Heaney Buffalo Billion Trial

I6R3KAL1 1653
1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNITED STATES OF AMERICA,
4 v. 16 Cr. 776 (VEC)
5 ALAIN KALOYEROS, New York, N.Y.

STEVEN AIELLO,
6 JOSEPH GERARDI,
LOUIS CIMINELLI,
7
Defendants.
8
------------------------------x Trial
9
June 27, 2018
10 9:20 a.m.
11
Before:
12
HON. VALERIE E. CAPRONI
13
District Judge
14
15
APPEARANCES
16
GEOFFREY S. BERMAN
17 United States Attorney for the
Southern District of New York
18 BY: DAVID ZHOU
ROBERT L. BOONE
19 MATTHEW D. PODOLSKY
Assistant United States Attorneys
20
21 STEPTOE & JOHNSON, LLP

Attorneys for Defendant Kaloyeros
22 BY: MICHAEL C. MILLER
REID H. WEINGARTEN
23 MICHAEL G. SCAVELLI
DAVID B. HIRSCH
24 KATHERINE M. DUBYAK
25
SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300
I6R3KAL1 1654
1 APPEARANCES (continued)
2
O'CONNELL & ARONOWITZ, P.C.
3 Attorneys for Defendant Aiello
BY: STEPHEN R. COFFEY
4 SCOTT W. ISEMAN
PAMELA A. NICHOLS
5
6 WALDEN MACHT & HARAN, LLP

Attorneys for Defendant Gerardi
7 BY: MILTON L. WILLIAMS, JR.
AVNI P. PATEL
8 JACOB S. GARDENER
9
BRACEWELL, LLP
10 Attorneys for Defendant Ciminelli
BY: PAUL L. SHECHTMAN
11
- and -
12
DLA PIPER
BY: JESSICA A. MASELLA
14
- and -
15
HODGSON RUSS, LLC
BY: TIMOTHY W. HOOVER
17
18
19 ALSO PRESENT:
20 DELEASSA PENLAND, Agent USAO
21 JONATHAN CONCEPCION, Paralegal, USAO
22 SYLVIA LEE, Paralegal, USAO
23 MARIA JOSE ALANIS, Paralegal, Bracewell
24
25

(212) 805-0300
I6R3KAL1 1655
1 (Trial resumed; jury not present)
2 (Case called)
3 MR. ZHOU: Good morning, your Honor. David Zhou for
4 the government. Here with me at counsel table are Matt
5 Podolsky, Robert Boone, Special Agent Penland, Sylvia Lee and
6 Jonathan Concepcion.
7 THE COURT: Good morning.
8 MR. MILLER: Good morning, your Honor. Michael
9 Miller, with Reid Weingarten and Michael Scavelli, on behalf of
10 Dr. Kaloyeros, who is before the court today. Good morning.
12 MR. COFFEY: Good morning, Judge. Steve Coffey, with
13 Scott Eisemann, Pam Nichols, and Steve Aiello.
15 MR. SHECHTMAN: Your Honor, Paul Shechtman, Jessica
16 Masella, and Mr. Ciminelli.
17 MR. WILLIAMS: And, your Honor, Milton Williams, Avni
18 Patel and Jake Gardener for Mr. Gerardi.
19 THE COURT: Good morning. Let me just sign on and we
20 can start.
21 MR. SHECHTMAN: Judge, can I approach to ask Mr. Boone
22 a question?
23 THE COURT: It's okay with me if it's okay with him.
24 Okay. At my request the government sent me the the
25 two documents that there is some issue over. That would be

(212) 805-0300
I6R3KAL1 1656
1 Government Exhibit 206 and Government Exhibit 1044.
2 Let's start with, from the government's perspective,
3 do you intend to put both articles in, in their entirety?
4 MR. BOONE: Yes, your Honor. So, the reason for that,
5 starting with 206 is this article explains Kaloyeros' actions.
6 This article is --
7 THE COURT: Can you be closer to a microphone.
8 MR. BOONE: Yes.
9 THE COURT: So members of the press can hear you and
10 anyone else from the public who is present.
11 MR. BOONE: Yes. So starting with 206, this article
12 is an article by an investigative --
13 THE COURT: So I've read the article.
14 MR. BOONE: The reason we think it is important is
15 because it obviously provides context for Kaloyeros' reaction
16 to the article, and which is this guy loves us. There will be
17 testimony that Kaloyeros took sort of great issue with the
18 article and sort of the work of Jim Heaney in regards to his
19 looking into the propriety of the RFPs. And Doyle will talk
20 about that. And he'll talk about sort of other things we'll
21 use to argue show that consciousness of guilt more or less.
22 THE COURT: Give me a flavor. Because my concern
23 about this article is it's all well and good to charge the jury
24 that they can't consider any of this for the facts. But, there
25 are a lot of facts in here that are highly prejudicial because

(212) 805-0300
I6R3KAL1 1657
1 they are highly indicative of Kaloyeros and Fort Schuyler
2 trying to hide the ball.
3 There are also assertions in here that are at issue in
4 this case, if not directly, sort of tangentially, like what is
5 Fort Schuyler. It is a 501(c) but is it really private. Well,
6 apparently, according to the state agency that deals with FOIL,
7 not entirely. It is still subject to FOIL.
8 So you've got a lot of facts in here that I think
9 maybe not entirely reasonable to believe that a limiting
10 instruction will accomplish the desired result of not having
11 the jury view those as facts.
12 MR. BOONE: I understand.
13 THE COURT: So my question is, is there not -- I get
14 what you want to do, and that's appropriate. The question is,
15 is there a way to redact the article to get rid of some of the
16 more I guess assertions that might be more difficult for the
17 jury to kind of set aside or ignore once they've read them, and
18 still make the point that you're trying to make.
19 MR. BOONE: We'll have to see if there is a way. I am
20 just not sure if there is a way to sort of redact it that will
21 still sort of provide context to the events that follow.
22 THE COURT: Let me ask you this. The defense
23 yesterday said that you had some proposed redaction on this.
24 MR. MILLER: Your Honor, my understanding from --
25 THE COURT: You need to be in front of a mic, too.

(212) 805-0300
I6R3KAL1 1658
1 MR. MILLER: My understanding from early conversations
2 with the government is that they wanted these articles in
3 because there were aspects of the articles that reflected
4 things that Dr. Kaloyeros had asked David Doyle to include in
5 the articles. Government Exhibit 206 is not an example of
6 that. I don't know that there is a way to redact Government
7 Exhibit 206 that sanitizes this document of the full array of
8 prejudicial information that --
9 THE COURT: Probably not. But in the same way that I
10 think the jury can follow the instruction as to the puff pieces
11 that the defense has put in, I am comfortable that the jury can
12 generally follow the instruction that a newspaper article can't
13 be considered for the truth of the matter asserted.
14 My concern about this is not that general rule. It is
15 there are some specific assertions in here about how Fort
16 Schuyler dealt with the FOIL request and some other things that
17 I think, given the tenor of the case, it might be more
18 difficult for the jury.
19 He's making arguments here that the government
20 couldn't make because they don't have the evidence to make
21 them. But the arguments themselves might strike the jury as
22 persuasive.
23 MR. MILLER: I think this article goes one step beyond
24 that. It includes assertions that go to the very essence of
25 the issues that the jury has to decide here. For example, on

(212) 805-0300
I6R3KAL1 1659
1 page three, where the article asserts that --
2 THE COURT: Page three is -- did you just runoff the
3 e-mail?
4 MR. MILLER: Printed off Government Exhibit 206. It
5 includes the assertion that the job was not competitively bid.
6 It is a reference to the RFP, it is a reference to --
7 THE COURT: Where is that?
8 MR. MILLER: If you look at the bottom of the page
9 number three.
10 THE COURT: The job is not competitively bid.
11 MR. MILLER: The paragraphs above that speak about the
12 SolarCity plant here in Buffalo waterfront.
13 THE COURT: The job was not competitively bid. There
14 is no question that this was not a competitively bid contract.
15 They did not put the contract out for bid the way many
16 construction contracts are bid.
17 MR. MILLER: Well, there was a competitive RFP
18 process.
19 THE COURT: That's not what it says. It says the job
20 was not competitively bid. That is an accurate statement.
21 There is no evidence in this case that disagrees with that.
22 MR. MILLER: I think there is ample proof in this case
23 that contractors were selected through a competitive RFP
24 process.
25 THE COURT: That's what you say.

(212) 805-0300
I6R3KAL1 1660
1 MR. MILLER: Which entitled them to sit at the table
2 to negotiate for specific projects.
3 THE COURT: Mr. Miller, that's a jury argument. The
4 paragraph reads: That job was not competitively bid. Period.
5 Next sentence: Rather, Fort Schuyler issued a request for
6 proposals from developers in October 2013.
7 There is no dispute about those two sentences.
8 MR. MILLER: The point of that paragraph is it was not
9 competitively bid because of the 50-year requirement. That's
10 what that paragraph says.
11 THE COURT: Here's my view. If your position is this
12 article in totality cannot come in, that objection is
13 overruled. If the government's position is this article has to
14 come in in its totality, that position is overruled.
15 So y'all can either talk to each other and see if you
16 can't come up with redactions that gives both sides half a loaf
17 that you can live with, or, I'll make the redactions that I
18 think are appropriate.
19 MR. MILLER: I'm happy to discuss that further with
20 the government during the next break.
21 THE COURT: Good.
22 MR. MILLER: Your Honor --
23 MR. SHECHTMAN: Judge, when, if it turns out that --
24 THE COURT: That I'm the one that's doing the
25 redactions?

(212) 805-0300
I6R3KAL1 1661
1 MR. SHECHTMAN: That you're cutting the loaf.
2 THE COURT: That would be an unhappy event.
3 MR. SHECHTMAN: I agree. You've got sentences in here
4 like one of Cuomo's largest campaign contributors from Buffalo.
5 There is no evidence of that, and you've kept out that evidence
6 because there is no foundation for it. You've got sentences in
7 here that the company SolarCity lost $370 million last year,
8 and it's the subject of a federal investigation in considering
9 its receipt of stimulus funds.
10 THE COURT: That's the sort of thing the jury can
11 ignore. That's not relevant to this case one way or other.
12 My point, Mr. Shechtman, you don't have to keep
13 persuading me there are things in this article that would be
14 difficult for the jury. Again, the jury is presumed to listen
15 to my instructions. But there are just some stuff in here that
16 I think as a reasonable matter should be redacted out because
17 it introduces arguments and facts that I think they may have a
18 difficult time putting to one side.
19 So I encourage you to work with Mr. Miller and to work
20 with the government to figure out how to redact it so that
21 everybody gets what they want.
22 MR. SHECHTMAN: That's fine.
23 THE COURT: Okay.
24 MR. MILLER: There are three other exhibits that the
25 government has indicated they want to put in through Mr. Doyle

(212) 805-0300
I6R3KAL1 1662
1 that raise some similar and some different issues.
2 THE COURT: I only got one. I had one, 1044 was the
3 other one that I had.
4 MR. MILLER: 1044 is, as I understand it, is an
5 example of an article that the government asserts contains
6 language that is ultimately attributable to Dr. Kaloyeros.
7 Which is the paragraph that begins on page two, at least of our
8 printout, where it says SUNY Poly spokesman David Doyle, and it
9 continues there in that paragraph.
10 THE COURT: The third paragraph.
11 MR. MILLER: Yes. If we can redact the rest of the
12 article and leave that in there, I don't think we have an issue
13 with Government Exhibit 1044.
14 THE COURT: I have to say this is not one that I found
15 to be as problematic as the -- was this a newspaper article, is
16 the Investigative Post a newspaper article or a blog?
17 MR. BOONE: My understanding it's more of a blog than
18 like a print edition newspaper: 1044 is a Politico article.
19 THE COURT: 1044 is from, where is it from? Politico?
20 MR. BOONE: Yes.
21 THE COURT: This one didn't seem as problematic to me,
22 Mr. Miller. Are there things in particular that you're
23 troubled by?
24 MR. MILLER: Yes. There is a lot of discussion about
25 the U.S. attorney's office, its investigation, the subpoenas

(212) 805-0300
I6R3KAL1 1663
1 that have been issued, Joe Percoco, the relationship between
2 COR and Joe Percoco. There is a lot of the January trial in
3 here that has nothing to do with our case. And there are
4 descriptions of the investigation that the jury is completely
5 unaware of and shouldn't be aware of.
6 THE COURT: So same issue here. Work with each other,
7 see if you can't come up with reasonable redactions. But
8 redacting it down just to the quote is not reasonable.
9 MR. MILLER: Obviously there needs to be some context
10 for the quote, but I think much of the rest of the article is
11 not necessary for that.
12 If I could, Government Exhibit 144 and Government
13 Exhibit 1045 on its face appears to relate to --
14 THE COURT: Could you pull up 1045 for me, please.
15 MR. MILLER: The two exhibits are substantively the
16 same so I think looking at 1045 covers the terrain. This
17 appears to be a letter which the government attributes to
18 Dr. Alain Kaloyeros that was issued by David Doyle, but I
19 believe it relates to an article that was written about a piece
20 of the 404(b) that the government withdrew.
21 I believe that the underlying article here relates to
22 the first of the four issues that the government raised in its
23 404(b) application which relates to projects in Albany. That
24 was withdrawn. At least that's my understanding.
25 And secondly, the article speaks about campaign

(212) 805-0300
I6R3KAL1 1664
1 contributions which, until this moment in the trial, has not
2 been, there is nothing about campaign contributions before this
3 jury. So based on 404(b), and based on the relevance of the
4 overall article, I would submit that these two exhibits should
5 not get before the jury.
6 THE COURT: 1044?
7 MR. MILLER: 144, your Honor, is an e-mail by
8 Dr. Kaloyeros with the text that appears in 1045.
9 THE COURT: I'm sorry. So, all right.
10 MR. BOONE: Yes, so just to give you context of how
11 this will likely come in, if it is allowed to come in. Doyle
12 will say around this time period is when --
13 THE COURT: What is the time period?
14 MR. BOONE: This article, the e-mail is dated
15 September 2015.
16 THE COURT: Okay.
17 MR. BOONE: So, what Doyle will say is around this
18 time period is when he and the press office at SUNY Poly began
19 to get a lot of inquiries from the media, in part because of
20 the RFP issues we've been talking about in this case. So as
21 background, we issued subpoenas shortly before this article
22 came out. And so he will say that he and Dr. Kaloyeros
23 strategized how to respond, and this is one of the ways in
24 which they responded.
25 THE COURT: How does this, how does the timing of this

(212) 805-0300
I6R3KAL1 1665
1 sync up with the timing of his direction to the IT department
2 to double delete or to allow him to delete out his e-mails?
3 MR. BOONE: So that was, if you recall, that was --
4 the witness said, I think he said late 2014, early 2015.
5 THE COURT: Hmm-hmm.
6 MR. BOONE: There is actually a different article we
7 want to talk about later that we think relates directly to
8 that. But what Doyle will say about this particular sort of
9 response is in response to sort of numerous media inquiries
10 about what's happening with the RFPs, and the statement,
11 particularly the one in the just second paragraph, I'm looking
12 at 1045 where there is a claim that SUNY Poly is following
13 procurement procedures to the letter. Is in reference to Fort
14 Schuyler, and was a statement that originated from Kaloyeros.
15 He'll say this is what Kaloyeros told him.
16 MR. MILLER: If I might. It is my understanding that
17 the Churchill article that's at issue in this particular
18 publication had to do with the Albany contracts and Fuller Road
19 contracts, and not Fort Schuyler.
20 THE COURT: I don't see that as all that critical.
21 Although that seems like something you could argue to the jury.
22 MR. MILLER: Except to do that, we'd have to get into
23 the very fact pattern that was the subject of the 404(b)
24 notice.
25 THE COURT: No, you don't.

(212) 805-0300
I6R3KAL1 1666
1 MR. MILLER: That the government withdrew.
2 THE COURT: No, you don't. There has been testimony
3 before this jury that Fuller Road was just like Fort Schuyler
4 except it was doing projects in Albany as opposed to elsewhere.
5 So to the extent this relates to something Fuller Road is
6 doing, the statement that SUNY Poly and our related entities,
7 which would include Fort Schuyler, follow New York State
8 government's well established and legally defined procurement
9 procedures to the letter is relevant evidence for this jury to
10 consider. Assuming that, as the government has proffered, that
11 Doyle is going to say that came from Kaloyeros.
12 MR. BOONE: Correct.
13 THE COURT: Or was signed off, the statement was
14 signed off on by Kaloyeros.
15 I understand why the defense does not want it in. But
16 the fact it is prejudicial to the defense does not mean it is
17 not admissible.
18 MR. MILLER: There are allegations referenced in these
19 two exhibits that do not relate to this case.
20 THE COURT: Such as what?
21 MR. MILLER: The last paragraph. Sorry. The
22 paragraph beginning: Singling out a single developer on two
23 projects as Chris Churchill did in his recent column is a
24 disservice to Times Union readers. While neither involves
25 public construction funding, Churchill made no reference

(212) 805-0300
I6R3KAL1 1667
1 whatsoever to the untold number of projects across the capital
2 region and New York that are funded publically and being built
3 by a variety developers that one can safely assume have
4 contributed to political campaigns as allowed by New York State
5 law. This includes the hundreds of millions if not billions of
6 dollars spent annually on building and maintaining our roads,
7 bridges and infrastructure needs. The Churchill --
8 THE COURT: Hang on a second. Do you need that
9 paragraph?
10 MR. BOONE: No. We don't need it.
11 THE COURT: That's redacted.
12 MR. MILLER: Fine.
13 THE COURT: That resolves that issue.
14 MR. MILLER: This article also references campaign
15 contributions, which is not in this case. The very opening
16 paragraph says every elected official receives campaign
17 donations. Quite frankly, it is an arena we know happily
18 nothing about.
19 THE COURT: That's not blown up. Can you alter what
20 you've blown up for me. Thank you.
21 Oh, please. Taking the statement at its fact, SUNY
22 Poly knows nothing about campaign contributions.
23 MR. MILLER: There hasn't been a whisper of testimony
24 about campaigns or campaign contributions in this trial, and
25 this article injects what doesn't otherwise exist in the trial.

(212) 805-0300
I6R3KAL1 1668
1 THE COURT: The government needs that sentence or two
2 sentences?
3 MR. BOONE: That's fine, your Honor.
4 THE COURT: All right.
5 MR. MILLER: We're happy to work with the government
6 during the break to finalize those redactions.
7 THE COURT: Anything further?
8 MR. BOONE: One more piece, your Honor, and I
9 apologize for the late notice. We met with Mr. Doyle a few
10 minutes ago to sort of confirm the relevance of this article
11 and we've given Mr. Miller a copy just a minute or two before
12 we started. This relates --
13 THE COURT: Is this another article?
14 MR. BOONE: It is. This is the article that relates
15 to the SUNY Poly deleted e-mails. What our first witness
16 testified to in regards to Kaloyeros asking the IT person at
17 SUNY Poly to change the settings on his e-mail.
18 If you recall, we argued in response to the motion to
19 preclude that testimony that that was timing-wise related to an
20 investigative journalist who was sort of sniffing around and
21 later wrote an article. That's the article.
22 MR. MILLER: This was literally just handed to me as I
23 stood up to address the other issues. I'd respectfully request
24 we all get a chance to look at this and evaluate it and then
25 address it with the Court during the next break.

(212) 805-0300
I6R3KAL1 1669
1 THE COURT: Who is your first witness?
2 MR. BOONE: Kathleen Garver, so Doyle will be the last
3 witness so we have time.
4 THE COURT: So that's fine. Anything further?
5 MR. MILLER: Yes, your Honor. It is my understanding
6 that the government intends to introduce or to offer into
7 evidence New York State's procurement guidelines. We received
8 an e-mail I think it was this morning where the government
9 indicated for the first time that they intended to show New
10 York State procurement guidelines to one of their witnesses
11 today and have that witness read from portions of the
12 guidelines.
13 It's our view that there has been no foundation laid
14 for the introduction of the New York State procurement
15 guidelines. I believe that the government intends to elicit
16 testimony from David Doyle that Dr. Kaloyeros made statements
17 about being compliant with New York State procurement
18 procedures.
19 THE COURT: I think we just saw that.
20 MR. MILLER: Yes. But there is no reference to these
21 New York State procurement guidelines anywhere in the 3500
22 material. There is nothing in the 3500 material that suggests
23 that the witness, David Doyle, has any idea specifically what
24 rules or guidelines or policies Dr. Kaloyeros was referring to.
25 These are in fact guidelines and not procedures. There are a

(212) 805-0300
I6R3KAL1 1670
1 whole array, in the New York State world, a whole array of
2 statutes and rules and regulations that govern everything
3 including how to get money from Empire State. How contracts,
4 how requests for payments by Empire State and DASNY are
5 handled, who has to sign off, what levels, what documentation.
6 In other words, in connection with procurement activity on a
7 state level, there are an array of procurement procedures.
8 And it is not at all clear from the context of what is
9 attributed to David Doyle that Alain Kaloyeros was referring to
10 this set of New York State procurement guidelines. In terms of
11 the probative value --
12 THE COURT: This is Doyle again, right?
13 MR. MILLER: Yes.
14 THE COURT: The jury has been waiting for 15 minutes.
15 MR. MILLER: Okay. As long as we can circle back to
16 that. We have a couple of other issues but I don't think -- I
17 don't think either of them need to be resolved before the first
18 witness testifies.
19 THE COURT: Mr. Zhou.
20 MR. ZHOU: Yes, I'm very sorry, your Honor. Our
21 second witness is Justin Ellard who is going to testify about
22 the deleted e-mails. And so I just have two hopefully quick
23 issues to raise with the Court.
24 The first is the government is going to offer a list
25 of documents. Some of them are ones that Mr. Ellard, or

(212) 805-0300
I6R3KAL1 1671
1 Special Agent Ellard will testify about. The first batch of
2 documents, we provided this list to the defense most of the
3 list Monday night and a small supplement yesterday night.
4 And so, most of the first set of e-mails are just ones
5 we've seen before but we pulled from the source which is the
6 Gmail accounts. And so Special Agent Ellard will testify about
7 those.
8 THE COURT: Okay.
9 MR. ZHOU: So we will offer those, your Honor. And
10 then we have a batch of documents that are contracts,
11 additional contracts entered into between Fort Schuyler and
12 LPCiminelli and COR Development. I don't know if the defense
13 has objected to any of that, your Honor, so I wanted to tee
14 that up since Special Agent Ellard will testify about those.
15 THE COURT: Is there any objection to the list of
16 exhibits that Mr. Zhou has referenced?
17 MR. ISEMAN: We're objecting to the relevance of the
18 contract documents themselves. We can go through them one by
19 one if you like, but in essence I think that they're not really
20 probative of anything. They have to do with possession
21 agreements for the real estate that was involved. It has to do
22 with amendments to the construction management agreement. It's
23 really redundant of other, of memorandum of understanding and
24 the other basic underlying foundational contract documents that
25 are in.

