USA v. Edward M. Walsh, Jr.

8/19/2019 USA v. Edward M. Walsh, Jr.

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NMA:CMM/RAT

F. # 2014R01331

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

– – – – – – – – – – – – – – – – – – X

UNITED STATES OF AMERICA

- against -

EDWARD M. WALSH, JR.,

Defendant.

– – – – – – – – – – – – – – – – – – X

Docket No. 15–CR-0

THE GOVERNMENT’S MOTION IN LIMINE REQUESTING

THE ADMISSION OF CERTAIN EVIDENCE AND

THE PRECLUSION OF CERTAIN EVIDENCE AT TRIAL

ROBERT L. CAPERS

UNITED STATES ATTORN

Eastern District of New York

271 Cadman Plaza East

Brooklyn, New York 11201

Case 2:15-cr-00091-ADS Document 60 Filed 03/08/16 Page 1 of 27 Pa


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PRELIMINARY STATEMENT

The government respectfully submits this motion in limine reques

admission of evidence in the above-captioned trial, scheduled to commence on M

2016. This evidence consists of: (1) background evidence about the investigatio

charged crimes by the Suffolk County Sheriff’s Office (“Sheriff’s Office”) that i

to prevent the jury from being confused or misled about the actions and motivati

reporting official and government witness, Sheriff Vincent DeMarco, and (2) tes

regarding other bad acts committed by and involving the defendant which are ad

pursuant to Rule 404(b) as evidence of the defendant's opportunity and intent, to

of mistake, and to refute the defendant’s defense to the charges.

The government also respectfully moves to preclude the defendan

mentioning in his opening statement, cross-examining government witnesses, or

evidence in his case-in-chief (should the defendant elect to present a defense), ot

allegedly committed by other, unindicted Correction Officers and/or employees

Sheriff’s Office.

THE CHARGES IN THE INDICTMENT

The defendant, a former Suffolk County Correction Officer, is cha

two-count Indictment with theft of funds, in violation of 18 U.S.C. § 666(a)(1)(A

fraud, in violation of 18 U.S.C. § 1343, for engaging in a fraudulent scheme whe



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Party”). In reliance on the defendant’s false representations, the Sheriff’s Office

wages for hours he did not work.

I. The Government’s Anticipated Evidence

A. Overview

At trial, the government anticipates calling witness Sheriff DeMar

about the defendant’s duties and responsibilities as an employee of the Sheriff’s

example, DeMarco is expected to testify that the defendant was DeMarco’s subo

that the defendant was expected to work a 7½ hour workday and a 37½ hour wor

DeMarco is also expected to testify that, with one or two exceptions, none of the

duties and responsibilities required him to be outside the correctional facilities in

or Yaphank, New York.

As discussed in more detail below, DeMarco is also expected to o

testimony concerning his (DeMarco’s) efforts to initiate a 2014 internal investig

defendant for theft of funds and fraud related to the conduct charged in the case,

(DeMarco’s) inability to find an audience for the case with the local state prosec

of the influence and power yielded by the defendant. For example, DeMarco wi

he contacted Suffolk County District Attorney Thomas Spota to assist in the inve

but that Spota declined to participate in the investigation or prosecution of the de

DeMarco will further testify that he, thereafter, sought assistance from Suffolk C



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Further, DeMarco is expected to testify that his efforts to investiga

defendant in 2014 – related to the charged conduct – was directly influenced and

his prior attempts to investigate the defendant’s conduct, certain of which are set

B. 2007, 2009 and 2010 Anonymous Complaints Made Against the D

DeMarco is expected to testify that on or about November 16, 200

30, 2009, and March 24, 2010, he received anonymous complaints alleging that

defendant was engaged in political activity during work hours while employed b

Sheriff’s Office; Spota was an identified recipient on two of those complaints. E

complaints alleged that the defendant engaged in political activity while at work

defendant gave “special favors” to Conservative Party members, including prom

Sheriff’s Office. One complainant noted that she was “speaking on behalf of ma

that are too frightened to speak up themselves” and that “[she herself is] also frig

ha[s] agreed to do this.” See Anonymous Complaints attached hereto as Exhibit

respectively.

