Libous Memo

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

) UNITED STATES OF AMERICA, ) ) -v- ) No. 14 CR 440 (VLB) ) THOMAS W. LIBOUS, ) ) Defendant. ) )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION PURSUANT TO RULE 29 AND RULE 33

OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

Paul DerOhannesian II (PD0523) Danielle R. Smith (DS2411) DerOhannesian & DerOhannesian 677 Broadway, Suite 707 Albany, New York 12207 (518) 465-6420 Attorneys for Defendant Thomas W. Libous

Dated: August 27, 2015

Case 7:14-cr-00440-VB Document 64 Filed 08/27/15 Page 1 of 26

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TABLE OF CONTENTS

STATEMENT OF RELEVANT FACTS ....................................................................................... 1

STANDARDS OF LAW ................................................................................................................ 4

ARGUMENT .................................................................................................................................. 6

I. The Government Failed To Prove Venue ......................................................................... 6

II. The Jury’s Belief As To What Senator Libous Said During The FBI Interview Is Based On Pure Speculation .......................................................................................................... 7

A. The Lack of a Transcript Coupled with Special Agent Silveri’s Failure to Precisely Recall Senator Libous’ Statements Necessitates Reversal .............................................. 7

B. Special Agent Silveri’s Testimony Differed from the Statements Read to the Jury and Necessitates Reversal ..................................................................................................... 10

III. “In Substance” Was Improperly Included In The Charge To The Jury .......................... 14

IV. There Was Insufficient Evidence To Establish Willfulness............................................ 15

V. The Jury Should Have Been Instructed With Defendant’s Willfulness And Voluntary Interview Charges ........................................................................................................... 17

VI. Mr. Mangone’s Testimony Was Insufficient To Support The Verdict ........................... 19

CONCLUSION ............................................................................................................................. 22


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TABLE OF AUTHORITIES Cases

Brogan v. United States, 522 U.S. 398 (1998) .............................................................................. 18 Bronston v. United States, 409 U.S. 352 (1973) ....................................................................... 9, 13 Cheek v. United States, 498 U.S. 192 (1991) ............................................................................... 18 Fotie v. United States, 137 F.2d 831 (8th Cir. 1943) .................................................................... 16 Natale v. United States, No. 13-744 (Apr. 21, 2014) .................................................................... 18 Stirone v. United States, 361 U.S. 212 (1960) .............................................................................. 12 Sullivan v. Louisiana, 508 U.S. 275 (1993) .................................................................................... 5 United States v. Autuori, 212 F.3d 105 (2d Cir. 2000) ................................................................. 19 United States v. Brennan, 183 F.3d 139 (2d Cir. 1999).................................................................. 6 United States v. Cassese, 290 F. Supp.2d 443 (S.D.N.Y. 2003) .................................................. 16 United States v. Clifford, 426 F. Supp. 696 (E.D.N.Y. 1976) ........................................................ 9 United States v. Coplan, 703 F.3d 46 (2d Cir. 2012)...................................................................... 5 United States v. D’Amato, 39 F.3d 1249 (2d Cir. 1994) .............................................................. 16 United States v. Ehrlichman, 379 F. Supp. 291 (D.D.C. 1974) ...................................................... 9 United States v. Ferguson, 246 F.3d 129 (2d Cir. 2001) ................................................................ 5 United States v. Glenn, 312 F.2d 58 (2d Cir. 2002) ..................................................................... 16 United States v. International Business Machines Corp., 415 F. Supp. 668 (S.D.N.Y. 1976) ....... 8 United States v. Klepfer, 1983 U.S. Dist. LEXIS 15057 (N.D.N.Y July 29, 1983) ....................... 8 United States v. Lincoln, 630 F.2d 1313 (8th Cir. 1980)................................................................ 5 United States v. Mahler, 363 F.2d 673 (2d Cir. 1966).................................................................... 7 United States v. Mandanici, 729 F.2d 914 (2d Cir. 1984) .............................................................. 9 United States v. Martinez, 54 F.3d 1040 (2d Cir. 1995) ............................................................... 16 United States v. McCue, 301 F.2d 452 (2d Cir. 1962) ................................................................... 8 United States v. Poutre, 1980 U.S. App. LEXIS 18922 (1st Cir. 1980) ................................... 8, 10 United States v. Ramirez, 420 F.3d 134 (2d Cir. 2005).................................................................. 6 United States v. Robinson, 430 F.3d 537 (2d Cir. 2005) .............................................................. 19 United States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992) .......................................................... 5, 19 United States v. Taylor, 464 F.2d 240 (2d Cir. 1972) .................................................................... 5 United States v. Whab, 355 F.3d 155 (2d Cir. 2004).................................................................... 18 United States v. Wiener, 96 F.3d 35 (1996) ................................................................................. 18

Statutes

18 United States Code § 1001 ................................................................................................ passim

Rules

Federal Rules of Criminal Procedure, Rule 18 ............................................................................... 6 Federal Rules of Criminal Procedure, Rule 29 ................................................................. 4, 5, 6, 15 Federal Rules of Criminal Procedure, Rule 33 ...................................................................... passim


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STATEMENT OF RELEVANT FACTS

In an Indictment filed on June 30, 2014, the Government alleged that in early 2010 a

Federal Grand Jury was investigating whether Senator Thomas W. Libous (“Defendant” or

“Senator Libous”) obtained a job for his son, Matthew Libous, at a law firm in exchange for a

promise to steer business to that firm. Dkt. No. 2, p. 2. The Indictment further alleged that a

portion of the son’s salary was to be paid by a lobbying firm. Id. Defendant was not charged

with any crimes associated with that alleged deal. Instead, the Indictment charged Senator

Libous with violating 18 U.S.C. § 1001 (“Section 1001”). Dkt. No. 2. Specifically, the

Government alleged that Defendant knowingly and willfully lied when he made the following

seven statements to Special Agents of the Federal Bureau of Investigation (“FBI”) on June 20,

2010:

A. He could not recall how his son began to work at the Westchester law firm. B. No deals were made to get his son a 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. E. He was not involved in his son’s decision to work at the law firm. F. He had no business or personal relationship with the law firm. And G. He did not know of any relationship between the lobbying firm and the law firm.

