initially defective filing on August 15, 2016). Libous's counsel argues for, among other things, vacatur of Libous's conviction and return of his fine payment to his estate, on the ground that Libous's death intervened before Libous could exercise his right to appeal, and therefore the conviction was not final and is subject to the so-called "rule of abatement." ARGUMENT Libous's Estate Should Not Receive $50,000 That Libous Paid as a Criminal Fine Before His Death 22. Libous's counsel seeks dismissal of Libous's appeal as moot, an order vacating Libous's conviction, and return of Libous's $50,000 fine payment to his estate. The Government does not object to the first two requests, which are consistent with decisions reached by this Court under the same circumstances. The Government opposes the third request, for return of the fine payment to Libous's estate. As set forth below, the rule of abatement, on which Libous's counsel relies, does not apply to paid fines. A holding otherwise would be contrary to the persuasive reasoning of the other circuit courts that have addressed this issue, would not serve the policy considerations underlying the rule of abatement, and would be supported neither by legal basis nor the interests of justice. 9 Case 15-3979, Document 49, 08/29/2016, 1852006, PagelO of 17 A. Applicable Law 23. When a defendant dies while his direct appeal is pending, ordinarily the defendant's appeal is dismissed as moot and the judgment of conviction is vacated, pursuant to the "rule of abatement." See, e.g.. United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) (citing Durham v. United States. 401 U.S. 481, 483 (1971) which described unanimity among lower courts on the issue); United States v. Mollica, 849 F.2d 723, 726 (2d Cir. 1988); United States v. Mook. 125 F.2d 706 (2d Cir. 1942): United States v. Pomerov. 152 F. 279 (S.D.N.Y. 1907), reWd on other grounds, sub nom United States v. New York C. & H. R.R. Co., 164 F. 324 (2d Cir. 1908).5 This Court has listed two considerations underlying the rule of abatement: (1) "the interests of justice ordinarily require that a defendant not stand convicted without resolution of the merits of an appeal"; and (2) "to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served." Wright, 160 F.3d at 908 (internal citations, quotations, and alterations omitted). 24. This Court has not ruled on the issue whether a defendant's estate may, under the rule of abatement, recover a criminal fine already paid by a defendant as part of his sentence, when that defendant thereafter dies while his appeal is pending. The Government is 5 Vacating a defendant's conviction as a consequence of his death pending appeal is not required by statute, nor Supreme Court precedent. In Durham v. United States. 401 U.S. 481 (1971), where a defendant died while his petition before the Court was pending, the Court adopted the rule of abatement and vacated the judgment of conviction. But five years later, in Dove v. United States. 423 U.S. 325 (1976), in the same circumstances, the Court dismissed the petition and did not vacate the conviction, overruling Durham. Since Dove, this Court has vacated the convictions of defendants on direct appeal, although in one instance in doing so this Court expressly limited its ruling to the facts of that case, and in another the issue was not contested. See United States v. Mollica, 849 F.2d at 726 ("Considering the facts of the instant case, we conclude that it is appropriate to vacate [defendant's] judgment of conviction and remand with instructions to dismiss the indictment as to her. We note, however, that in reaching this conclusion, we are limiting our holding to the facts of this case, and are leaving for another day what disposition should be made of cases involving different factual circumstances, such as cases implicating forfeiture provisions."); United States v. Wright. 160 F.3d 905. See generally Timothy A. Razel, Dying to Get Away With It: How the Abatement Doctrine Thwarts Justice - And What Should Be Done Instead. 75 Fordham L. Rev. 2193 (2007). 10 Case 15-3979, Document 49, 08/29/2016, 1852006, Pagell of 1/ aware of decisions from two other circuit courts that have addressed the issue, in each instance the court rejecting the argument for return of a paid fine, because a paid fine is a punishment of the defendant, not the defendant's estate, and is therefore more analogous to time served than to an outstanding obligation such as unpaid forfeiture. See United States v. Zizzo, 120 F.3d 1338, 1346-47 (7th Cir. 1997) ("The fine and assessments served to deprive [defendant] ... of some of his resources during his lifetime. They are analogous to time served and are not refundable."); United States v. Schumann. 861 F.2d 1234, 1236 (11th Cir. 1988) ("Because [defendant] paid the fine before his demise, the penalty operated as a punishment to him rather than to his estate."). 