(212) 805-0300
I6R3KAL1 1672
1 So we object on relevance and it's cumulative at this
2 point. I'm not sure what other probative value that the
3 government thinks it might have.
4 THE COURT: Any other objections to these documents?
5 MR. ISEMAN: No, your Honor.
6 THE COURT: From anybody else? Okay.
7 What's the relevance?
8 MR. ZHOU: Yes, your Honor. So these are the
9 contracts, these are actual contracts between Fort Schuyler and
10 these development companies. So we do already have in evidence
11 some of the initial contracts, but what you'll see is that they
12 further, there is a whole procedure where there is a memorandum
13 of understanding, then a notice to proceed, then the actual
14 building contract, and then there are amendments to the
15 contract that follow.
16 THE COURT: So you're putting the whole package in.
17 MR. ZHOU: Exactly, your Honor.
18 THE COURT: Objection is overruled.
19 So other than that, are there any objections to the
20 list of exhibits that they want to move in through Agent
21 Ellard?
22 MR. ZHOU: Just to be clear, your Honor, just to save
23 time, I'm only addressing -- I have a list I'll hand up to the
24 Court as well, but I'm only addressing the first block of
25 documents and then the third block. I think there is a dispute

(212) 805-0300
I6R3KAL1 1673
1 about the second block of documents but we can address that at
2 a later break. I'll hand this up to the Court.
3 THE COURT: Does anyone object to me accepting all of
4 these documents into evidence outside the presence of the jury?
5 MR. SHECHTMAN: Judge, could we just put Exhibit 48 on
6 the screen. 493. I think I do have an objection to that.
7 THE COURT: 493? That's in the second block.
8 MR. SHECHTMAN: Oh, that's in the second block.
9 That's fine.
10 THE COURT: So the following documents are received
11 into evidence without objection: Government Exhibit 6, 7-R,
12 8-R, 10, 12, 14, 200, 230, 490, 491, 492, 1050, 1055 through
13 62, and 1082.
14 MR. ISEMAN: We had objected to the COR documents,
15 which are in the 1050 to 1060 range.
16 THE COURT: The COR documents the objection is
17 overruled. So they're received.
18 MR. WILLIAMS: I join Mr. Iseman.
19 THE COURT: Yes.
20 MR. ZHOU: 1082 are these procurement guidelines, so
21 we're not offering that.
22 THE COURT: So 1082 is not received at this point.
23 (Government's Exhibit 6, 7-R, 8-R, 10, 12, 14, 200
24 received in evidence)
25 (Government's Exhibit 230, 490, 491, 492, 1050,

(212) 805-0300
I6R3KAL1 1674
1 1055-1062 received in evidence)
2 MR. ZHOU: Thank you, your Honor.
3 The other brief issue also relevant to Special Agent
4 Ellard is we circulated a stipulation regarding e-mail
5 deletions to the defense last night. They've proposed an edit
6 which we think is not warranted.
7 Basically the stipulation as we provided, your Honor,
8 reads that: If e-mails present in the preserved box but is
9 missing from the later box for a particular account, then the
10 e-mail was deleted by the user after Google saved the preserved
11 account but before they saved the subsequent account.
12 What the defense wants to do is edit to say: Usually
13 if an e-mail is present, then that e-mail was deleted. And
14 then also strike the part "by the user of the account."
15 We don't think that's warranted, your Honor. We think
16 this issue was addressed last week when the Google custodian
17 was testifying. We wanted to elicit testimony from the Google
18 custodian about what the explanation would be. And what we
19 agreed on the record, your Honor, and I can provide a cite to
20 page 383 of the transcript, was that if the defense did not
21 come up with a reasonable alternative explanation, then the
22 explanation would be that these e-mails were deleted.
23 THE COURT: Okay. Who wants to speak to this issue?
24 MR. MILLER: Your Honor, I guess there are two points.
25 One is Ms. Clays in her 3500 material said "Usually if e-mails

(212) 805-0300
I6R3KAL1 1675
1 are in preserved but not search warrant content, it's because
2 e-mails were deleted." We simply took the word "usually" from
3 her statement to the government and put it into the
4 stipulation.
5 THE COURT: What other explanation is there? That is
6 why I did not allow the government to do this in front of the
7 jury. So what other explanation do you have?
8 MR. MILLER: I don't have an alternative technical
9 explanation.
10 THE COURT: You can either agree to the government's
11 stipulation or I'm going to direct them, I'm going to make a
12 judicial finding that that's what happened.
13 MR. SHECHTMAN: Your Honor, I do have a concern. It
14 says "deleted by the account user." And the alternative
15 explanation is there is an auto delete function. And so, she's
16 never testified, she never had said before, in 3500, the
17 government in the discussions of what it planned to prove never
18 said by the account user, and there is an alternate
19 explanation. So I agree --
20 THE COURT: Auto delete would delete a batch of
21 documents. It would not selectively delete conversations
22 between Mr. Ciminelli and Mr. Kaloyeros.
23 MR. SHECHTMAN: We have a batch of documents. We have
24 287 others.
25 THE COURT: Others what?

(212) 805-0300
I6R3KAL1 1676
1 MR. SHECHTMAN: Documents that were deleted.
2 THE COURT: It doesn't delete everything.
3 MR. SHECHTMAN: Not everything was deleted. I have
4 scores of others that weren't deleted. So, and I called an
5 expert and he said, look, unless I know --
6 THE COURT: Stay by the microphone.
7 MR. SHECHTMAN: Unless I know what files these are in,
8 I can't tell you any more than that. But, there is an
9 alternate explanation that it's auto deleted.
10 So all we're asking is that the "by the account user"
11 be out. They were deleted. Now, I think "usually" is what she
12 would say. But I don't know another explanation for that.
13 They were deleted by the account user. They couldn't prove
14 they were deleted by the account user.
16 MR. ZHOU: Well, I guess I would ask whether
17 Mr. Ciminelli has an auto delete function on his Gmail account.
18 THE COURT: Well, as you know, he doesn't have to
19 answer that question.
20 MR. ZHOU: Yes, I understand. But there is no
21 evidence that there is an auto delete function. We weren't
22 allowed to inquire as to the Google custodian on anything
23 related to this topic on the understanding that there would be
24 a stipulation. And I think defense counsel at transcript 383
25 said "I think it would be fair to say if, after conducting our

(212) 805-0300
I6R3KAL1 1677
1 due diligence on the issues that were presented to us over the
2 weekend, we concur there is no other logical explanation but
3 there was a deletion, we'll be more than happy to stipulate to
4 that."
5 That was our understanding, your Honor, when we agreed
6 not to elicit testimony.
7 MR. SHECHTMAN: I'm more than happy -- look, I'm not
8 thrilled, but I'm stipulating. I am just going to stipulate to
9 what we know, which is they were deleted. The answer is you
10 can't say whether there is an auto delete function because we
11 haven't had access to it. Well --
12 THE COURT: Yes, but if we had allowed the Google
13 witness to testify, then you could have either brought that out
14 on cross or not.
15 MR. SHECHTMAN: But here it says she --
16 THE COURT: What evidence is there that there is an
17 auto delete on this account? None.
18 MR. SHECHTMAN: I'm sorry. She says she would testify
19 to that. Right.
20 THE COURT: She would testify to what?
21 MR. SHECHTMAN: She would testify if the e-mail is
22 present in the Gmail content for the preserved Mbox but is
23 missing from the Gmail content in the search warrant Mbox, the
24 e-mail was deleted by the account user. She can't testify to
25 that. She wouldn't have testified to that.

(212) 805-0300
I6R3KAL1 1678
1 THE COURT: I think she would have testified to that.
2 MR. SHECHTMAN: She would have testified it was
3 deleted.
4 THE COURT: Who else has access to it?
5 MR. SHECHTMAN: Pardon?
6 THE COURT: Who else has access to it?
7 MR. SHECHTMAN: An auto delete function.
8 THE COURT: Show me what evidence there is that this
9 was done via an auto delete. What are the e-mails, what is the
10 theory of the order on auto delete that deleted the e-mails
11 that were deleted and did not delete other e-mails.
12 MR. SHECHTMAN: I'm sorry. You have a stipulation as
13 to what she would testify to, and that's not what she would
14 testify to.
15 THE COURT: Mr. Shechtman, what is the evidence that
16 there was -- what was the rule, what logical rule is in place
17 on both of these men's Gmail accounts that explains the
18 deletions?
19 MR. SHECHTMAN: I don't get it. This is what she said
20 she would testify to. And she can't. So why am I being wrong
21 in saying let's stipulate to what she can testify to, not what
22 circumstantially you think the jury could infer.
23 THE COURT: That's not correct. You're positing an
24 alternative theory that I allowed you to do in lieu of having
25 the witness testify when she could have. Because you assured

(212) 805-0300
I6R3KAL1 1679
1 me, oh, yes, we're going to be reasonable. If we don't have an
2 alternate explanation, of course that's what happened.
3 You're shaking your head, but you have not explained
4 to me what rule could have been set up on these two men's
5 accounts that would have resulted in the deletions that are
6 evidenced from the two Gmail accounts. If you can provide me
7 that, Mr. Shechtman, I am happy to go along with your alternate
8 theory that there was an automatic delete function in these two
9 accounts that explains it. But for that, the only logical
10 explanation is that they deleted them.
11 MR. SHECHTMAN: I don't think that's what she would
12 have testified, but I understand your Honor's position.
13 THE COURT: So what are you going to do? Are you
14 going to stipulate or am I simply going to direct the jury to
15 find it?
16 I don't know that they care whether it's set up as the
17 Google person would testify if called as opposed to just
18 stipulate to the fact.
19 MR. SHECHTMAN: Well, I care.
20 THE COURT: Okay. Then what do you want to do?
21 Take a five-minute break. Go to the bathroom. We're
22 going to start, bring the jury out at 10 o'clock.
23 (Recess)
24 (In open court; jury not present)
25 THE COURT: Do we have the witness in the courtroom or

(212) 805-0300
I6R3KAL1 1680
1 nearby? One other thing, Mr. Shechtman. Mr. Shechtman, you
2 gave me a new exhibit list which has new exhibits on it. But
3 what everyone else is doing, which is very kind to the judge,
4 is they're actually entering if the document has been received
5 in evidence.
6 MR. SHECHTMAN: We'll be kind.
7 THE COURT: That would be kind. Kindness is going out
8 of style these days.
9 MR. SHECHTMAN: I don't think so. I mean, I hope not.
10 THE COURT: What can I do for you, Mr. Shechtman?
11 MR. SHECHTMAN: Given our alternatives, we'll
12 stipulate.
13 THE COURT: Okay. Not stipulating that kindness is
14 going out of style, right?
15 MR. SHECHTMAN: Not stipulating that kindness is going
16 out of style.
17 (Jury present)
18 THE COURT: Good morning, ladies and gentlemen. I
19 apologize for keeping you waiting this morning. We had some
20 things we needed to talk about in the courtroom.
21 Let me say that although I kept you waiting, the good
22 news is we are way ahead of schedule. So, in all likelihood
23 the government is going to rest today. I'll have more
24 information about what that means for you in terms of your
25 schedule when we get to the end of the day. But generally,

(212) 805-0300
I6R3KAL1 Garver - Direct 1681
1 we're doing well in terms of scheduling. Okay.
2 Mr. Zhou, call your next witness.
3 MR. ZHOU: Thank you, your Honor. The government
4 calls Kathleen Garver.
5 KATHLEEN GARVER,
6 called as a witness by the Government,
7 having been duly sworn, testified as follows:
8 DIRECT EXAMINATION
9 BY MR. ZHOU:
10 Q. Good morning.
11 A. Good morning.
12 Q. Where do you work?
13 A. I work at the Federal Bureau of Investigation in Buffalo,
14 New York.
15 Q. What's your title with the FBI?
16 A. Special agent.
17 Q. How long have you been a special agent with the FBI?
18 A. Three and a half years.
19 Q. Have you ever been assigned to the white collar crimes unit
20 in the FBI?
21 A. Yes.
22 Q. How long were you a member of the white collar crime unit?
23 A. A little over two years.
24 Q. Generally speaking, what were your responsibilities as a
25 special agent in the white collar crime unit?

(212) 805-0300
1 A. My responsibilities included investigating allegations or
2 complaints of financial fraud, investment fraud, health care
3 fraud, as well as public corruption.
4 Q. What kind of techniques did you use to conduct those
5 investigations?
6 A. Amongst other things, we used document review obtained
7 through grand jury subpoenas, and interviews.
8 Q. Approximately how many interviews have you conducted in
9 your career as a special agent?
10 A. Approximately over 150.
11 Q. Special Agent Garver, are you familiar with something
12 called the Buffalo Billion?
13 A. Yes, I am.
14 Q. Did you become familiar with the Buffalo Billion in your
15 professional capacity as an FBI special agent?
16 A. Yes, I did.
17 Q. How so?
18 A. I took part in an investigation alleging fraud surrounding
19 the economic development associated with the Buffalo Billion.
20 Q. What was your role in that investigation?
21 A. As an investigator, I went through documents as well as
22 participated in interviews.
23 Q. What kind of documents did you review?
24 A. I reviewed e-mails as well as bank records.
25 Q. Did you review all of the documents that were collected as

(212) 805-0300
1 part of investigation?
2 A. No, I did not.
3 Q. You mentioned that you participated in interviews as well.
4 Approximately how many interviews did you conduct as part of
5 this investigation?
6 A. Approximately 20.
7 Q. Did you participate in all of the interviews that were
8 conducted in this investigation?
9 A. No, I did not.
10 Q. Special Agent Garver, did there come a time when the FBI
11 conducted interviews in Buffalo, New York?
12 A. Yes.
13 Q. Did you participate in those interviews?
14 A. Yes, I did.
15 Q. When were those interviews conducted?
16 A. Those interviews were conducted on October 14, 15, and 16th
17 of 2015.
18 Q. How many people were interviewed?
19 A. Seven people.
20 Q. Who was interviewed?
21 A. We interviewed individuals from development companies in
22 the Western New York area who had expressed interest in the RFP
23 for the Buffalo preferred developer as well as obtained a copy
24 of the RFP, and at least one of which submitted a bid for the
25 RFP but was not granted that bid.

(212) 805-0300
1 Q. Why were those people interviewed?
2 A. We interviewed those people to determine what their
3 experiences were with the RFP, as well as what their reactions
4 were to the RFP.
5 Q. Special Agent Garver, let me switch gears a little bit.
6 Let me focus you in on June 21, 2016. Were you working on that
7 date?
8 A. Yes, I was.
9 Q. What were you doing that day?
10 A. I took part in an interview of Mr. Joseph Gerardi.
11 Q. Was that an in-person interview?
12 A. Yes it was.
13 Q. Do you see Mr. Gerardi in the courtroom today?
14 A. Yes.
15 MR. WILLIAMS: I'll stipulate.
16 THE COURT: Stipulating that the witness can identify
17 Mr. Gerardi.
18 MR. ZHOU: Thank you, Mr. Williams. Thank you, your
19 Honor.
20 Q. Special Agent Garver, when you interviewed Mr. Gerardi,
21 where were you physically located?
22 A. I was located at the United States Attorney's Office for
23 the Southern District of New York here in Manhattan.
24 Q. Mr. Gerardi was also in Manhattan, correct?
25 A. Correct.

(212) 805-0300
1 Q. Why was Mr. Gerardi at the U.S. attorney's office that day?
2 A. Mr. Gerardi had received a grand jury subpoena for both
3 documents and testimony, and as such he was afforded the
4 opportunity to come in voluntarily to speak with both
5 prosecutors and investigators prior to that testimony.
6 Q. Just to be clear, Special Agent Garver, was the interview
7 voluntary?
8 A. Yes, it was.
9 Q. Did anyone accompany Mr. Gerardi to the interview?
10 A. Yes.
11 Q. Who?
12 A. Mr. Campani and Mr. Mannion.
13 Q. Who were Mr. Campani and Mr. Mannion?
14 A. They were attorneys representing Mr. Gerardi.
15 Q. Approximately when did Mr. Gerardi's interview begin?
16 A. Approximately 3:15 in the afternoon.
17 Q. Were there any other law enforcement agents present during
18 that interview?
19 A. Yes.
20 Q. Who?
21 A. Special Agent Deleassa Penland.
22 Q. Was anyone else present for the interview of Mr. Gerardi?
23 A. Yes.
24 Q. Who?
25 A. Several, at least three prosecutors as well.

(212) 805-0300
1 Q. Special Agent Garver, did you keep any record of the
2 interview?
3 A. I did not. But Special Agent Penland did.
4 Q. What kind of records did Special Agent Penland take?
5 A. She took handwritten notes during the interview which was
6 then used to write a memorandum.
7 Q. Were either Special Agent Penland's handwritten notes or
8 the memorandum that she prepared afterwards, were either of
9 those verbatim recordings?
10 A. No, they were not.
11 Q. Did you review any of those documents prior to your
12 testimony today?
13 A. Yes, I did, I reviewed the memorandum.
14 Q. How did the interview with Mr. Gerardi begin?
15 A. The interview began by all of us introducing ourselves, and
16 we again advised Mr. Gerardi that there were federal law
17 enforcement agents in the room, and as such, it was a crime to
18 lie to federal officers.
19 Q. What was the next topic of the interview?
20 A. We then talked about Mr. Gerardi's background with COR
21 Development Company as well as his role there.
22 Q. What, in substance, did Mr. Gerardi say?
23 A. Mr. Gerardi stated that he was one of the co-founders of
24 COR Development in 1998 and serves as their legal counsel.
25 Q. Did there come a time when you asked Mr. Gerardi about his

(212) 805-0300
1 understanding of Fort Schuyler Management Corporation?
2 A. Yes.
4 A. Mr. Gerardi stated that Fort Schuyler Management was a
5 nonprofit entity set up essentially to facilitate economic
6 development in New York.
7 Q. Did you ask Mr. Gerardi about Todd Howe?
8 A. Yes.
9 Q. What, in substance, did Mr. Gerardi say about Todd Howe?
10 A. He stated that Mr. Howe was a consultant hired by COR in
11 part for his relationships in state government.
12 Q. Did there come a time when you asked Mr. Gerardi about the
13 Syracuse preferred developer RFP?
14 A. Yes.
15 Q. Did you show Mr. Gerardi any documents related to the
16 Syracuse RFP?
17 A. Yes.
18 Q. What kind of documents did you show him?
19 A. We showed him e-mails.
20 Q. Were those e-mails sent before or after the RFP was
21 publicly issued?
22 A. Before.
23 MR. ZHOU: Ms. Lee, if we can pull up for Special
24 Agent Garver, and this is in evidence so we can pull up for the
25 jury as well, Government Exhibit 635.

(212) 805-0300
1 Q. Special Agent Garver, do you recognize this document?
2 A. Yes, I do.
3 Q. Why do you recognize this document?
4 A. We showed Mr. Gerardi this document that day.
5 Q. Do you see that this document is an e-mail from Joseph
6 Gerardi to SAiello@CORcompanies.com, JAiello@CORcompanies.com,
7 and to Todd Howe?
8 A. Yes.
9 Q. Do you see it was sent on August 15, 2013?
10 A. Yes.
11 Q. What's the subject line of this e-mail?
12 A. The subject line is "COR company qualifications and
13 experience."
14 Q. Could you read Mr. Gerardi's e-mail.
15 A. "Gentlemen, the attached is for your review and/or
16 thoughts. Joe G."
17 Q. Was there an attachment to this e-mail?
18 A. Yes, there was.
19 MR. ZHOU: Let's flip to the attachment, Ms. Lee. And
20 just focusing in on the top for a moment.
21 Q. Special Agent Garver, if you can read that top line.
22 A. "COR Development Company qualifications and experience."
23 Q. Do you see that the first bullet point here is
24 "Developed/redeveloped approximately four million square feet
25 since being established in 1998."

(212) 805-0300
1 A. Yes.
2 MR. ZHOU: Ms. Lee, if we can scroll down.
3 Q. Special Agent Garver, let me direct your attention to two
4 of the bottom bullet points. Do you see that it begins
5 "Sophisticated project management tools such as InSite
6 SiteWork," and then it also describes U.S. Global Net or USGN?
7 A. Yes.
8 Q. Did you ask Mr. Gerardi about this e-mail and the
9 attachment?
10 A. Yes.
12 A. Mr. Gerardi stated that Mr. Howe had requested COR's
13 qualification or this document from Mr. Gerardi, and so
14 Mr. Gerardi sent it to Mr. Howe in response to that request.
15 Q. Did you ask Mr. Gerardi what he thought would happen with
16 this document?
17 A. Yes.
19 A. He stated that he presumed that Mr. Howe was going to send
20 this to Nano.
21 MR. ZHOU: We can take this document down, Ms. Lee.
22 If we can bring up, publish for the jury what's in evidence as
23 Government Exhibit 606.
25 A. Yes.

(212) 805-0300
1 Q. Why do you recognize it?
2 A. We showed this document to Mr. Gerardi that day.
3 MR. ZHOU: Let's scroll down just a little bit,
4 Ms. Lee, to the next e-mail down.
5 Q. Special Agent Garver, do you see in the middle of the page
6 here we have an e-mail from Todd Howe to Steve Aiello and Joe
7 Gerardi sent on September 13, 2013?
8 A. Yes.
9 Q. Do you see the subject line is "FW: RFP"?
10 A. Yes.
11 Q. Could you please read what Mr. Howe wrote.
12 A. Mr. Howe wrote "FYI, they are fine tuning now but expect to
13 release to public this week. What do you think? Keep
14 confidential, please."
15 MR. ZHOU: If we can scroll up, Ms. Lee.
16 Q. How does Mr. Gerardi respond to that e-mail?
17 A. He responds "Gentlemen, this is probably worth a brief
18 chat, but I'm on a short leash this afternoon. My wife is
19 dropping me off at the pound at 3 p.m. I have noted some
20 comments on the attachment. Joe G."
21 Q. Was there an attachment to this e-mail?
22 A. Yes, there was.
23 MR. ZHOU: Ms. Lee, if we can flip to the first page
24 of the attachment. Thank you.
25 Q. Special Agent Garver, do you see this first page of the

(212) 805-0300
1 attachment says "Fort Schuyler Management Corporation request
2 for proposal."
3 A. Yes.
4 Q. Do you see that it refers to the greater Syracuse area in
5 the bottom of the next paragraph?
6 A. Yes.
7 Q. Do you see the date is September 9, 2013?
8 A. Yes.
9 Q. Focusing on just your own observations about this document,
10 what did you observe in this attachment?
11 A. I observed handwritten notes written on this attachment
12 throughout the document.
13 Q. Did you ask Mr. Gerardi about those handwritten notes?
14 A. Yes.
15 Q. What, in substance, did Mr. Gerardi say about the
16 handwriting on the document?
17 A. Mr. Gerardi stated that that was his handwriting and those
18 were his comments.
19 Q. Did you ask Mr. Gerardi about Todd Howe's role in the RFP
20 drafting process?
21 A. Yes.
23 A. Mr. Gerardi stated that Mr. Howe worked for a company
24 called Whiteman, Osterman & Hanna or WOH, and WOH was drafting
25 this RFP but did not have a lot of experience in drafting this

(212) 805-0300
1 RFP. So, as such, Mr. Howe reached out to Mr. Gerardi for his
2 assistance and input in drafting the RFP.
3 Q. Did you ask Mr. Gerardi about his motivation when he was
4 reviewing the draft RFP?
5 A. Yes.
7 A. Mr. Gerardi stated that he was helping, helping write the
8 RFP as an attorney and as a friend of Mr. Howe's, not in his
9 capacity as an employee of COR Development Company. He also
10 stated that he was trying to make the RFP as broad as possible
11 so that companies would be able to respond to the RFP.
12 (Continued on next page)
13
14
15
16
17
18
19
20
21
22
23
24
25

(212) 805-0300
I6rrkal2 Garver - direct 1693
1 MR. ZHOU: Let's focus back on the document. Ms. Lee,
2 if you could flip to page 7, please. Let's zoom in on the
3 lower half of the document.
4 Q. Special Agent Garver, do you see there is a number 2 here
5 and in all caps it writes "DEVELOPER REQUIREMENTS"?
6 A. Yes.
7 Q. Let's focus on the little (a) paragraph. Do you see that
8 that paragraph begins, "Over 15 years of proven experience?"
9 A. Yes.
10 Q. Focusing on your own observations, what kind of handwritten
11 markings do you see here?
12 A. The "15" circled, and then off to the margin there is a
13 question mark with "2" underlined.
14 Q. Did you ask Mr. Gerardi to explain his markings?
15 A. Yes.
16 Q. What, in substance, did he say about this particular
17 marking?
18 A. Mr. Gerardi stated that he didn't know if 15 years was
19 high. He stated that it seemed high to him. Then he listed
20 about five companies in the greater Syracuse area that did have
21 15 years' experience.
22 MR. ZHOU: Ms. Lee if we could zoom out now and focus
23 in on the bottom paragraph, the little (d).
24 Q. Special Agent Garver, to you see here that it says, "Fully
25 integrated and comprehensive in-house skills and services,

(212) 805-0300
1 including design, architecture, legal, financial, leasing,
2 construction, and facility management lease services, with
3 sophisticated tools and advanced capabilities, such as InSite
4 SiteWork, InSitesoftware.com, to actively and efficiently
5 coordinate all aspects of site and utility construction to
6 develop ideal building conditions and US Global Net or USGN's
7 www.usgn.net web-based project management software to manage
8 projects expeditiously, professionally, on time, and within
9 budget." Do you see that?
10 A. Yes.
11 Q. What kind of markings do you observe on this document?
12 A. In the margin it says "too telegraphed" with two question
13 marks. "I would leave out the specific programs."
14 Q. Do you see the names of those programs are underlined in
15 the document?
16 A. Yes.
17 Q. By hand?
18 A. Yes.
19 Q. Did you ask Mr. Gerardi to explain those markings?
20 A. Yes.
21 Q. What, in substance, did he say?
22 A. He stated that he was indicating here that the verbiage
23 used was too limited, and he used the analogy like it was too
24 telescoped. He stated that he was concerned that it wouldn't
25 be broad enough for other developing companies to be able to

(212) 805-0300
1 apply for the RFP.
2 MR. ZHOU: Now, Ms. Lee, if we could turn to page 11
3 of this document, please. Let's focus in on the top quarter.
4 Q. Special Agent Garver, could you read that very first bullet
5 point there.
6 A. Yes. "Latest audited financial statement for developer."
7 Q. What do the handwritten markings next to that bullet say?
8 A. They say, "Not available. Typically prepared for not-for-
9 profits or public corporations."
10 Q. Did you ask Mr. Gerardi to explain those markings?
11 A. Yes.
13 A. He stated that COR Development Company did not have audited
14 financial statements. He then stated, though, he did say that
15 private companies typically don't have audited financial
16 statements. He stated that they were not that expensive to
17 obtain, though, and that COR Development could have easily
18 obtained them should they have had to.
19 MR. ZHOU: Ms. Lee, you can take down that document.
20 If we could pull up and publish what is in evidence as
21 Government Exhibit 607. Zoom in on the top. Thank you.
22 Q. Special Agent Garver, do you recognize this email?
23 A. Yes, I do.
25 A. We showed this email to Mr. Gerardi.

