U S Opposition to Skelos in Limine Motions v11 -...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA :

-v.- : S1 15 Cr. 317 (KMW) DEAN SKELOS and ADAM SKELOS, :

Defendants. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE GOVERNMENT’S MEMORANDUM OF LAW

IN OPPOSITION TO THE DEFENDANTS’ MOTIONS IN LIMINE

PREET BHARARA United States Attorney for the Southern District of New York One St. Andrew’s Plaza New York, New York 10007

Jason A. Masimore Rahul Mukhi Tatiana R. Martins Thomas A. McKay Assistant United States Attorneys

-Of Counsel-

Case 1:15-cr-00317-KMW Document 64 Filed 11/02/15 Page 1 of 28

TABLE OF CONTENTS

PRELIMINARY STATEMENT ................................................................................................. 1

ARGUMENT ................................................................................................................................. 2

I. THE DEFENDANTS’ MOTION TO PRECLUDE THE ADMISSION OF VARIOUS PORTIONS OF RECORDINGS SHOULD BE DENIED ........................................................ 2

A. APPLICABLE LAW ................................................................................................................ 3 B. DISCUSSION ......................................................................................................................... 4

1. 2:17 to 2:34 of Session 781 (December 10, 2014).......................................................... 4 2. 00:50 to 1:07 of Session 944 (February 12, 2015).......................................................... 8 3. Sessions 443, 3107, 3840, and 3880 ............................................................................... 8 4. Recordings Relating to the Legal Referral to “Senator-A” .......................................... 13

II. THE DEFENDANTS’ MOTION TO PRECLUDE INTRODUCTION OF CERTAIN STATEMENTS MADE BY ADAM SKELOS SHOULD BE DENIED ................................ 16

A. APPLICABLE LAW .............................................................................................................. 16 B. DISCUSSION ....................................................................................................................... 17

III. THE RULE OF COMPLETENESS DOES NOT REQUIRE ADMISSION OF ADAM SKELOS’S FALSE EXCULPATORY STATEMENTS ......................................................... 20

A. RELEVANT FACTS .............................................................................................................. 20 B. APPLICABLE LAW .............................................................................................................. 22 C. DISCUSSION ....................................................................................................................... 23

CONCLUSION ........................................................................................................................... 26


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA :

-v.- : S1 15 Cr. 317 (KMW) DEAN SKELOS and ADAM SKELOS, :

Defendants. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

THE GOVERNMENT’S MEMORANDUM OF LAW IN OPPOSITION TO THE DEFENDANTS’ MOTIONS IN LIMINE

The United States of America respectfully submits this Memorandum of Law in

opposition to the defendants’ motions in limine. For the reasons set forth below, the defendants’

motions are without merit and should be denied in their entirety.1

PRELIMINARY STATEMENT

In their motions in limine, the defendants request that this Court:

(i) preclude portions of recorded conversations of the defendants discussing supposed “unrelated political rumors and disputes” and “political media techniques” and one particular phone call during which the defendants discussed the impact of a rainstorm on Long Island during the same time period Adam Skelos was representing the Environmental Technology Company that specialized in stormwater products (Def. Mot. I);

(ii) preclude conversations between the defendants about their referral of an executive at the Environmental Technology Company (“CW-2”) to another State Senator for legal representation (Def. Mot. II at 1-5);

1 The Government is submitting this omnibus response to the defendants’ two motions: (1) Defendants’ Motion In Limine to Exclude Irrelevant and Prejudicial Statements (Dkt. #51) (“Def. Mot. I”); and (2) Defendants’ Motion In Limine to Exclude Certain Irrelevant and Prejudicial Evidence and to Include Relevant Portions of Certain Recorded Evidence Sought to Be Admitted by the Government (Dkt. #57) (“Def. Mot. II”). Unless otherwise noted, capitalized terms have the same meanings assigned to them in the Government’s Motion In Limine.


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(iii) preclude unspecified statements of Adam Skelos that the Government “knows are false” unless the Government first proffers that Dean Skelos was aware of the statements (Def. Mot. II at 6-7); and,

(iv) require the admission of portions of recordings containing Adam Skelos’s false

exculpatory statements (Def. Mot. II at 7-12).

For the reasons set forth below, the defendants’ motions should be denied in their

entirety.

ARGUMENT

I. THE DEFENDANTS’ MOTION TO PRECLUDE THE ADMISSION OF VARIOUS PORTIONS OF RECORDINGS SHOULD BE DENIED

The defendants are charged with misusing Dean Skelos’s official position to obtain

payments and gain employment for Adam Skelos from entities with business before New York

State, including, among others, the Environmental Technology Company. As explained below,

the portions of the recordings that the defendants seek to preclude are direct evidence of those

charges and thus are plainly admissible.2 Among other things, the calls are probative of Dean

Skelos’s agreement and intent to undertake official actions on behalf of Adam Skelos and the

defendants’ joint efforts to obtain and continue payments to Adam Skelos from entities that

believed such payments were necessary to obtain Dean Skelos’s official influence. Moreover, in

connection with their pretrial and in limine motions, the defendants have indicated that a central

theme of their defense at trial will be that Adam Skelos lied about and exaggerated his

connections to State officials and Dean Skelos’s willingness to assist individuals and entities

paying Adam Skelos. Accordingly, the disputed portions also are admissible to rebut this

defense at trial.

2 The defense has filed the transcripts of the calls in question under seal. The Government has no objection to the transcripts being publicly filed.


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A. Applicable Law Federal Rule of Evidence 401 defines “relevant evidence” as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401.

Federal Rule of Evidence 402, in turn, provides that “[a]ll relevant evidence is admissible, except

as otherwise provided by the Constitution of the United States, by Act of Congress, by these

rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” Fed. R.

Evid. 402.