In response to both the 2007 and the 2009 complaints, contempora

the event, DeMarco will testify that he instructed Undersheriff John Meyerricks

defendant of the existence of the complaint, and to instruct the defendant to ceas

political activity while at work.

With respect to the 2010 complaint, DeMarco will testify that,



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have more influence over the defendant because Spota was the Suffolk County D

Attorney. Spota agreed to speak with the defendant.

C. 2012 Correspondence Regarding Walsh’s Prior Arrest in Marylan

DeMarco is also expected to testify that in or about the winter/spri

news agencies reported that the defendant had provided false and inaccurate info

his application for employment with the Sheriff’s Office. Specifically, the defen

arrested in December 1984 by the University of Maryland Police Department in

and charged with a sexual offense in the fourth degree; the defendant pleaded gu

sentenced to 12 months’ probation. In addition, in March 1989, the defendant w

by the Nassau County Police Department and charged with criminal mischief in

degree; the defendant pleaded guilty to disorderly conduct. The news reports all

despite these arrests, the defendant did not disclose either arrest in his applicatio

employment with the Nassau County Police Department, and did not disclose hi

Maryland in his application for employment with Suffolk County.

As a result of these reports, DeMarco was contacted by a number

individuals, including a Suffolk County Legislator, who called for an investigati

Sheriff’s Office’s hiring of the defendant, which had occurred 20 years before. D

was concerned and tried to investigate the allegation by reviewing the defendant

application for employment, but he was unable to take personnel action. Thus, D



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As set forth below, the government does not seek to introduce the

about the defendant’s 1984 arrest in Maryland or his 1989 arrest in Nassau Coun

the government seeks to introduce evidence of the news reports that the defendan

provided false and inaccurate information on his application for employment wit

Sheriff’s Office and the requests for action to be taken by DeMarco, as well as D

response to such requests.

D. Defendant’s June 2012 Detention by the Suffolk County Police D

DeMarco will also testify that on or about June 16, 2012, the defen

detained during a court-authorized Suffolk County Police Department (“SCPD”)

illegal gambling establishment. A report documenting this incident was prepare

member of the SCPD and the defendant was photographed inside of the gamblin

establishment. A copy of the paperwork and photographs have been provided to

On the morning of June 17, 2012, DeMarco was notified of the inc

Spota. According to DeMarco, Spota told DeMarco, in sum and substance, not t

anything and that the DA’s Office would take care of it and get back to DeMarco

SCPD Internal Affairs Bureau (“SCPD IAB”) also contacted the Sheriff’s Office

Affairs Unit to inform the Sheriff’s Office that a Sheriff’s Office employee had b

detained in the illegal gambling raid.

After the initial notifications, DeMarco repeatedly asked members



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raid. DeMarco will further testify that telephone calls to the DA’s Office regard

defendant’s June 2012 detention were not returned.

DeMarco will testify that after some time passed, Spota informed

that the defendant’s conduct was not criminal and that it was not illegal to be a p

illegal gambling establishment. According to DeMarco, the DA’s Office failed t

Sheriff’s Office in their internal investigation of the defendant, who was a correc

found present at an illegal gambling establishment, blatantly associating with fel

E. The Underlying Investigation of the Charged Conduct

DeMarco is also expected to testify that in February 2014, while h

town, he received a call informing him that Gary Melius, a prominent Long Islan

businessman and the owner of Oheka Castle, had been shot. DeMarco was also

Meyerricks, that the defendant said that he (Walsh) had been with Melius the pre

for a company shareholder meeting. When DeMarco asked Meyerricks why the

would be present at such a meeting, Meyerricks responded that he did not know.