(212) 805-0300
1 Q. What is the date of this email?
2 A. The date is September 13, 2013.
3 Q. Is that the same date as the last email we looked at with
4 the attachment and the handwritten markings?
5 A. Yes.
6 Q. Do you see that this is an email from Joseph Gerardi to
7 Todd Howe and SIL at CORCompanies.com?
8 A. Yes.
9 Q. If you could read that first paragraph of Mr. Gerardi's
10 email, please.
11 A. "Todd, the finance provision that we discussed now reads
12 'latest audited financial statement for developer,' which is
13 found in section 5B(a), at the second-to-last bullet in that
14 section. It would be more flexible if it were something like
15 'latest audited financial statement if available' or other
16 financial information statements that demonstrate the
17 developer's financial qualifications. Audited statements are
18 only prepared by not-for-profit and/or public corporations."
19 Q. Did you ask Mr. Gerardi about this email?
20 A. Yes.
21 Q. What in substance did Mr. Gerardi say?
22 A. He stated that he was reiterating his handwritten comments
23 in a separate email, and he stated that he again was concerned
24 that this specific verbiage would preclude other companies from
25 being able to apply for the RFP.

(212) 805-0300
1 MR. ZHOU: If we could take that down, Ms. Lee, and
2 pull up what is in evidence as Government Exhibit 646.
4 A. Yes, I do.
6 A. We showed it to Mr. Gerardi.
7 Q. Do you see that the date on this document is September 16,
8 2013?
9 A. Yes.
10 Q. Was that approximately three days after Mr. Gerardi's
11 emails with comments on the RFP?
12 A. Yes.
13 Q. Now let's start with the bottom email. Do you see that is
14 an email from Todd Howe to Steve Aiello and Joe Gerardi,
15 subject line "Nano"?
16 A. Yes.
17 Q. Could you read Mr. Howe's email.
18 A. "Spoke to Dr. K and had COR financial institution reference
19 letter added to that document. Should be all set."
20 Q. How did Mr. Gerardi respond to that email in the document?
21 A. He responded, "Great. Thank you."
22 Q. What, in substance, did Mr. Gerardi say about these emails
23 here?
24 A. Mr. Gerardi stated that he was not sure why Mr. Howe sent
25 him this email. He stated that he was trying to be courteous

(212) 805-0300
1 in responding to Mr. Howe and he was not sure why a financial
2 institution reference letter was added to the RFP.
3 Q. Did you ask Mr. Gerardi what COR Development Company
4 eventually submitted in its response to the RFP for Syracuse?
5 A. Yes.
7 A. He stated that COR Development issues a financial
8 institution reference letter as part of their response.
9 MR. ZHOU: You can take that document down, Ms. Lee.
10 Let's publish what is in evidence as Government Exhibit 616.
11 We can zoom in on that. Thank you. Ms. Lee, if you could
12 scroll down a little bit. A little bit further. Perfect.
13 Q. Special Agent Garver, do you recognize this email?
14 A. Yes, I do.
16 A. We showed this email to Mr. Gerardi.
17 Q. Do you see that the date of this email is September 24,
18 2013?
19 A. Yes.
20 Q. Is that date also after the handwritten markings that Mr.
21 Gerardi submitted on the Syracuse RFP?
22 A. Yes.
23 Q. Special Agent Garver, do you see that in the middle here
24 there in all caps it says "Fort Schuyler Management Corporation
25 request for proposal"?

(212) 805-0300
1 A. Yes.
2 Q. Do you see that the next paragraph down it ends with "the
3 greater Syracuse area"?
4 A. Yes.
5 Q. It says, "In conjunction with the SUNY College of Nanoscale
6 Science and Engineering, October 21, 2013." Do you see that?
7 A. Yes.
8 Q. Do you see that that message is being forwarded by Mr. Howe
9 to Steve Aiello and Joe Gerardi?
10 A. Yes.
11 Q. Could you read Mr. Howe's email.
12 A. "Let me know if you get all of this and it looks okay."
13 MR. ZHOU: Now let's focus in on page 4 of this
14 document, Ms. Lee, if you can.
15 Q. In the middle of the page there is a little (d) that says
16 "fully integrated and comprehensive in-house skills." Do you
17 see that this is a requirement that lists InSite SiteWork and
18 US Global Net among other things?
19 A. Yes.
20 Q. Did you ask Mr. Gerardi about the continued presence of
21 this software in the RFP?
22 A. Yes.
24 A. Mr. Gerardi stated that when he received this document, he
25 presumed that this was a final draft of the RFP, so any changes

(212) 805-0300
I6rrkal2 Garver - Cross 1700
1 that were or were not made, it wouldn't have made sense to go
2 back and ask again about them because he believed this was the
3 final draft.
4 MR. ZHOU: Ms. Lee, you can take down that document.
5 Q. Special Agent Garver, did you ask Mr. Gerardi whether he
6 requested certain qualifications to be added to the RFP?
7 A. Yes.
9 A. He stated that he did not ask for the RFP to be tailored to
10 COR, nor did he feel as though it was tailored to COR.
11 Q. A few final questions, Special Agent Garver. As of the
12 date of the interview, June 21, 2016, was Mr. Gerardi under
13 arrest?
14 A. No, he was not.
15 Q. Was Mr. Gerardi arrested at some later point?
16 A. Yes, he was.
17 Q. Approximately when was he arrested?
18 A. In September 2016.
19 MR. ZHOU: One moment, please, your Honor.
20 No further questions.
21 THE COURT: Mr. Williams.
22 CROSS-EXAMINATION
23 BY MR. WILLIAMS:
24 Q. Agent Garver, I'm Milt Williams. I represent Joe Gerardi.
25 How are you doing?

(212) 805-0300
I6rrkal2 Garver - Cross 1701
1 MR. WILLIAMS: Can you pull up Government Exhibit 616
2 that is already in evidence. I want to go to that section with
3 the computer software. I think it is 2(d)?
4 THE COURT: It was the page we just had up.
5 MR. WILLIAMS: It was the page we just had up. It
6 deals with the COR software that was in both the draft RFP and
7 the final RFP.
8 Q. In this section does it say anywhere "or equivalent" to
9 these particular types of software? I think it does say it a
10 little bit down.
11 A. Yes.
12 Q. It says "or equivalent." In this section it recites to
13 specific software and then says "or equivalent," correct?
14 A. Correct.
15 MR. WILLIAMS: I have no further questions. Thank
16 you.
17 THE COURT: Mr. Coffey?
18 MR. COFFEY: No, thank you, Judge.
19 THE COURT: Anybody else? Mr. Zhou?
20 MR. ZHOU: Nothing further, your Honor.
21 THE COURT: You can step down.
22 (Witness excused)
23 THE COURT: Call your next witness.
24 MR. ZHOU: Thank you, your Honor. The government
25 calls Justin Ellard.

(212) 805-0300
I6rrkal2 Ellard - Direct 1702
1 JUSTIN ELLARD,
2 called as a witness by the government,
4 THE CLERK: Please state and spell your full name
5 slowly for the record.
6 THE WITNESS: My name is Justin Ellard, J-U-S-T-I-N,
7 E-L-L-A-R-D.
9 BY MR. ZHOU:
10 Q. Good morning.
11 A. Good morning.
13 A. I work for the U.S. Attorney's office for the Southern
14 District of New York.
15 Q. What is your title with the U.S. Attorney's office?
16 A. I'm a special agent.
17 Q. Generally speaking, what are your responsibilities as a
18 special agent for the U.S. Attorney's office?
19 A. I conduct investigations into violations of federal law and
20 I help the Assistant U.S. Attorneys with their cases as needed.
21 Q. How long have you been a special agent with the U.S.
22 Attorney's office?
23 A. For about a year and a half.
24 Q. Where did you work before that?
25 A. I worked for the state department. More specifically, for

(212) 805-0300
1 the diplomatic security service.
2 Q. What was your position with the state department?
3 A. I was a special agent there as well.
4 Q. I'm going to hand you up a government exhibit that has been
5 marked for identification as Government Exhibit 1602.
6 THE COURT: You said marked for identification. 1602
7 is already in evidence.
8 MR. ZHOU: Your Honor, I don't believe 1602 was moved
9 into evidence. We did mark it for identification.
10 THE COURT: The list that you gave me showed that it
11 was in.
12 MR. ZHOU: I apologize, your Honor.
13 Q. Special Agent Ellard, do you recognize Government Exhibit
14 1602?
15 A. I do.
16 Q. Is it a flash drive?
17 A. It is.
18 Q. What's on this flash drive?
19 A. Four .mbox files.
20 Q. Did you review those four MBOX files in connection with
21 your testimony today?
22 A. I did.
23 Q. Prior to your review of those four MBOX files, did you have
24 any involvement in the investigation related to this trial?
25 A. No.

(212) 805-0300
1 Q. Now let's talk about those four MBOX files. Which email
2 accounts are represented in those files?
3 A. There are two: AKaloyeros@gmail.com and
4 LouisCiminelli@gmail.com.
5 Q. Were there two different MBOX files for each of those
6 accounts?
7 A. Yes, there were.
8 Q. What were the file names?
9 A. It would be the email address name followed by
10 gmail.content.mbox and then gmail.content.preserved.mbox.
11 Q. For simplicity, Special Agent Ellard, let's call the
12 gmail.content.preserved box the "preserved box," and we will
13 call the gmail.content box, we will call that the "search
14 warrant box"?
15 A. OK.
16 Q. What kind of files, in general, were contained in each MBOX
17 file?
18 A. Email files and their attachments.
19 Q. Did you review every single email that was in each of those
20 four MBOX files?
21 A. No.
22 Q. Let's start with the two MBOX files related to the
23 LouisCiminelli@gmail.com account. Did you compare those two
24 files?
25 A. I did.

(212) 805-0300
1 Q. What were you looking for when did your comparison?
2 A. Anything that was different. Basically, emails found in
3 one that aren't found in the other.
4 MR. ZHOU: At this time, your Honor, I would like to
5 take a moment and offer Government Exhibit S9, the stipulation
6 related to Gmail.
7 THE COURT: Any objection to S9?
8 MR. SHECHTMAN: None other than discussed.
9 THE COURT: S9 will be received.
10 I think this is the first stipulation we have had. A
11 stipulation is just a fancy way of saying the parties all agree
12 to these facts. It speeds things along. Mr. Zhou, go ahead.
13 (Government's Exhibit S9 received in evidence)
14 MR. ZHOU: Thank you, your Honor.
15 Ms. Lee, if you could pull up Government Exhibit S9,
16 please and publish it for the jury.
17 THE COURT: The first paragraph just says it is an
18 agreement between all of the attorneys. You don't have to read
19 that.
20 MR. ZHOU: Ms. Lee, if you could zoom in on paragraph
21 1 and then little (a).
22 BY MR. ZHOU:
23 Q. Special Agent Ellard, do you see here that it says, "If
24 called to testify, a legal investigation specialist with
25 Google, Inc. ("Google") would testify as follows. If an email

(212) 805-0300
1 is present in the gmail.content.preserved MBOX file ("the
2 preserved MBOX") but is missing from the gmail.content.mbox
3 file, the search warrant MBOX for a particular Gmail account,
4 that email was deleted by the account user after Google saved
5 the preserved MBOX but before Google saved the search warrant
6 MBOX." Do you see that?
7 A. I do.
8 MR. ZHOU: The very next sentence down, Ms. Lee, if we
9 could read that.
10 Q. Do you see that it says, "It is further stipulated and
11 agreed that this stipulation may be received into evidence as a
12 government exhibit at trial"? Do you see that?
13 A. Yes.
14 MR. ZHOU: Ms. Lee, you can take that down.
15 Q. Special Agent Ellard, what did you notice about the two
16 LouisCiminelli@gmail.com boxes?
17 A. They largely contained email that you could refer to as
18 spam or junk mail.
19 Q. Did you notice anything else about those two boxes?
20 A. Yes. The preserved box had about eight or nine emails that
21 were deleted in the newer box.
22 Q. Who was involved in those emails that were deleted from the
23 newer box?
24 A. Alain Kaloyeros.
25 Q. And Louis Ciminelli as well?

(212) 805-0300
1 A. Yes.
2 MR. ZHOU: Ms. Lee, if we could pull up just for the
3 witness, please, Government Exhibit 1503.
4 MR. SHECHTMAN: No objection, Judge.
5 THE COURT: 1503 you are not objecting?
6 MR. SHECHTMAN: No.
7 MR. ZHOU: We have just using this as a demonstrative,
8 your Honor. We are offering it.
9 THE COURT: 1503 is received as a demonstrative.
10 (Government's Exhibit 1503 received in evidence)
11 MR. ZHOU: Ms. Lee, you can publish that for the jury.
12 Q. Do you recognize this document, Special Agent Ellard?
13 A. I do.
14 Q. If you could generally describe, what are we looking at?
15 A. We are looking at two screenshots or photo snaps of a
16 number of emails inside both of those .mbox files we are
17 speaking about for a specific date range.
18 Q. This refers to the LouisCiminelli@gmail.com account?
19 A. Correct.
20 Q. Did you verify the accuracy of this document?
21 A. I did.
22 Q. Now let's focus on this slide here. Focusing in on the top
23 preserved box screenshot, let's start with the first email.
24 What is the first email that is shown in your screenshot here?
25 A. "Welcome to the new Gmail MBOX from the Gmail team." And

(212) 805-0300
1 the date is September 9, 2013, at 10:28 a.m.
2 Q. Were there any emails dated earlier than September 9, 2013,
3 in the preserved box?
4 A. No.
5 Q. Were there any emails dated earlier than September 9, 2013,
6 in the search warrant box?
7 A. No.
8 Q. Next, do you see that there are a number of emails here
9 that follow from either Louis Ciminelli or Alain Kaloyeros?
10 A. Yes.
11 Q. What are the dates of those emails?
12 A. They are sent and received on either September 9, 2013, or
13 September 10, 2013.
14 Q. After the last email from Alain Kaloyeros, what is the
15 subject line of the next email down?
16 A. "How to align your shoulders to make more putts."
17 Q. Focusing on the search warrant box screenshot below, what
18 is the subject line of the earlier?
19 A. "How to align your shoulder to make more putts."
20 Q. Did you see any of the emails from Louis Ciminelli or Alain
21 Kaloyeros sent on September 9 and September 10, 2013, in the
22 search warrant box?
23 A. No.
24 Q. Those emails were deleted from the search warrant box?
25 A. Correct.

(212) 805-0300
1 MR. ZHOU: Ms. Lee, let's flip to the next slide,
2 please.
3 Q. What does the red highlighting here indicate?
4 A. It indicates emails that are missing from the newer or the
5 search warrant box but are found in the preserved box.
6 Q. So the first email, the "Welcome to the new Gmail MBOX
7 email," was also deleted from the search warrant box?
8 A. Yes.
9 Q. Special Agent Ellard, did you review any government
10 exhibits in connection with your testimony today?
11 A. Yes.
12 Q. Does the government exhibit number here on the slide refer
13 to one of the emails that was deleted from the search warrant
14 box?
15 A. Yes.
16 MR. ZHOU: Ms. Lee, if you could pull up Government
17 Exhibit 492, which is in evidence. Zoom in on that email, Ms.
18 Lee.
19 Q. Special Agent Ellard, do you see here that this email, the
20 bottom is a forwarded message that was sent from Alain
21 Kaloyeros at AKaloyeros@gmail.com to LouisCiminelli@gmail.com?
22 A. Yes.
23 Q. Could you read the email from Alain Kaloyeros.
24 A. "Draft of relevant sections from RFP enclosed. Obviously,
25 we need to replace Syracuse with Buffalo and fine-tune the

(212) 805-0300
1 developer requirements to fit. Hopefully, this should give you
2 a sense of where we're going with this. Thoughts?"
3 Q. Do you see at the top that Louis Ciminelli forwarded this
4 message to MLaipple@ciminelli.com and KSchuler@LPCiminelli.com?
5 A. Yes.
6 Q. You see there is an attachment here?
7 A. Yes.
8 Q. What is the title of the attachment?
9 A. "RFP for strategic developer partnership in the greater
10 Buffalo area, first two sections 09.03.13.docx."
11 MR. ZHOU: Ms. Lee, if we could flip for one moment to
12 the next attachment, please.
13 Q. Do you see, Special Agent Ellard, that the attachment
14 begins "Fort Schuyler Management Corporation request for
15 proposals"?
16 A. Yes.
17 Q. Do you see that it refers to, in the next paragraph at the
18 end, "the greater Syracuse area"?
19 A. Yes.
20 MR. ZHOU: Ms. Lee if we could take down that govern-
21 ment exhibit, please.
22 Q. Special Agent Ellard, did you observe anything else about
23 the remaining emails in LouisCiminelli@gmail.com's preserved
24 box?
25 A. Yes. They were largely what you would describe as junk

(212) 805-0300
1 mail or spam.
2 Q. How about in the search warrant box?
3 A. Same.
4 Q. These emails that were missing from the search warrant box
5 for LouisCiminelli@gmail.com, the ones that we just were
6 talking about, did you see those emails in the
7 AKaloyeros@gmail.com box?
8 A. I did.
9 Q. In what boxes?
10 A. In both boxes.
11 MR. ZHOU: Ms. Lee if we could go back to Government
12 Exhibit 1503. For the moment we can just put up the blank
13 side, please.
14 Q. Special Agent Ellard, did you compare the contents of both
15 AKaloyeros@gmail.com boxes?
16 A. Yes.
17 Q. What were you looking for when you compared those two
18 boxes?
19 A. The same things that were different, emails found in one,
20 not found in the other.
21 Q. To clarify, those are emails that were deleted from the
22 search warrant box that still existed in the preserved box,
23 correct?
24 A. Correct.
25 Q. What time period did you focus on in your review?

(212) 805-0300
1 A. I focused on emails from October 14, 2015, going backwards
2 to the very first email sent or received.
3 Q. What was the earliest date of the emails that you observed
4 in the preserved box?
5 A. November 30, 2012.
6 Q. How about in the search warrant box?
7 A. Same thing.
8 Q. With respect to your time period, why did you end that time
9 period with the date October 14, 2015?
10 A. Because that was the date of the latest email found in the
11 preserved box.
12 Q. To be clear, in the preserved box there were no emails
13 later than October 14, 2015?
14 A. Correct.
15 Q. Did you notice any differences between these two AKaloyeros
16 boxes regarding emails that involved the address
17 THowe@woh-solutions.com?
18 A. Yes.
19 Q. What did you observe?
20 A. Emails to and from that email address are found in the
21 preserved box only, so they are missing or deleted from the
22 newer box or search warrant box.
23 Q. To be clear, prior to October 14, 2015, in the search
24 warrant box there are no emails involving
25 THowe@woh-solutions.com?

(212) 805-0300
1 A. That is correct.
2 Q. Did you notice any differences between the two boxes
3 regarding emails involving the address Todd_R_Howe@yahoo.com
4 A. Yes. The same. There were only three emails with that
5 email address, and they were found in the preserved box only
6 again, within that time period of before October 14, 2015.
7 Q. Those three emails you just mentioned were deleted from the
8 search warrant box?
9 A. Correct.
10 Q. Now let me focus on the search warrant box just for a
11 moment. Did the search warrant box contain emails that were
12 received in the year 2012?
13 A. Yes.
14 Q. How about the year 2013?
15 A. Yes.
16 Q. 2014?
17 A. Yes.
18 Q. 2015?
19 A. Yes.
20 Q. Now let me direct your attention back to Government Exhibit
21 1503.
22 MR. ZHOU: Ms. Lee, if we could flip to the next
23 slide.
24 Q. Does this slide continue to show screenshots, one from the
25 preserved box and one from the search warrant box, except this

(212) 805-0300
1 time we are focusing on the AKaloyeros@gmail.com address?
2 A. Correct.
3 Q. What date range are we looking at here on this slide?
4 A. We're looking at emails sent on August 23, 2013.
5 Q. Let's focus in. What is the first email in the preserved
6 box screenshot?
7 A. It's from Alain Kaloyeros to four unspecified recipients,
8 no subject, sent on August 23, 2013, at 7:38 a.m.
9 Q. What is the last email in this screenshot in the preserved
10 box?
11 A. It's from Bloomingdale's to AKaloyeros@gmail.com, "Subject:
12 ends today, email exclusive," sent on August 23, 2013, at 8:48
13 a.m.
14 Q. Was Todd Howe involved in all of the emails in between
15 those two emails?
16 A. Yes.
17 Q. Now focusing on the screenshot for the search warrant box,
18 what is the difference here?
19 A. All the emails with Todd Howe are missing.
20 Q. Let's go to the next slide, Ms. Lee. What does this red
21 highlighting indicate?
22 A. That would indicate the emails that are missing or deleted.
23 Q. Let's look at a few of these.
24 MR. ZHOU: If we could pull up, Ms. Lee, what is in
25 evidence as Government Exhibit number 6.

(212) 805-0300
1 Q. Special Agent Ellard, do you see here that this is an email
2 from Todd Howe to AKaloyeros@gmail.com, cc'ing Todd Howe, sent
3 on August 23, 2013?
4 A. Yes.
5 Q. What is the subject line of this email?
6 A. "FW," or forward, COR Company qualifications and
7 experience."
8 Q. What does the body of the email say?
9 A. "Attached were vitals for Syracuse."
10 MR. ZHOU: Ms. Lee if we could take a moment and flip
11 to the attachment.
12 Q. Special Agent Ellard, do you see at the top it says "COR
13 Development Company qualifications and experience?"
14 A. Yes.
15 MR. ZHOU: Now, Ms. Lee, if we could pull up
16 Government Exhibit 490, which is in evidence. If you could
17 zoom in. Thank you, Ms. Lee.
18 Q. Special Agent Ellard, do you see that this email is an
19 email from Todd Howe to AKaloyeros@gmail.com?
20 A. Yes.
21 Q. Do you see that the subject line is "FW RFQ"?
22 A. Yes.
23 Q. If you could read just that first paragraph there.
24 A. "Attached are vitals for Buffalo. They expressed broader
25 description." Below, "help versus narrower."

(212) 805-0300
1 Q. Do you see that the email continues, "Todd, our thoughts
2 for the RFQ, RFQ requirement. Selecting based on
3 qualifications, not price, is important"?
4 A. Yes.
5 MR. ZHOU: Ms. Lee, if we could pull up what is in
6 evidence as Government Exhibit 7R. Zoom in on the top half
7 here, Ms. Lee. Scroll down to the email below. That's
8 perfect.
9 Q. Special Agent Ellard, do you see that this email, the one
10 we are looking at here, is from Alain Kaloyeros, from
11 AKaloyeros@albany.edu to Todd Howe and Dean Fuleihan?
12 A. Yes.
13 Q. Focusing on the bottom paragraph of this email, do you see
14 that the first sentence reads, "Dean, I'd like to issue an RFP
15 for a strategic developer partner in Syracuse and a similar one
16 in Buffalo"?
17 A. Yes.
18 Q. Do you see it continues, "It should not focus on a specific
19 project but more on a strategic partnership about local
20 developers who know the two regions, are grassroot, have the
21 construction and business credibility, and are willing to
22 expand in jobs and investments in those regions in partnership
23 with CNSE." Do you see that?
24 A. Yes.
25 MR. ZHOU: If we could scroll up, Ms. Lee.