Defendants’ primary objection to the introduction of various recordings and portions of

recordings is that they are unfairly prejudicial and/or cumulative of other evidence, pursuant to

Rule 403 of the Federal Rules of Evidence. The Second Circuit has recognized that “‘[s]ince the

trial judge is granted such a powerful tool by Rule 403, [the trial judge] must take special care to

use it sparingly.’” United States v. Jamil, 707 F.2d 638, 642 (2d Cir. 1983) (quoting 1 J.

Weinstein and M. Berger, Weinstein’s Evid. ¶ 403[01], at 403-7 (1982), in reversing District

Court’s exclusion of evidence in a tape recording of a conversation in which a defendant had

participated). The trial judge must “make a ‘conscientious assessment’ of whether unfair

prejudice outweighs probative force.” Id. (quoting United States v. Figueroa, 618 F.2d 934, 943

(2d Cir. 1980)).

All evidence of guilt is, of course, prejudicial in the sense that it disadvantages the

defense, but that is not the same as being “unfairly” prejudicial. Costantino v. Herzog, 203 F.3d

164, 174 (2d Cir. 2000) (“Because virtually all evidence is prejudicial to one party or another, to

justify exclusion under Rule 403 the prejudice must be unfair.” (emphasis in original)).

Evidence is unfairly prejudicial “only when it tends to have some adverse effect upon a


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defendant beyond tending to prove the fact or issue that justified its admission into evidence.”

United States v. Kadir, 718 F.3d 115, 122 (2d Cir. 2013) (emphasis in original) (internal

quotation marks omitted). Evidence that is not “more sensational or disturbing” than the charged

crimes will not be deemed unfairly prejudicial. See United States v. Roldan-Zapata, 916 F.2d

795, 804 (2d Cir. 1990); accord United States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006);

United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000).

B. Discussion 1. 2:17 to 2:34 of Session 781 (December 10, 2014)

The defendants seek to excise and preclude a 17-second segment of Session 781, an

intercepted call between Adam Skelos and Dean Skelos on December 10, 2014 that is irrefutably

relevant to the charged scheme. During the call, Dean Skelos and Adam Skelos discussed two

things in the context of Adam Skelos’s work for the Environmental Technology Company: (1) a

recent rainstorm on Long Island; and (2) Adam Skelos’s upcoming conference call with an

association of local officials (the “Association”) concerning the Environmental Technology

Company’s stormwater products. The defendants do not object to the admission of the portion of

the conversation in which Adam Skelos informed Dean Skelos that he would be participating in

a conference call with the Association later that day to “try and talk to them about, you know,

how to apply for certain things, all that stuff. Funding and all that,” to which Dean Skelos

replied, “Good.” In the portion the defendants seek to preclude, which occurred immediately

prior to that portion of the conversation, Adam Skelos discussed a recent rainstorm on Long

Island, stating, “Did you see, we got a – some major water problems here with all this flooding

that’s going on.” Dean Skelos then replied, “Yep. Yep.” Adam Skelos responded, “I love it.


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Keep it coming, Mother Nature. Keep it coming.” The defendants laughed, and Dean Skelos

replied, “It will.”

The Government alleges, among other things, that Dean Skelos knowingly used his

public office to benefit the Environmental Technology Company in exchange for payments to

Adam Skelos. In this context, the discussion between the defendants about the recent rainstorm

is directly probative of the charged conduct. The obvious meaning of Adam Skelos’s comment

that he wanted “Mother Nature” to “keep it coming” was that Adam Skelos believed he would

financially benefit from rainstorms because of his pecuniary relationship with the Environmental

Technology Company, which specialized in stormwater products. Similarly, Dean Skelos’s

acknowledgment and encouragement of Adam Skelos’s comment—“it will”—shows Dean

Skelos’s knowledge of Adam Skelos’s relationship with the Environmental Technology

Company and that Adam Skelos and the Company stood to gain financially from stormwater

projects on Long Island. This discussion between the defendants cannot credibly be interpreted

in any other manner. The issue of whether Dean Skelos knowingly assisted the Environmental

Technology Company in exchange for the payments to Adam Skelos will be a central dispute at

trial and the conversation that defendants seek to preclude is directly probative of that issue.

Indeed, although consistent with Dean Skelos’s general practice of avoiding explicit

reference to the scheme during phone conversations, the defendants did not state on the call that

Adam Skelos’s upcoming discussion with the Association involved promoting the

Environmental Technology Company, that conference call, which also was intercepted

(AS#789), did in fact involve Adam Skelos and CW-2 trying to sell the Environmental

Technology Company’s stormwater products to the Association. Among other things, Adam

Skelos cited the same rainstorm in a sales pitch on behalf of Environmental Technology


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Company, and further told the Association that all of the Long Island Senators, who were led by

his father as the Majority Leader, would be proposing the allocation of funds for stormwater

projects like those being touted by the Environmental Technology Company.3 Thus, the

discussions between Dean Skelos and Adam Skelos in Session 781 that the defendants seeks to

preclude are also probative evidence that contextualizes Dean Skelos’s later pronouncements in

his official capacity that the State should spend more money on stormwater infrastructure

projects.

Defendants argue that, pursuant to Rule 403, that the disputed statements should be

excised and precluded because they would be “particularly prejudicial if a juror or his/her family

had been impacted by storms and other weather conditions,” and further argue that this evidence

is cumulative of unspecified other pieces of evidence concerning Dean Skelos’s knowledge of

Adam Skelos’s employment at the Environmental Technology Company. (Def. Mot. I at 3-4).