Trial Tr. 1157:1-9.1

Trial commenced with jury selection on July 13, 2015. Although the prosecution called

several witnesses, only one individual testified to the alleged deal between the law firm, the

lobbying firm, Senator Libous, and the Senator’s son. That witness, Anthony Mangone, was a

1 The seven statements read to the jury were slightly altered from those contained in the

Indictment. Compare Trial Tr. 1157:1-9 with Dkt. No. 2, p. 3. For example, statement one in the Indictment referred to “Law Firm 1” (Dkt. No. 2, p. 3) whereas the first statement read to the jury referred to “the Westchester law firm” (Trial Tr. 1157:2). Because the Indictment was not read or shown to the jury, this motion will only discuss the statements as they were charged to the jury.


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partner at Santangelo, Randazzo and Mangone (“SRM”),2 the law firm alleged to have hired

Senator Libous’ son in exchange for the promise of business.

Mr. Mangone has daunting credibility issues. For example, Mr. Mangone admitted that

he lied when testifying under oath before a grand jury (Trial Tr. 412:13-23); when testifying

under oath before a trial jury (Trial Tr. 412:13-23); when being interviewed by the FBI (Trial Tr.

633:7-6); and when filing tax returns (Trial Tr. 638:4-639:18). He was indicted in January 2010

for several crimes and ultimately pled guilty to bribery, conspiracy, extortion, and tax related

charges. Trial Tr. 409:21-24; 414:19-22. While he was indicted in 2010 (Trial Tr. 409:21-24)

and is facing forty-five years in prison (Trial Tr. 416:12-14), he has yet to be sentenced (Trial Tr.

416:22-23) and has not spent one day in jail (Trial Tr. 455:9-13). Because no other witness had

any knowledge of this alleged deal and no evidence was introduced substantiating Mr.

Mangone’s claims, the prosecution’s case rested entirely on the testimony of a self-professed

liar.

Turning to the June 24, 2010 interview, although two FBI Special Agents were present,

only one testified at trial. Surprisingly, Special Agent Caroline Gilmore, the case agent, did not

testify. Trial Tr. 714:6-19. Instead, the Government called Robert Silveri, a Special Agent who

played a very limited role in the investigation. Trial Tr. 725:24-726:4.

The informal interview, which Special Agent Silveri described as “very conversational”

(Trial Tr. 801:11), was held at Senator Libous’ office in Albany, New York (Trial Tr. 718:7-10).

Defendant was not warned by either Special Agent Gilmore or Special Agent Silveri that making

2 During the relevant time period, the law firm’s name changed several times as partners

came and went. For example, according to Mr. Mangone “[w]hen [he] first began there, it was Servino & Santangelo. And then it was Servino, Santangelo & Randazzo. And then sometime thereafter, it was Santangelo, Randazzo & Mangone.” Trial Tr. 409:4-6. For consistency, Defendant will refer to all versions of the law firm as SRM.


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a false statement to the FBI constituted a federal crime. Trial Tr. 769:19-770:3. Nor was

Senator Libous informed that he was a target. Trial Tr. 769:10-12.

Special Agent Silveri testified that although the FBI had the capability to record the June

24, 2010 interview, he did not seek permission to do so. Trial Tr. 726:5-6; 777:6-7; 781:16-19.

Nor did the FBI Special Agents choose to ask Defendant if he would consent to a recording.

Trial Tr. 777:11-13. Ultimately, no recording or transcript of that interview was made. Trial Tr.

726:5-6; 781:22-25.

Given that five years had passed since June 24, 2010, and that Special Agent Silveri had

conducted over one thousand interviews, it is unsurprising that he admitted to many difficulties

remembering details from that time period. Trial Tr. 713:25-714-2; 749:20-22. For example,

Special Agent Silveri could not remember the name of the person he interviewed just prior to

Senator Libous’ interview or just after the interview. Trial Tr. 749:7-13. Indeed, Special Agent

Silveri did not remember the name of any person he interviewed in June 2010, other than

Defendant. Trial Tr. 749:14-19. Special Agent Silveri also admitted to having only a “vague

recollection” of the events just prior to the interview. For example, he had a “vague

recollection” of the woman who answered the door at Senator Libous’ office3 (Trial Tr. 756:4-

757:9); his “recollection [wa]s vague” as to whether he left the office after asking to speak to

Defendant (Trial Tr. 757:20-22); and he had a “vague recollection that [he] left the lobby in

which this executive assistant was sitting to go into the hallway. Again it’s vague.” (Trial Tr.

757:25-758:2). As to the interview itself, Special Agent Silveri was unable to remember the

3 Special Agent Silveri also testified that he did not see that woman in the courtroom.

Trial Tr. 756:11-12. The parties agreed that the woman, Ms. Mary Lee, also a prosecution witness, was in fact in the courtroom during that line of questioning. Trial Tr. 905:5-12.


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“word-for-word” questions asked of Defendant or Senator Libous’ “word-for-word” responses.

Trial Tr. 766:3-8.