(212) 805-0300
1 Q. Do you see there is a forwarded message and sent from Todd
2 Howe? Could you read the email that Todd Howe wrote.
3 A. "I have vitals for Buffalo and Syracuse friends. I will
4 get back to you on Friday when back in the office."
5 Q. Do you see Mr. Kaloyeros response?
6 A. Yes.
7 Q. How does he respond?
8 A. "Need the vitals today, Herb." Smiley face.
9 MR. ZHOU: If we could keep scrolling up, Ms. Lee.
10 Q. How does Todd Howe respond?
11 A. "On Gmail," question mark.
12 Q. What does Mr. Kaloyeros write in response?
13 A. "Get some more coffee. Herb."
14 MR. ZHOU: Ms. Lee, if we could pull up Government
15 Exhibit 8R. If you could scroll down, Ms. Lee.
16 Q. Do you see that these bottom couple of emails are the same
17 ones we just looked at?
18 A. Yes.
19 MR. ZHOU: If we could scroll up, Ms. Lee.
20 Q. Do you see that Todd Howe on August 23, 2013, at 8:09 a.m.,
21 writes "Both sent to Gmail just now. TH"?
22 A. Yes.
23 Q. How does Mr. Kaloyeros respond?
24 A. With a smiley face.
25 Q. Special Agent Ellard, these last four government exhibits

(212) 805-0300
1 that we have we looked at, are all of those emails deleted in
2 the search warrant box for AKaloyeros@gmail.com?
3 A. Yes.
4 MR. ZHOU: If we could return to the slide. Thank
5 you. Let's move to the next slide, please.
6 Q. Special Agent Ellard, what date are we looking at here for
7 these screenshots?
8 A. The same date, August 23, 2013, although it's a little bit
9 later in the day.
10 Q. Let's look at the preserved box screenshot first. What is
11 the first email in that preserved screenshot?
12 A. It's from Touch of Modern to AKaloyeros@gmail, "subject:
13 the Volcanic nest chair, laser guns for smart phone, Cronenberg
14 prints, minimalist iPhone bumpers, camera bags," sent on August
15 23, 2013, at 12:11 p.m.
16 Q. What is the bottom email, the last email in this preserved
17 screenshot?
18 A. It's from somebody Tamara Miner to Alain Kaloyeros. Just
19 RE or response, no subject beyond that. Sent at August 23,
20 2013, at 9:20 p.m.
21 Q. Who sent the email in the middle?
22 A. Todd Howe.
23 Q. Did you notice any difference in the search warrant box?
24 A. Yes. The Todd Howe email is missing again or deleted.
25 MR. ZHOU: Let's go to the next slide, Ms. Lee.

(212) 805-0300
1 Q. Does the red highlighting here, Special Agent Ellard,
2 reflect the email that was deleted from the search warrant box?
3 A. Yes, it does.
5 Exhibit number 10, which is in evidence.
6 Q. Special Agent Ellard, do you see that the bottom email is
7 from Mike Laipple to Todd Howe?
8 A. Yes.
9 Q. If you could read Mr. Laipple's email.
10 A. "One last thought on the RFQ. If the RFQ included
11 something about MWBE promotion and compliance, that would be
12 helpful. Thanks."
13 Q. Do you see that Mr. Howe then forwards that message to Mr.
14 Kaloyeros?
15 A. Yes.
16 Q. What does Mr. Howe write in this message?
17 A. "Additional vital for Buffalo. Stronger on the MWBE than
18 usual would help."
19 MR. ZHOU: Ms. Lee, if we could return to the slide in
20 Government Exhibit 1503. Let's move to the next slide.
21 Q. What date were we looking at here, Special Agent?
22 A. September 3, 2013.
23 Q. Focusing on the preserved screenshot, what is the first
24 email in this screenshot?
25 A. It's from iTunes to AKaloyeros@gmail.com. Subject is "Nine

(212) 805-0300
1 Itch Nails, Ironman 3, and more," sent on September 23, 2013,
2 at 9:19 p.m.
3 Q. What is the bottom email in this screenshot?
4 A. It's from somebody named Michael Bellini to
5 AKaloyeros@gmail.com, subject is "WMB conversation," sent the
6 following day on September 4, 2013, at 8:19 a.m.
7 Q. Who was involved in the three emails in between?
8 A. Todd Howe.
10 A. The Todd Howe emails are again missing.
11 MR. ZHOU: Ms. Lee, if we could go to the next slide.
12 Q. Does the red highlighting represent Todd Howe emails that
13 were deleted?
14 A. Yes.
15 Q. Let's go to Government Exhibit 12 now, one of the deleted
16 emails. The bottom email sent on August 23, 2013, do you see
17 that we looked at that email a few minutes ago?
18 A. Yes.
19 Q. Do you see that Mr. Kaloyeros then responds to Todd Howe on
20 September 3, 2013, with the subject line "Re FW RFQ"?
21 A. Yes.
22 Q. What does Mr. Kaloyeros write in this email?
23 A. "These are not unique to Lou's company. We need more
24 definite specs, like minimum X years and Y, Z number of
25 projects in high-tech, etc., etc."

(212) 805-0300
1 Q. So this email Government Exhibit number 12 was deleted from
2 the search warrant box for AKaloyeros@gmail.com, right?
3 A. Yes, correct.
4 MR. ZHOU: Ms. Lee, if we could go on to the next
5 slide, please.
6 Q. Special Agent Ellard, what date are we looking at now?
7 A. We are looking at September 16, 2013.
8 Q. Let's start again with the preserved box screenshot. What
9 is the top email in your screenshot?
10 A. An email from someone named William Eimicke to three
11 unspecified recipients. The subject line is "RE," or response,
12 "Utica Observer Dispatch," sent on September 16, 2013, at 10:59
13 a.m.
14 Q. What is the bottom email in the preserved screenshot?
15 A. It's an email from a Michael J. Cadigan to four unspecified
16 recipients. The subject line is "Space." It's sent September
17 16, 2013, at 1:30 p.m.
18 Q. In between those two emails you just pointed out, do you
19 see that there are a number of emails that involve Todd Howe?
20 A. Yes.
22 A. Yes.
23 Q. What did you notice?
24 A. Those emails with Todd Howe are missing again or deleted.
25 MR. ZHOU: Ms. Lee, if you could go to the next slide.

(212) 805-0300
1 Q. In red here, Special Agent Ellard, are those the emails
2 with Todd Howe that were deleted from the search warrant box?
3 A. Yes, they are.
4 Q. Let's take a look at one of them.
6 Exhibit number 14, which is in evidence.
7 Q. Special Agent Ellard, do you see that at the bottom here
8 there is an email from THowe@woh-solutions.com to Alain
9 Kaloyeros, AKaloyeros@gmail.com?
10 A. Yes.
11 Q. What does Mr. Howe write?
12 A. "On SYR RFP where it says 'audited financials,' just need
13 to add an additional few words: 'audited financials or letter
14 of financial reference from major financial institution.'"
15 Q. Do you see then there is a forward and then Mr. Howe writes
16 a message?
17 A. Yes.
18 Q. What does Mr. Howe write?
19 A. "Let me know if you receive."
20 Q. Do you see that Mr. Kaloyeros Kaloyeros respondents "yes"?
21 A. Yes.
22 MR. ZHOU: Ms. Lee, if we could return to the slide.
23 And the next slide, please.
24 Q. Special Agent Ellard, what date are we looking at now?
25 A. Now we are looking at November 6, 2013.

(212) 805-0300
1 Q. Focusing on the preserved screenshot, what is the top email
2 in the screenshot?
3 A. It's from Buckles to AKaloyeros@gmail.com. Subject is
4 "Declare your denim." It's sent on November 6, 2013, at 11:04
5 a.m.
7 A. It's from Touch of Modern to AKaloyeros@gmail.com. Subject
8 is "Museum-quality wood furniture, automotive iPhone cases,
9 folding metal sculptures, ceramic iPad mounts, figure ground
10 city mouse." That was sent on November 6, 2013, at 12:18 p.m.
11 Q. Who was involved in the emails in the middle of those two
12 that you just pointed out?
13 A. Todd Howe.
15 A. Yes. The Todd Howe emails are missing.
16 MR. ZHOU: Now let's go to the next slide, Ms. Lee.
17 Q. Again, the red indicates the Todd Howe emails that were
18 deleted from the search warrant box, correct, Special Agent
19 Ellard?
20 A. That is correct.
21 Q. Let's look at one of the emails. Let's go to Government
22 Exhibit 491, also in evidence.
23 MR. ZHOU: If we could zoom in the top half of this
24 document, Ms. Lee.
25 Q. Do you see, Special Agent Ellard, that the bottom email we

(212) 805-0300
1 are looking at is from Kevin Schuler to Todd Howe and Mike
2 Laipple?
3 A. Yes.
4 Q. Subject line "re quick call"?
5 A. Yes.
6 Q. Could you read Mr. Schuler's email message.
7 A. "Beyond the politics, we need some clarification on M&W's
8 role on Riverbend procurement. They're calling around to
9 subcontractors saying they are the gatekeep for CNSE and want
10 to meet all potential developers next week. That's fine, but
11 we want to make sure they are properly representing
12 themselves."
13 Q. Do you see that Mr. Howe forwards that message and then
14 writes, "Call me"?
15 A. Yes.
16 Q. Do you see that Mr. Kaloyeros responds to Mr. Howe's
17 message?
18 A. Yes.
19 Q. What is the response?
20 A. "False" dot dot.
21 MR. ZHOU: Ms. Lee, let's return to the slide.
22 Q. Special Agent Ellard, what date are we looking at here for
23 these screenshots?
24 A. September 18, 2015.
25 Q. Again focusing on the preserved box, what is the top email

(212) 805-0300
1 in your screenshot?
2 A. It's from Guess to AKaloyeros@gmail.com. Subject line is
3 "50 percent off plus free shipping, yes, Friday." Sent on
4 September 18, 2015, at 8:12 p.m.
6 A. It's from somebody Bill Teeter via Twitter to Alain E.
7 Kaloyeros. Subject line is "Bill Teeter at BillTeeter is now
8 following you on Twitter." Sent September 18, 2015, at 9:35
9 p.m.
10 Q. Who is on the email in the middle?
11 A. Todd Howe.
13 A. Yes. Again the Todd Howe email is missing.
14 MR. ZHOU: Ms. Lee, if we could go to the next slide.
15 Q. Again in red, Special Agent, that is the Todd Howe email
16 that is deleted from the search warrant box, is that correct?
17 A. That's correct.
18 Q. Let's take a look at that email, Government Exhibit 200 in
19 evidence.
20 MR. ZHOU: Ms. Lee, let's scroll down a little bit so
21 we can see a little bit of the second page too. Let's
22 highlight the bottom couple of emails.
23 Q. Special Agent Ellard, do you see that on September 18,
24 2015, there is an email from Jimmy Vielkind at
25 JVielkind@politico.com?

(212) 805-0300
1 A. Yes.
2 Q. Do you see the signature block says "Jimmy Vielkind, Albany
3 bureau chief, Politico"?
4 A. Yes.
5 Q. What does Jimmy Vielkind write?
6 A. "Subpoenas" exclamation mark. "Give me a call," question
7 mark.
8 MR. ZHOU: Let's go up a little further, Ms. Lee.
9 Zoom out. Let's focus on that email.
10 Q. Do you see that Todd Howe then responds to Jimmy Vielkind
11 and, after a couple of emails back and forth, the top one we
12 are looking at now is September 18, 2015, at 7:14 p.m.? Do you
13 see that, Special Agent Ellard?
14 A. Yes.
15 Q. Could you read what Todd Howe wrote.
16 A. "Read that last paragraph. Your story reported it
17 incorrectly. If it hasn't changed, change it. Comprendez
18 vous? Thank you."
19 MR. ZHOU: Let's zoom out of that and let's scroll up,
20 Ms. Lee. If you could highlight the top half of this email.
21 Q. Do you see that Todd Howe then forwards that message and he
22 writes, "FYI, fighting the battle"?
23 A. Yes.
24 Q. Do you see that Mr. Kaloyeros responds?
25 A. Yes.

(212) 805-0300
1 Q. How does he respond?
2 A. "I love you, I really do."
3 Q. How does Mr. Howe respond to that?
4 A. "Family. You don't fuck with members of the family."
5 MR. ZHOU: You can take that down, Ms. Lee. You can
6 close out of the slide show.
7 Q. Let's switch gears completely, Special Agent Ellard. I
8 want to show you a couple of government exhibits that are in
9 evidence.
10 MR. ZHOU: Ms. Lee, if you could pull up what is in
11 evidence as Government Exhibit 1053, please.
12 Q. Special Agent Ellard, do you see at the top here it says
13 "Memorandum of understanding"?
14 A. Yes.
15 Q. Do you see that the first paragraph says, "This memorandum
16 of understanding ('MOU') takes effect on March 25, 2014,
17 effective date, and is between COR Development Company LLC
18 ('COR'), a New York limited liability company with its
19 principal office located at 540 Town Drive, Fayetteville, New
20 York 13066, and Fort Schuyler Management Corporation ('FSMC'),
21 a New York not-for-profit operation having an office located at
22 SUNY IT, 100 Seymour Road, Utica, New York, 13502. COR and
23 FSMC are sometimes referred to in this MOU individually as 'a
24 party' and together as 'the parties.'" Do you see that?
25 A. Yes.

(212) 805-0300
1 MR. ZHOU: Let's look to page 2 of this document, Ms.
2 Lee.
3 Q. Let's focus in number I.8. If you could read that
4 paragraph, Special Agent Ellard.
5 A. "I.8. FSMC in conjunction with CNSE, issued a request for
6 proposals RFP to establish a strategic research, technology
7 outreach, business development, manufacturing, and education
8 and training workforce collaboration with a qualified developer
9 in the greater Syracuse area."
10 Q. Let's zoom out and focus in on I.10. If you could read
11 that, Special Agent Ellard.
12 A. Yes. "I.10. COR responded to the RFP with a proposal, and
13 after a competitive process, including the RFP, FSMC has
14 conditionally selected COR for award of a project. And FSMC
15 now wishes for COR to develop and construct a facility in the
16 greater Syracuse area to house a location for the headquarters
17 and production, postproduction, and distribution operations of
18 an established film/television company in support of CNSE's
19 collaboration with CNSE's industry collaborator.
20 MR. ZHOU: Now let's turn to page 3, please. Towards
21 the bottom, Ms. Lee, there is a second-to-last bullet, a little
22 higher up. If you could highlight that.
23 Q. Special Agent Ellard, if you could read that, please.
24 A. "The building shall be constructed on an open book basis at
25 cost plus 8 percent and a mutually agreeable development fee,

(212) 805-0300
1 but in no event will the cost to FSMC for the building exceed
2 $9 million, which will include one million for site work on the
3 property."
4 MR. ZHOU: Ms. Lee, if we could go to page 7. Let's
5 zoom in the on the signatures.
6 Q. Do you see that one side of the signature is "COR
7 Development Company LLC, Steven F. Aiello, president"?
8 A. Yes.
9 Q. Do you see the other side is "Fort Schuyler Management
10 Corporation" with a signature titled "President FSMC"?
11 A. Yes.
12 MR. ZHOU: Ms. Lee, let's take this document down, and
13 if you could pull up what is in evidence as Government Exhibit
14 1051, please.
15 Q. Do you see, Special Agent Ellard, this is a document that
16 says "Notice to proceed" at the top?
17 A. Yes.
18 MR. ZHOU: Let's zoom in on the first whereas clause,
19 Ms. Lee.
20 Q. If you could read that, Special Agent Ellard.
21 A. "Whereas, on October 1, 2013, Fort Schuler Management
22 Company ("FSMC") in conjunction with the State University of
23 New York College of Nanoscale Science and Engineering ("CNSE")
24 issued a request for proposals ("RFP") for a strategic
25 research, technology outreach, business development,

(212) 805-0300
1 manufacturing, and education and training partnership with a
2 qualified local developer in the greater Syracuse area; and."
3 Q. Let's go to the fourth whereas clause. If you could read
4 that, Special Agent Ellard, please.
5 A. "Whereas, FSMC conducted a competitive bidding process
6 under the RFP, and as a result of such process FSMC entered
7 into a memorandum of understanding ("MOU") effective March 25,
8 2014, with COR for COR to develop, design, and construct a
9 building consisting of 52,000 square feet in the Collamer
10 Crossings business park at 24 Aspen Park Boulevard, DeWitt, New
11 York, 13057, the building to house the location for the
12 headquarters and production, postproduction, and distribution
13 operations of an established film/television company in support
14 of CNSE's collaboration with the film house, with the building
15 and related infrastructure/site work on the property being
16 referred to in this NCP as 'the project'; and."
17 Q. Let's go to page 4 now, Ms. Lee. Let's zoom in the on
18 signatures. Do you see that the top has Fort Schuyler
19 Management Corporation signature and the name Alicia Dicks,
20 title president?
21 A. Yes.
22 Q. Do you see the next signature block is "COR Development
23 Company LLC, Steve F. Aiello president"?
24 A. Yes.
25 MR. ZHOU: Ms. Lee, let's take this document down and

(212) 805-0300
1 let's go to Government Exhibit 1049, please. If we could zoom
2 in on the top line in the paragraph.
3 Q. Do you see here this is a construction management and
4 construction agreement?
5 A. Yes.
6 Q. Do you see that it is dated January 7, 2015, and it says,
7 "It is hereby entered into between COR Aspen Park Boulevard
8 Company Number 2 LLC," and then later it mentions in the
9 paragraph Fort Schuyler Management Corporation?
10 A. Yes.
11 MR. ZHOU: Now let's go to page 3, Ms. Lee. Let's
12 focus in on the compensation paragraph.
13 Q. Do you see that number 6 says "Compensation?
14 A. Yes.
15 Q. "FSMC shall pay COR the actual cost of constructing the
16 project on an open book basis cost of work plus 8 percent of
17 the cost of work, fixed construction services fee, and a
18 development fee of 6 percent of the cost of work development
19 fee"? Do you see that?
20 A. Yes.
21 Q. Do you see it further continues, "The cost of the project
22 and the maximum cost to FSMC for the project shall not exceed
23 $10,660,000 GMP" and then it continues further?
24 A. Yes.
25 MR. ZHOU: Ms. Lee, if you could take this down and

(212) 805-0300
1 pull up what is in evidence as Government Exhibit 1054. Zoom
2 in on the top paragraph.
3 Q. Do you see, Special Agent Ellard, this is a memorandum of
4 understanding that indicates that it takes effect on March 13,
5 2014, and is between LPCiminelli, Inc., a New York corporation
6 with its principal office located at 2421 Main Street, Buffalo,
7 New York, 14214, and Fort Schuyler Management Corporation? Do
8 you see that?
9 A. Yes.
10 MR. ZHOU: Let's go to page 2 now. Ms. Lee, if you
11 could pull up I8, please.
12 Q. If you could read that, Special Agent Ellard.
13 A. "FSMC, in conjunction with CNSE, issued a request for
14 proposals ('RFP') to establish a strategic research, technology
15 outreach, business development, manufacturing, and education
16 and training workforce training collaboration with a qualified
17 developer in the greater Buffalo area."
18 Q. If we could go to I.10 now. If you could read that please.
19 A. "LPCiminelli responded to the RFP with a proposal, the RFP
20 submission, and after a competitive process, including the RFP,
21 FSMC is authorized to award to LPCiminelli one or more projects
22 under the RFP. And FSMC now wishes for LPCiminelli to develop
23 and construct the first two facilities of the hub, one facility
24 to house CNSE's collaboration with Soraa and one facility to
25 house CNSE's collaboration with Silevo, as set forth in the

(212) 805-0300
1 MOU.
2 MR. ZHOU: Now if we could go to page 7, Ms. Lee.
3 Let's focus on the signature blocks.
4 Q. Do you see that the LPCiminelli, Inc. side is signed with a
5 signature and it says "Sr Executive Vice President"?
6 A. Yes.
7 Q. Do you see the right-hand side says "Fort Schuyler
8 Management Corporation, signature," and then "President FSMC"?
9 A. Yes.
10 Q. Let's look at our final document here, Special Agent
11 Ellard. Let's look at Government Exhibit 1060.
12 MR. ZHOU: Pull up the top paragraph, Ms. Lee.
13 Q. Do you see, Special Agent Ellard, this one is a notice to
14 proceed?
15 A. Yes.
16 Q. It says, "Whereas, on October 15, 2013, Fort Schuyler
17 Management Corporation, in conjunction with the State
18 University of New York College of Nanoscale Science and
19 Engineering, issued a request for proposals ('RFP') for a
20 strategic research, technology outreach, business development,
21 manufacturing, and education and training partnership with a
22 qualified local developer in the greater Buffalo area"?
23 A. Yes.
24 Q. Now let's go to the fifth whereas clause. It begins with
25 "Whereas, FSMC conducted." We will read just the first portion

(212) 805-0300
1 here. Do you see that it says, "Whereas, FSMC conducted a
2 competitive bidding process under the RFP, and as a result of
3 such process FSMC entered into a memorandum of understanding
4 ('MOU') effective March 13, 2014, with LPCiminelli"? Do you
5 see that?
6 A. Yes.
7 MR. ZHOU: Let's focus in on the second-to-last
8 whereas clause, Ms. Lee, on this first page.
9 Q. If you could read that paragraph, Special Agent Ellard.
10 A. "Whereas, FSMC and LPCiminelli anticipate that the
11 guaranteed maximum price under the contract for the core and
12 shell of the project will be $60 million consisting of (a)
13 estimated maximum total cost to work for the core and shell of
14 the project, which is anticipated not to exceed $57,300,000,
15 and (b) estimated maximum LPCiminelli design and construction
16 management fees of 4.5 percent of the cost of the work, and to
17 be as outlined in the proposal received by FSMC on December 10,
18 2013, in response to the RFP ('proposal'), which such proposal
19 is incorporated herein by reference; and."
20 Q. Let's go to page 4 now. Let's take a quick look at the
21 signatures. Do you see there is a signature from Fort Schuyler
22 Management Corporation, name Alicia Dicks, title president?
23 A. Yes.
24 Q. Do you see for LPCiminelli, Inc. there is the name John
25 Ciminelli with a signature, title S vice president?

(212) 805-0300
1 A. Yes.
2 MR. ZHOU: Just a moment, please, your Honor.
3 THE COURT: Sure.
4 MR. ZHOU: No further questions.
5 THE COURT: Why don't we take our morning break. It
6 is now about 11:20. I'll bring you back out about 11:30.
7 Don't discuss the case.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(212) 805-0300
I6R3KAL3 1736
2 (Witness temporarily excused)
3 THE COURT: Who is crossing?
4 MR. MILLER: I am, your Honor.
5 THE COURT: About how long do you anticipate?
6 MR. MILLER: 10 minutes.
7 THE COURT: Anybody else?
8 MR. SHECHTMAN: Seven.
9 THE COURT: Okay. So that means we're going to get to
10 Mr. Doyle before lunch, right?
11 I didn't intend to ignore the Syracuse fellows.
12 MR. COFFEY: That's okay.
13 THE COURT: You are the redheaded stepchild.
14 MR. COFFEY: I've been called worse. None. No
15 questions.
16 THE COURT: Mr. Williams?
17 MR. WILLIAMS: No.
18 THE COURT: So let me read the stuff and see what I
19 have to work out before.
20 MR. SHECHTMAN: Judge, can we run that break a little
21 longer than usual because working this out will not be easy.
22 THE COURT: It will be more than 10 minutes?
23 MR. SHECHTMAN: The alternative, Judge, is to break
24 for lunch early and take a long break. I think this is a half
25 hour project here because I think we're pretty far apart.

(212) 805-0300
I6R3KAL3 1737
1 MR. MILLER: I second that. And there are also some
2 open issues that need to be resolved before Mr. Doyle
3 testifies. So if we take a lunch break now.
4 THE COURT: We won't take it now. We'll bring them
5 back and finish up with Mr. Ellard. How long is Doyle's
6 testimony?
7 MR. BOONE: About an hour.
8 THE COURT: About an hour. So one way or the other,
9 the government will rest today.
10 MR. BOONE: Yes.
11 THE COURT: Okay. We'll do that. I'll break for
12 lunch and give them an extended lunch break.
13 MR. ZHOU: Your Honor, we can move in a few
14 stipulations after Special Agent Ellard's testimony.
15 THE COURT: Everybody sit down for just a second.
16 That actually gives rise to the following beefs on my part.
17 So, the government exhibit list, every day or when you give me
18 a new list, you're putting a day or a check or something saying
19 a document is in. Your record, and I haven't gone back through
20 my record, shows that the thumb drive --
21 MR. ZHOU: Yes. 1602.
22 THE COURT: -- is in evidence. So this of course
23 worries me because you said no, it's not in evidence.
24 MR. ZHOU: Yes, your Honor. We marked it for
25 identification, and when the Google custodian testified we

(212) 805-0300
I6R3KAL3 1738
1 showed it to her and she indicated she authenticated all the
2 files on that drive. But we tried, we specifically did not
3 move it into evidence.
4 THE COURT: That's just a mistake.
5 MR. ZHOU: I think it is a mistake, your Honor.
6 THE COURT: I've not giving whoever is handling the
7 exhibit list a hard time. But what that means is you guys all
8 need to look over this carefully, because at the end of the day
9 I'm going to depend on the defense and the government agreeing
10 that you've got everything in that is supposed to be in, and
11 what gets loaded on to the laptop that goes back to the jury is
12 all in evidence.
13 So the government is nodding. The defense is just
14 sitting here. Y'all have to double check this to make sure
15 that what's on the list and on the laptop comports with your
16 records of what's in evidence.
17 MR. ZHOU: Yes, your Honor.
18 THE COURT: I think I've got good records as well, so
19 if there is a dispute, I could resolve it.
20 MR. ZHOU: I'm happy to note we've already been
21 communicating to make sure we all agree what's in evidence.
22 MR. SHECHTMAN: Judge, could you at the end of the
23 day, tomorrow, make your list available to us which I think
24 would be helpful, what you have.
25 THE COURT: I have multiple lists because I keep

(212) 805-0300
I6R3KAL3 1739
1 getting new lists. So, yes, but the short answer is I'm happy
2 to make my multiple lists available to you.
3 MR. SHECHTMAN: That would be great.
4 THE COURT: Now you have seven minutes left on this
5 break.
6 (Recess)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(212) 805-0300
I6R3KAL3 Ellard - Cross 1740
1 (In open court; jury present)
2 MR. MILLER: Thank you, your Honor.
3 CROSS-EXAMINATION
4 BY MR. MILLER:
5 Q. Good morning, Mr. Ellard. How are you?
6 A. Good morning. How are you?
7 Q. Good, thanks. Along with Reid Weingarten, we represent
8 Alain Kaloyeros.
9 You have identified a number of e-mails that you were
10 able to observe in the December, the search warrant batch or --
11 I'm sorry. The other way around.
12 You were able to observe a number of documents that
13 were in the preserved snapshot that were not in the search
14 warrant batch. Is that correct?
15 A. Correct.
16 Q. And the preserved, to your knowledge, the preserved
17 snapshot was made sometime in October of 2015.
18 Do you know the dates, actually?
19 A. I know that the days of the length of e-mails or the
20 breadth of the preserved box, which would run from roughly
21 November 30, 2012, until October 14, 2015.
22 Q. So I'm asking you a slightly different question. Do you
23 know on what dates the preserved snapshot was taken and the
24 search warrant collection was taken?
25 A. By Google?