With respect to the alleged prejudicial effect, in the disputed portion of Session 781, the

defendants were speaking about a storm that impacted an area outside the Southern District of

New York and did not mention any specific harm to individuals or property, instead referring to

generic “water problems.” Accordingly, there is no danger of the prejudice cited by the

defendants. The fleeting and apparent light-hearted nature of the defendants’ conversation

referencing Adam Skelos’s ability to profit from stormwater projects is also not unfairly

prejudicial because it certainly is not more disturbing or inflammatory than the crimes with

which they have been charged, i.e., depriving New York State and its citizens of Dean Skelos’s

3 Adam Skelos: “In fact, just, just on Monday, the Long Island Nine [the nine State Senators representing Long Island] got together and they’re putting together a, a report that they're up in Albany today proposing for, for stormwater drainage projects, water quality projects, flood mitigation. So it’s, it’s, it’s all infrastructure. And, you know, after the, the storm we just had yesterday, it just, it’s just another, you know, reason of why it’s become such a hot button issue, especially on Long Island.”


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honest services in order to profit Adam Skelos. Among other things, the jury will hear evidence

that Dean Skelos spoke to Nassau County public officials about paying the Environmental

Technology Company at a funeral for a New York City police officer and that Adam Skelos

threatened to “smash in” his supervisors head when the supervisor bristled at Adam Skelos’s

statements that he did not have to show up to work because his father was the Senate Majority

Leader. The statements about the rainstorm that the defense seeks to preclude cannot be said to

be more “sensational” than this other evidence or otherwise so unfairly prejudicial to warrant

exclusion. See, e.g., United States v. Williams, 205 F.3d at 34 (no unfair prejudice where

“evidence did not involve conduct more serious than the charged crime”); United States v.

Siegel, 717 F.2d 9, 16-17 (2d Cir. 1983) (evidence of a $30,000 bribe payment and its

“clandestine circumstances” admitted over Rule 403 objection that dramatic nature of evidence

was unfairly prejudicial compared with “the other evidence presented at trial of small bribes and

gratuities”); United States v. Mostafa, 16 F. Supp. 3d 236, 256 (S.D.N.Y. 2014) (finding taped

statements of a defendant referring to Osama bin Laden as a “good-hearted person” to be “no

more disturbing than the crimes [relating to supporting al Qaeda] charged”).

The 17 seconds of audio the defendants seek to preclude is also not unreasonably

“cumulative” of other evidence the Government intends to present regarding Dean Skelos and

Adam Skelos’s discussions about Adam Skelos’s ability to profit from his work at the

Environmental Technology Company. The defendants were extremely careful when speaking on

the phone about Adam Skelos’s relationship with the Environmental Technology, particularly

following the January 2015 arrest of Sheldon Silver. Thus, evidence of a clear discussion

between the defendants about the financial benefits that Adam Skelos could reap through his

relationship with the Environmental Technology Company is not cumulative whatsoever.


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Moreover, this evidence is necessary in light of the defendants’ apparent intent to argue at trial

that Adam Skelos exaggerated and lied about Dean Skelos’s knowledge and involvement with

the Environmental Technology Company. Given the proffered defense, even if this evidence

would otherwise be cumulative, which it is not, the volume of evidence that the defendants

directly discussed Adam Skelos’s business with the Environmental Technology Company

becomes more critical to the Government’s ability to rebut this trial defense.

2. 00:50 to 1:07 of Session 944 (February 12, 2015)

The Government does not intend to offer Session 944 in its case-in-chief. Accordingly,

there is no need for the Court to rule on the admissibility of this call.

3. Sessions 443, 3107, 3840, and 3880

The defendants move to preclude these intercepted calls because they purportedly relate

to “unrelated political matters,” “contain colorful language,” and “expose personal relationships

of politicians, families and persons not involved in this case.” (Def. Mot. I at 2). The defendants

are wrong that the Government seeks to admit this evidence solely as proof of the “rather

unchallenged point that Adam Skelos and Senator Skelos had a close relationship and that they

discussed politics.” (Def. Mot. I at 2). As discussed below, the disputed calls are admissible

because they are probative evidence of the defendants’ agreement to use Dean Skelos’s office to

financially benefit Adam Skelos.

a. Session 443

The Government does not intend to admit Session 443 in its case-in-chief. Accordingly,

there is no need for the Court to rule on the admissibility of this call.


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b. Sessions 3107 and 3840

The defendants move to preclude Sessions 3107 and 3840 on the basis that they contain

“colorful language” used by the defendants about “politicians’ significant others” that are

irrelevant and would unduly prejudice “third-parties” by “exposing personal relationships of

third-parties.” (Def. Mot. I at 3). These intercepted calls should be admitted, however, because

they constitute direct evidence of the conspiracy. In particular, Sessions 3107 and 3840 involve

discussions between Dean Skelos and Adam Skelos about the ways in which Dean Skelos can

maximize his leverage with the Governor during the budget negotiations—the same negotiations

during which the Government alleges Dean Skelos attempted to insert legislation that would

benefit Adam Skelos and the Environmental Technology Company in the charged schemes. The

calls are also evidence of the defendants’ strategy to deflect public attention from themselves to

the Governor after media inquiries concerning the defendants’ possible corrupt dealings.

During Session 3107, on February 27, 2015, the defendants discussed press reports about

the outside income of the Governor’s significant other. Adam Skelos said, “Did you see that?

Oh, man. They’re really—it’s a real cat fight, huh?” Dean Skelos replied, “Yeah, but see, by

them saying that, they just highlighted, they just highlighted [the Governor’s significant other].”

Dean Skelos told Adam Skelos that the Governor’s “people said if we don’t introduce [the

Governor’s amendments to legislation], he’s going to say we’re going to have a late budget

because of ethics. We said say it again. Who the fuck cares? You keep saying it every day

anyway.” Adam Skelos responded, “Yeah.” Adam Skelos asked Dean Skelos whether he is

going to “stick[ ] with . . . the proposal that you made” relating to disclosure of the outside

income of the Governor’s significant other. Dean Skelos replied that he was, and told Adam

Skelos about specific conversations Dean Skelos had with his Chief of Staff. Adam Skelos told


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Dean Skelos that “you guys are smarter and just more experienced, so, you know, you flip it on

him. Then [the Governor] goes crazy and then he comes back and he negotiates.” Dean Skelos

replied, “That’s exactly right.” Adam Skelos replied, “I love it, though. I think it’s hilarious.”