The Government rested on July 20, 2015. Trial Tr. 895:11-17. Senator Libous called

just one witness, Honorable Thomas J. McAvoy, a District Court Judge for the Northern District

of New York. Trial Tr. 907:9-10. Judge McAvoy testified that Defendant’s reputation is one of

“a hard-working, honest gentleman, and does things as best he can for our local sector.” Trial

Tr. 913:17-19. The defense rested following Judge McAvoy’s testimony. Trial Tr. 921:1. The

Government did not introduce any rebuttal evidence. Trial Tr. 921:2-4.

The jury began its deliberations on July 22, 2015, and found Defendant guilty after

approximately six hours of deliberations. Trial Tr. 1180:12-14. Senator Libous is scheduled to

be sentenced on October 30, 2015. See Minute Entry for proceedings held before Judge Vincent

L. Briccetti, filed on July 22, 2015.

For the following reasons, Senator Libous respectfully submits that his motion for

acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure (“Rule 29”), based on

lack of venue and insufficient evidence, should be granted.4 Alternatively, Defendant

respectfully submits that his motion for a new trial, under Rule 33 of the Federal Rules of

Criminal Procedure (“Rule 33”), based on lack of venue, insufficient evidence, and failure to

properly charge the jury, should be granted.

STANDARDS OF LAW

Pursuant to Rule 29, “the court on the defendant’s motion must enter a judgment of

acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R.

4 Defendant duly made his Rule 29 Motion, which included venue, at the close of the

prosecution’s case. Trial Tr. 896:16-897:5. That motion was renewed and denied at the close of trial. Trial Tr. 923:6-10.


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Crim. P. 29. The Second Circuit has made clear that “[i]f the evidence viewed in the light most

favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of

guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable

doubt.” United States v. Coplan, 703 F.3d 46, 69 (2d Cir. 2012) (citations omitted).

Accordingly, the defendant’s Rule 29 motion must be granted where “[t]he evidence . . . viewed

in the light most favorable to the Government, remains, at best, in equipoise.” Id. This is

because, “it would not satisfy the [Constitution] to have a jury determine that the defendant is

probably guilty.” Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). Nor can the verdict stand if

it is based on “pure speculation” or where “the reasonable jurymen must necessarily have such a

doubt.” United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972).

Unlike Rule 29, which if granted equates to an acquittal, a motion made pursuant to Rule

33 permits the court to “vacate any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33. When considering a Rule 33 motion, the court is free to evaluate

the weight of the evidence as well as the credibility of witnesses. See United States v. Sanchez,

969 F.2d 1409, 1413 (2d Cir. 1992) (the court is entitled to “weigh the evidence and in so doing

evaluate for itself the credibility of the witnesses.” quoting United States v. Lincoln, 630 F.2d

1313, 1319 (8th Cir. 1980)). Rule 33, “by its terms gives the trial court ‘broad discretion . . . to

set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.’” United

States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting Sanchez, 969 F.2d at 1413).

For the following reasons, Senator Libous respectfully submits that his conviction must

be overturned pursuant to Rule 29. Alternatively, Senator Libous maintains that a new trial must

be ordered pursuant to Rule 33.


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ARGUMENT

I. The Government Failed To Prove Venue

As codified in Rule 18 of the Federal Rules of Criminal Procedure, “the government must

prosecute an offense in a district where the offense was committed. The court must set the place

of trial within the district with due regard for the convenience of the defendant, any victim, and

the witnesses, and the prompt administration of justice.” Fed. R. Crim. P. 18. “The government

has the burden of proving that venue is proper.” United States v. Ramirez, 420 F.3d 134, 139

(2d Cir. 2005) (citation omitted). Prosecution in a district lacking jurisdiction necessitates

dismissal of the Indictment. See United States v. Brennan, 183 F.3d 139, 149 (2d Cir. 1999).

Senator Libous first argued that the Indictment should be dismissed as part of his pre-trial

motions. Dkt. No. 20. Defendant’s motion was repeated at the close of the prosecution’s case

(Trial Tr. 896:16-897:5) and again at the close of trial (Trial Tr. 923:6-10).

No portion of the alleged crime was committed in the Southern District of New York. It

is undisputed that the June 24, 2010 interview occurred in the Northern District of New York.

According to Special Agent Silveri, after the interview, he “ha[d] a vague recollection – that

more information was needed, from some of the other interviews that had been conducted, and

that very possibly more interviews would be conducted.” Trial Tr. 725:9-13. Special Agent

Silveri’s “vague recollection” did not identify any specific impact that the interview had on the

investigation and is not sufficient to establish venue.

Accordingly, Defendant respectfully submits that the verdict should be overturned and

the case dismissed pursuant to Rule 29. Alternatively, Senator Libous submits that a new trial

should be held pursuant to Rule 33.


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II. The Jury’s Belief As To What Senator Libous Said During The FBI Interview Is Based On Pure Speculation

Senator Libous was charged with making seven false statements during an interview with

FBI on June 24, 2010. Dkt. No. 2. There was no recording or transcript of the interview and

Special Agent Silveri was unable to precisely recall either the questions asked of Defendant or

Senator Libous’ responses. The FBI’s failure to record or transcribe the interview, coupled with

Special Agent Silveri’s failure to recall, is reason enough to vacate the verdict. Moreover,

Special Agent Silveri’s testimony concerning Senator Libous’ statements during the interview

differs significantly from Defendant’s alleged statements as they were read to the jury during the

Court’s charge. These differences and contradictions offer a further basis to vacate.