(212) 805-0300
1 Q. By Google.
2 A. No, I don't.
3 Q. So you don't know how broad a period of time there is
4 between when the snapshot was taken and the search warrant was
5 executed, correct?
6 A. Correct.
7 Q. But you have identified a number of documents that were in
8 the preserved files that are not in the search warrant files,
9 correct?
10 A. Correct.
11 Q. And the government walked you through a handful of those
12 documents during your direct examination. I think
13 approximately 15 or so documents. Do you recall that?
14 A. Yes.
15 Q. What was the total number of, just raw variants between the
16 total number of e-mails in the preserved file and the total
17 number of e-mails in the search warrant file?
18 A. So the total volume of both files?
19 Q. Yes. What's the difference between the two.
20 A. The difference between the two. It's hard to give a
21 precise number. But, it was between 1,000 and 1,500.
22 Q. So the handful of e-mails that the government showed you
23 are out of somewhere between 1,000 and 1,500 e-mails that I
24 guess just the delta between the preserved and the search
25 warrant batches, correct?

(212) 805-0300
1 A. I'm not sure I understand the question.
2 Q. Would it be fair to say that the e-mails that you saw
3 represent a very small fraction of the e-mails that were
4 deleted between the preserved file and the search warrant file?
5 A. Referring to the e-mails we looked at here today?
6 Q. Yes.
7 A. Yes, that would be fair to say.
8 Q. Did you go back to the preserved file to look at that
9 thousand to 1,500 e-mails that were present in the preserved
10 e-mail file but were not present in the search warrant file?
11 A. Yes, I did a review of those e-mails.
12 Q. Fair to say they were a mix of personal e-mails, business
13 e-mails, and spam?
14 A. Yes, that would be fair to say.
15 Q. I think you indicated on direct examination that you ran a
16 search for the word Howe, correct?
17 A. No.
18 Q. In the preserved snapshot, did you run a search using just
19 the word Howe to see what showed up in the preserved e-mails?
20 A. So, in general, or are you referring to what we just talked
21 about in direct examination?
22 Q. Yeah, I'm talking about how you did the analysis that you
23 testified about today.
24 A. Understood.
25 Q. Is it fair to say that you ran the word Howe in the

(212) 805-0300
1 preserved snapshot and in the search warrant file?
2 A. Yes, I did do that as part of my analysis. But that wasn't
3 necessarily how I got to the analysis I testified about today.
4 Q. Are you completely certain that there are no Howe e-mails
5 in the search warrant file that you examined?
6 A. Am I completely -- there are no e-mails in the search
7 warrant file with either of those e-mail addresses we
8 discussed.
9 Q. At all.
10 A. There were none that I was able to identify.
11 Q. Isn't it a fact that there were Todd Howe e-mails in the
12 search warrant batch that had been created, sent or received,
13 between a date in October of 2015 and late December or early
14 December of 2015?
15 A. So I did see e-mails to and from Todd Howe in the search
16 warrant or newer box. But they were after the date that the
17 preserved box ended. I believe they started on October 20,
18 2015 and then went later on into December if I'm not mistaken.
19 Q. Fair to say that at the time the search warrant collection
20 was done, the entirety of Todd Howe's e-mails had not been
21 deleted from the e-mail system? Is that correct?
22 A. I'm not sure how the deletion process works internally at
23 Google, so I don't know if I can give an answer to that
24 question.
25 Q. But is it fair to say that when you looked at the search

(212) 805-0300
1 warrant collection, there were Todd Howe e-mails in there,
2 correct?
3 A. Yes, there were, after October.
4 Q. So those were not deleted, were they?
5 A. No, they weren't.
6 Q. I think you testified on direct examination that you were
7 able to conclude that no e-mails exchanged between Alain
8 Kaloyeros and Lou Ciminelli were deleted. Is that correct?
9 A. That is correct. I was able to find e-mails with Louis
10 Ciminelli in both the preserved and newer boxes for Alain
11 Kaloyeros.
12 THE COURT: Of Kaloyeros' box?
13 THE WITNESS: Yes, correct, your Honor.
14 Q. So focusing on Alain Kaloyeros, who we represent.
15 A. Okay.
16 Q. When you looked at the preserved file, you saw there were
17 e-mail exchanges between Alain Kaloyeros and Lou Ciminelli,
18 correct?
19 A. Yes.
20 Q. And those same e-mails were present in the search warrant
21 collection, correct?
22 A. Correct.
23 Q. None of those were deleted, correct?
24 A. Not the eight I testified about today. I couldn't speak to
25 other ones.

(212) 805-0300
1 Q. As you sit here today, you have no idea whether any Lou
2 Ciminelli-Alain Kaloyeros e-mails were deleted, correct?
3 A. Correct, I don't know if he deleted those e-mails. Alain
4 Kaloyeros, that is.
5 Q. Did you do other word searches through the preserved and
6 search warrant collections to see if any other e-mails relating
7 to the Syracuse or Buffalo RFPs had been deleted?
8 A. I generally didn't do word searches. I searched by either
9 e-mail address or by e-mail domain.
10 Q. With respect to the Syracuse RFP, what e-mail addresses did
11 the government ask you to look for?
12 A. I don't know what the Syracuse RFP is. So I wasn't
13 directed to do that.
14 Q. Did you look for any e-mails involving a company called
15 COR?
16 A. No.
17 Q. So you have no idea whether e-mails to and from COR or
18 relating to COR were deleted, correct?
19 A. Correct. Besides the ones I testified about that were
20 deleted.
21 Q. When you did the search based on communications with Lou
22 Ciminelli, is it fair to say you searched for Lou Ciminelli's
23 e-mail address in Dr. Kaloyeros' e-mails?
24 A. Yes.
25 Q. Would it be fair to say you did not do a broader search to

(212) 805-0300
1 see if the word Ciminelli appeared in both the preserved
2 snapshot and the final search warrant collection?
3 A. Yes.
4 Q. So, fair to say you have no idea whether there are
5 documents that relate to Ciminelli that were in the preserved
6 e-mails and are still today in the search warrant files; is
7 that correct?
8 A. Yes.
9 Q. I think you answered this before, but you didn't run words
10 like Syracuse, Buffalo, Riverbend, Silevo, Soraa, you didn't
11 run any of those names through the e-mails to determine whether
12 e-mails with any of those words were present in both files?
13 A. Correct.
14 Q. One of the e-mails that was exchanged between Dr. Kaloyeros
15 and Lou Ciminelli I believe you have testified, well, you
16 testified about a document that was in Lou Ciminelli's e-mail
17 file, the preserved snapshot, but was not in the final search
18 warrant version, Government Exhibit 480?
19 MR. MILLER: Can we pull that up on the screen. And I
20 think that's in evidence, so it should be able to go to the
21 jury.
22 THE COURT: 480?
23 MR. MILLER: 480.
24 Q. Do you have that in front of you?
25 THE COURT: 480 is not in evidence. Government

(212) 805-0300
1 Exhibit 480?
2 MR. MILLER: I believe that's --
3 THE COURT: Not in evidence.
4 MR. MILLER: Hang on one second.
5 THE COURT: Do I have the wrong list in front of me?
6 What's the date, the 27th?
7 MR. MILLER: The same document is in as Government
8 Exhibit 492, so why don't we pull that up. Apologies for that.
9 THE COURT: That's okay. 492 is in evidence.
10 Q. Do you see Government Exhibit 492?
11 A. Yes, sir.
12 Q. Directing your attention specifically to the e-mail from
13 Alain Kaloyeros to Lou Ciminelli. Do you see that?
14 A. Yes.
15 Q. Is it fair to say that this is one of the e-mails that you
16 found in Dr. Kaloyeros' search warrant collection?
17 A. Yes.
18 Q. So this is an e-mail that was in the preserved snapshot for
19 Dr. Alain Kaloyeros' Gmail, correct?
20 A. Correct.
21 Q. And was still in his e-mail files when the search warrant
22 was executed at some period of time later?
23 A. Yes, it was still in the newer or search warrant box, yes.
24 MR. MILLER: One second, your Honor. Thank you,
25 Mr. Ellard. I have no other questions.

(212) 805-0300
1 THE WITNESS: Thank you.
2 THE COURT: Mr. Shechtman.
3 CROSS-EXAMINATION
4 BY MR. SHECHTMAN:
5 Q. Mr. Ellard, Paul Shechtman. I represent Louis Ciminelli
6 and I, too, will try to be brief.
7 Just to make sure I understand your testimony. There
8 are eight e-mails present in the preserved Mbox that are not
9 present in the search warrant Mbox that involve Dr. Kaloyeros
10 in some fashion. Would I be correct?
11 A. Yes, that sounds correct.
12 Q. All eight of them are in Dr. Kaloyeros' e-mail.
13 A. Correct. In both his preserved --
14 Q. Preserved and the search warrant.
15 A. Yes.
16 Q. Thank you. And there are approximately 270 other e-mails
17 that are in the preserved Mbox that are not in the search
18 warrant Mbox, that have nothing to do with Dr. Kaloyeros.
19 Would that be correct?
20 A. I don't recall the number or the specificity, other than
21 the remaining e-mails in that Gmail account largely appeared to
22 be junk or spam mail.
23 Q. But more than a couple hundred?
24 A. I don't know.
25 Q. You said, whatever that number is, they are mostly golf

(212) 805-0300
1 tips. Would I be correct?
2 A. I don't know. There were a lot of e-mails about golf, but
3 I don't know what else was in there.
4 Q. You referred to them as junk e-mail.
5 A. That's what they appeared to be, yes.
6 Q. I would be correct you're not a golfer?
7 A. You would be correct, sir.
8 Q. There are scores of golf tips that are present in both the
9 preserved Mbox and the search warrant Mbox. Would that be
10 correct?
11 A. I believe so, but again, I didn't review every e-mail in
12 that Mbox so I wouldn't know for sure.
13 Q. But there are preserved golf tips in the search warrant
14 Mbox.
15 A. I am a little confused by the question. There's a
16 preserved Mbox which is everything.
17 Q. I'm sorry. There were preserved golf tips in the search
18 warrant Mbox. You're doing better than I am.
19 THE COURT: The problem is calling them preserved
20 e-mails.
21 MR. SHECHTMAN: I think that's right.
22 Q. There are golf tip e-mails in the search warrant Mbox;
23 would that be correct?
24 A. I do recall seeing e-mails about golf in both Mboxes, the
25 preserved and the newer or search warrant box.

(212) 805-0300
1 Q. The eight e-mails that were the Dr. Kaloyeros-related
2 e-mails, that were present in the preserved Mbox, that was one
3 string of e-mails; would I be correct?
4 A. That's what it appeared to be, yes, sir.
5 Q. Can I show you just on your screen what is Defendant's
6 Exhibit 31.
7 Is that the string that was present in the preserved
8 Mbox?
9 A. Yes, I do believe this is some of the e-mails that I
10 reviewed amongst those eight e-mails or so, yes.
11 Q. Just about all of them?
12 A. I mean, the way they were broken up it is kind of hard to
13 tell because now it's stringed together in one long e-mail, but
14 yes, it looks familiar to me.
15 MR. SHECHTMAN: We would offer Defense Exhibit 31.
16 THE COURT: Any objection?
17 MR. ZHOU: No objection, your Honor.
18 THE COURT: Defense 31 is received.
19 (Defendant's Exhibit 31 received in evidence)
20 MR. SHECHTMAN: Sir, I thank you greatly.
21 THE COURT: Mr. Coffey?
22 MR. COFFEY: No, thank you, your Honor.
23 THE COURT: Mr. Williams?
24 MR. WILLIAMS: None, your Honor.

(212) 805-0300
I6R3KAL3 Ellard - Redirect 1751
1 MR. ZHOU: Very briefly, your Honor.
2 REDIRECT EXAMINATION
3 BY MR. ZHOU:
4 Q. So Special Agent Ellard, just to clarify, to make it clear.
5 So when you were looking at the AKaloyeros@Gmail.com boxes, I
6 believe you testified on direct that for your comparison, you
7 were looking at both boxes for the time period between
8 November 30, 2012, through October 14, 2015. Is that right?
9 A. Correct.
10 Q. How many e-mails in the search warrant box for that time
11 period did you see that involved THowe@WOH-solutions.com?
12 A. In the search warrant box there was zero.
13 Q. How many in the search warrant box for that same time
14 period did you see involving e-mail address
15 Todd_R_Howe@Yahoo.com?
16 A. Zero.
17 Q. Focusing on the later time period that you talked about on
18 cross-examination, from October 20, 2015, moving forward,
19 focusing on the search warrant box, did you see any e-mails
20 involving Todd Howe in that box?
21 A. I did.
22 Q. Mr. Shechtman asked you some questions on
23 cross-examination. Were those questions that he was asking you
24 about, did those refer to the LouisCiminelli@Gmail.com, those
25 two Mboxes related to that account?

(212) 805-0300
I6R3KAL3 1752
1 A. I'm not sure I follow.
2 MR. SHECHTMAN: Judge, I'll stipulate to that.
3 MR. ZHOU: Just to clarify the record on that point.
4 THE COURT: Okay.
5 MR. ZHOU: No further questions.
7 (Witness excused)
8 THE COURT: Okay, ladies and gentlemen, as I
9 indicated, we're doing better from a timing perspective. But
10 the lawyers and I have some things we need to discuss that are
11 going to take a while. They need to eat and you need to eat,
12 so what we're going to do is I'm going to give you an extended
13 lunch hour today, so feel free to go someplace different that's
14 going to take a little bit longer.
15 So it is a little before 12 now. What I'm going to do
16 is I am going to give you a lunch break until 2 o'clock. That
17 gives you a nice long break, it gives us long enough to deal
18 with what we need to deal with. And I have every anticipation
19 that the government will rest today. There may be a snag, but
20 that's kind of where we are going at the moment.
21 Don't discuss the case. I'll see you back at
22 2 o'clock.
23 (Jury excused)
24 THE COURT: Be seated, everyone. What is your best
25 guess of what time do I need you back here? How long will it

(212) 805-0300
I6R3KAL3 1753
1 take you to work out what you need to work out?
2 MR. SHECHTMAN: Here would be my modest proposal. If
3 you could be available at 1:20. If we can't get it resolved,
4 that will give us 40 minutes, because you may have to do some
5 editing or ruling or both. And if we are largely resolved
6 before then, we'll just let you know and give you a longer
7 lunch hour.
8 THE COURT: Why don't we say 1:15. That gives us 45
9 minutes to work out anything that has to be worked out. If
10 you've got it all worked out before then, just let me know.
11 MR. SHECHTMAN: That founds fine.
12 THE COURT: Let me make sure I understand what's on
13 the table. What's on the table is redacting, if required, 1044
14 and 206. Tell me again what the issue is with the document
15 that you handed up today? I don't have an exhibit number on
16 this.
17 MR. BOONE: Yes, your Honor.
18 THE COURT: The stonewalling spending Buffalo
19 Billions.
20 MR. MILLER: The issue from our side is we literally
21 got it as we were standing up to deal with other things this
22 morning, so we haven't had a chance to look at it.
23 THE COURT: Understood. What's the exhibit number?
24 MR. BOONE: Sorry. I missed your last part.
25 THE COURT: What's the exhibit number of the e-mail?

(212) 805-0300
I6R3KAL3 1754
1 It is not an e-mail. This is the Heaney post that I think sets
2 the date, this is relevant for when Dr. Kaloyeros had his
3 e-mail deletion altered.
4 MR. BOONE: Correct. We're going to label it
6 THE COURT: 1083. So you don't know if there is an
7 issue with 1083 given the fact you haven't had a chance to read
8 it. But since it is an article from Mr. Heaney, we can I think
9 anticipate that there will be some issues.
10 MR. MILLER: I think that's fair to say.
11 THE COURT: Then there is a separate issue with the
12 procurement guidelines; is that correct?
13 MR. MILLER: That's correct.
14 THE COURT: The issue is just you object to them
15 coming into evidence.
16 MR. MILLER: I have a lot to say about it. I think
17 there's a lack of foundation. I think there is a lack of
18 relevance. I'll be happy to address both of them.
19 THE COURT: Who is putting this into evidence?
20 MR. PODOLSKY: Your Honor, we think this is a public
21 record, but it will be relevant to a exhibit put in through
22 David Doyle. So we would just offer it into evidence and maybe
23 have Mr. Doyle read a portion or two of it.
24 THE COURT: So you're offering it as a public record?
25 MR. PODOLSKY: Yes, your Honor.

(212) 805-0300
I6R3KAL3 1755
1 THE COURT: And I take it there's not, this one was
2 published in July 2009 and there hasn't been another one
3 published.
4 MR. PODOLSKY: 2014 was the update, so this one would
5 be --
6 THE COURT: So after what's relevant here.
7 MR. PODOLSKY: Correct.
8 THE COURT: So you can --
9 MR. MILLER: I have a lot to say on it. We can deal
10 with it after we have our lunch break.
11 THE COURT: Yes, you have a lot to say about it. Try
12 to say less about it.
13 MR. MILLER: If you exclude it quickly, that will --
14 THE COURT: I want to hear what you have to say. And
15 I don't need yet to look at the Todd Howe excerpts because
16 that's going to be for this afternoon's issue. Is that
17 correct?
18 MR. COFFEY: Judge, can I ask a question. Assuming
19 the government finishes this afternoon, I have no idea what
20 time. Say 3:30, 4 o'clock. Are you going to entertain Rule 29
21 motions then or are you going to wait until tomorrow morning?
22 THE COURT: No, I'll entertain them this afternoon.
23 MR. COFFEY: All right.
24 THE COURT: Actually, it's slightly more complicated
25 than that. Because I need to know whether the defense has any

(212) 805-0300
I6R3KAL3 1756
1 defense, assuming the motions are denied. Is something going
2 to happen tomorrow, so the jury has to be brought in?
3 MR. MILLER: I have a preliminary thought on that. We
4 do envision having a number of e-mails read to the jury.
5 THE COURT: That's right.
6 MR. MILLER: Here's the thought. I think just
7 generally caucusing with the defense lawyers, it sounds as
8 though there is general --
9 THE COURT: Mr. Miller, get closer to the microphone.
10 MR. MILLER: That there is generally interest in
11 summing up the week after the 4th of July.
12 THE COURT: I assumed that.
13 MR. MILLER: So, it's entirely feasible that to the
14 extent that we need to do an hour or two of reading of
15 documents to the jury before summations, we could do that on
16 the Monday -- just if it saved everybody coming back for a few
17 hours as opposed to a full day.
18 THE COURT: I'm not going to do that.
19 MS. PATEL: We anticipate having one to two witnesses
20 that will be available tomorrow. They are coming from out of
21 town. So we would prefer having that happen.
22 THE COURT: I got it. One way or the other then the
23 jurors have to come in tomorrow, assuming that the motions are
24 denied. But we'll know that. Okay.
25 MR. ZHOU: Yes, your Honor. Sorry. One final point.

(212) 805-0300
I6R3KAL3 1757
1 We have outstanding the Verizon Wireless stipulation that you
2 were going to consider, your Honor, and we just have a couple
3 factual notes on that. We notice that on the same day we're
4 interested in, August 15, 2013, the e-mail from Mr. Gerardi
5 sending the qualifications comes in around 6 p.m. So around
6 4:30, there is one call made from the phone to Todd Howe's cell
7 phone, and there are two calls that are made to the COR
8 Development offices in Syracuse. So we just note that for your
9 Honor as you consider. Then --
10 THE COURT: Mr. Zhou, along those lines, do you have
11 any, anywhere in the mass of the e-mails that you have put into
12 evidence in this case, are there any e-mails from Mr. Aiello on
13 August 15?
14 MR. ZHOU: I don't believe so, your Honor.
15 THE COURT: You don't think so?
16 MR. ZHOU: We'll take a look, we'll check, your Honor,
17 and we'll let you know.
18 Just to flag for you, just the middle block of
19 documents that I handed up, there are a couple e-mails that are
20 relevant to the defendants' knowledge of ESD and specifically
21 ESD being an organization that has New York City offices and so
22 we're going to offer those up. I know the defense has some
23 objections so I want to flag that for your Honor.
24 THE COURT: Okay. So this is sounding more like
25 definitely 1:15. I am not sure if that will do it. But so

(212) 805-0300
I6R3KAL3 1758
1 that is on hold and we'll deal with that and we'll deal with
2 Verizon.
3 MR. SHECHTMAN: Two very quick things.
4 THE COURT: I tried to give you a long lunch break.
5 MR. SHECHTMAN: We'll do our best to ruin it. Can we
6 meet in your witness room?
7 THE COURT: My witness -- are you using that room back
8 there? Right now? The government.
9 MR. BOONE: No, your Honor.
10 THE COURT: Fine with me.
11 MR. SHECHTMAN: That's great.
12 THE COURT: Is there any reason why the defense can't
13 meet in that room right now?
14 MR. BOONE: No.
15 MR. SHECHTMAN: With the government when we negotiate
16 it.
17 THE COURT: With the government, then fine.
18 MR. SHECHTMAN: The second question is, the third
19 newspaper article, we don't have a copy of it, and it doesn't
20 seem to be on the screens. So could we get a copy?
21 THE COURT: Government Exhibit 1083.
22 MR. SHECHTMAN: We're ready for lunch.
23 THE COURT: Terrific. Enjoy your lunch.
24 (Recess)

(212) 805-0300
I6rrkal4 1759
1 AFTERNOON SESSION
2 1:30 p.m.
3 (Jury not present)
4 MR. MILLER: We are actually making good progress. If
5 we can get another 10 or 15 minutes from the Court, I can we
6 can get almost there.
7 THE COURT: Okay. Ten minutes.
8 (Recess)
9 MR. SHECHTMAN: Judge, I think we have proven the
10 benefits of collaboration.
11 THE COURT: Do I see white smoke going up on all of
12 these issues?
13 MR. SHECHTMAN: Light gray.
14 THE COURT: I'll take it. Where are you?
15 MR. SHECHTMAN: Let's start with 206.
16 THE COURT: Yes.
17 MR. SHECHTMAN: What I am going to do is not tell you
18 what's out, I'm just going to tell you what's in dispute, and
19 then either Mr. Miller or I will argue as to why we think it
20 should be out.
21 THE COURT: Do you have it all redacted except for
22 this?
23 MR. SHECHTMAN: No, but it will be very quickly.
24 THE COURT: It might be useful when I hear what is in
25 dispute to know what else is agreed to. But go ahead.

(212) 805-0300
I6rrkal4 1760
1 MR. SHECHTMAN: On page 2 of 206, what remains in
2 dispute is the paragraphs that we have agreed to take all
3 references to campaign contributions.
4 THE COURT: That was easy.
5 MR. SHECHTMAN: It would just begin essentially "blank
6 has been awarded." So it is from "been awarded" --
7 THE COURT: What paragraph is this?
8 MR. SHECHTMAN: This is the paragraph that begins "One
9 of Cuomo's." There aren't that many, Judge.
10 THE COURT: What am I supposed to be looking at?
11 MR. SHECHTMAN: From "been awarded" in that sentence.
12 THE COURT: You have agreed to take out "One of
13 Cuomo's largest campaign contributors from the Buffalo area"?
14 MR. SHECHTMAN: We could do this as a Bruton redaction
15 where we substitute, but just start in the middle of the
16 sentence.
17 THE COURT: You could take out "Cuomo's largest
18 campaign contributors."
19 MR. SHECHTMAN: We could start "From the Buffalo
20 area," I'm okay with that.
21 THE COURT: Okay.
22 MR. SHECHTMAN: It's that paragraph from there to the
23 end, the word "anyway," that is the first thing that is in
24 dispute, and I'll let Mr. Miller address it.
25 THE COURT: You want to take out the whole thing.