During Session 3840, on March 18, 2015, Dean Skelos told Adam Skelos, “Well, I’ve got

the lawyers down with [the Governor] now giving them shit, my lawyer – you know, the

members, the Senators.” Adam Skelos replied, “Oh. Good, good.” Dean Skelos then told Adam

Skelos, “And then after, later today, I’m going to go after [the Governor] and I want him to

disclose, you know [the Governor’s significant other], and all this other stuff.” Adam Skelos

replied, “Keep sticking with that.”

As the Government intends to prove at trial, Dean Skelos and Adam Skelos conspired to,

among other things, obtain payments in exchange for their efforts to insert legislation favorable

to the Environment Technology Company in New York State’s 2015-2016 budget. The budget

is negotiated between the Governor, Dean Skelos, and the Speaker of the Assembly. Thus, the

calls cited above, during which Dean Skelos and Adam Skelos discussed using the disclosure of

the Governor’s significant other’s outside income as a bargaining chip to increase Dean Skelos’s

strength in the negotiations, is direct evidence of the charged schemes.4

The recordings are also probative for several other reasons. At trial, the Government

intends to introduce evidence that, during the same time period of these calls, the defendants

were concerned about public reports related to their business dealings. Among other things,

Adam Skelos informed CW-2 on February 13, 2015 that “[t]he press stuff makes me nervous,

4 Although the defendants’ efforts to insert benefits for the Environmental Technology Company were not entirely successful (in part because Dean Skelos grew more cautious following the arrest of Sheldon Silver), after the completion of the budget, Dean Skelos and Adam Skelos were intercepted discussing the allocation of certain infrastructure funds that the defendants indicated—in code—could be utilized by the Environmental Technology Company.


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just because I feel like the press stuff drives the investigation.” Thus, the disputed calls are also

evidence of Dean Skelos and Adam Skelos’s strategy to deflect public attention from themselves

onto the Governor in order to quell potential public exposure of their scheme to use Dean

Skelos’s official position to obtain income for Adam Skelos. Further, evidence that Dean Skelos

would engage in these types of detailed conversations about Senate strategy with Adam Skelos is

probative of Adam Skelos’s actual access to Dean Skelos outside of the context of a mere

father/son relationship, and rebuts defendants’ argument that Adam Skelos lied and exaggerated

about his access to his father and State policy. Finally, the call is also probative of the

defendants’ state of mind as it reflects the defendants’ awareness of potential conflicts of

interests arising from the income of someone close to a person in power, a situation that applies

squarely to Adam Skelos.

In light of the probative value of the evidence, the fact that some of the defendants’

language may strike some listeners as “colorful” is no reason to preclude it under Rule 403. See,

e.g., United States v. Pierce, 785 F.3d 832, 841 (2d Cir. 2015) (finding no plain error to admit

violent rap lyrics to establish a defendant’s association with conspiracy members and motive to

participate in murder); United States v. Moore, 639 F.3d 443, 447-48 (8th Cir. 2011) (cited by

Pierce and affirming admission of profane and violent rap recordings over a Rule 403 challenge

where they were probative of the defendant’s participation in narcotics conspiracy). In fact,

sanitizing the defendants’ conversations with each other runs more of a risk of misleading the

jury and unfairly prejudicing the Government’s case. These calls are evidence of how the

defendants spoke amongst themselves about the topics relevant to trial, and there is no reason to

keep this information away from the jury when it pertains to topics relevant to their consideration

of the issues in this trial. The jury is best positioned to evaluate whether a crime occurred and


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whether the defendants operated with criminal intent by hearing the statements actually made by

the defendants on the Title III intercepts, not versions of the calls that have been modified to

make the defendants look better. See, e.g., United States v. Kolodesh, 787 F.3d 224, 232 (3d

Cir. 2015) (the defendant’s “Rule 403 argument—that the inflammatory nature of the single

instance of profanity rendered the comment unfairly prejudicial—fails, particularly in light of its

probative value”), cert. denied, 2015 WL 5032389 (Oct. 5, 2015); United States v. Pirani, 406

F.3d 543, 555 (8th Cir. 2005) (“The tape includes [the defendant] and others swearing

expressively during a casual conversation among officers, culminating in [the defendant’s]

declaration that he had no reason to worry about the investigation. We doubt [the defendant’s]

profane bravado came as a surprise to the jury, much less colored its view of whether he had

committed the offenses charged.”).

c. Session 3880

On March 20, 2015, the press reported that the Governor’s daughter had lobbied a now-

former New York State Senator in 2014 to reverse his position on the Farmworkers Fair Labor

Practices Act. That morning, at approximately 7:59 a.m., Adam Skelos called Dean Skelos and

stated “[The Governor]’s daughter could lobby [the former Senator] on some farm bill? I mean,

how is that – how can she get away with that?” Dean Skelos replied, “She’s not getting paid to

do it,” and, later, stated, “So we’ve killed that bill.” Adam Skelos replied, “All right. I can’t

stand this family. I really can’t stand this family.” Dean Skelos replied, “Right.”

A year prior, on May 21, 2014, in an email exchange between Adam Skelos and Dean

Skelos obtained from Adam Skelos’s email account, Adam Skelos sent Dean Skelos a link to a

story about the Governor’s same daughter lobbying the former New York State Senator on the

bill. By email, Adam Skelos told Dean Skelos, “So because she’s a Kennedy she’s allowed to


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lobby? Didn’t show [former Senate Majority Leader]’s kid the same leniency with the law.”

Dean Skelos replied, “You remember. He was getting paid. Always double standard when it

comes to the Kennedy’s.” Adam Skelos replied, “Well there should be an investigation to see if

her or her mother is getting paid.” Dean Skelos replied, “Will check.”