Three days later, on February 27, 2014, Newsday published an art

regarding, among other things, the shareholder meeting for Interceptor Ignition I

The Newsday article quoted the defendant and reported the following:

Ed Walsh, Suffolk Conservative Party leader, said he attended

the shareholders meeting at the company’s headquarters in

Shirley. He said he is not a shareholder but attended to provide

‘moral support’ to his friend Melius ‘I expected some drama



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See Newsday, “Gary Melius Clashed with Businessman, Won Control of Firm,”

February 27, 2014, attached as Exhibit 4.

Shortly thereafter, a Newsday staff writer contacted DeMarco, and

copy of the defendant’s time and accrual sheet for the day of Interceptor Ignition

shareholder meeting. At DeMarco’s direction, Meyerricks informed the defenda

Newsday had requested his time and accrual sheet for that particular day and ask

defendant to confirm whether or not the time sheet was accurate. The defendant

to Meyerricks that his time and accrual sheet was accurate. In response to the re

Sheriff’s Office then provided Newsday with a copy of the defendant’s time and

sheet.

On March 6, 2014, a Newsday staff writer sent DeMarco a Freedo

Information Law (“FOIL”) request for the defendant’s work schedule and time a

sheet(s) for all of 2014.

In March 2014, the Sheriff’s Office initiated surveillance of, amon

defendant and another Correction Officer, Steven Compitello. Both were being

for theft of funds for claiming on time sheets hours that they did not work.

On April 9, 2014, DeMarco learned that Conservative Party paper

correspondence were found in the trunk of the defendant’s Sheriff’s Office’s veh

routine inspection of the defendant’s vehicle while the vehicle was being service



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As noted above, DeMarco is expected to testify that, among other

defendant and Correction Officer Steven Compitello were being investigated by

Office for theft of funds for claiming on time sheets hours that they did not work

24, 2014, the DA’s Office arrested Compitello for grand larceny.

On May 1, 2014, Newsday published an article about the Sheriff’s

investigation into the defendant’s time and accrual records. See Newsday, “Suff

Probes Alleged . . . Time Bandits: Scrutiny of Conservative Party Chief – A Cor

Lieutenant; Investigating if jail employees got paid while not working,” dated M

attached hereto as Exhibit 5.

That same day, May 1, 2014, Spota called DeMarco and left a voi

stating that he (Spota) saw the Newsday article and wanted to talk to DeMarco a

defendant and Compitello. Later that evening, DeMarco spoke with Spota, and t

to meet on May 7, 2014.

Sometime between May 1, 2014 and May 6, 2014, a Newsday sta

directed DeMarco to a golf website that contained publicly available information

defendant’s golfing activities, including dates that the defendant allegedly played

various locations on Long Island. The Newsday staff writer questioned DeMarc

whether he (DeMarco) knew if the defendant was golfing on those dates, and wh

he (Walsh) should have been at work.



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records; (2) the printout of the defendant’s golf activities from the website; (3) n

to the Sheriff’s Office’s surveillance of the defendant; and (4) a Conservative Pa

retrieved from the trunk of the defendant’s Sheriff’s Office vehicle. At this mee

stated that if he (Spota) knew about the defendant’s time sheet problems he wou

gone so hard on Compitello, implying that the DA’s Office would not have charg

Compitello if they knew the defendant engaged in the same conduct. According

DeMarco, Spota minimized all of DeMarco’s concerns regarding the defendant,

sum and substance: that the surveillance evidence was not sufficient; that the Co

Party material in a Sheriff’s Office’s vehicle was not a big deal; and that the prin

defendant’s golfing activities did not contain a specific time linked to the defend

activities. DeMarco requested a subpoena for the defendant’s golf records. In re

Spota stated “I am not subpoenaing anything.” DeMarco left the DA’s Office w

requested subpoenas for the defendant’s golf records, or any expectation that Spo

investigate the allegations.