(212) 805-0300
I6rrkal4 1761
1 MR. SHECHTMAN: The government wants the whole
2 paragraph in.
3 THE COURT: You want the whole thing in other than you
4 are willing to delete the information about campaign
5 contributions?
6 MR. BOONE: Yes. That comes up in two places in that
7 paragraph.
8 THE COURT: I see it. Go ahead, Mr. Miller. The idea
9 of just taking out "Cuomo's largest campaign contributors" and
10 then the "whose" clause that follows "Ciminelli," if I was left
11 to my own devices, that's how I would redact it. Explain to me
12 why the whole paragraph should go.
13 MR. MILLER: The language that I'm focused on, your
14 Honor, is the language in the second sentence which says, "The
15 State's original solicitation for a developer to build a
16 massive solar panel manufacturing plant included a requirement
17 that might have included limited the pool of respondents to
18 just one firm, LPCiminelli."
19 THE COURT: That's kind of what the whole case is
20 about.
21 MR. MILLER: That's my point. There are a number of
22 instances in this article where the writer is offering a view
23 specifically on the issue that the jury's got to decide. He's
24 not here and we can't cross-examine him. You can tell the jury
25 that they are not to take this for the truth of the matter, but

(212) 805-0300
I6rrkal4 1762
1 I think there are a series of examples where he speaks to the
2 very issue that this jury has to decide at the end of the day.
3 I think that is appropriately removed.
4 THE COURT: What else?
5 MR. MILLER: Your Honor, the next two paragraphs that
6 the parties have agreed to strike are the paragraph beginning
7 "The state is making" and the next one, "This program involves
8 very big risk." Those are out.
9 MR. BOONE: That's mostly right. We would argue to
10 leave in "The state is making its biggest investment
11 750 million to build a manufacturing plant for Solar City."
12 Then the rest could come out.
13 MR. MILLER: We are fine with that.
14 THE COURT: That was also the way I thought it should
15 be redacted. So the first portion of the sentence, "The state
16 is making its biggest investment" through the word "solar City"
17 stays in, and the rest of that paragraph and the next paragraph
18 come out.
19 MR. MILLER: That's correct, your Honor.
20 MR. SHECHTMAN: On page 3, your Honor, what is in
21 dispute, I think, is the smallest potatoes. It is "Huge no-bid
22 job goes to." They have agreed to take out "political donor,"
23 but want to leave in "Huge no-bid job goes." It seems to me
24 that is half a sentence and not particularly useful. They have
25 gotten in before that it was supposedly a no-bid. Of course it

(212) 805-0300
I6rrkal4 1763
1 was a bid in the sense there was an RFP. Given that it is half
2 a sentence, we would ask the other half be taken out.
3 MR. BOONE: I want to go back because I think we might
4 have skipped one that I think we agreed on on page 2.
5 THE COURT: That you have agreed on or you have not
6 agreed on.
7 MR. BOONE: I believe we did agree on.
8 THE COURT: He wasn't telling me what you agreed on.
9 MR. SHECHTMAN: I thought we should just look at it
10 real quick once we made the redactions. I would ask that "huge
11 no-bid job" go out.
12 THE COURT: Mr. Boone, do you want to be heard on
13 that?
14 MR. BOONE: Yes. Consistent with our view of taking
15 out references to political donors, we think it is only
16 necessary to address that part of the heading. The rest of it
17 we think is fine.
18 THE COURT: Overruled. Delete that. Delete the whole
19 heading.
20 MR. SHECHTMAN: Judge, the next disputed paragraphs
21 are from "Kaloyeros and other Fort Schuyler officials," four up
22 from the bottom, and all the way down to "one company appeared
23 to meet that requirement." They have gotten it in once. The
24 job was not competitively bid. I understand the notion that
25 says the contract negotiation wasn't competitive, one person

(212) 805-0300
I6rrkal4 1764
1 was in, but that clearly is meant to reference the RFP. It
2 seems to me it is prejudicial, overkill, and to the extent this
3 is coming in to establish anyone's state of mind, it's
4 established by what came earlier.
5 THE COURT: What is Doyle going to say about all this?
6 MR. BOONE: Your Honor, we actually don't plan for him
7 to walk through these articles, with the exception of the
8 Politico one because he is quoted and will explain how that
9 came to be. He is basically going to say this is an article
10 Jim Heaney wrote that was challenging the process he used by
11 Fort Schuyler in reference to the Buffalo Billion and he may in
12 saying that reference that there was an issue that there being
13 a 50-year requirement and that sparked a lot of controversy and
14 that's what this is about. He is not going to walk through
15 paragraph by paragraph of the article.
16 THE COURT: Are you talking about those three
17 paragraphs or four paragraphs, Mr. Shechtman?
18 MR. SHECHTMAN: I think all four, Judge.
19 MR. MILLER: And the carryover to the top of the next
20 page.
21 MR. SHECHTMAN: That's correct.
22 MR. BOONE: Part of why that is relevant is that in
23 Doyle explaining the email chain that this is associated with,
24 he tells the story that Kaloyeros and Heaney have sort of been
25 going at it back and forth, particularly about FOIA requests,

(212) 805-0300
I6rrkal4 1765
1 because Heaney has been asking for information and Kaloyeros
2 hasn't been giving him information.
3 He is placing in context that this is why Kaloyeros is
4 reacting the way he is reacting. It goes to some of the
5 statements made by Kaloyeros because the context is he's had an
6 issue with this guy because the guy keeps asking him for
7 information and he doesn't think he has to give him information
8 and they are battling over that.
9 MR. MILLER: On page 2 on what is in, you have, "The
10 State Development Corporation has taken up to a year to release
11 public records. One Cuomo attendant went so far as to say this
12 is terrorism." To the extent this is not coming in for its
13 truth and just for some state of mind, it strikes me, given how
14 that is not an easy instruction to follow, that less is more.
15 THE COURT: It seems to me the paragraph that begins
16 "Kaloyeros or other Fort Schuyler officials have repeatedly
17 declined to answer questions," that paragraph I think should be
18 deleted. The next paragraph, as you point out, is largely what
19 is said above, so that should stay in.
20 It seems to me the next four paragraphs, the next
21 three paragraphs, have been subject to extensive testimony.
22 I'm not sure that I see prejudice to the defendants. This is
23 exactly what we listened to days of testimony about.
24 MR. MILLER: We would take the view that when Heaney
25 states categorically that that job was not competitively bid

(212) 805-0300
I6rrkal4 1766
1 and then makes reference to the 50 years of proven experience
2 as limiting the pool of potential respondents with only one
3 qualifying. This lies right at the heartland of the issues
4 that this jury has to decide.
5 Sure, the jury has heard about the 50 years, but they
6 have heard about the 15 and they have heard about a million
7 different ways in which this whole process was viewed by the
8 people participating in it as competitive. I think there is a
9 substantial risk of undue prejudice to have a reporter who is
10 not here have an article in front of this jury where he is
11 offering an opinion on the very thing they have to decide.
12 THE COURT: I disagree that this is unduly
13 prejudicial, but it seems to me that maybe the last paragraph
14 on that page, that is, "Only one company appeared to meet that
15 requirement, LPCiminelli," can come out. It will go from the
16 paragraph that says, "In lieu of competitively bidding the
17 project, we did an RFP. The original solicitation called for
18 somebody with 50 years of proven experience. Fort Schuyler
19 officials changed the requirement to 15 years after being
20 challenged by other developers," all of which is in the record.
21 MR. SHECHTMAN: No. Might I be heard? I don't think
22 in the record is after being challenged by other developers and
23 questioned by Investigative Post. I don't think there is any
24 evidence of that.
25 THE COURT: I thought yesterday Mr. Uniland testified

(212) 805-0300
I6rrkal4 1767
1 that he called and asked about it and the next thing he heard
2 was that it had been changed. Am I misremembering that
3 testimony?
4 MR. SHECHTMAN: I don't think he said he called
5 before. Mr. Le Chase, Balling, I don't think Balling knew.
6 Certainly there is no issue that was questioned by an
7 Investigative Post reporter.
8 THE COURT: But I don't see that as going one way or
9 the other.
10 MR. SHECHTMAN: It should come out because there is no
11 evidence to support it.
12 THE COURT: I am confident that in the puff pieces
13 that the defense put in yesterday, there were all kinds of
14 things there was no evidence of.
15 MR. SHECHTMAN: I don't think there was evidence --
16 THE COURT: You put this guy on.
17 MR. BOONE: I think you might be referring to Mr.
18 Balling, who was not at Uniland but with Lend Lease.
19 THE COURT: Whichever.
20 MR. BOONE: He said he later learned it was changed to
21 15.
22 THE COURT: Not that he had called. Nobody testified
23 about they called when he saw that and asked what's this all
24 about? Am I just imagining that?
25 MR. BOONE: I don't believe so, your Honor. They

(212) 805-0300
I6rrkal4 1768
1 called to get more information about it.
2 THE COURT: Suppose you delete from that paragraph on
3 the top of page 4, "After being challenged by other developers
4 and questioned by Investigative Post." It would read, "Fort
5 Schuyler officials changed the requirement to 15 years. A
6 spokesman termed the original requirement a clerical error."
7 MR. SHECHTMAN: No objection.
8 MR. MILLER: That's fine.
9 THE COURT: Mr. Boone?
10 MR. BOONE: That's fine, your Honor.
11 THE COURT: Go ahead.
12 MR. MILLER: Can I back you up? I'm not sure where
13 you came to land on the paragraph, the second-to-last paragraph
14 on page 3, where the article asserts that the job was not
15 competitively bid. I'd ask that you at least consider striking
16 that sentence.
17 THE COURT: No. The paragraph in context makes
18 perfect sense and is consistent with the evidence that has been
19 presented during this trial.
20 MR. MILLER: I think it is completely inconsistent
21 with the evidence that has come out of this trial.
22 THE COURT: That's argument to the jury.
23 MR. MILLER: That's right. It goes to the very issue
24 that the jury must decide. For a document that the
25 prosecution --

(212) 805-0300
I6rrkal4 1769
1 THE COURT: Mr. Miller, it doesn't. They are
2 contrasting a competitive bid for a project with a request for
3 proposals. This was a request for proposals. The issue is
4 whether it was an open and fair request for proposals. There
5 is no suggestion during the course of the trial that this
6 building was a competitively bid building.
7 MR. MILLER: I don't think that is what is happening
8 here. They are saying that job was not competitively bid, and
9 their proof of it is this assertion that the 50-year language
10 in the RFP basically steered this contract to one developer.
11 THE COURT: Next.
12 MR. SHECHTMAN: Judge, on page 4, lack of
13 transparency, and I think the paragraph that says Kaloyeros in
14 an email.
15 MR. MILLER: Yes. Your Honor, there is a paragraph
16 that begins "Kaloyeros in an email November" and continues
17 through a quote attributed to him that he doesn't respond to
18 perceived threats and terrorism.
19 THE COURT: Isn't that in the other email that is
20 admitted? Isn't that the email that you showed me earlier?
21 MR. BOONE: I believe so, your Honor.
22 MR. MILLER: I'm not sure --
23 THE COURT: The email you pulled up for me this
24 morning, it goes with one of these articles.
25 In case anybody is interested, Anthony Kennedy just

(212) 805-0300
I6rrkal4 1770
1 retired.
2 MR. SHECHTMAN: Not because of Mr. Weingarten's
3 cross-examination.
4 THE COURT: That was exactly why.
5 MR. COFFEY: There's going to be an opening, Judge.
6 THE COURT: You can't get rid of me that quickly.
7 You are looking at me blankly. You pulled up this
8 morning an article and an email.
9 MR. SHECHTMAN: Judge, shall we keep going? I think
10 I'm right in saying on this document that's all that's left in
11 dispute. What would be very useful is when we talk about the
12 next ones, if the government could print that out redacted, we
13 could see it and then make sure we are all on the same page.
14 THE COURT: We are not quite all on the same page yet.
15 MR. SHECHTMAN: With the exception of this.
16 THE COURT: We have to go backwards.
17 MR. BOONE: Your Honor, we are going to look. I'm not
18 sure if it actually had that quote from Kaloyeros about
19 terrorism. We would argue it is his statement so it should
20 come in.
21 THE COURT: It is not his statement. It's what the
22 reporter says his statement was.
23 MR. MILLER: Your Honor, I respectfully request that
24 that be redacted.
25 THE COURT: What do you want redacted?

(212) 805-0300
I6rrkal4 1771
1 MR. MILLER: The paragraph that says --
2 THE COURT: The entire paragraph?
3 MR. MILLER: Yes, your Honor.
4 THE COURT: Any objection to redacting the entire
5 paragraph?
6 MR. BOONE: That's fine.
7 THE COURT: That paragraph comes out. Lack of
8 transparency stays in.
9 MR. MILLER: I believe the rest of this document is
10 subject to agreement in terms of the scope of redactions.
11 THE COURT: It's not. We need to go back up to the
12 first issue, which I didn't rule on, which is the paragraph
13 that follows "Considered" on page 2. This is one that there is
14 nothing in here that hasn't been heard. This is what the
15 testimony and evidence in the case is. The objection there is
16 overruled. What needs to be redacted from that paragraph is
17 correct. That's it. The way it appears on the screen is
18 correct.
19 MR. MILLER: Logistically, Paul has suggested, and I
20 think it makes good sense, if the government could print out
21 the redacted version, there are some additional agreed upon
22 redactions that we could take care of immediately.
23 THE COURT: Great. That's that.
24 MR. SHECHTMAN: Judge, that takes us to what is 1044.
25 There are just a few things here that are in dispute.

(212) 805-0300
I6rrkal4 1772
1 THE COURT: 1044. Okay.
2 MR. SHECHTMAN: If you go to page 2 of 1044, what is
3 in dispute are four paragraphs down, which is "Howe not an
4 attorney" and "He was Alain's de facto chief of staff, said the
5 unknown former official." Those paragraphs were in dispute.
7 MR. BOONE: Your Honor, how this testimony is going to
8 likely play out is that Doyle is going to say that Kaloyeros
9 asked him to say that essentially Howe was someone who was
10 working for WOH and one of a great many people who worked for
11 WOH, and he was not specifically working for Dr. Kaloyeros.
12 Obviously, we argue that's false, and Doyle will have testimony
13 that suggests that is false.
14 To the extent that this is relevant to that, we argue
15 it is because although he may not use the term "chief of
16 staff," Doyle will essentially say he was his chief of staff.
17 That's what this article is about. This article is about --
18 THE COURT: How tight he was to Kaloyeros.
19 MR. BOONE: Exactly. He was told by Kaloyeros to make
20 statements that that wasn't true.
21 THE COURT: He is putting distance between him and Mr.
22 Howe.
23 MR. BOONE: Yes. Doyle will say from what he observed
24 working with both of them, he essentially seemed like his chief
25 of staff.

(212) 805-0300
I6rrkal4 1773
1 MR. MILLER: Your Honor, our understanding of the
2 intended use of this article was to show the quotes
3 attributable to Dr. Kaloyeros and provide sufficient context.
4 We are in agreement that everything from the start of the
5 article through the quote attributed to David Doyle should come
6 in for that purpose. The paragraphs following that do not
7 reflect David Doyle's statements made either on his own behalf
8 or on behalf of Dr. Kaloyeros. They are irrelevant to the
9 stated purpose for which this is coming in.
10 THE COURT: Did you just listen to Mr. Boone?
11 MR. MILLER: I absolutely did.
12 THE COURT: Given that, how are they irrelevant? The
13 fact is that he is asking his press spokesman to put distance
14 between him and Howe is relevant.
15 MR. MILLER: The paragraphs that we are talking about
16 aren't relevant to that issue unless they are being admitted
17 for the truth of the matter, and they are clearly hearsay.
18 THE COURT: None of this is coming in for the truth.
19 MR. MILLER: But they don't even speak to Dr.
20 Kaloyeros's state of mind or his intentions with respect to
21 Todd Howe.
22 THE COURT: I disagree.
23 MR. MILLER: They are simply the reporter reporting on
24 what he has learned from talking to whoever, some former
25 administration official.

(212) 805-0300
I6rrkal4 1774
1 THE COURT: Denied. What is your next objection?
2 MR. SHECHTMAN: I'm a little worried about this, but I
3 think we may be okay on the rest if we could print it and look
4 at it.
5 THE COURT: I take it you're deleting all the Percoco
6 stuff?
7 MR. BOONE: Correct.
8 MR. MILLER: Your Honor, the bottom of page 2 contains
9 four paragraphs that touch on two topics which I think are
10 appropriately subject to redaction. The first is the fact that
11 the Cuomo administration has banned --
12 MR. SHECHTMAN: Those are out.
13 MR. MILLER: I thought they were in issue. Fine.
14 MR. SHECHTMAN: They are out. I just want to say for
15 the record that we have succeeded in removing all references to
16 Joe Percoco and Barry Bohrer.
17 THE COURT: I'm sure Mr. Bohrer would say any time his
18 name is in the paper is a good thing.
19 MR. SHECHTMAN: This, if we could see it, may be that
20 document.
21 THE COURT: So that's done. Good. Next. What about
22 the document that is Government Exhibit 1083?
23 MR. SHECHTMAN: The first thing that is still at issue
24 is the first paragraph. We have agreed to take out the "all
25 significant contributors" language, but I think the rest of the

(212) 805-0300
I6rrkal4 1775
1 paragraph is still in dispute.
2 I think we are okay, Judge. My apologies.
3 THE COURT: 1083 is fine?
4 MR. SHECHTMAN: Just the first paragraph there will be
5 a few issues.
6 THE COURT: What are the issues?
7 MR. SHECHTMAN: That's what I'm doing. If we go over
8 to the second page, I think in dispute is the three sentences
9 that begin "FOIA requests have not been honored. Interview
10 requests have gone unanswered. Information casting developers'
11 selection process in a favorable light" --
12 THE COURT: Slow down. "Information casting," read
13 that slowly.
14 MR. SHECHTMAN: "FOIA requests have not been honored.
15 Interview requests have gone unanswered. Information casting,"
16 I think these three sentences are in dispute.
17 THE COURT: What are you doing about that? Were you
18 leaving in "I've never in my four decades is a reporter"?
19 MR. SHECHTMAN: That's coming out.
20 MR. BOONE: The parties agree to take that out. We
21 would keep in the "Yes, we know Cuomo's press conference"
22 toward the beginning of that section. We would keep everything
23 but the sentence that says, "I have never in my life, my nearly
24 four decades as a reporter."
25 MR. SHECHTMAN: Are you leaving in "And Kaloyeros is

(212) 805-0300
I6rrkal4 1776
1 noting his displeasure"?
2 MR. BOONE: Yes.
3 MR. SHECHTMAN: I think that is all in dispute. Mr.
4 Miller has that.
5 THE COURT: Mr. Miller.
6 MR. MILLER: Your Honor, this is I know not offered
7 for the truth of the matter asserted, but it is as if he
8 himself were sitting on the stand. It doesn't move the ball
9 forward in terms of the government's intended use of this
10 document, which again I believe is to show Dr. Kaloyeros's
11 state of mind. It is essentially just Heaney describing his
12 historical experience in his own inimitable way, which is I
13 think highly prejudicial to the jury and is not necessary for
14 moving the purpose of this document forward.
15 THE COURT: To me this document is relevant because it
16 provides the context for why Mr. Kaloyeros would have his IT
17 department change its deletion rules because circumstantially
18 he is concerned that those emails may become subject to FOIA.
19 That's to me why this article is relevant.
20 MR. MILLER: Do we have a date on this, Mr. Boone?
21 THE COURT: I think it is 12/12/14.
22 MR. BOONE: It should be at the top left. It says
23 December 22nd.
24 THE COURT: It seems to me "To that end the FOIA
25 requests have not been honored" is relevant. "Interview

(212) 805-0300
I6rrkal4 1777
1 requests have gone unanswered" strikes me as irrelevant.
2 MR. MILLER: We agree.
3 THE COURT: So delete the last sentence, the interview
4 requests gone unanswered.
5 MR. SHECHTMAN: And the next one, Judge?
7 MR. SHECHTMAN: I don't know whether it is true or
8 not. The "In an apparent attempt to head off the story you're
9 reading now" strikes me as awfully far afield.
10 THE COURT: Mr. Boone.
11 MR. BOONE: Again, as a whole, this sort of speaks to
12 what's happening in terms of there is this battle between
13 Heaney and Kaloyeros to get information. This is relevant,
14 like you said, to the deletion of emails.
15 THE COURT: Why this in particular? Why don't you
16 have that from the rest of this article, which is clear that
17 Heaney is on his trial, he is FOIA'ing him, he is complaining,
18 and he is complaining publically, doing what a good reporter
19 should do.
20 MR. BOONE: When we get to this point in Doyle's
21 testimony, there is an email chain that references this
22 document. It is an email chain between Kaloyeros and Doyle and
23 a few other people including Todd Howe. Kaloyeros is talking
24 about Heaney is asking questions again. In that conversation
25 he says, "I may or may not have reached out to the Buffalo

(212) 805-0300
I6rrkal4 1778
1 News. If you ask Doyle what did he mean by that, he will say
2 he was trying to get his own side of the story out in response
3 to Heaney's."
4 THE COURT: Perfect. You're going to get that through
5 a live witness, so delete it from here. The live witness can
6 be cross-examined. What else is at issue?
7 MR. MILLER: Your Honor, the next two paragraphs. It
8 begins "And Kaloyeros, who has not hidden his displeasure," and
9 then it contains the same quote we talked about earlier, the
10 same journalist.
12 MR. BOONE: We are fine with redacting that.
13 THE COURT: Delete that paragraph.
14 MR. MILLER: The next one, your Honor -- correct me if
15 I'm wrong, Paul -- is in the second paragraph under "Unusual
16 developer requirement." There is a sentence --
17 MR. SHECHTMAN: I think that's out. We can go over to
18 what is page 3. What's in dispute is --
19 THE COURT: We are already on page 3. Look at the top
20 of the page.
21 MR. SHECHTMAN: I don't have numbers, Judge. In any
22 event, there is a paragraph somewhere that says, "I called
23 Kaloyeros to quiz him." I think that's in dispute.
24 THE COURT: "I called him to quiz him," yes. What is
25 the issue? That's a good paragraph. Why do you not want that?

(212) 805-0300
I6rrkal4 1779
1 "He insisted that they had no intent to limit the field to just
2 one candidate."
3 MR. SHECHTMAN: I think we agreed to take out the
4 sentence that says "some developers had squawked."
6 MR. BOONE: Which part again?
7 MR. SHECHTMAN: The sentence, "It turned out some
8 developers had squawked." Is that still in on your version?
9 MR. BOONE: Where does that paragraph begin with?
10 MR. SHECHTMAN: "Kaloyeros insisted."
11 MR. BOONE: No, we didn't agree to that.
12 MR. SHECHTMAN: That we would object to. That's the
13 same issue as before: it's not Dr. Kaloyeros saying it, it is
14 his conclusion.
15 THE COURT: What do you want removed?
16 MR. SHECHTMAN: "It turns out" to "15 years," that
17 sentence.
18 THE COURT: Just that sentence, "It turned out some
19 developers interested in the work had squawked to Fort
20 Schuyler, and the 50-year requirement was reduced to 15 years"?
21 MR. MILLER: The last clause could remain in, your
22 Honor.
23 MR. SHECHTMAN: It could come out.
24 THE COURT: I'm not going to leave the last clause in.
25 You're okay on the "and the 50-year requirement was reduced to

(212) 805-0300
I6rrkal4 1780
1 15 years"?
2 MR. SHECHTMAN: Yes.
3 THE COURT: Mr. Boone.
4 MR. BOONE: It's similar to our argument before. This
5 gets to the heart of what is bothering Kaloyeros about this
6 piece. This allegation that they have done some monkey
7 business with the 50 years and so much so that competitors
8 complained about it and they only changed it as a result of
9 people complaining about it and then came up with an excuse
10 saying it was a clerical error. We are obviously not arguing
11 that is the truth, but that is why he is angry and why he is
12 having his later actions, because he thinks it is false.
13 THE COURT: It seems to me that the whole paragraph
14 should come out.
15 MR. SHECHTMAN: We are okay with that.
16 THE COURT: Leave in "I called Kaloyeros to quiz him
17 about the 50-year requirement, what the 50-year is all about,
18 and you realize only one company appears to qualify," and then
19 redact what happened.
20 MR. MILLER: Your Honor, I would respectfully submit
21 if we are going to redact the answer, we should redact the
22 question as well.
23 THE COURT: I disagree. You mean just delete "what
24 the 50-year is all about"?
25 MR. MILLER: Yes.