25. In addition, other courts addressing related issues, such as restitution orders imposed on deceased defendants, and motions by the Government to collect unpaid fines, have distinguished between paid fines and unpaid fines, noting that the rule of abatement does not apply to paid fines. See United States v. Pomerov. 152 F. at 279-83 ("In this case the defendant was fined $6,000. ... It was imposed as a punishment of the defendant for his offense. If, while he lived, it had been collected, he would have been punished by the deprivation of that amount from his estate; but, upon his death, there is no justice in punishing his family for his offense.... [I]fthe money had been collected before his death, he would have been punished. If it is collected now, his family will be punished, and he will not be punished."); United States v. Morton. 635 F.2d 723, 725 (8th Cir. 1980) ("The policy reasons justifying the application of the abatement principle during the pendency of litigation also support the extension of the doctrine when death occurs after conviction but prior to collection of the fine." (emphasis added)); United States v. Asset, 990 F.2d 208, 212 (5th Cir. 1993) ("The rule of abatement has never been applied to require the return of money paid by a defendant prior to his death and has, in fact, been held inapplicable to fines . . . 11 Case 15-3979, Document 49, 08/29/2016, 1352006, Pagel2 of 17 paid by a defendant before his death"); United States v. Bowler. 537 F. Sup. 933, 936 n.5 (N.D. 111. 1982) (Flaum, J.). 26. Appellant cites no ruling of any court requiring the return of paid fine money to a deceased defendant's estate. The Government is aware of only one such ruling, issued by the District Court for the District of Massachusetts. See United States v. Sheehan. 874 F. Supp. 31, 32-35 (D. Mass. 1994). The district court there ordered return of a paid fine, finding the uniform holdings of other courts to the contrary "out of focus," and expressing concern that distinguishing between paid and unpaid fines for purposes of abatement would "encourage defendants to avoid making prompt. . . payments." kf, at 33, 35. The ruling in Sheehan has not been followed by any other court, and the one court to address it—the Seventh Circuit in United States v. Zizzo—expressly rejected its reasoning. B. See Zizzo. 120 F.3d at 1347. Discussion 27. The $50,000 fine paid by the defendant should not be returned to his estate. The rule of abatement, on which Libous's counsel relies, has never been held by this Court to apply to a paid fine, and the federal circuit courts to have addressed the issue have uniformly held, upon persuasive reasoning, that paid fines are not abated by death. Nor would returning a paid fine further the policy considerations underlying the rule of abatement. Libous's counsel's arguments otherwise, including their attempt to attack the District Court's sentencing of Libous while at the same time moving for the dismissal of the appeal as moot, are contradicted by the record, which demonstrates that Libous, during his lifetime, was fairly tried, sentenced, and punished in the form of, among other things, compulsory, prompt payment of a criminal fine. 28. First, the persuasive, nearly uniform decisions of other courts support the Government's position. They rely on the logical distinction between paid fines, which represent 12 Case 15-3979, Document 49, 08/29/2016, 1352006, Pagel3 of 17 punishments already imposed on a defendant, and unpaid fines, which, upon a defendant's death, would constitute punishments on the defendant's estate. In Pomerov, the District Judge in the Southern District of New York described this key distinction succinctly: "[I]f the money had been collected before his death, [the defendant] would have been punished. If it is collected now, his family will be punished, and he will not be punished." Pomeroy. 152 F. at 282. This basic, logical distinction has been repeatedly cited with approval by later courts. See, e.g., Morton, 635 F.2d at 725; Schumann, 861 F.2d at 1236. 29. In Zizzo, the Seventh Circuit elaborated on the basic distinction between paid fines and unpaid fines, emphasizing that paid fines, like time served, had the effect of depriving a defendant of resources during his lifetime, and therefore "are not refundable." Zizzo, 120 F.3d at 1347; see Asset, 990 F.2d at 212 ("The principle of abatement, however, 'does not apply to fines already paid, since the purposes of the fines were served insofar as they denied defendant some of his resources before his death.'" (quoting Bowler, 537 F. Supp. at 936 n.5)). Just as Libous's estate cannot claim damages for his time served on home confinement, it cannot claim entitlement to money that Libous paid toward the criminal fine imposed by Judge Briccetti. 30. The lone contrary ruling from the District of Massachusetts, Sheehan, is, on the other hand, unpersuasive. As the Seventh Circuit noted in Zizzo, "Sheehan downplayed the immediate punitive purpose of fines and assessments paid before death." 