DeMarco will further testify that on or about May 14, 2014, he me

Suffolk County Attorney Dennis Brown to request subpoenas for the defendant’

and golf records as part of an administrative investigation. Brown indicated that

unsure if he could issue such subpoenas and stated that he wanted to speak with

Shortly thereafter, Brown denied DeMarco’s request for subpoenas



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DATE TIME CALL

April 22, 2014 1:04 p.m. Spota calle

April 22, 2014 3:30 p.m. Spota calleApril 22, 2014 3:35 p.m. Spota calle

April 22, 2014 3:43 p.m. Walsh calle





May 14, 2014 8:14 p.m. Spota calleMay 28, 2014 1:32 p.m. Spota calle

June 4, 2014 4:12 p.m. Spota calle





Notably, May 14, 2014 is the same day that DeMarco met with Su

County Attorney Brown; this call was approximately 10 minutes long.

On July 23, 2014, DeMarco brought the results of his investigatio

USAO EDNY.

F. The Testimony of Sheriff Office’s Internal Affairs Unit Superviso

In addition to DeMarco, Correction Officer III Lieutenant Brian B

expected to testify. Baisley, the supervisor for the Sheriff’s Office’s Internal Af

expected to testify that, while giving the defendant certain administrative warnin

the charged conduct, the defendant stated, in sum and substance, “if you think th

agency across the river is going to do anything about this, you’re wrong” and “th



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II. The Anticipated Defense Arguments

The government anticipates that, based upon recent subpoenas ser

defendant and previous arguments made by the defense, the defendant will attem

the jury’s attention and put DeMarco on trial. Indeed, in opposing the governme

to quash the defendant’s subpoena for DeMarco’s personnel file, the defendant a

“DeMarco’s records and credibility – or lack of credibility – will be the critical q

the trial jury.” See United States v. Walsh, 15-CR-91 (ADS) (“Walsh”), Docket

(“DE”) 27 at 9 (emphasis in original). In seeking DeMarco’s personnel file, the

further argued that “the requested documents ‘may suggest bias or a motive on th

[DeMarco].’” Id. at 11.

Further, the government anticipates that the defendant will argue,

things, that the underlying investigation and prosecution of the defendant was in

for the defendant’s alleged refusal to endorse DeMarco as a candidate for the U.

The defendant has repeatedly made this argument in the media. For example, in

2015 Newsday article, defense counsel is quoted as follows:

‘I’m surprised that the government would wade into ordinary

Conservative Party politics that has resulted from a political

disagreement between the sheriff and my client,’ Wexler said.Wexler declined to say what the disagreement was between

Walsh and Suffolk County Sheriff Vincent DeMarco.

See Newsday, “Walsh to Face Charge: Taking Pay, Not Working,” dated Januar


C 2 15 00091 ADS D 60 Fil d 03/08/16 P 13 f 27 P


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Wexler has said his client’s legal problems began when he

clashed with Suffolk County Sheriff Vincent DeMarco, a fellow

Conservative Party member. DeMarco is Walsh’s boss in thesheriff’s department, while Walsh is above DeMarco in the

Conservative Party. Demarco went to federal authorities with

allegations against Walsh only after the Conservative Party

leader declined to back the sheriff in a run for Congress, Wexler

has said.

See Newsday, “Edward Walsh, Facing Trial, Retires as Sheriff’s Lieutenant,” da

19, 2016, attached hereto as Exhibit 7.


C 2 15 00091 ADS D t 60 Fil d 03/08/16 P 14 f 27 P


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ARGUMENT

POINT I

Evidence of Other Crimes or Acts Committed by The Defendant

Is Admissible as Direct Evidence of the Charged Crimes

And/or Pursuant to Rule 404(b)

I. Applicable Law

A. Admissibility of Other Acts as Direct Evidence

The Second Circuit has held that evidence of certain uncharged ac

uncharged criminal activity, “is not considered other crimes evidence under Fed

404(b) if it arose out of the same transaction or series of transactions as the charg

if it is inextricably intertwined with evidence regarding the charged offense, or i

necessary to complete the story of the crime on trial.” United States v. Carboni,

44 (2d Cir. 2000) (quoting United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir

United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994). See also Weinstein’s Fe

Evidence, 404.20(b) (evidence of other wrongs is admissible without regard to R

where those wrongs “were necessary preliminaries to the crimes charged”); Id. a

404.20(2)(b) (evidence of other acts “is admitted if it contributes to an understan

event in question, even if it reveals crimes other than those charged, because exc

those circumstances would render the testimony incomplete and confusing”).