(212) 805-0300
I6rrkal4 1781
1 THE COURT: "Do you realize only company was
2 qualified," leaving in "I called Kaloyeros to quiz him about
3 the 50 years requirement"?
4 MR. MILLER: I think they could both go, and that
5 would be consistent. That would be my suggestion if the Court
6 were inclined.
7 THE COURT: I'm not inclined to do that.
8 MR. MILLER: Then certainly the second sentence.
10 MR. BOONE: Just "what's the 50 years all about"?
11 THE COURT: Leave in "I called Kaloyeros to quiz him
12 about the 50-year requirement," and then delete from "what's"
13 to the end of this next paragraph.
14 MR. BOONE: Right. The question which suggests that
15 only one company qualified is what angers Kaloyeros and is why
16 he is reacting the way we allege he reacts in response. That's
17 his state of mind, that there is an allegation that 50 years
18 was designed to only benefit one company, which is what this
19 question is getting at.
20 THE COURT: Is that what Doyle says?
21 MR. BOONE: Doyle will say that the 50-15 was a big
22 issue and that they were trying to figure out how to respond to
23 it. He doesn't have firsthand knowledge. He wasn't working at
24 SUNY Poly when the RFPs were issued. He is just dealing with
25 the aftermath.

(212) 805-0300
I6R3KAL5 1782
1 THE COURT: Right.
2 MR. BOONE: He'll say yes, this is a big issue and
3 Kaloyeros always told me that it was a typo or clerical error.
4 THE COURT: All right. Remove the paragraph that
5 starts with "Kaloyeros insisted." But leave the paragraph
6 ahead of that in. Above that in.
7 MR. SHECHTMAN: I think the only things left here,
8 Judge, is the very end of the article where it begins "and
9 there's more," and it's from there to the end.
10 THE COURT: Okay. Mr. Boone.
11 MR. BOONE: Sorry. I couldn't find --
12 THE COURT: It is on the very last page, the paragraph
13 that begins "and there's more."
14 MR. BOONE: I see. We're fine with redacting that.
15 THE COURT: That's out. So that's not an issue.
16 Okay? Anything else?
17 MR. SHECHTMAN: I don't know that we've been able to
18 print anything yet.
19 MR. ZHOU: Our paralegal is printing it down on our
20 offices on the fifth floor, so as soon as we have all the
21 redactions in, we're going to e-mail it to him and he'll print
22 it out and bring them up.
23 MR. MILLER: Government Exhibit 144 which is the press
24 statement, we also have agreement on the language there so I
25 think we'll be able to take care of all of this in short order.

(212) 805-0300
I6R3KAL5 1783
1 THE COURT: Okay.
2 MR. SHECHTMAN: That gets us to 1044, Judge, I think.
3 THE COURT: We just went through 1044.
4 MR. SHECHTMAN: I'm sorry, I'm getting old.
5 THE COURT: We've done three documents. That was all
6 there was.
7 MR. SHECHTMAN: So 1083.
8 THE COURT: I don't have 1083. We just did 1083.
9 MR. SHECHTMAN: I'm sorry.
10 MR. MILLER: We just did four documents.
11 THE COURT: We did three.
12 MR. MILLER: 1083, 1044, 206, and we just talked about
13 the status of 144.
14 THE COURT: You said you had agreement on that.
15 MR. SHECHTMAN: As soon as we get a chance to look at
16 them, that will be fine.
17 THE COURT: Mr. Miller, can you please tell me the
18 many things you want to tell me about the procurement
19 guidelines.
20 MR. MILLER: Thank you, your Honor.
21 Your Honor, we respectfully submit that the New York
22 State procurement guidelines should not be admitted in this
23 trial for two reasons. Three reasons. One, lack of
24 foundation, the other minimal probative value, the third,
25 whatever arguable probative value there is, is completely

(212) 805-0300
I6R3KAL5 1784
1 outweighed by the prejudice.
2 As far as lack of foundation goes, to this very minute
3 in the trial there has certainly been no testimony that these
4 procurement guidelines were adopted or actually followed at
5 Fort Schuyler.
6 THE COURT: You're going to have Doyle is going to
7 testify that Kaloyeros said we follow procurement guidelines.
8 MR. PODOLSKY: We looked at the document this morning
9 that said we follow all New York State government procurement
10 procedures or policies to the letter.
11 MR. MILLER: The language is following New York State
12 procurement procedures to a T. There is no reference to
13 guidelines. There is no reference to this specific document.
14 As I mentioned earlier, when we were starting to discuss this,
15 procurement and the regulatory and legal structure that sits
16 around it is very complex in New York State. It is not just
17 about procurement guidelines. It's about the funding side, it
18 is about interacting with entities like Empire State and DASNY,
19 the various paperwork that has to be filed, the contract
20 review.
21 It is not at all clear from the 3500 material or the
22 government's proffer here today what it is Dr. Kaloyeros was
23 speaking to. There simply isn't any evidence that
24 Dr. Kaloyeros was referring to these specific guidelines.
25 In terms of the probative value, these documents, this

(212) 805-0300
I6R3KAL5 1785
1 document provides guidance about state procurement policies and
2 practices, but they are not the state's actual procurement
3 policies and practices. They're not the law. This is
4 guidance.
5 They're also enormously subject to interpretation. On
6 page two of this document, in a section entitled application
7 and scope of guidelines, it states that the guidelines are
8 designed to apply to a wide range of procurements from the very
9 routine to the very complex. The applicability of specific
10 chapters, sections, and provisions will vary, depending on the
11 nature, objectives, and particular circumstances of each
12 procurement.
13 The guidelines are also liberally qualified throughout
14 the document with terms like "generally" and "may." Like you
15 generally don't do this. Or you generally do this. Where it's
16 clear there is space between the words on the paper and what
17 actually constitutes the practices and procedures in the state.
18 And so, tremendous amount of room for interpretation.
19 THE COURT: Tell me why they're prejudicial.
20 MR. MILLER: There is language in here that suggests
21 that -- that speaks to where state contracts should be
22 advertised. There is reference to the state contractor. The
23 New York State contract reporter. It is on page 16. It says
24 an agency has a statutory obligation to advertise a procurement
25 opportunity in the New York State contract reporter. Clearly

(212) 805-0300
I6R3KAL5 1786
1 the director of procurement at Fort Schuyler didn't think that
2 applied and didn't do it that way.
3 THE COURT: And you brought that out.
4 MR. MILLER: There is also language in here about
5 requiring round table conferences with all of the bidders.
6 THE COURT: I think it says it's optional.
7 MR. MILLER: Yes. A round table session generally is
8 an open meeting among all potential bidders.
9 In terms of its probative value --
10 THE COURT: I asked you to focus on prejudicial
11 impact. I see the probative value. The question is what is
12 the prejudicial impact.
13 MR. MILLER: There is a section called draft requests
14 for proposal, page 15 of the guidelines says an agency may
15 submit a draft RFP to all potential bidders for remarks and
16 comments prior to issuance.
17 Clearly there is language that says may, which
18 suggests some room for interpretation. But, it certainly
19 suggests that if you're going to circulate a draft RFP, it must
20 go to all potential bidders as opposed to one potential bidder.
21 For a document that is not at all clear Dr. Kaloyeros
22 is talking about, that is subject to incredible interpretation,
23 it's not the law, it is not the regulations. It is at best
24 guidance. It strikes us that it is, there is real, really no
25 foundation for its admission, and it is of minimally probative

(212) 805-0300
I6R3KAL5 1787
1 value. They had the commissioner --
2 THE COURT: Two more minutes.
3 MR. MILLER: They had the commissioner of the New York
4 State office of general services who supervises the entire
5 state's contracting system on the stand. Presumably somebody
6 we could have actually had an informed conversation about this
7 in terms of what this means and what it actually applies to,
8 and they didn't choose to do that. She was on the stand
9 yesterday.
10 So they're trying to bring it in through somebody who
11 I'm sure has no firsthand knowledge about any of this.
12 In short, your Honor, there is a substantial prejudice
13 that if the jury hears about yet another set of policies like
14 the Research Foundation procurement policy that's already been
15 admitted, they are going to confuse the fact that they've got
16 something in writing on paper that says this is the way you do
17 it and this is the way you don't do it, and they're going to
18 say, well, that must have applied at Fort Schuyler or it should
19 have applied at Fort Schuyler, and make a decision based on
20 that, notwithstanding your instruction.
21 Your Honor, for all those reasons, respectfully, we
22 submit this should not get in front of the jury.
23 THE COURT: Who is arguing for this?
24 MR. PODOLSKY: I can, your Honor. Your Honor, this
25 relates to, as you know, something very specific, which is as

(212) 805-0300
I6R3KAL5 1788
1 in response to many of the allegations and investigations that
2 we've been speaking about today, Dr. Kaloyeros himself chose
3 and wanted it to be out there and believed by other people that
4 SUNY Poly and our related entities follow New York State
5 government well-established and legally defined procurement
6 procedures to the letter.
7 I think the jury is entitled to know and to understand
8 why that statement was false. It goes directly to
9 Dr. Kaloyeros' state of mind. He desired for everyone else to
10 believe that Fort Schuyler had in fact followed a number of
11 policies, procedures, and rules that they never did and had no
12 intention of following. Many of which were actions that he
13 personally took.
14 What this document shows, which is guidance, a
15 distillation of the New York State finance law, to provide
16 guidance to all New York State agencies. What it shows is
17 exactly or give the jury a sense of exactly what types of New
18 York State government procedures and rules Dr. Kaloyeros wanted
19 the public to believe he was following, when in fact he was
20 not.
21 And that's why this document is highly probative of
22 Dr. Kaloyeros' state of mind when he went out and made false
23 statements about what Fort Schuyler and he himself were doing.
24 MR. MILLER: If I might. That proffer really makes
25 the point I'm trying to make. There is nothing in that proffer

(212) 805-0300
I6R3KAL5 1789
1 that suggests that Dr. Kaloyeros was talking about this
2 document or anything contained in it. And yet it's going to
3 end up in front of the jury, if you allow it in, with an
4 incredible likelihood that the jury will assign a weight and
5 value to it completely out of proportion with its actual
6 significance.
7 THE COURT: I guess I don't quite understand when you
8 say there was no indication that this is what he was talking
9 about. He says he complies with New York State procurement
10 procedures. To me, the difference between procedures and
11 guidelines, I don't see it. This is what the state procurement
12 council put out. This is what agencies had. If he was talking
13 about anything, this is what he's talking about.
14 MR. MILLER: The guidelines say that the state
15 agencies must procure commodities, services, and technology in
16 accordance with Article 11 of the New York State Finance Law.
17 I don't know. These guidelines are guidelines. It is hard to
18 know where, first of all, it is just not at all clear this is
19 what he was talking about, and there is no way David Doyle will
20 know the answer to that.
21 THE COURT: That's for sure. What does David Doyle
22 know about this?
23 MR. PODOLSKY: He knows that Dr. Kaloyeros told him to
24 say this publicly. And --
25 THE COURT: But not that he said it applies to --

(212) 805-0300
I6R3KAL5 1790
1 while we're talking, I assume someone's printing out the
2 documents.
4 THE COURT: That's underway?
5 MR. BOONE: It is underway and it is almost done. We
6 have one correction to make on it and then we're done.
7 THE COURT: One correction, but you're doing that now?
8 MR. BOONE: Yes.
9 THE COURT: Okay.
10 MR. PODOLSKY: No, your Honor. My understanding of
11 what David Doyle will say is Dr. Kaloyeros instructed him to
12 make the statement that we've been discussing. That SUNY Poly
13 and our related entities follow New York State government's
14 well-established and legally defined procurement procedures to
15 the letter.
16 The point of this document is to provide an
17 understanding of what those are.
18 MR. MILLER: Your Honor, I appreciate that I'm
19 repeating myself and I apologize for that. There is nothing in
20 the statement that the government just made that suggests that
21 this document and what it contains and how it articulates
22 guidelines is what Dr. Kaloyeros was thinking about. And there
23 is no witness who is going to be testifying today for the
24 government to whom I can put that question. So this will slide
25 in in front of the jury, if you allow it in, with the weight of

(212) 805-0300
I6R3KAL5 1791
1 the law.
2 THE COURT: But, Mr. Miller, I'm happy to give you a
3 limiting instruction if you want me to that violation of these
4 procurement guidelines is not a violation, does not constitute
5 wire fraud standing alone.
6 But, there is always an issue when you're trying to
7 prove someone's state of mind that there may be some disconnect
8 between what the person was actually thinking and what, based
9 on the evidence, it appears they were pointing to. That goes
10 to the weight of the evidence. It doesn't go to whether it is
11 admissible or not admissible. And that's why I was pressing
12 you earlier on what is the prejudicial impact.
13 The fact that there are things in here that they
14 didn't do is not unfair prejudice. That's the point the
15 government's trying to make is Mr. Kaloyeros wants the world to
16 believe that Fort Schuyler was complying with New York State
17 laws, whatever the requirements are. Whether they're legally
18 required to do it or not, he tells his press person, the press
19 flack to go out there and tell people we comply with New York
20 State rules. When he doesn't.
21 MR. MILLER: That's like saying I like a good book,
22 and they get to decide what book I meant when I said that.
23 THE COURT: No, it's not.
24 MR. MILLER: It is. There is nothing in the record
25 that suggest --

(212) 805-0300
I6R3KAL5 1792
1 THE COURT: Do you have any suggestion of what else he
2 could have been pointing to when he says we comply with New
3 York State procurement rules to a T?
4 MR. MILLER: I've looked at that documents, your
5 Honor. I have no idea and neither does the government, and
6 they shouldn't be allowed to trot in with this big thick stack
7 of guidelines.
8 THE COURT: That's not responsive to my question.
9 What else could he have been referring to? Other than the
10 procedure book that the New York State procurement people put
11 out?
12 MR. MILLER: Certainly -- hang on. There are a lot of
13 people.
14 THE COURT: There are a lot of people who think they
15 know.
16 MR. MILLER: I don't know what set of laws he was or
17 rules or regulations he was thinking of. But that language
18 does not suggest he was talking about a set of procurement
19 guidelines that do not have the force and weight of law, rule
20 or regulation. It is a bunch of folks at a state procurement
21 council who have said this is the way we choose to articulate
22 things. Hard to know what that means. Certainly nothing to
23 suggest that this is what he had in mind. And this could be
24 enormously prejudicial, your Honor.
25 THE COURT: It seems to me your argument would have a

(212) 805-0300
I6R3KAL5 1793
1 lot more weight if there was something else that you could say
2 he could have been talking about that.
3 MR. MILLER: Sure. There are statutes that speak to
4 procurement.
5 THE COURT: But these are the layperson's explanations
6 of those statutes.
7 MR. MILLER: I have no clue how accurately these
8 articulate what the law is with respect to procurement. I
9 really don't. And neither does the government. And certainly
10 neither does David Doyle.
11 THE COURT: That's why a limiting instruction that
12 says a violation of whatever is in the procedures, that you can
13 consider this only for purposes of considering Mr. Kaloyeros'
14 state of mind, a violation of this doesn't equal a violation of
15 the wire fraud statute is appropriate. If you want it.
16 MR. MILLER: But why does it even get in front of the
17 jury if it's not clear this is what he meant. If it is his
18 state of mind we're concerned about, how does this prove his
19 state of mind if there is no proof that this is what he had in
20 mind.
21 THE COURT: You keep saying there is no proof. This
22 is New York State's procurement procedures. So if you can
23 point me to something else that he might have had in mind.
24 MR. MILLER: Your Honor, there are just a myriad of
25 laws and regulations that address procurement in the State of

(212) 805-0300
I6R3KAL5 1794
1 New York. Whether it's Empire State's or the Department of
2 Finance or -- but so it's just impossible to intuit from the
3 testimony that David Doyle is planning to give what
4 Dr. Kaloyeros had in mind. Could have been any number of
5 different things. But there is certainly nothing that suggests
6 it is this set of guidelines.
7 THE COURT: This, by its terms, this is sort of
8 putting all of that into lay terminology for state employees
9 who are required to do this. So the fact that there are other
10 statutes, this presupposes that. That's what the procedures
11 are for, is to take all of the various statutes and the various
12 agencies, this is all in sort of generalities because of the
13 scope of the agencies that it's talking about.
14 You haven't pointed me to anything else that he would
15 be talking about when he says we comply with state rules to a
16 T.
17 MR. MILLER: Look, I think I am what I'm trying to
18 express is there are any number of laws that do govern
19 different facets of procurement in the State of New York, and I
20 don't know which one he had in mind. It certainly doesn't seem
21 like it was this. And it certainly doesn't seem from anything
22 the government has in it hands that they know what specifically
23 he had in mind. We could just as well put a cookbook in.
24 THE COURT: Have at it, but I don't think that would
25 have anything to do with state procurement law.

(212) 805-0300
I6R3KAL5 1795
1 MR. MILLER: I'm not sure this has anything to do with
2 what he had in mind. I have no problem with state of mind
3 evidence. There is nothing in the record and nothing we could
4 anticipate hearing from David Doyle that this document and its
5 contents influenced Dr. Kaloyeros' state of mind.
6 THE COURT: Under that theory, the only way the
7 government would ever be able to enter this evidence is if
8 Dr. Kaloyeros had said to someone "What I'm focused on is the
9 July 2009 state procurement council New York State procurement
10 guidelines." And that's unrealistic and that's not what the
11 rules of evidence require.
12 MR. MILLER: Think about the kinds of state of mind
13 evidence that the government has introduced frequently through
14 this trial. It is an e-mail that attaches something else. It
15 is an e-mail that discusses something else. If they had an
16 e-mail where Dr. Kaloyeros sent this New York State procurement
17 guidelines to someone else and said this is my Bible, I live by
18 this thing.
19 THE COURT: That would be even better evidence.
20 MR. MILLER: But then you would know that it did
21 influence his state of mind. I don't mean to be facetious with
22 the cookbook, but I'm saying it is as likely that a cookbook is
23 what he had in mind as this particular document.
24 THE COURT: I disagree. Okay. Have you --
25 MR. SHECHTMAN: Judge, can I just. You've ruled in

(212) 805-0300
I6R3KAL5 1796
1 favor of the government on this issue?
2 THE COURT: Yes.
3 MR. SHECHTMAN: Can I just say you gave what I thought
4 was a splendid limiting instruction when the SUNY Poly
5 procurement guidelines came in. Because the only worry I have
6 here is obviously my -- I thought it was really good.
7 THE COURT: I don't remember what I said.
8 MR. SHECHTMAN: Obviously my client had no knowledge
9 that these applied. They actually didn't apply to this RFP.
10 And if you could find it and give a similar instruction, it
11 would be helpful.
12 MR. MILLER: Our strong request is there be no need
13 for an instruction and this not be introduced.
14 THE COURT: Understood, but you've lost that argument.
15 So do you want a limiting instruction?
16 MR. MILLER: Of course.
17 THE COURT: What do you want me to say?
18 This is going to be admissible only against Kaloyeros.
19 Right? That's all you're seeking.
21 THE COURT: It is only admissible as to his state of
22 mind. Do you want me to say a violation of the procedures or
23 guidelines is not the same as a violation of the wire fraud
24 statute?
25 MR. MILLER: I think it would be fair to say these

(212) 805-0300
I6R3KAL5 1797
1 guidelines are not the law. They don't constitute the law,
2 rules or regulations. They are some council's interpretation
3 of those.
4 THE COURT: I'm not saying all that.
5 MR. SHECHTMAN: Judge, would you simply say these
6 guidelines did not apply to the Buffalo or Syracuse RFP?
7 THE COURT: No.
8 MR. SHECHTMAN: That's true.
9 THE COURT: I don't know whether that's true or not.
10 MR. SHECHTMAN: But you know that's true. You had
11 testimony and that's what you said last time about the state
12 procurement guidelines.
13 THE COURT: Have you read the redactions? Are we
14 ready to bring Doyle in?
15 MR. MILLER: I have not had a chance to look at them.
16 THE COURT: Let's get with it.
17 MR. MILLER: Sorry, I was --
18 THE COURT: Now, go.
19 MR. BOONE: We're still waiting on the other two.
20 MR. SHECHTMAN: We've read the one, which seems fine.
21 But Judge, can we see what you said with the others? That's
22 exactly what you said. "Exactly" may be too strong a word
23 but --
24 MR. ZHOU: Since we do have a moment, your Honor, we
25 could address these couple of documents in the Verizon stip if

(212) 805-0300
I6R3KAL5 1798
1 your Honor is inclined.
2 THE COURT: Can we let them read the redactions.
3 MR. ZHOU: Sure, your Honor.
4 THE COURT: Those were the procurement policies of
5 SUNY Research Foundation.
6 MR. MILLER: The document that you introduced earlier
7 were Research Foundation procurement policies.
8 THE COURT: Right. Does the government have any
9 objection to that as the limiting instruction? Do you see it?
10 It's on page 419.
11 Mr. Coffey or Mr. Iseman, do you want to be heard one
12 last time on the Verizon, Mr. Aiello was in New York City on
13 August 15 in the afternoon.
14 Before we start talking. Gentlemen, did you find were
15 there any e-mails in the exhibits that were sent by Aiello on
16 the 15th?
17 MR. ZHOU: No, your Honor.
18 MR. ISEMAN: I don't see any connection, your Honor,
19 so I'll rest on that.
20 THE COURT: Okay. Overruled.
21 I think it's not the strongest case I've ever seen.
22 And I've never had a case where a lawyer stood up on summation
23 and argued that venue is improper and therefore his client
24 should be acquitted. But it is circumstantial evidence that
25 the e-mail came to him in New York. And so I say this may be a

(212) 805-0300
I6R3KAL5 1799
1 novel time where you want to argue venue.
2 MR. ISEMAN: Well, your Honor, if I can just have
3 two seconds to make a quick point.
4 There is absolutely zero foundation he received the
5 e-mail while in New York. He was -- Mr. Aiello and his cell
6 phone were in New York. But there is no evidence at all of the
7 e-mail being in New York. I don't think there is
8 circumstantial evidence of it because they haven't established
9 any foundation of --
10 THE COURT: Here is the circumstantial evidence. He
11 has an iPhone that we know from other e-mails. I feel like I
12 can take judicial notice that e-mails come in on iPhones. He
13 is the head of a company. This was an important issue. He
14 talked to Todd Howe that day. He talked to his office that
15 day. It is reasonable to infer -- is it proof beyond a
16 reasonable doubt, I don't know. Will the jury find it is
17 beyond a preponderance, I don't know. But I think a jury can
18 conclude from that, that he would have looked, as the head of
19 COR, he would have looked at this e-mail.
20 MR. ISEMAN: But the idea --
21 THE COURT: And therefore it would hold it to where he
22 was and where the phone was.
23 MR. ISEMAN: It has to be in furtherance, your Honor.
24 THE COURT: There is no question it's in furtherance.
25 MR. ISEMAN: He doesn't send it.