120 F.3d at 1347. Moreover, the abstract and unrealistic nature of the concern raised in Zizzo—that defendants will be incentivized to withhold fine payments—is demonstrated in this case. Here, in the District Court, Libous sought such delay of imposition of his sentence (which would have delayed his obligation to pay his criminal fine), relying expressly on his "limited life expectancy." (Sent. Tr. 58). Judge Briccetti rejected Libous's request for a stay, requiring that Libous promptly pay the 13 Case 15-3979, Document 49, 08/29/2018, 1852006, Pagel4 of 17 fine, thereby serving the very purpose articulated in Pomerov. Zizzo, Asset, and Bowler: to deprive the defendant of his resources during his lifetime. (Sent. Tr. 58-59). 31. Without binding or persuasive authority, Libous's counsel relies on inapposite cases. (Def. Br. at 4-5, citing United States v. Dudley, 739 F.2d 175, 176 (4th Cir. 1984); United States v. Christopher. 273 F.3d 294, 298 (3d Cir. 2001); United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983)). These cases, however, merely support the proposition that the Government is unable to recover a defendant's unpaid fine from his estate once he is deceased. Upon these decisions, Libous's counsel seeks to reframe the issue as "whether, because Senator Libous complied with the court's order that he remit payment 'immediately,' he should be treated more harshly than defendants who delayed or ignored payment." (Def. Br. at 5). But such refraining obscures, rather than illuminates, the issue. During Libous's lifetime he was convicted, fined, ordered to pay the fine, attempted to delay payment of the fine (which effort was denied), and then paid it. Had he deliberately not complied with the Court's order, he would have been in contempt of court and potentially subject to other consequences. Because he is deceased, any argument that his criminal proceedings or their results were disproportionate, fe. more harsh than those for defendants who were permitted to delay payment, is moot. Under the rule of abatement, the conviction is vacated, because it does not reflect the full exercise of rights by the convicted defendant. But the fine already paid, like prison time already served, cannot be changed, nor should it be refunded to Libous's estate, because it was Libous who was punished, not his estate, and his death makes the appeal of his conviction, which was personal to him and not a transferable property interest, moot. 32. Second, the considerations underlying the rule of abatement do not support expanding its application to paid fines. See Wright, 160 F.3d at 908. 14 While "the interests of Case 15-3979, Document 49, 08/29/2016, 1852006, PagelS of 17 justice ordinarily require that a defendant not stand convicted without resolution of the merits of an appeal," this first consideration has to do with the conviction itself, which does not reflect the full exercise of rights and yet would remain as a consequence of the defendant's death. There is no expression or implication in this consideration, on the other hand, that the interests of justice ordinarily require concluding that a defendant who happens to die during his appeal was wrongly punished during his lifetime. Rather, to reach this conclusion would require continuing to litigate the merits of the appeal to conclusion, an outcome that is not available because the appeal is moot. See Wright, 160 F.3d at 908; see also Mook, 125 F.2d at 706 (lamenting that the appeal of a deceased appellant must be dismissed, because "the next-of-kin of a convicted person who dies pending an appeal have an interest in clearing his good name"). 33. Libous's counsel's attempt to attack his sentencing, within a motion to dismiss the appeal as moot, only brings more attention to the fact that the interests of justice are contrary to nearly all of the relief he seeks. (Def. Br. 6-9). Libous was convicted upon a full and fair jury trial, and received a procedurally and substantively reasonable sentence; indeed an extraordinarily lenient sentence as a result of his poor health. (See Memorandum Decision denying post-trial motions, at 6 (District Court Docket Entry 67) ("The Court has no doubt about the soundness of the verdict."); see also Sent. Tr. 46-62). Now, as a result of his death and not any demonstrated infirmity in the proceedings, his conviction will be vacated. Libous's counsel attempts to isolate one phrase used by Judge Briccetti at sentencing—that the $50,000 fine was "poetic justice"—and insinuate error. (Def. Br. 7 ("Clearly, 'poetic justice' is not an appropriate basis to impose a fine that is ten times outside the guidelines."); see Sent. Tr. 53-54). Of course, a review of the sentencing as a whole, summarized above, demonstrates that Libous was sentenced upon a thorough and reasoned consideration of the sentencing factors under Section 3553(a), and 15 Case 15-3979, Document 49, 08/29/2016, 1852006, Pagel6 of 17 no error of the kind suggested by Libous's counsel's clipped argument, or of any other kind, occurred. 