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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
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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
April 22, 2014 3:44 p.m. Walsh calle
April 28, 2014 1:42 p.m. Spota calle
April 28, 2014 1:56 p.m. Walsh calle
April 28, 2014 2:32 p.m. Spota 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
June 4, 2014 4:14 p.m. Spota calle
June 4, 2014 4:30 p.m. Spota calle
June 5, 2014 6:01 p.m. Spota calle
June 11, 2014 2:32 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
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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.
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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
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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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