The call and the emails between Adam Skelos and Dean Skelos about this subject are

relevant to their knowledge and intent in the charged schemes. The conversations demonstrate

that Dean Skelos and Adam Skelos were aware of the conflict of interest inherent when relatives

of New York State officials – like Adam Skelos – accept money in return for attempting to

influence State legislation, which is precisely what the Government has alleged Adam Skelos did

on behalf of the Environmental Technology Company. Accordingly, the defendants are simply

incorrect when they assert that the evidence has “nothing to do with this case.” (Def. Mot. I at

3). In fact, the evidence is direct evidence that Dean Skelos and Adam Skelos were engaged in a

corrupt scheme because, unlike the Governor’s daughter, Adam Skelos “was getting paid to do

it”—i.e., was getting paid to influence State policy when his father was Senate Majority Leader.

It is also crucial evidence that the defendants were well aware that such conduct could be illegal

(Adam Skelos: “Well there should be an investigation…”). Moreover, there is no substantial

probability of prejudice to the privacy interests of third parties, as the subject matter of the

conversation between Dean Skelos and Adam Skelos related to publicly-reported events.

4. Recordings Relating to the Legal Referral to “Senator-A”

The defendants seek to preclude the introduction of two calls relating to their referral of

CW-2 to a particular Senator (“Senator-A”) for legal representation in connection with defending

CW-2 against a traffic citation. On January 9, 2015, Adam Skelos sent a text message to CW-2

stating, “I think [Senator-A]’s law firm may be helpful . . . he’s helped me with speeding tickets


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before. Want me to ask him?” (Session # 1576). CW-2 replied that same day, “That’s

ridiculous.” (Session # 1577). On January 12, 2015, CW-2 sent a text message to Adam Skelos

“Hey man – any luck with the attorney thing? I only have 15 days (from last Friday) to plea so

need to look for options. Appreciate if you have a rec.” (Session # 1605).

On January 12, 2015, after receiving the text, Adam Skelos called Dean Skelos in Session

1607, which the defendants seek to preclude. During the call, Adam Skelos said, “Can you do

me a favor . . . Can you text me [Senator-A]’s contact information? . . . if you see [Senator-A]

before I talk to him, just let him know I got to reach out to him about something.” Dean Skelos

replied, “Okay. And there’s another guy that works for him. . . .” Adam Skelos asked, “You

want me to, you want me to call him instead?” Dean Skelos replied, “No, call [Senator-A] and

tell him you have somebody that – but, you know, the guy’s got to pay something.”5

The following afternoon, on January 13, 2015, Senator-A called Adam Skelos in Session

1649, which the defendants also seek to preclude. During the call, Adam Skelos told Senator-A,

“I have a client and it might – it might be interesting to you. He ran into some trouble in his car

talking on the cellphone and now I think he’s going to get points on his license. So he asked if I

knew anyone who’s affiliated with a law firm that, that he could, he could, you know, hire them.

And I said, well, let me call who’s helped me with my own tickets.” Senator-A replied, “Have

him call my partner” and provided the telephone number. Adam Skelos replied, “Now, this guy,

he also – he happens to be a CEO of an engineering company based in Connecticut [referring to

an affiliate of the Environmental Technology Company]. They’re starting to do some work here

in New York, so it could – you never know, it could lead to other stuff.” Senator-A replied,

5 Dean Skelos’s response indicating he already knew why Adam Skelos wanted the information is probative that Dean Skelos and Adam Skelos had already discussed CW-2 together.


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“Well, I appreciate it. Well, thank you very much. Yeah, give him my number and I’ll see what

I can do to help.”

This evidence is relevant and not unfairly prejudicial. As the defendants’ brief points out,

Senator-A was the leader of the Independent Democratic Conference (the “IDC”), an influential

group of State Senators that was aligned with Dean Skelos and the Senate Republicans. The

disputed calls are evidence of the defendants’ joint attempt to cultivate the perception with the

Environmental Technology Company that paying Adam Skelos bought the Company access to

high-level officials in New York State. Moreover, the referral of CW-2 to Senator-A enabled

Adam Skelos to have a direct conversation with Senator-A in which Adam Skelos introduced the

fact that CW-2’s company was doing work in New York State, which “could lead to other stuff”

with Senator-A. Accordingly, this is further evidence that Dean Skelos and Adam Skelos

utilized Dean Skelos’s office to promote the Environmental Technology Company’s interests

before the State, including during a specific time when the Company was seeking legislation in

the New York State budget.

Finally, although the evidence is plainly relevant and admissible regardless of the defense

offered at trial, the probative value is heightened given the defendants’ apparent trial defense that

Adam Skelos operates independently from Dean Skelos and simply lied about and exaggerated

his connections to Albany and the lengths to which Dean Skelos would go to help him with his

business interests. In rebuttal to that argument, these calls are direct evidence of Adam Skelos’s

actual ability, facilitated by Dean Skelos, to access high-level New York State officials to

promote his clients’ business interests.6

6 This evidence is not unfairly prejudicial. There is nothing inflammatory about the discussions, and there is nothing per se inappropriate about a legal referral.


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II. THE DEFENDANTS’ MOTION TO PRECLUDE INTRODUCTION OF CERTAIN STATEMENTS MADE BY ADAM SKELOS SHOULD BE DENIED

The defendants argue, without citation to any case law, that any statements by Adam

Skelos that exaggerated and/or misrepresented the support provided or promised by Dean Skelos

to the Environmental Technology Company should be precluded “unless the government

proffers that Dean Skelos was aware of the communications and adopted them as his own.”

(Def. Mot. II at 6-7).

The Government does not accept the defendants’ argument that Adam Skelos’s

statements about the extent of Dean Skelos’s knowledge about and involvement in the

Environmental Technology Company were for the most part lies and/or exaggerations. Indeed,

the evidence at trial will show that Dean Skelos jointly and actively conspired with Adam Skelos

to use Dean Skelos’s official power and influence to obtain payments for Adam Skelos from

companies with business before the State, including the Environmental Technology Company.