A. The Lack of a Transcript Coupled with Special Agent Silveri’s Failure to Precisely Recall Senator Libous’ Statements Necessitates Reversal

At the outset, it is important to remember the following undisputed facts: first, there is no

recording or transcript of the June 24, 2010 interview (Trial Tr. 726:5-6; 781:22-25); and second,

Special Agent Silveri admitted that he could not remember the “word-for-word” questions he

and Special Agent Gilmore posed to Defendant nor could he remember Senator Libous’ “word-

for-word” responses (Trial Tr. 766:3-8). Accordingly, by Special Agent Silveri’s own testimony,

the jury’s belief as to what Defendant said on June 24, 2010, was based on pure speculation.

Senator Libous is unaware of any prosecution of Section 1001 in which the defendant

was charged with making several distinct unrecorded false statements during a voluntary

interview and the sole witness testifying to those statements was unable to precisely repeat the

accused’s words. For example, the two preeminent Second Circuit cases applying Section 1001

to oral statements dealt with “testimony,” which, by its very nature, meant that it was recorded or

transcribed. United States v. Mahler, 363 F.2d 673 (2d Cir. 1966) (defendant was charged with


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violating Section 1001 based on his subpoenaed testimony before Securities and Exchange

Commission investigators); United States v. McCue, 301 F.2d 452 (2d Cir. 1962) (defendants

were charged with violating Section 1001 based on voluntary testimony they provided under

oath).

As the First Circuit aptly noted, the lack of a transcript in a Section 1001 prosecution

requires “the jury [to] engage in a disturbing degree of speculation.” United States v. Poutre,

1980 U.S. App. LEXIS 18922, *5 (1st Cir. 1980) (although the court did not need to “decide []

whether or in what circumstances the absence of a reliable transcript [would] preclude a false

statement prosecution,” it noted its “concern with the difficulties inherent in a such a

prosecution” because “[w]ithout clear proof of what exactly was said the jury must engage in a

disturbing degree of speculation”). Indeed, courts within the Second Circuit have questioned

whether oral statements made during an informal interview and not transcribed should be the

basis for a Section 1001 prosecution. For example, the Southern District found it “questionable”

whether interview reports “would form the basis of a conviction under 18 U.S.C. § 1001” where

“[t]he interviews in question . . . are not conducted under oath, are voluntarily acceded to, and no

verbatim transcription is made by the interviewer.” United States v. International Business

Machines Corp., 415 F. Supp. 668, 672 n. 14 (S.D.N.Y. 1976). The Northern District similarly

“expressly le[ft] open the question of whether oral statements made to FBI agents in an informal

setting may in some circumstances fall without the scope of the Fraud and False Statements

Act.” United States v. Klepfer, 1983 U.S. Dist. LEXIS 15057, *9 (N.D.N.Y July 29, 1983).5

5 Under the specific facts of that case, the Northern District was unwilling to overturn the

defendant’s guilty verdict for lack of a transcript because “it [wa]s alleged that the defendant himself recanted the statements which form the basis of the indictment.” Klepfer, 1983 U.S. Dist. LEXIS 15057, *9.


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The need for an accused’s precise wording, and the precise questions, is especially so

where, as here, the defendant raises a literal truth or Bronston defense.6 Trial Tr. 1066:16-19;

1083:19-1084:2; 1087:12-20; see also Dkt. No. 53, p. 2. For example in a Section 1001

prosecution based on the defendant’s oral statements, an Eastern District Court overturned a

guilty verdict in light of the accused’s literal truth defense. United States v. Clifford, 426 F.

Supp. 696 (E.D.N.Y. 1976). Although the Court “decline[d] to adopt a rule that would mandate

dismissal of a § 1001 count as a matter of law in the absence of a verbatim transcript or a written

statement,” the court overturned the guilty verdict because “the absence of a transcript of what

was said places [the defendant] in the . . . untenable situation . . . [of] trying to argue that his

statements were literally true.” Id. at 702. The Court further reasoned that “the words become

crucial” in a Section 1001 prosecution, and without a transcript “there was no basis, other than

pure speculation upon which a reasonable juror could determine what question was asked and

what response was given. Without knowing the question asked or answer given, a finding that a

false statement was made is unreasonable.” Id. at 703; see also United States v. Ehrlichman, 379

F. Supp. 291, 292 (D.D.C. 1974) (“In the instant case, defendant Ehrlichman was faced with the

difficult task of arguing that his statements to the F.B.I. were literally true on the sole basis of the

agent's sketchy notes, which do not purport to be a verbatim record of either the questions or the

answers at issue and which were not even shown to him until shortly before trial.”). In failing to

record the interview, Senator Libous was deprived of the opportunity of demonstrating precisely

what he said, the truthfulness of his statements, and what he meant.

6 The Supreme Court in Bronston v. United States, 409 U.S. 352 (1973), overturned a

perjury conviction where the defendant’s statement was literally true. The Bronston defense has since been applied to Section 1001 violations. United States v. Mandanici, 729 F.2d 914, 921 (2d Cir. 1984).


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Based on the foregoing, Defendant respectfully submits that without a transcript or

recording of the informal and FBI initiated interview, and in light of Special Agent Silveri’s

testimony that he could remember neither the precise questions asked of Senator Libous nor

Defendant’s precise responses, there is a “disturbing degree of speculation,” Poutre, 1980 U.S.

App. LEXIS 18922 at 5, and the verdict must be overturned. Furthermore, as discussed below,

Special Agent Silveri’s testimony as to each of the seven alleged false statements differs from

the statements read to the jury during the court’s charge. Accordingly, the verdict should be

overturned on that basis as well.

B. Special Agent Silveri’s Testimony Differed from the Statements Read to the Jury and Necessitates Reversal

Of the seven statements read to the jury, statements three through seven were clearly

never testified to by Special Agent Silveri and therefore are insufficient to support the

conviction. These five statements will be discussed in turn.