Relevant evidence is “not confined to that which directly establish


Case 2:15 cr 00091 ADS Document 60 Filed 03/08/16 Page 15 of 27 Pa


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admitted to provide the jury with the complete story of the crimes charged by de

the context of certain events relevant to the charged offense.”). Evidence that “p

background” for the alleged events may be admitted to show “the circumstances

the events or to furnish an explanation of the understanding or intent with which

were performed.” United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991)

B. Admissibility of “Other Acts” Evidence Pursuant to Rule 404(b)

Federal Rule of Evidence 404(b) provides that evidence of “other

wrongs, or acts” may be admissible as evidence of the defendant’s “motive, oppo

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

standards governing the admissibility of evidence under Rule 404(b) are well est

First, the district court must determine if the evidence is offered

for a proper purpose, one other than to prove the defendant’s

bad character or criminal propensity. If the evidence is offered

for a proper purpose, the district court must next determine if

the evidence is relevant to an issue in the case, and, if relevant,

whether its probative value is substantially outweighed by the

danger of unfair prejudice [pursuant to Rule 403]. Finally, upon

request, the district court must give an appropriate limiting

instruction to the jury.

United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (citation omitted); see

Huddleston v. United States, 485 U.S. 681, 685 (1988) (holding that other acts e

not need to be proven by a preponderance standard).

The Second Circuit “has long adopted an ‘inclusionary’ approach




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120, 127 (2d Cir. 1998). While the government must explain in detail the purpo

the evidence is sought to be admitted, the Second Circuit has emphasized that Ru

a rule of broad reach and liberal application. See United States v. Garcia, 291 F

(2d Cir. 2002) (citing Pitre, 960 F.2d at 1118). The Court has broad latitude in d

whether to admit evidence pursuant to Rule 404(b), and its ruling will be review

abuse of discretion. See United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994).

Applying this approach, the Second Circuit has routinely approved

admission of “other crimes” evidence which serves to: (1) provide context and b

helpful to the jury’s understanding of the complete story of the charged crimes, s

States v. Skowronski, 968 F.2d 242, 246 (2d Cir. 1992), United States v. Lasanta

1300, 1307 (2d Cir. 1992) (testimony from government witness concerning his i

in drug transactions several years prior to commencement of charged conspiracy

a defendant’s intent to commit or motivation for a proscribed act, see United Sta

467 F.3d 179, 197 (2d Cir. 2006) (evidence that the defendant possessed child po

admissible as proof that he intended to engage in illicit sexual conduct with a mi

States v. Laflam, 369 F.3d 153, 156-67 (2d Cir. 2004) (evidence that the defenda

drug user admissible as proof of motive to commit the charged robbery); (3) a de

capacity to commit the charged crime, see United States v. Zender, 401 F.3d 36,

Cir. 2005) (evidence of prior fraud admissible as proof of the defendant’s “finan




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conspirators, see United States v. Riccardi, No. 14-CR-2986, 2015 WL 3916101

Cir. June 26, 2015) (quoting United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999

F.2d at 1119 (internal citations omitted); United States v. Mercado, 573 F.3d 138

Cir. 2009). See also United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000

admission of prior act evidence involving charged co-conspirators “to inform the

background of the conspiracy charged, to complete the story of the crimes charg

help explain to the jury how the illegal relationship between the participants in th

developed”) (citations omitted); United States v. Pipola, 83 F.3d 556, 566 (2d Ci

(citing Lasanta, 978 F. 2d 1300, 1307-08 (2d Cir. 1992)); United States v. Pascar

61, 73 (2d Cir. 1996) (other act evidence admissible “to show the background of

conspiracy or the development of a relationship of trust between the participants

States v. Rosa, 11 F.3d 315, 333-34 (2d Cir. 1993) (holding that co-defendants’ r

over a 14-year period, during which stolen property and narcotics crimes were co

“was properly admitted to explain how the illegal relationship between the two [

developed”).