Nevertheless, for the reasons set forth below, even assuming that Adam Skelos did exaggerate at

times, and did not relay each and every one of his statements back to his father, such statements

are still admissible against both Adam Skelos and Dean Skelos. Accordingly, the defendants’

motion should be denied.

A. Applicable Law

As noted, evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Fed. R. Evid. 401. Statements made by a defendant are

admissible against that defendant under the party-opponent exception to the hearsay rule. Fed.

R. Evid. 801(d)(2)(A). When a defendant’s statements are made in furtherance of a conspiracy,


17

they are also admissible against that defendant’s co-conspirators. Fed. R. Evid. 801(d)(2)(E); see

United States v. Geibel, 369 F.3d 682, 695 (2d Cir. 2004) (“It is axiomatic that all acts and

statements committed by one co-conspirator in furtherance of the conspiracy are admissible

against all members of the conspiracy.”). The hearsay exception for a co-conspirator’s

statements “has its roots in the law of agency.” United States v. Russo, 302 F.3d 37, 45 (2d Cir.

2002). “When two persons engage jointly in a partnership for some criminal objective, the law

deems them agents for one another. Each is deemed to have authorized the acts and declarations

of the other undertaken to carry out their joint objective.” Id. Thus, “coconspirators need not

have agreed on the details of the conspiracy,” United States v. Eppolito, 543 F.3d 25, 47 (2d Cir.

2008) (citation omitted), and evidence of statements or threats made by one co-conspirator in

furtherance of the conspiracy is “surely relevant even as to unknowing co-conspirators,” United

States v. Overton, 470 F.2d 761, 766 (2d Cir. 1972).

B. Discussion

As a threshold matter, Adam Skelos’s statements about the support that Dean Skelos was

providing for the Environmental Technology Company, or would provide, are admissible as

party admissions made in furtherance of the charged conspiracy. The statements served to

ensure that the Company continued making payments to Adam Skelos based on the Company’s

expectation that Dean Skelos would take and continue to take official action on its behalf as

opportunities arose. The statements are therefore admissible against both Adam Skelos and

Dean Skelos, regardless of whether Dean Skelos “was aware of the communications and adopted

them as his own.” (Def. Mot. II at 7). It is axiomatic that, as a member of a criminal

partnership, Dean Skelos “is deemed to have authorized the acts and declarations of [Adam

Skelos] undertaken to carry out their joint objective.” United States v. Russo, 302 F.3d at 45; see


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United States v. Overton, 470 F.2d at 766 (admitting against “unknowing co-conspirators”

threats made by their co-conspirator).

Although they do not dispute that Adam Skelos’s statements about Dean Skelos’s support

for the Company were made in furtherance of the conspiracy, the defendants argue that the

statements are “irrelevant and highly prejudicial unless the government can establish that Senator

Skelos . . . was aware of them.” (Def. Mot. II at 6). The defendant’s relevance objection ignores

the basic principle that, to be relevant, evidence does not need to establish each and every

element of an offense. See, e.g., Old Chief v. United States, 519 U.S. 172, 178–79 (1997);

United States v. Certified Envtl. Servs., 753 F.3d 72, 90 (2d Cir. 2014). Rather, evidence is

relevant if it constitutes “a step on one evidentiary route to the ultimate fact.” Old Chief v.

United States, 519 U.S. at 179. Statements by Adam Skelos regarding the actions that his father

would or did take on behalf of the companies paying Adam Skelos are relevant for several

reasons.

First, by definition, statements by one co-conspirator (Adam Skelos) about actions to be

taken by another co-conspirator (Dean Skelos) are highly probative of the existence of the

charged conspiracy. Second, these statements are direct evidence of Adam Skelos’s state of

mind with respect to the conspiracy, and are circumstantial evidence of Dean Skelos’s state of

mind: statements by Adam Skelos that Dean Skelos would take certain actions makes it “more

probable . . . than it would be without the evidence” that Dean Skelos intended to take such

action and/or knew that payments were being made to Adam Skelos based on the expectation

that Dean Skelos would take such action. As this Court has explained, “both the Hobbs Act and

§ 666 apply even where an official action is not ever carried out,” United States v. Skelos, 15 Cr.

309 (KMW), 2015 WL 6159326, at *4 (S.D.N.Y. Oct. 20, 2015), and therefore statements about


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intended actions that did not come to fruition are no less relevant to the charged crimes than

statements about actions that did. Third, any such statements that were made to representatives

of the Company are direct evidence of the Company’s reasonable belief that Dean Skelos would

take official action on its behalf—one of the elements the Government must prove with respect

to the extortion counts. See, e.g., United States v. McDonough, 56 F.3d 381, 389 (2d Cir. 1995)

(under Hobbs Act, the Government does not have to prove that public official actually intended

to be influenced, as long as the extortion victim had a reasonable belief that the public official

could influence official action and defendant was aware that victim had such a belief). Thus, the

relevance of these statements does not depend on whether or not Dean Skelos actually did, or

even intended to do, what Adam Skelos represented that Dean Skelos would do.

The defendants argue that such statements prejudice both defendants because “they will

leave the jury with the misimpression that Senator Skelos took certain legislative actions on

behalf of the Environmental Technology Company that the government appears to concede did

not happen.” (Def. Mot. II at 7). Once again, the defendants ignore the fact that Sections 1951

(Hobbs Act) and 666 (Bribery and Gratuities) do not require a completed official act; the

criminal conduct penalized is “the acceptance of payment in return for an agreement to perform a

specific official act.” Skelos, 2015 WL 6159326, at *4. Similarly, evidence of a completed

official act is unnecessary to prove the crime of conspiracy, which is complete “whether or not

the substantive offense which was its object was committed.” United States v. Wydermyer, 51

F.3d 319, 325 (2d Cir. 1995). Statements that are direct evidence of that corrupt agreement

certainly tend to prove a defendants’ guilt, but they do not do so unfairly. See United States v.