The third alleged false statement is that Defendant “was not aware that the Albany

lobbying firm had paid any part of his son’s salary at the law firm.” Trial Tr. 1157:3-5.

However, according to Special Agent Silveri, Defendant stated that “[h]e was not aware that any

payments were being made from Ostroff Hiffa to Mangone or his son while his son was

employed there.” Trial Tr. 722:7-9 (emphasis added). Thus, while the indicted statement

referred to “the law firm” – i.e., SRM – Special Agent Silveri referred to “Mangone.” It is

axiomatic that Mr. Mangone and SRM are two entirely different entities. Accordingly, the

record is devoid of any evidence that Senator Libous made the third alleged false statement.

The fourth alleged false statement is that Senator Libous “never promised to refer work to

the law firm.” Trial Tr. 1157:5. During direct examination, the prosecution questioned Special

Agent Gilmore if he “ask[ed] whether the Senator made any promises in connection with the


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other subjects you were asking about, his son’s working at the law firm?” Trial Tr. 723:1-3. In

response, Special Agent Silveri stated the following:

Promises to – we asked [Senator Libous] about whether or not he was ever approached to provide business to Mangone’s firm in return for his son being there, and he said absolutely not. He did add that they may have -- they may have assumed that they were getting business from, you know, the State of New York, but -- but that was simply not ever gonna happen.

Trial Tr. 723:4-9. Special Agent Silveri’s testimony that Defendant was not approached by SRM

to provide business is a far cry from the Indictment’s statement that Senator Libous did not

promise to refer work.

The fifth alleged false statement is that Senator Libous “was not involved in his son’s

decision to work at the law firm.” Trial Tr. 1157:6-7. However, Special Agent Silveri testified

during direct examination that Defendant’s statement was in fact “that he kinda stayed out of his

son’s affairs. His son was an adult and could make his own decisions.” Trial Tr. 722:12-14.

Accordingly, there is a significant and major difference between Senator Libous’ general

statement “that he kinda stayed out of his son’s affairs” and that Indictment’s specific statement

that he “was not involved in his son’s decision to work at the law firm.”

The sixth alleged false statement is that Defendant “had no business or personal

relationship with the law firm.” Trial Tr. 1157:7-8. However, Special Agent Silveri’s testimony

is devoid of any such statement. Instead, according to Special Agent Silveri, Senator Libous

said that he had no personal or business relationship with Mr. Mangone, but had met him or at least spoke to him on a number of occasions when Mr. Mangone and Mr. Spano were together. Mr. Spano and Mr. -- Senator Libous told us that he and Senator Spano were -- were good friends, and when Mr. Mangone would come over, that they would – they would see each other and speak.


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Trial Tr. 720:4-10 (emphasis added). Thus, not only did Defendant refer to Mr. Mangone

instead of SRM – but also Senator Libous clearly articulated an acquaintance with Mr. Mangone.

That acquaintance is supported by the record. Accordingly, not only is Defendant’s statement as

testified to by Agent Silveri substantially different than the version read to the jury, but it is also

true.

The final alleged false statement is that Senator Libous “did not know of any relationship

between the lobbying firm and the law firm.” Trial Tr. 1157:8-9. However, Special Agent

Silveri testified on direct examination that he and Special Agent Gilmore inquired “into whether

he was aware of any relationship between Ostroff Hiffa and Anthony Mangone, his son, and

Senator Spano.” Trial Tr. 721:21-23 (emphasis added). According to Special Agent Silveri,

Senator Libous responded that “[h]e was not aware of any relationship between Ostroff Hiffa and

Anthony Mangone.” Trial Tr. 721:25-722:1 (emphasis added). Thus, at no point did Senator

Libous state that he did not know of any relationship between Ostroff Hiffa and SRM. It is worth

repeating that, although the Government consistently conflates Mr. Mangone with SRM, they are

not the same entity. If the Government wished Defendant prosecuted for his alleged statements

concerning Mr. Mangone, the Indictment should have referenced Mr. Mangone and not the law

firm.7

Thus, statements three through seven, as testified to by Special Agent Silveri, were

entirely different than the versions read to the jury and are therefore insufficient to support a

guilty verdict. As for statements one and two, cross-examination of Special Agent Silveri

7 By presenting proof of Mr. Mangone rather than the law firm and conflating the two

entities, the Government constructively amended the Indictment. See Stirone v. United States, 361 U.S. 212, 217 (1960) (reversing defendant’s conviction where the proof established the transportation of steel by the Indictment charged the transportation of sand). This theory applies to other variances between the Government’s proof at trial and the statements alleged in the Indictment.


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revealed that Senator Libous’ alleged false statements were uttered in the context of a discussion

regarding Senator Spano and therefore differed substantially than the versions read to the jury.

The first alleged false statement is that Senator Libous “could not recall how his son

began to work at the Westchester law firm.” Trial Tr. 1157:1-2. During direct examination,

Special Agent Silveri testified that he and Special Agent Gilmore “asked Senator Libous how it

came to be that his son Matthew gained employment with Anthony Mangone, who, again, was a

lawyer for Senator Spano. How did that come to be?” Trial Tr. 720:22-25. According to

Special Agent Silveri, “Senator Libous’ response was that he had no recollection of how that had

happened.” Trial Tr. 721:1-2. However, on cross examination, Special Agent Silveri

acknowledged that the question asked of Senator Libous was whether Senator Nicholas Spano

had anything to do with Defendant’s son getting a job. Trial Tr. 788:4-13. Senator Libous’

response to that question was that he was not aware. Trial Tr. 788:14-16. Accordingly,

Defendant’s statement, as testified to by Special Agent Silveri, was uttered during questioning

regarding Senator Spano and thus not congruent with the alleged false statement as read to the

jury. If Special Agent Silveri felt that Senator Libous’ statements were inconsistent with the

information he received (Trial Tr. 806:2-807:10) it was incumbent upon him to pin the witness

down and seek clarity in his responses. Bronston, 409 U.S. at 362 (“[T]he examiner’s awareness

of unresponsiveness should lead him to press another question or reframe his initial question

with greater precision.”).