C. Rule 403 Balancing Test

Admissible evidence may only be excluded if its probati

“substantially outweighed” by the danger of unfair prejudice. See Fed. R

(emphasis added). This is true regardless of whether the Court considers the




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403). The fact that evidence is highly probative of guilt does not mean

prejudicial. Rather, the touchstone for unfair prejudice is the extent to which

creates a risk of conviction because of propensity. See Old Chief v. United Sta

172, 180 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, s

capacity of some concededly relevant evidence to lure the fact finder into declar

ground different from the proof specific to the offense charged.”). Put anothe

prejudice “‘means an undue tendency to suggest decision on an improper basis

though not necessarily, an emotional one.’” United States v. Nachamie, 101 F. S

141 (S.D.N.Y. 2000) (quoting Rule 403, Advisory Committee Notes, 1972 Prop

In making this assessment, a court should take into consideration the “offering

for evidentiary richness and narrative integrity in presenting a case.” Old Chie

183.

Several courts have found that “other act” evidence is not unfairly

where it is not “any more sensational or disturbing than the crimes” with which t

has been charged. United States v. Roldan-Zapata , 916 F.2d 795, 804 (2d Cir. 1

also Curley, 639 F.3d at 59 (finding that the district court did not err in finding th

probative value of prior acts of domestic violence with similar characteristics to

conduct outweighed the potential prejudicial effect when the prior acts were no m

sensational than the charged conduct); see United States v. Abu-Jihaad , 630 F.3d




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shocking than the transactions charged” and where the district court instructed th

what inferences could properly be drawn from such evidence).

II. Discussion

A. Evidence of Other Crimes or Acts Committed by the Defendant is

to Provide Context and Background

The government moves in limine for the admission of evidence pe

the acts and events set forth above. At trial, the government intends to elicit test

DeMarco regarding the Sheriff’s Office’s underlying investigation of the charge

well as the Sheriff’s Office’s attempt to investigate prior bad acts by the defenda

government seeks to introduce the testimony to provide the jury with backgroun

the efforts DeMarco undertook to investigate the charged crimes, which were thw

every turn by Spota and others. This testimony is direct evidence of the charged

because it will explain to the jury how the relationship between the defendant an

provided the defendant with the continued opportunity and incentive to commit

conduct, as the defendant knew he would not be prosecuted for, in sum, stealing

from the Sheriff’s Office. Indeed, given the evidence of the timing of the news r

defendant’s misconduct (which predate the end of the charged crime), the govern

need to explain why and how the defendant continued to overstate his work hour

the consequences. Testimony about his relationship with Spota and DeMarco’s

find an audience for the defendant’s misconduct and take action about it will be

g



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reporting the misconduct to federal authorities. Given the arguments that the de

previewed before the media and the Court about DeMarco, the government subm

evidence is “necessary to complete the story of the crime on trial.” See Carboni

44. Each of DeMarco’s previous attempts to investigate the defendant – which l

occurred during the period of the charged conduct – undercut the defendant’s exp

argument that DeMarco brought this case to the federal government for other rea

place DeMarco’s narrative in context.

With respect to the anonymous complaints, DeMarco was advised

defendant was engaged in political activity while at work. In response to each c

directed that the defendant be counseled against such activity. In 2010, in respon

these complaints, DeMarco even asked Spota to speak with the defendant, in the

Spota, as the District Attorney, would have influence over the defendant. DeMa

testimony about the warnings given to the defendant is direct evidence of the def

knowledge that his conduct was wrong and his intent to commit the charged crim

continued to engage in the conduct even after being warned that what he was do

wrong.