Quattrone, 441 F.3d 153, 186 (2d Cir. 2006) (“All evidence introduced against a defendant, if


20

material to an issue in the case, tends to prove guilt, but is not necessarily prejudicial in any

sense that matters to the rules of evidence.”).

To be sure, the defendants will be free to argue to the jury that not every statement that

Adam Skelos made about Dean Skelos’s future actions came to pass. And the Government

equally will be able to argue to the jury that, based on all the evidence submitted at trial, the jury

should consider that statements made by Adam Skelos regarding certain actions by Dean Skelos

reflected the defendants’ joint efforts to monetize Dean Skelos’s position for the benefit of his

son. Indeed, the Second Circuit recently rejected a defendant’s argument that co-conspirator’s

statements should not be admitted because the co-conspirator was simply “‘bragging’ about his

sources” because, as the Second Circuit held, such an argument is “at best an argument for the

jury.” United States v. Gupta, 747 F.3d 111, 126 (2d Cir. 2014).

For these reasons, Adam Skelos’s statements in furtherance of the conspiracy are relevant

and admissible, regardless of whether there is evidence that Dean Skelos knew about each and

every statement or whether the statements were actually true.

III. THE RULE OF COMPLETENESS DOES NOT REQUIRE ADMISSION OF ADAM SKELOS’S FALSE EXCULPATORY STATEMENTS

Under well-settled principles of the Federal Rules of Evidence, a defendant’s own out-of-

court statements are inadmissible hearsay when offered by the defendant for the truth of the

matter asserted. The defendants seek to circumvent this rule by invoking the rule of

completeness to admit Adam Skelos’s self-serving, false exculpatory statements into evidence.

This motion should be denied.

A. Relevant Facts

At trial, the Government intends to introduce recordings of telephone calls between

Adam Skelos and CW-2. During one of these calls cited in the defendant’s motion, which the


21

Government may introduce at trial, Adam Skelos spoke to CW-2 on February 11, 2015

(AS#2534). During the call, Adam Skelos informed CW-2 that he was “nervous” about a

potential New York Times article concerning both Adam Skelos’s real estate dealings and his

contacts, on behalf of the Environmental Technology Company, with a former New York State

Senator (“Senator-B”). (See Ex. C to Def. Mot. II, at 1:13-2:3). Adam Skelos explained that

“nothing had ever come of [the meeting] because just like a lot of municipalities, they were

strapped for funding and, you know, they couldn’t pay for the services that they needed.” (Id. at

2:12-2:15). Adam Skelos continued that he had heard from the Company’s CEO that the New

York Times had been on the Company’s web site “like 12 times that day—or that week” and that

therefore the CEO thought the Times “want[ed] to do a story about water purification.” (Id.

2:24-3:2). Having said this, Adam Skelos then stated—falsely, as the Government will prove at

trial—that “we’ve done nothing wrong, everything has been RFP’d and done by the book. But . .

. the reason why I’m not going to . . . attend any sort of state meeting is because I have to just be

on the side of caution, you know?” (Id. 3:4-3:9). Several minutes later, Adam Skelos returned

to topic of the Times article, telling CW-2 to keep the discussion between the two of them. (Id.

7:11-7:14). Adam Skelos also told CW-2 that Dean Skelos “went to Florida” because “he’s just

like, I’m not dealing with this shit right now.” (Id. 8:5-8:7). If the Government introduces the

call, the defendants seek to include Adam Skelos’s false exculpatory statement about having

“done nothing wrong” in the excerpt of the recording introduced at trial.7

7 The Government does not object to the introduction of Adam Skelos’s false exculpatory statements during the second call cited in the defendant’s motion (AS#2811), assuming the Government introduces the call into evidence. In that call, Adam Skelos and CW-2 engaged in a lengthy discussion about their plan for an upcoming meeting with a different New York State Senator (“Senator-C”) that Adam Skelos had arranged for CW-2. Adam Skelos informed CW-2 that Adam Skelos and Dean Skelos would be attending a fundraiser with Senator-C and one of Senator-C’s staff members the same night as CW-2’s meeting with Senator-C. (Exhibit D to


22

B. Applicable Law

“When the defendant seeks to introduce his own prior statement for the truth of the

matter asserted, it is hearsay, and it is not admissible.” United States v. Marin, 669 F.2d 73, 84

(2d Cir. 1982). As a general matter, Federal Rule of Evidence 106 “does not render admissible

evidence that is otherwise inadmissible.” United States v. Terry, 702 F.2d 299, 314 (2d Cir.

1983). Thus, the rule of completeness requires admission of a hearsay statement only when the

statement is “necessary to explain the admitted portion, to place the admitted portion in context,

to avoid misleading the jury, or to ensure fair and impartial understanding of the admitted

portion.” United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (emphasis added) (quoting

United States v. Castro, 813 F.2d 571, 575-76 (2d Cir. 1987)). “The completeness doctrine does

not, however, require the admission of portions of a statement that are neither explanatory of nor

relevant to the admitted passages.” United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999).

“Where the danger of such distortion does not exist, . . . a defendant may not rely on the rule of

completeness to put his out-of-court exculpatory statements before the jury . . . , while at the

same time maintaining his own Fifth Amendment privilege so as to avoid being cross-examined

about his prior statements.” United States v. Harper, 05 Cr. 6068L, 2014 WL 140125, at *5

(W.D.N.Y. Jan. 20, 2009); United States v. Jackson, 180 F.3d at 73 (no abuse of discretion to

preclude portion of tape that included defendant’s “own self-serving statements”); United States

Def. Mot. II, at 2:20-2:24). Adam Skelos went on to make numerous statements reflecting his understanding that his conduct was unlawful. For instance, after suggesting that he would draft proposed legislation and send it to CW-2, Adam Skelos stated “[m]aybe that’s a horrible idea, me proposing this and then coming from my e-mail.” (Id. 4:22-4:23). Adam Skelos also told CW-2 that “it’s probably not a good idea that [CW-2] go to the . . . fundraiser” (Id. 5:9-5:10), and stated that it would be better for Adam Skelos to “distance [him]self from being in like official meetings, you know, that have to do with the state business because, one, I’m not a registered lobbyist and, two, it’s a conflict,” (Id. 6:20-6:23). Having said all that, Adam Skelos stated—falsely—that “everything what we’re doing now, we can legitimately say is, is above board.” (Id. 7:18-7:19).