The second alleged false statement is that Senator Libous stated that “no deals were made

to get his son the job at the law firm.” Trial Tr. 1157:2-3. During direct examination, Special

Agent Silveri testified that “[w]e had followed that up with if he was aware whether or not there

were any deals to get Matthew a job there, to which he was very definitive about that, that no


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deals had been made to get him a job there.” Trial Tr. 721:3-6. However, on cross examination,

it was revealed that Senator Libous’ answer of “no deals” was in response to the above line of

questioning concerning Senator Spano. Trial Tr. 788:7-21. In other words, Defendant’s

statement that no deals were made was said in the context of whether Senator Spano was

involved in helping Defendant’s son obtain the job. Thus, the alleged false statement contained

in the Indictment and the statement to which Special Agent Silveri testified, are not the same.

Based on the foregoing, Defendant respectfully submits that Special Agent Silveri, the

only witness to testify about the June 24, 2010 interview, failed to articulate the questions asked

of Senator Libous and failed to testify with any specificity that Defendant in fact made any of the

seven alleged false statements. Accordingly, the verdict must be overturned. Alternatively,

Senator Libous requests a new trial.

III. “In Substance” Was Improperly Included In The Charge To The Jury

Compounding the above errors was the Court’s decision, over Defendant’s objection, to

allow the jurors to return a guilty verdict if they determined that any one of the alleged false

statements was expressed “in substance.” Trial Tr. 1156:25. The phrase “in substance” was not

defined to the jury and no limit was placed on the jury’s potentially expansive view of that

phrase. The members of the jury were therefore free to go far beyond the seven distinct

statements included in the Indictment and find Defendant guilty on any similar statement –

regardless of how remote that similarity may be.

Mr. Mangone and SRM, for example, are unquestionably two different entities, and yet

they are repeatedly treated as one by the Government. The Court’s “in substance” language

permitted the jury members to conflate them as well. For instance, while the sixth alleged false

statement is that Senator Libous “had no business or personal relationship with the law firm”


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(Trial Tr. 1157:7-8) the “in substance” phrase permitted the jury to find Defendant guilty based

on Special Agent Silveri’s testimony that Senator Libous “had no personal or business

relationship with Mr. Mangone.” Trial Tr. 720:4-5 (emphasis added). The Government chose to

not prosecute Defendant based on any alleged false statements relating to Mr. Mangone and yet

the “in substance” language permitted them to do so.

This is but one example of how the “in substance” phrase allowed the jury to

unreasonably expand the meanings of the seven distinct statements far beyond what was

indicted. There was simply no need for this language and Defendant’s objection should have

sustained. The “in substance” language also improperly allowed the jury to find Senator Libous

guilty despite Special Agent Silveri’s ambiguous testimony and despite his admission that he

was unable to remember the “word-for-word” questions he and Special Agent Gilmore posed to

Defendant or Senator Libous’ “word-for-word” responses (Trial Tr. 766:3-8).

Accordingly, Defendant respectfully submits that this Court should order a new trial

pursuant to Rule 33.

IV. There Was Insufficient Evidence To Establish Willfulness8

There was no direct evidence of willfulness presented by the prosecution. The

prosecution in summation presented no argument as to the facts supporting Defendant’s

willfulness,9 highlighting the lack of willfulness evidence. Although the Court must view the

evidence in the light most favorable to the Government when considering a motion for judgment

8 Defendant also renews his Rule 29 sufficiency arguments as to all Section 1001

elements, including knowingly and materiality. 9 Instead, the Government simply repeatedly and summarily argued that Defendant’s

actions were “willful.” For example, the prosecution argued that “[t]he defendant knew full well that he was not telling the agents the truth when he made those statements. There’s no mistake here. There's no failure of memory here. These were knowing lies. And they were willful too.” Trial Tr. 1054:4-7. Notably absent from the Government’s argument were any facts from the trial record to support that conclusion.


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of acquittal, the prosecution still bears the burden of proving a defendant’s guilt beyond a

reasonable doubt. Furthermore, “[w]here a fact to be proved is also an element of the offense . . .

which is usually established only by interference, it is not enough that the inferences in the

government’s favor are permissible.” United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.

1995); see also United States v. Cassese, 290 F. Supp.2d 443, 447-48 (S.D.N.Y. 2003). The

Court “must also be satisfied that the inferences are sufficiently supported to permit a rational

juror to find that an element, like all elements, is established beyond a reasonable doubt.” Id.;

see, eg., United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir. 1994) (“a conviction based on

speculation and surmise alone cannot stand”). It follows then that when “the evidence, viewed in

the light most favorable to the prosecution, gives equal or nearly equal circumstantial support to

a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a

reasonable doubt.” United States v. Glenn, 312 F.2d 58, 70 (2d Cir. 2002) (internal quotations

and citations omitted).

Something more is necessary to convict than proof that the act, not remembered, did in

fact occur. Indeed, the Government is obligated to prove beyond a reasonable doubt that on the

morning of June 20, 2010, Defendant not only remembered the events in question but also lied

about them. Fotie v. United States, 137 F.2d 831, 842 (8th Cir. 1943). There is simply no

evidence to support that conclusion.