34. Not only would ordering a refund of Libous's fine to his estate not serve the interests of justice, it would not serve the second consideration underlying the rule of abatement, which has to do with the mootness of punishing a deceased defendant. See Wright, 160 F.3d at 908 ("Second, to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served. . . '[Sjhuffling off the mortal coil completely forecloses punishment, incarceration, or rehabilitation, this side of the grave at any rate.'" (quoting parenthetically United States v. Dudley. 739 F.2d 175, 177 (4th Cir. 1984))). Here, the fine was undoubtedly punishment (indeed, substituting in part for the leniency of the incarceratory term in light of Libous's poor health), and therefore had it been unpaid would likely give rise to this second policy consideration, see Wright, 160 F.3d at 908-09. However, because Libous paid the fine, the purpose of that aspect of his punishment was already served—by Libous personally—before Libous died. There is, therefore, no policy consideration underlying the rule of abatement that supports refunding Libous's fine payment to his estate. 16 Case 15-3979, Document 49, 08/29/2016, 1852006, Pagel? of 17 CONCLUSION 35. For the forgoing reasons, the fine paid by Libous should not be ordered refunded to his estate. The Government consents to the other relief requested in the defense motion. Dated: White Plains, New York August 29, 2016 /s Benjamin Allee Assistant United States Attorney Telephone: (914) 993-1962 17 EXHIBIT Document 2 Filed 06/30/14 Pag^^j g 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA INDICTMENT - v 14 Cr. City Q THOMAS W. LIBOUS, Defendant. COUNT ONE (False Statements to the FBI) The Grand Jury charges: BACKGROUND 1. Unless stated otherwise, at all times relevant to this Indictment: Relevant Individuals and Entities a. From 1989 to the present, THOMAS W. LIBOUS, the defendant, was a New York State Senator for the 52nd Senate District. That District covered Broome, Tioga, Chenango and Delaware Counties. LIBOUS has served as the Deputy Majority Leader, the Deputy Minority Leader and as Chairman of several Senate committees. From 2005 to 2008, LIBOUS chaired the Transportation Committee, which oversaw the work of the Department of Transportation, Department of Motor Vehicles, the Thruway Authority and other agencies. b. New York. Law Firm 1 was a law firm in Westchester County, Case 7:14-cr-00440-VB Document 2 Filed 06/30/14 Page 2 of 4 c. Lobbying Firm 1 was a lobbying and communications firm in Albany, New York. Lobbying Firm 1 held itself out as having expertise in, among other things, transportation issues. Lobbying Firm 1 lobbied LIBOUS and members of his New York State Senate staff on behalf of its clients. The Investigation 2. Beginning in or about March 2010, the Federal Bureau of Investigation ("FBI"} and the Internal Revenue Service - Criminal Investigation ("IRS") were assisting a federal grand jury sitting in White Plains, New York in its investigation into allegations that: a) THOMAS W. LIBOUS, the defendant, had obtained a job for his son at Law Firm 1 in exchange for LIBOUS' promise to steer future business to Law Firm 1; and b) Libous caused Lobbying Firm 1 to pay $50,000 annually to Law Firm 1 to defray the cost of: i) the inflated salary that LIBOUS requested Law Firm 1 to pay to his son; and ii) a lease of a Range Rover for LIBOUS' son, the payments for which LIBOUS guaranteed. Among other things, the grand jury and the FBI and IRS were investigating whether LIBOUS told a partner of Law Firm 1 that the firm would have to "build a new wing" to accommodate the business it would receive if it hired his son. 3. On or about June 24, 2010, Special Agents of the FBI interviewed THOMAS W. LIBOUS, the defendant, as part of the investigation. During that interview, LIBOUS falsely stated in substance and in part ("the False Statements") that: 2 Case 7:14-cr-00440-VB Document 2 Filed 06/30/14 Page 3 of 4 a. he could not recall how his son began to work at Law Firm 1; b. no deals were made to get his son the job at Law Firm 1; c. he was not aware that Lobbying Firm 1 had paid any part of his son's salary at Law Firm 1; d. he never promised to refer work to Law Firm 1; e. he was not involved in his son1 s decision to work at Law Firm 1; f. he had no business or personal relationship with Law Firm 1; and g. he did not know of any relationship between Lobbying Firm 1 and Law Firm 1. 4. On or about June 24, 2010, in the Southern District of New York and elsewhere, THOMAS W. LIBOUS, the defendant, in a matter within the jurisdiction of the executive branch of the Government of the United States, knowingly and willfully did falsify, conceal, and cover up material facts by trick, scheme, and device and did make materially false, fictitious, and fraudulent statements and representations, to wit, LIBOUS made the False Statements to the FBI. (Title 18, United States Code, Section 1001.) FOREPERSON United States Attorney PREET BHARARA 3 Case Document 2 Filed 06/30/14 Page 4 of 4