Despite DeMarco’s efforts and the warnings, the defendant contin

conducting Conservative Party work while billing and working for the Sheriff’s

example, DeMarco learned that Conservative Party paperwork and corresponden



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participating in Conservative Party activity while on Suffolk County governmen

which is, in and of itself, a violation of the law – and Spota’s dismissal of DeMa

concerns is essential to completing the narrative of this case. It illustrates the de

position of authority and power in Suffolk County, despite his status as a subord

employee of DeMarco’s, and explains his intent and ability to continue to violate

With respect to the 2012 news reports about the defendant’s false

on his application for employment with the Sheriff’s Office, DeMarco, likewise,

investigate the reports. Indeed, DeMarco was concerned and looked into the issu

unable to take personnel action and suggested to those concerned that, if crimina

be referred to the DA’s Office. Again, DeMarco’s actions related to reports of th

defendant’s conduct – reports that occurred during the charged time period – dem

that DeMarco took seriously allegations of misconduct and sought to address the

though he was once again met with limitations. Thus, this evidence is necessary

the narrative, explain both why DeMarco took the actions that he did, and refute

defendant’s defense to the charges.

With respect to the defendant’s June 2012 detention by the SCPD

raid of an illegal gambling establishment, DeMarco will testify that he was notif

defendant’s detention by Spota himself, and that Spota instructed DeMarco, in su

substance, not to do anything and that the DA’s Office would take care of it. Ag



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investigation of a Correction Officer present at an illegal gambling establishmen

blatant association with felons.

Further, when trying to investigate the charged conduct, DeMarco

only met with resistance from Spota, he was told by Spota that Spota would not

subpoenas related to the defendant’s conduct and, if he (Spota) had known the Sh

Office was also investigating the defendant, the DA’s Office would not have “go

on Compitello, a fellow Correction Officer who also submitted false and fraudul

sheets. Indeed, according to DeMarco, Spota minimized all of DeMarco’s conce

regarding the defendant, stating, in sum and substance: that the surveillance evid

sufficient; that the Conservative Party material in an official vehicle was not a bi

that the printout of the defendant’s golfing activities did not contain a specific tim

the defendant’s alleged activities. DeMarco requested a subpoena for the defend

records. In response, Spota stated “I am not subpoenaing anything.” DeMarco l

Office without the requested subpoenas for the defendant’s golf records.

Thus, DeMarco’s testimony about his interactions with Spota and

attempt to investigate the defendant’s presence at the raid is again important dire

of the defendant’s intent and ability to commit the charged crimes. Indeed, if the

persists in his claim that this is a “time sheet” case that should not be the subject

criminal prosecution, it will be critical for the jury to hear this background.



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have the defendant criminally investigated for this very conduct during the time

the Indictment will be critical to rebutting such baseless arguments.

Moreover, the defendant’s comments to Baisley – implying that th

Office and Spota will not investigate or prosecute the defendant – is extremely p

the defendant’s intent to commit the charged crimes. The defendant’s comment

demonstrate that he knew what he was doing was wrong but that he did it anywa

believed he would not be prosecuted for his conduct. Such testimony is direct ev

the charged crimes.

B. Evidence of Other Crimes or Acts Committed by the Defendant is

Pursuant to Fed. R. Evid. Rule 404(b)

The proffered evidence regarding the other bad acts committed by

involving the defendant is also admissible pursuant to Rule 404(b) as evidence o

defendant’s opportunity and intent, to prove lack of mistake, and to refuse the de

defense to the charges. As discussed above, evidence of Spota’s failure to assist

arguably, thwart – the Sheriff’s Office’s investigations into the defendant’s cond

to establishing the defendant’s opportunity to commit the charged crimes, as wel

defendant’s, seemingly justified belief, that the DA’s Office would not prosecute

criminal conduct. Indeed, the DA’s Office failure to prosecute the defendant for

criminal conduct during the charged period – in particular, his June 2012 detenti

illegal gambling establishment and the DA’s Office’s resistance in assisting the



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illustrates the defendant’s opportunity to commit the charged crimes and that his

not a mistake but, rather, were the calculations of a political party boss who belie

above the law due to his powerful connections and the protections he believed th

him.