Based on the foregoing, Defendant respectfully submits that verdict must be overturned.

Alternatively, Senator Libous requests a new trial.


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V. The Jury Should Have Been Instructed With Defendant’s Willfulness And Voluntary Interview Charges10

Defendant requested the following willfulness charge be given to the jury:

The word “willfully” means that the defendant committed the act voluntarily and purposely, and with knowledge that his conduct was, in a general sense, unlawful. That is, the defendant must have acted with a bad purpose to disobey or disregard the law. The defendant acted “willfully” if he acted with knowledge that his conduct was unlawful and with the specific intent to deceive.

Dkt. No. 53, p. 1. For similar reasons, Senator Libous also requested that the jury be instructed

that “[a] defendant must be aware that making an unsworn false statement in a voluntary

interview is a violation of law.” Dkt. No. 58, p. 2.

Defendant’s voluntary charge request was denied outright. Senator Libous’ willfulness

charge request was also denied and a substantially more limited instruction was read to the jury.

Specifically, the Court charged the jury as follows: “[a]n act is done willfully if it is done with an

intention to do something the law forbids, that is with a bad purpose to disobey or disregard the

law.” Trial Tr. 1160:5-7. For the following reasons, it was error to not instruct the jury as

Defendant requested.

At the outset, there is no evidence that Senator Libous was aware that making a false

statement to an agent of the FBI constituted a federal crime. Special Agent Silveri described the

informal interview as “very conversational” (Trial Tr. 801:11) and testified that neither he nor

Special Agent Gilmore informed Defendant that any false statements could be prosecuted11

10 Defendant also renews his requests to (Dkt. Nos. 53, 58), specifically the request for

good faith which is necessary to define the element of willfulness. 11 Congress did not intend Section 1001 and the perjury statutes to have exactly the same

function. Perjury prosecutions result when the informality of the interview is removed by administering an oath. False statement prosecutions apply to either written statements or to situations where the maker of the false statements affirmatively approaches the Government to obtain a benefit, such as a passport application. See Ehrlichman, 379 F. Supp. at 291-92 (cited in


18

(Trial Tr. 769:22-770:3). No other witness testified as to what knowledge, if any, Defendant had

regarding the criminality of making a false statement to the FBI.

The Government recently informed the Supreme Court that “it is now the view of the

United States that the ‘willfully’ element of Sections 1001 and 1035 requires proof that the

defendant made a false statement with knowledge that his conduct was unlawful.” Br. in Opp. at

11-12, Natale v. United States, No. 13-744 at *12 (Apr. 21, 2014). This pronouncements opens

the door to the “specific intent” requirement included in Defendant’s instruction.

The Second Circuit also declined the opportunity to close this door. United States v.

Whab, 355 F.3d 155 (2d Cir. 2004). In considering the willfulness instruction in a Section 1001

violation, the Second Circuit in Whab was afforded the opportunity to find that a specific intent

instruction unnecessary. Id. Instead, of issuing that finding, the Second Circuit “merely h[e]ld

that--in the absence of binding precedent from the Supreme Court or this Court--it was not ‘plain

error’ for the District Court to fail to instruct the jury that ‘willfully’ under § 1001 required

something more than that the defendant have been aware of the generally unlawful nature of his

conduct.”12 Id. at 162. Here, plain error is not required because Defendant requested the

specific intent instruction. Dkt. No. 53, p. 1.

Moreover, a specific intent requirement for a false or fraudulent charge is hardly novel.

For example, the Supreme Court, in Cheek v. United States, 498 U.S. 192, 201-04 (1991), found

that specific intent was necessary to violate a tax charge.

the concurring opinion of Justice Ginsberg in Brogan v. United States, 522 U.S. 398, 410-411 (1998)).

12 Prior to Whab, Justice Ginsburg, in analyzing the problematic nature of Section 1001, similarly noted that the Second Circuit has “court left open the question whether ‘to violate Section 1001, a person must know that it is unlawful to make such a false statement.’” Brogan, 522 U.S. at 416 (Ginsburg, J., concurring) (quoting United States v. Wiener, 96 F.3d 35, 40 (1996)).


19

The need for this instruction was particularly important where, as here, the alleged oral

statements were made during an informal conversation that was not recorded or transcribed and

Defendant was not warned that any false statements would be prosecuted under Section 1001.

These informal circumstances of a conversation as set forth in this case do not sufficiently alert

citizens to the danger that false statements may lead to a felony conviction, necessitating an

instruction that the jury find a specific intent to violate Section 1001.

Accordingly, Defendant respectfully submits that this Court should order a new trial

pursuant to Rule 33.

VI. Mr. Mangone’s Testimony Was Insufficient To Support The Verdict

As previously discussed, the Court is free to evaluate witness credibility when evaluating

the merits of a Rule 33 motion. See Sanchez, 969 F.2d at 1413. One factor to consider is the

importance of that witness’ testimony. For example, the Second Circuit in Autuori affirmed the

district court’s decision granting a new trial because “the credibility of the principal witnesses

was weak and [] the soundness of the verdict is highly doubtful.” United States v. Autuori, 212

F.3d 105, 121 (2d Cir. 2000). The Second Circuit reaffirmed that finding five years later again

upholding the district court’s decision to order a new trial where the sole identification witness

faced considerable credibility issues. United States v. Robinson, 430 F.3d 537, 543 (2d Cir.

2005). As discussed below, Mr. Mangone fits both criteria: his testimony was critical to the

prosecution and he is an individual with formidable credibility issues. Accordingly, Defendant

respectfully submits that his testimony alone is insufficient to support the verdict and this Court

should order a new trial.