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v. Gonzalez, 399 F. App’x 641, 645 (2d Cir. 2010) (“[T]he rule of completeness is not a

mechanism to bypass hearsay rules for any self-serving testimony.”).

C. Discussion

During the call at issue (AS#2534), Adam Skelos made numerous inculpatory statements.

Among other things, he discussed his concern about a potential New York Times investigation of

his activities, including a meeting Adam Skelos had with Senator-B on behalf of the Company.

At the end of the relevant excerpt, however, Adam Skelos offered a post-hoc opinion about the

legality of his past conduct. In particular, Adam Skelos stated that “we’ve done nothing wrong”

and that, as a result, he was taking certain steps to conceal his involvement with the

Environmental Technology Company simply out of “caution.” These statements are

inadmissible.

The defendants’ sole argument for admissibility is the “rule of completeness.” This

doctrine, however, does not support the inclusion of the statement the defendants seek to offer.

Adam Skelos’s post-hoc opinion about his prior conduct is not necessary to explain the admitted

portion or to put the foregoing discussion into context. A simple review of the transcript shows

that the conversation is no less intelligible without the portions the defendants seek to introduce.

Indeed, the only thing missing from the discussion is Adam Skelos’s self-serving explanation for

why his long-running conduct on behalf of the Company did not constitute evidence of a crime.

Indeed, when Adam Skelos stated “we’ve done nothing wrong, everything has been RFP’d and

done by the book,” he was attempting exculpate himself with respect to his conduct dating back

to the Nassau County RFP issued to the Company, which had taken place almost two years

earlier. Courts in this Circuit have routinely rejected similar attempts to shoehorn after-the-fact

justifications for the defendant’s actions into his descriptions of his actions. See United States v.


24

Cardascia, 951 F.2d 474, 488 (2d Cir. 1991) (statement about conduct that occurred eight

months earlier not admissible); United States v. Lesniewski, 11 Cr. 1091 (VM), 2013 WL

3776235, at *5 (S.D.N.Y. July 12, 2013), aff’d sub nom. United States v. Rutigliano, 2015 WL

3823849, at *2 (2d Cir. June 22, 2015) (“The exclusion of the disputed statements as post-hoc

explanations for [the defendant’s] conduct was therefore a permissible exercise of discretion.”);

United States v. Mahaffy, 05 Cr. 613, 2007 WL 1094153, at *4-*5 (E.D.N.Y. Apr. 10, 2007)

(excluding self-serving, exculpatory statements that defendant did not think information obtained

was improper).

The defendants attempt to portray Adam Skelos’s statements as sincere

expressions of innocence by someone “without any knowledge that his communication

was being secretly recorded,” which, if omitted, would lead to the “misperception” that

Adam Skelos had “something to hide.” (Def. Mot. II at 11). This suggestion should be

swiftly rejected. On January 23, 2015, shortly after the arrest of the Assembly Speaker,

Adam Skelos expressed concern to a co-worker that someone was recording him at a

meeting because of “everything that is going on” and so he was being “overcautious.”

(AS#1970) (Adam Skelos: “My only concern in that meeting was . . . am I being

recorded?”); id. (Adam Skelos stating that he was avoiding having “political

conversations,” including how to “round up votes in the Assembly and Senate,” because

“I just didn’t feel comfortable, you know, doing it there, in light of everything that’s been

going on”). On February 10, 2015—the day before the call at issue—Adam Skelos told

Dean Skelos that he was going to call him using FaceTime, a means of communication

that Adam Skelos believed to be less amenable to surveillance. (See Compl. ¶ 51(c)). On

February 13, 2015—two days after the call at issue—Adam Skelos met with CW-2 and


25

informed him that he was in the process of obtaining a new cellular phone, which he later

obtained and described as a “burner” or “safe” phone, over which he could communicate

more freely. On February 26, 2015, Adam Skelos began using this self-described

“burner” or “safe” phone. (Id. ¶ 51(d)). Approximately one month later, Adam Skelos

expressed his frustration that “you can’t talk normally because it’s like fucking Preet

Bharara is listening to every fucking phone call.” (Id. ¶ 51(g)). Adam Skelos’s

contemporaneous awareness of law enforcement surveillance suggests that the

exculpatory statements were not, in fact, sincere expressions that shed light on the

meaning of his earlier statements, but rather were attempts to create a record to justify

what he realized were incriminatory statements and conduct.

Omission of Adam Skelos’s false exculpatory statements from the recording would not

distort its meaning or risk misleading the jury. To the contrary, it is allowing Adam Skelos to

introduce his out-of-court statements about the supposed legality of his conduct that would risk

misleading the jury by allowing the rule of completeness to become “a mechanism to bypass

hearsay rules for any self-serving testimony.” United States v. Gonzalez, 399 F. App’x at 645.

Adam Skelos should not be able to put such false exculpatory statements before the jury without

being subject to cross-examination. United States v. Harper, 2014 WL 140125, at *5.


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CONCLUSION

For the reasons set forth above, the Government respectfully requests that the Court deny

the defendants’ motions in their entirety.

Dated: November 2, 2015 New York, New York

Respectfully submitted,

PREET BHARARA United States Attorney

By: /s/

Jason A. Masimore/Rahul Mukhi/ Tatiana R. Martins/Thomas A. McKay Assistant United States Attorneys


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