C. Evidence of Other Bad Acts is Not Unduly Prejudicial

Finally, the probative value of the other acts evidence is not substa

outweighed by its prejudicial effect. Evidence of other crimes is admissible whe

a proper purpose through the various types of evidence, as long as the evidence “

involve conduct any more sensational or disturbing than the crime [] with which

defendant has been] charged.’” Pitre, 960 F.2d at 1120 (quoting Roldan-Zapata,

804).

As discussed above, the evidence relating to the defendant’s other

will come primarily from the testimony of DeMarco. Accordingly, the quality o

evidence is no more prejudicial than that offered with regard to the other charged

DeMarco can be cross-examined just as he would be with respect to his testimon

his investigation of the charged crimes.

The proposed evidence is also not unfairly prejudicial to the defen

the evidence of the anonymous complaints regarding the defendant’s use of his p

position at work, the false statements on his Sheriff’s Office application, and his



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gambling and performing Conservative Party work while he claimed to be worki

Sheriff’s Office. See e.g., United States v. Sanpedro, 352 Fed. App’x 482, 485 (

2009) (summary order) (noting that “prejudice is informed by the crimes with w

defendant has been charged”); Livoti, 196 F.3d at 326; see also United States v.

F. Supp. 2d 428, 441 (S.D.N.Y. 2010) (holding that evidence of other robberies

Act robbery case was admissible and not prejudicial).

The Second Circuit has stated repeatedly that Rule 403 favors the

evidence where the uncharged crimes “did not involve conduct more serious than

charged crime[s].” Williams, 205 F.3d at 33-34. At most, the prior conduct sou

admitted here is similar to the charged conduct.

There is, therefore, no danger that the admission of the proffered e

would inflame the jury, and accordingly, the government should be permitted to

evidence. See Advisory Committee’s Notes on Rule 403 (“‘Unfair prejudice’ w

403’s] context means an undue tendency to suggest decision on an improper bas

commonly, though not necessarily, an emotional one.”). Finally, any possible p

be eliminated through a proper limiting instruction. See e.g., United States v. M

F.2d 1323, 1328-29 (2d Cir. 1991); United States v. Ortiz, 857 F.2d 900, 903 (2d

United States v. Levy, 731 F.2d 997, 1002 (2d Cir. 1984).



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POINT II

The Defendant Should Be Precluded From Introducing EvidenceOf Prior Bad Acts by Unindicted Sheriff’s Office Employees

The government also moves to preclude the defendant from menti

opening statement, cross-examining the government’s witnesses, or introducing

his case-in-chief (should the defendant elect to present a defense), that seeks to p

bad acts allegedly committed by other, unindicted Correction Officers and/or em

the Sheriff’s Office. The government anticipates that the defendant will seek to

examine DeMarco regarding the alleged conduct of other, unindicted Sheriff’s O

employees and/or introduce the testimony of a number of witnesses who will tes

regarding others’ bad acts and/or DeMarco’s knowledge of others’ bad acts. The

cross examination on this issue and/or introduction of these witnesses to attack D

credibility should not be permitted, as such testify would relate to collateral issu

Government’s Motion to Quash, dated March 6, 2016, which is attached hereto a



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CONCLUSION

For the reasons stated above, the government respectfully submits

evidence of the defendant’s prior bad acts is admissible, either as direct evidence

to Rule 404(b).

Dated: Central Islip, New York

March 8, 2016

Respectfully submitted,

ROBERT L. CAPERS

United States Attorney

Eastern District of New York

By: /s/ Catherine M. Mirabile

Catherine M. Mirabile

Raymond A. Tierney

Assistant United States Attorn

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Date post:	07-Aug-2018
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USA v. Edward M. Walsh, Jr.

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