Mr. Mangone’s importance to the prosecution’s case cannot be overstated. Indeed, the

case rested entirely on Mr. Mangone’s testimony. No other witness testified as to the alleged


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deal between the law firm, the lobbying firm, Senator Libous and Defendant’s son. Nor did any

piece of evidence corroborate Mr. Mangone’s allegations concerning this deal. Although the

Government will likely point to evidence corroborating phone calls and a dinner meeting, at best

this evidence establishes only that phone calls occurred and that Mr. Mangone and Defendant

may have been in the same restaurant at the same time. However, it is incontrovertible that no

evidence or testimony corroborates Mr. Mangone’s allegations concerning the content of any

phone or dinner conversations.

Furthermore, if Mr. Mangone was truthful, the Government was capable of corroborating

his allegations through the testimony of several other individuals but chose not to. Mr. Fred

Hiffa, for example, was the only witness at the lobbying firm that could have testified to his

firm’s involvement in the alleged deal. The prosecution, however, chose to not call Mr. Hiffa

and instead questioned his partner, Mr. Richard Ostroff. Mr. Ostroff did not testify to any

knowledge of the alleged deal and admitted that he was not in a position to know what type of

work Defendant’s son was doing for Mr. Hiffa at the law firm. Trial Tr. 110:7-19. Notably,

when questioned by the FBI about Defendant’s son, Mr. Ostroff recommended that they speak to

Mr. Hiffa – a suggestion he maintained at trial. Trial Tr. 110:16-23.

Nor did the Government call Mr. Michael Santangelo, a partner at the law firm.

According to Mr. Mangone, Mr. Santangelo was present at the October 2005 Trotter’s meeting

with Senator Libous, Senator Spano and Defendant’s son, at which Matthew Libous’

employment was discussed. Trial Tr. 425:14-20. Mr. Mangone also claimed that Mr.

Santangelo accompanied him to Senator Libous’ fundraiser (Trial Tr. 432:10-18), the dinner at

Cite following the fundraiser (Trial Tr. 434:1-6); and the trip to Albany to meet with Senator


21

Libous in January 2006 (Trial Tr. 444:22-445:6). According to Mr. Mangone, these meetings

were critical to Mr. Matthew Libous’ employment at the law firm.

Given Mr. Mangone’s daunting credibility issues, as discussed below, it is surprising that

the Government chose to not call either Mr. Hiffa or Mr. Santangelo. Indeed, in scrutinizing the

Government’s failure to call these critical witnesses, the only logical conclusion is that Mr.

Mangone’s allegations could not be corroborated because they were untruthful.

As to Mr. Mangone’s credibility, he is a documented and self-professed liar with a long

history of criminal activity. Mr. Mangone admitted that he lied when testifying under oath

before a grand jury (Trial Tr. 412:13-23); when testifying under oath before a trial jury (Trial Tr.

412:13-23); and when being interviewed by the FBI (Trial Tr. 633:7-16). He admitted to filing

false tax returns that failed to document hundreds of thousands of dollars in taxable income.

Trial Tr. 638:2-639:18. He issued checks that he knew did not have funds to cover over

$150,000 in gambling losses. Trial Tr. 640:23-641:19. He also bribed, conspired and extorted.

Trial Tr. 414:19-22. In order to conceal his illegal activities and protect himself, he admitted to

attempting to influence a grand jury by instructing his client to pass on false information (Trial

Tr. 631:23-632:4); failing to report cash transactions of more than $10,000 (Trial Tr. 632:8-21);

and falsifying the law firm’s QuickBooks entries (Trial Tr. 637:13-638:1).

His family and friends were not exempt from his lies and criminal actions. For example,

he admitted to lying to his wife about gambling losses and the tax returns she unknowingly

signed believing they were truthful. Trial Tr. 646:23-646:8. Similarly, Mr. Mangone’s actions

exposed his family and friends to criminal prosecution. For example, Mr. Mangone used his

family and friends to conceal campaign contributions, an act he admitted knowingly exposed


22

them to criminal liability. Trial Tr. 645:25-646:22. He also admitted that the fraudulent tax

returns his wife signed exposed her to criminal penalties. Trial Tr. 647:3-8.

Although the Government submits that Mr. Mangone must tell the truth because he is

subject to a cooperation agreement (Trial Tr. 419:22-420:24; 1043:2-9), Mr. Mangone admitted

to lying when subject to an earlier cooperation agreement (Trial Tr. 455:24-457:9). It is

therefore clear that Mr. Mangone places little stock in cooperation agreements. In light of the

foregoing, perhaps the only reliable information to be discerned from Mr. Mangone’s testimony

is that he has no qualms about lying under oath, to juries, to his family, to his friends, with or

without a cooperation agreement.

Senator Libous therefore respectfully submits that Mr. Mangone’s testimony alone when

“scrutinized with great care and viewed with special caution,” as this Court instructed, (Trial Tr.

1150:21-23) was insufficient to convict and requests that this Court order a new trial pursuant to

Rule 33.

CONCLUSION

WHEREFORE, Senator Libous respectfully submits that the verdict must be overturned

pursuant to Rule 29. Alternatively, Senator Libous respectfully submits that this Court should

grant a new trial pursuant to Rule 33, together with such other and further relief that this Court

deems just and proper.

Dated: August 27, 2015

Respectfully submitted,

By: /s/ Paul DerOhannesian II Paul DerOhannesian II (PD0523) Danielle R. Smith (DS2411) DerOhannesian & DerOhannesian


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677 Broadway, Suite 707 Albany, New York 12207 (518) 465-6420 Attorneys for Defendant Thomas W. Libous


Documents

Libous Memo