(212) 805-0300
I6R3KAL5 1800
1 THE COURT: But he received it.
2 MR. ISEMAN: Okay. I get the point, your Honor, but
3 you understand our argument.
4 THE COURT: I think I understand your objection.
5 MR. ISEMAN: There is no connection. There is no
6 foundation that that e-mail was in Manhattan. They're talking
7 about unrelated phone calls.
8 THE COURT: That's correct. But that's not what
9 they're basing venue. They're basing their venue argument on
10 the theory that -- correct me if I'm wrong, gentlemen. That
11 the phone records proves that Mr. Aiello's phone and therefore
12 inferentially Mr. Aiello was in New York City. Further,
13 inferentially, because the e-mail was sent that day, and based
14 on the phone traffic of calling Howe and calling his office,
15 they can infer from that, that he read the e-mail, which in
16 turn is in furtherance of the fraud.
17 MR. ISEMAN: That's a lot of inferences that we're
18 making for -- I think the Court needs to acknowledge the
19 stretches that the government is doing to drag these men from
20 Syracuse down to Manhattan to try this case. And that's a hell
21 of a lot of inferences to make to do that.
22 MR. ZHOU: I'd like to point out this is only one
23 piece of evidence as to venue. So, it is a piece of evidence,
24 but it is not our only piece.
25 MR. WILLIAMS: In terms of Mr. Gerardi, because he

(212) 805-0300
I6R3KAL5 1801
1 sent it and Mr. Aiello received it in Manhattan, venue applies
2 to him as well?
3 MR. SHECHTMAN: We haven't decided that venue applies.
4 THE COURT: We can argue venue another time, but the
5 evidence comes in.
6 Okay. Are you guys ready to get the jury out? They
7 have now been sitting for three hours. What else do you have,
8 Mr. Zhou?
9 MR. ZHOU: I have six documents, your Honor, that we'd
10 like to move in. It was on that list I handed you, the second
11 block.
12 THE COURT: The second block.
13 MR. ZHOU: Yes, so I can very quickly sum up these
14 e-mails. There are four that relate to the COR defendants.
15 THE COURT: Do I care? Is there an agreement on all
16 of them other than is there a dispute over this block of
17 e-mails?
18 MR. ISEMAN: 659, 660-A. Yes, there is, your Honor.
19 THE COURT: Yes, there is no bananas? Yes what?
20 MR. ISEMAN: Yes, we have a dispute, we have an
21 objection to it.
22 THE COURT: 659-A, what's your objection?
23 MR. ISEMAN: 659-A is about a totally separate project
24 having to do with Mercy Hospital. I think the whole series of
25 these e-mails, your Honor, is the government attempting to have

(212) 805-0300
I6R3KAL5 1802
1 additional inferences of circumstantial evidence of venue.
2 Particularly with respect to whether Mr. Aiello, Mr. Gerardi
3 would reasonably have expected that certain documents would
4 have gone to ESD down in Manhattan.
5 Because I think the majority of these e-mails,
6 Mr. Gerardi in an e-mail statement makes reference to ESD
7 funding or people he has spoken to in Manhattan that's
8 affiliated with ESD. But these are all different projects than
9 are related in the Syracuse RFP. And the first one is within
10 the time period of when the Syracuse RFP is, but later ones are
11 at later periods of time.
12 So, we have a relevance objection, and also these are
13 Mr. Gerardi's statements, they're not offered, they're not in
14 furtherance of the conspiracy, they're hearsay, but they're
15 being offered for the truth of what Steve Aiello would know.
16 So we have an objection as to them applying to Mr. Aiello with
17 respect to what the government is trying to offer here, which
18 is Mr. Aiello would have reason to know that I guess these
19 contract documents, which I think is what they're going to be
20 trying to show made their way through the state pipeline down
21 to Manhattan and our client, my client would have reasonably
22 expected that.
23 THE COURT: That's the objection.
24 MR. ZHOU: Yes, your Honor. As you know, your Honor
25 admitted the ESD stipulation. It's charged as part of our

(212) 805-0300
I6R3KAL5 1803
1 conspiracy that the ESD funding was part of what they were
2 trying to get from defrauding Fort Schuyler.
3 So, I agree with Mr. Iseman these e-mails are not
4 relevant to the projects in this case. But in each one,
5 Mr. Gerardi indicates that he has knowledge that ESD is
6 headquartered in New York. And as your Honor knows, the case
7 law suggests that for defendants there should be proof that
8 they have some reasonable foreseeability that the venue will
9 reach into the Southern District. So these statements go
10 towards that, your Honor.
11 THE COURT: Your theory also applies to Mr. Aiello
12 because he received the e-mails.
13 MR. ZHOU: That's correct, your Honor.
14 THE COURT: Okay.
15 MR. ZHOU: The two other documents which relate to the
16 LPCiminelli side, it is the same thing. They just mention ESD
17 NYC, indicating a knowledge that ESD does reach into the
18 Southern District.
19 THE COURT: Do some of the ones that Mr. Iseman is
20 objecting to, were they after this deal?
21 MR. ZHOU: So, your Honor, we believe they are all in
22 the time period of the conspiracy and the scheme to defraud.
23 As your Honor knows, we charged between 2013 to 2015. All
24 these e-mails fit squarely within that period.
25 MR. ISEMAN: They're all within that period of time.

(212) 805-0300
I6R3KAL5 1804
1 I guess there are a few of them are after some of the documents
2 Mr. Aiello signs.
3 THE COURT: I'll admit the ones that preceded the RFP
4 and the signing up of the contract. The fact that they may
5 have learned later but still within your conspiracy period it
6 seems to me it is kind of neither here nor there.
7 MR. ZHOU: All of these documents are before the
8 funding was issued, your Honor. The latest one is July 2014 on
9 the COR side. So that's during time period when that's even
10 before they were reaching into ESD to ask for the funding.
11 THE COURT: When does that fall in terms of when they
12 signed the notice to proceed and the MOU?
13 MR. ISEMAN: The MOU was signed in March. March of
14 2014, your Honor. The first notice to proceed was signed for
15 the film hub, was signed that summer in May of 2014. There are
16 a number of documents which amendments, possession agreements,
17 and things like that, that happened in 2015.
18 THE COURT: I was thinking about the ones that got the
19 funding going.
20 MR. ZHOU: We're happy to take out 662, your Honor,
21 which is the July 2014.
22 THE COURT: 662 is out.
23 MR. ISEMAN: At a fundamental level, I don't think the
24 government has established anything that suggests that ESD was
25 actually going to be the funding source associated with these

(212) 805-0300
I6R3KAL5 1805
1 projects.
2 At the outset, when this is all being contemplated,
3 when the contracts are being signed, if you actually look at
4 the contracts, there is nothing in there that says what the
5 funding source is except New York State. What happens is
6 mechanically, and I think this would be instructive for the
7 Court to know --
8 THE COURT: I'm listening, Mr. Iseman. I'm not
9 frustrated with you. I'm frustrated with the fact these are
10 more than five minute issues. And we've now had the jury
11 sitting for three hours, and I have serious doubt that the
12 government will rest today.
13 MR. ISEMAN: I'll be very brief on the issue. Is that
14 when COR made an application for funding, that application for
15 funding was made to Fort Schuyler. That's who they had the
16 agreement with. That's where the flow of funding came from.
17 Wherever Fort Schuyler got their money, whether it was from
18 public-private partnerships, whether it was from a line of
19 credit, whether it was from DASNY, whether it was from ESD, any
20 other source of funding, COR does not know that at the outset
21 of where they're getting their money from.
22 THE COURT: What's the evidence that anyone knew this
23 money flow was going to go through Empire State at the time of
24 the misrepresentations? The initial representations, the RFP
25 time frame.

(212) 805-0300
I6R3KAL5 1806
1 MR. ZHOU: Yes, your Honor. So on the COR side it's
2 true that the Soraa project comes into being later. Originally
3 it was slated for Buffalo, and Andrew Kennedy has testified he
4 had a meeting with Steve Aiello here in New York City talking
5 about the project and how it was expanding and how it had moved
6 to Syracuse. Now --
7 THE COURT: That was after they had been selected as a
8 preferred developer.
9 MR. ZHOU: That's correct, your Honor. I think what
10 we've shown through the memorandum of understanding and the
11 notice to proceed, all of them harken back to the fact there
12 was a competitive RFP process and the defendants signed these
13 documents and made that representation repeatedly to Fort
14 Schuyler that that was how they were chosen, and that's why
15 they're getting the contracts, even later on. And that's why
16 we believe the scheme to defraud continues into 2015, your
17 Honor.
18 THE COURT: After they are aware that that money is
19 going to flow through Manhattan.
20 MR. ZHOU: Exactly, your Honor.
21 THE COURT: Okay. Again, I've never had a case where
22 venue was what was argued to the jury. But it's not a bad
23 argument in this case. But that doesn't mean the evidence
24 isn't admissible. The evidence is admissible. Make your
25 argument. There's enough. I see their argument. Is a jury

(212) 805-0300
I6R3KAL5 1807
1 going to buy it? Maybe not.
2 MR. ISEMAN: I guess I struggle to see how their
3 knowledge about other -- funding sources for other state
4 projects --
5 THE COURT: For Soraa.
6 MR. ISEMAN: But so that's based on a conversation he
7 had with Andrew Kennedy where he doesn't mention ESD. All he
8 said was that the funding was going to increase from 70 to 90.
9 THE COURT: I thought he said that they were meeting
10 at ESD and talking about ESD.
11 MR. ISEMAN: They met in a restaurant, allegedly. I
12 don't think the meeting ever happened. But they met in a
13 restaurant after work. That's what his testimony was.
14 MR. ZHOU: That was his testimony, your Honor.
15 THE COURT: So how does that -- I'm sorry, how does
16 that prove any knowledge that it's ESD money?
17 MR. ZHOU: We'll have to go back to the documents to
18 check, your Honor. Based on what happens is Soraa becomes an
19 ESD funded project that was given over to COR as a result of
20 their status as preferred developers.
21 THE COURT: You're missing my question. You want to
22 introduce this evidence to prove that the defendants knew,
23 right, that they had some inkling that their scam was going to
24 touch the Southern District of New York. The flow of funds is
25 a reasonable point on that. But only if they know.

(212) 805-0300
I6R3KAL5 1808
1 MR. ZHOU: I think as an initial matter, your Honor, I
2 think it's sufficient that they know it is going to be state
3 funding. That was clear from Fort Schuyler having their funds
4 come from the state. And as Mr. Kennedy testified, ESD is the
5 main economic agency for the State of New York for providing
6 funding and investment. We're going to go back to the
7 documents and --
8 THE COURT: Let me ask you something. This doesn't
9 implicate whatever the witness's name is. Does it? You're not
10 going to rest today. We can wrestle with this in the morning
11 when I don't have a jury waiting for the fourth hour.
12 MS. PATEL: We join Mr. Iseman's objections on the
13 relevancy of the exhibits and also as to venue.
14 THE COURT: I haven't ruled on any of that.
15 MR. SHECHTMAN: Judge, you are going to give that same
16 limiting instruction?
17 THE COURT: I asked the government. Any objection?
18 MR. PODOLSKY: No, that's fine, your Honor.
19 THE COURT: It will be 1082. Okay.
20 Any reason why we shouldn't get a jury in the box and
21 get back to work?
22 MR. BOONE: No.
23 THE COURT: Let's go.
24 (Jury present)
25 THE COURT: Okay, ladies and gentlemen, I apologize

(212) 805-0300
I6R3KAL5 Doyle - Direct 1809
1 for keeping you waiting so long. We're still ahead of time.
2 We're not quite as ahead of time as I thought we would be. I
3 do not believe the government will rest today, but they will
4 rest tomorrow.
5 So call your next witness.
6 MR. BOONE: Government calls David Doyle.
7 DAVID DOYLE,
8 called as a witness by the Government,
11 BY MR. BOONE:
12 Q. Good afternoon.
13 A. Hi there.
15 A. I work for a public affairs communications firm in the
16 Albany, New York area.
17 THE COURT: Mr. Doyle, let me ask you to pull the mic
18 down. You don't have to get real close to it.
19 THE WITNESS: Is that better?
20 THE COURT: Yes, much better.
21 Q. So, where do you work?
22 A. I work at a public affairs strategic communications firm in
23 the Albany, New York area.
24 Q. What is the firm called?
25 A. Gramercy Communications.

(212) 805-0300
1 Q. Do you have a particular title or position there?
2 A. It is vice president.
3 Q. How long have you been a vice president there?
4 A. A little over a year.
5 Q. How would you describe your job responsibilities?
6 A. I work with a number of clients on their issue advocacy,
7 strategic communications, and media relations.
8 Q. Prior to working there, where did you work?
9 A. I had a short stint at an organization called the SUNY
10 Charter Schools Institute.
11 Q. What type of organization was that?
12 A. That's part of the State University of New York. And they
13 are an authorizer and overseer of charter schools.
14 Q. What did you do for them?
15 A. I assisted them with their strategic communications.
16 Q. Prior to that job, where did you work?
17 A. I worked at SUNY Polytechnic Institute.
18 Q. What was your position at SUNY Polytechnic?
19 A. I was a vice president.
20 Q. How would you describe your job responsibilities there?
21 A. Generally, I assisted with the media relations and
22 strategic communications involving the statewide economic
23 development projects.
24 Q. How long did you have that position?
25 A. Approximately a year and a half.

(212) 805-0300
1 Q. Prior to working for SUNY Poly, where did you work?
2 A. I worked for SUNY Central Administration, which is sort of
3 the executive offices of the university system.
4 Q. What did you do at sort of SUNY headquarters?
5 A. Same, similar job responsibilities.
6 Q. Okay. To back up just briefly, what years did you work at
7 SUNY Poly?
8 A. Approximately February of '15 to October, November of '16.
9 Q. So jumping back to your job at SUNY Administration, where
10 did you work before there?
11 A. I worked in the office of Governor Andrew Cuomo.
12 Q. During what years did you work in Governor Cuomo's office?
13 A. From January 2011 until May of 2012.
14 Q. Did you have a particular title or position?
15 A. Senior press officer.
16 Q. What did that job entail?
17 A. Similar work, writing press releases, doing advance work
18 which would be like preparing for press conferences. You know,
19 message point, message -- messaging for the governor. That
20 sort of work.
21 Q. During what years were you working for Governor Cuomo?
22 A. January of 2011 until May of 2012.
23 Q. Prior to working there, where did you work?
24 A. I worked for Attorney General Andrew Cuomo.
25 Q. Doing the same sorts of job?

(212) 805-0300
1 A. Yes, sir.
2 Q. So in total, how many years have you worked in
3 communications?
4 A. Including time that I was in broadcast journalism, about
5 18.
6 Q. Are you familiar with someone named Alain Kaloyeros?
7 A. I am.
8 Q. How do you know him?
9 A. He was my boss at SUNY Polytechnic.
10 Q. Do you see him in the courtroom today?
11 A. I do.
12 Q. Could you describe where he is located and an article of
13 clothing he is wearing?
14 MR. MILLER: So stipulated.
15 THE COURT: The defense stipulates he can identify the
16 defendant Kaloyeros.
17 THE WITNESS: Okay.
18 Q. How did you come to meet Kaloyeros?
19 A. I believe the first time that we had met each other, there
20 was -- when I was in the governor's office, there was a
21 colleague of mine who was going over early on in the
22 administration to sort of a meet-and-greet, get-to-know-you
23 visit. And I was asked to attend that, and so I think that's
24 the first time that we had met.
25 Q. Where was the meet-and-greet?

(212) 805-0300
1 A. It was at the, at the time it was CNSE, which was the
2 predecessor to SUNY Poly. It was at the campus in Albany.
3 THE COURT: I'm sorry. So a colleague of yours was
4 going over to meet Dr. Kaloyeros?
5 THE WITNESS: Correct.
6 THE COURT: Okay.
7 THE WITNESS: And he asked me to come along.
8 THE COURT: Okay.
9 Q. Thank you. Did there come a time when Kaloyeros approached
10 you about a job?
11 A. We'd spoken about it a number of times. After I left the
12 governor's office and went to SUNY Administration, SUNY
13 Central, you know, we remained in contact, and the idea of
14 going to work for him had come up, come up a number of times.
15 So, yes.
16 Q. What did he say to you about the job he wanted you to do?
17 A. As the school's footprint was expanding statewide, into the
18 Buffalo and Rochester and Syracuse and Utica, you know, there
19 was these projects, you know, required more and more attention,
20 and he thought I could be of assistance.
21 Q. What projects are you referring to?
22 A. These are the economic development projects that went on in
23 the various upstate cities.
24 Q. At the time, did you have an understanding of what SUNY
25 Poly was exactly?

(212) 805-0300
1 A. Yes.
2 Q. What was your understanding?
3 A. It was the newest State University of New York campus. It
4 had been spun off from the University at Albany. And
5 basically, it was, you know, this high-tech, you know, research
6 and development, economic development, academic model, you
7 know, sort of juggernaut.
8 Q. Why did you choose to work for SUNY Poly?
9 A. Well, I was, you know, I'm an Albany kid, born and raised.
10 The college had grown. It was very high profile. It was very
11 well regarded. It was exciting. These projects were. So just
12 in the Albany area, it had a strong reputation. And then what
13 they wanted to do was migrate this model to other places, and
14 the idea of, you know, creating these upstate jobs, high-tech,
15 was appealing to me.
16 Q. You mentioned this a little bit earlier. But what type of
17 work did you ultimately perform while you were at SUNY Poly?
18 A. Predominantly, you know, media relations, some strategic
19 communications, and just almost, you know, exclusively involved
20 with the economic development projects.
21 Q. Was Kaloyeros your direct supervisor?
22 A. Yes.
23 Q. How was he as a supervisor?
24 A. He could be incredibly gracious and supportive. He could
25 also be the opposite.

(212) 805-0300
1 Q. Did Kaloyeros review your work?
2 A. Yes.
3 Q. What types of things would he review?
4 A. How we would respond to media inquiries, public statements,
5 how we would interact with the press or the other government
6 agencies, let's say. But yes, he -- if I got a media inquiry,
7 I would always flag it for him.
8 Q. Did he ever draft press releases or other media-related
9 documents himself?
10 A. Sometimes.
11 Q. Did you ever issue a statement to the press or to the
12 public that had not been approved by Kaloyeros?
13 A. No.
14 Q. Are you familiar with someone named Todd Howe?
15 A. Yes.
16 Q. How do you know Todd Howe?
17 A. The first time I met Todd, I believe, was in preparation
18 for a visit to the campus, the SUNY Poly campus, by President
19 Obama. I was working in the governor's office at the time.
20 And I had -- obviously, there's an enormous amount of planning
21 and preparation that goes into a visit of that nature. So I
22 was helping out with what we call the advance work, the
23 preparatory work. And Todd was there at the campus doing
24 similar work.
25 Q. Do you know if he had a relationship with SUNY Poly?

(212) 805-0300
1 A. I believe he was a consultant to SUNY Poly.
2 THE COURT: This is at that time?
3 THE WITNESS: Yes.
4 Q. Did you later come to work with Todd Howe at SUNY Poly?
5 A. Yes, I did.
6 Q. Did you ever discuss with Kaloyeros how Todd Howe came to
7 work for SUNY Poly?
8 A. Yes.
9 Q. What did Kaloyeros tell you?
10 A. That when the Cuomo administration came to office, they had
11 some reservations about Dr. Kaloyeros. They didn't know him,
12 they didn't quite understand what was going on there. There
13 was an enormous amount of state money that had already been
14 invested in the campus. And they weren't sure if they wanted
15 to continue to work with him.
16 He attended a meeting with officials on the -- in the
17 governor's office, made a case to stay on, and be part of the
18 team. Which was ultimately agreed to with the condition, you
19 know, that Todd Howe would come on and serve as eyes and ears.
20 Q. Eyes and ears for whom?
21 A. For the governor's office.
22 Q. Did Kaloyeros tell you who was present at this meeting in
23 the governor's office?
24 A. It was with Howard Glaser, who was the director of state
25 operations at the time.

(212) 805-0300
1 Q. Do you have an understanding as to what role Howard Glaser
2 sort of is or was at the time in state government?
3 A. The director of state operations is a very senior level
4 position in the State of New York. You have the governor, then
5 you have the secretary to the governor, which might be akin to
6 a chief of staff position, very high level, and then the
7 director of state operations is typically in charge of sort of
8 the nuts and bolts of government, running the state agencies.
9 In my view, I would say it would be the number three position
10 in government, in the executive branch.
11 Q. When you worked for SUNY Poly, how often would you see Todd
12 Howe on campus?
13 A. Usually several times a week.
14 Q. Did you consider him a supervisor of yours?
15 A. I did.
16 Q. Why?
17 A. He was, you know, involved in all the sort of
18 decision-making processes. He, you know, would assign me work,
19 which I would do because I felt like it was coming from a
20 superior. He certainly was connected with the governor's
21 office and seemed to have the trust of Dr. Kaloyeros.
22 Q. How would you describe Howe's relationship with Kaloyeros?
23 A. They seemed to work very closely together and seemed to
24 like each other.
25 Q. Are you familiar with an entity known as Fort Schuyler

(212) 805-0300
1 Management Corporation?
2 A. I am.
3 Q. What is Fort Schuyler?
4 A. Fort Schuyler would be sort of the real estate development
5 arm of SUNY Poly.
6 Q. So, what did it do as an organization?
7 A. It handled a lot of the agreements and partnerships with
8 business and industry. This could be contracts, RFPs, tenant
9 relations let's say. Had its own separate board of directors.
10 Things of that nature.
11 Q. How did you become familiar with Fort Schuyler?
12 A. There was, you know, the Fort Schuyler executive in charge,
13 his office was right down the hall from mine. Their, you know,
14 work very much intertwined with my work. They were -- the Fort
15 Schuyler entity was the vehicle for the economic development
16 projects, so, you know, I often interfaced with Fort Schuyler.
17 Q. Do you know if Dr. Kaloyeros had any involvement with Fort
18 Schuyler?
19 A. I believe he was on the board at one point.
20 Q. Did there ever come a time when you were involved with
21 dealing with press inquiries regarding Fort Schuyler?
22 A. Yes.
23 Q. What was the nature of the inquiries?
24 A. Generally, it had to do with the some aspect of the
25 project -- generally, excuse me, generally, you know, with the

(212) 805-0300
1 RFP or the RFP process. That's certainly what sticks out in my
2 mind.
3 Q. So, what, if anything, did you do in response to these
4 inquiries?
5 A. You know, would flag it for Dr. Kaloyeros, we would either
6 get on the phone or get a group on the phone and determine, you
7 know, the best way to respond.
8 Q. You touched on this a little bit, but what involvement, if
9 any, did Kaloyeros have in sort of formulating a response to
10 the inquiries?
11 A. He was intricately involved in our media relations.
12 Q. How so?
13 A. He would sign off on whatever statement went out. He would
14 sometimes dictate the statement. Sometimes it would be
15 collaborative.
16 Q. I want to show you a few documents. There should be a
17 binder next to you. We'll also have them available on the
18 screen. I want to show you for identification purposes only
19 Government Exhibit 204, so it should not appear for the jury.
20 Let me know when you've had a chance to look the document over.
21 A. I've looked it over.
22 Q. Do you recognize this document?
23 A. I do.
24 Q. What is it?
25 A. This is an e-mail from a reporter in Buffalo named Jim

(212) 805-0300
1 Heaney to Dr. Kaloyeros asking questions about the RFP process.
2 Q. Are you a part of this e-mail exchange?
3 A. Not the initial one, no.
4 Q. But on the exchange, are you ultimately on the exchange?
5 A. Yes, yes.
6 MR. BOONE: The government moves to have Government
7 Exhibit 204 admitted.
9 MR. MILLER: No objection.
10 MR. SHECHTMAN: None.
11 THE COURT: 204 is received.
13 MR. BOONE: Ms. Lee, if you can publish for the jury,
14 please.
15 Q. I'd like to start with the very first e-mail in the chain.
16 So this appears to be from someone named James Heaney. Who is
17 James Heaney?
18 A. Jim Heaney is an investigative reporter based out of
19 Buffalo. His media outlet is the Investigative Post.
20 THE COURT: Is that a paper or like a blog?
21 THE WITNESS: Like a website blog.
22 THE COURT: Okay.
23 Q. And the e-mail is addressed to Alain Kaloyeros. Is that
24 right?
25 A. Yes.

(212) 805-0300
1 Q. If you could read what Mr. Heaney says.
2 A. "Dr. K. A few weeks ago we discuss the RFP process for
3 selecting developers for the Buffalo Billion projects. At that
4 time, you offered to share the names of the directors of the
5 Utica-based nonprofit that was handling the selection process.
6 I'm interested in the names, as well as a list of people you
7 were adding to the review committee."
8 Q. Okay. If we could zoom out, and it looks like you're now
9 sort of forwarded this e-mail. So if we can look at the next
10 e-mail on the chain. I'm focusing on the e-mail from Kaloyeros
11 at 6:59.
12 What does Kaloyeros say?
13 A. "Your BFF is at it again. I'm ignoring him."
14 Q. What did you understand him to mean by "your BFF is at it
15 again"?
16 A. I would say BFF would be an abbreviation for best friend
17 forever, but I think he's probably saying the opposite, as in
18 not my friend.
20
21
22
23
24
25

(212) 805-0300
I6rrkal6 Doyle - Direct 1822
1 Q. Why do you think that?
2 A. Because he goes on to say he's ignoring him. I guess you
3 don't ignore your best friend.
4 Q. Were you aware of prior interactions between Kaloyeros and
5 Jim Heaney?
6 A. Jim Heaney had done reporting on the RFP, or on the Buffalo
7 Billion projects prior, so yes.
8 THE COURT: Did you have a warm relationship with Jim
9 Heaney or not a warm relationship?
10 THE WITNESS: As best my memory serves, it started out
11 okay, and then it was no longer warm.
12 Q. If we could move further along in the chain, there is
13 someone named Peter Cutler who chimes in. Do you know who
14 Peter Cutler is?
15 A. I do.
16 Q. Who is he?
17 A. Peter Cutler was a communications staffer for the Cuomo
18 administration. He worked at a number of agencies, including
19 Department of Corrections, and at the time of this email that's
20 Department of Homeland Security and Emergency Services. But
21 his connection to all this was he is a Buffalo guy born and
22 raised, knew all the people in Buffalo and the media landscape.
23 So he was always involved in Buffalo Billion media inquiries.
24 Q. Now looking at the last email in the chain, it appears also
25 on this chain now Andrew Kennedy, do you know who he is?

(212) 805-0300
1 A. I do.
2 Q. Who is he?
3 A. Works for the Cuomo administration. I believe his title
4 was deputy secretary for economic development, but I'm not
5 positive that's exactly correct.
6 Q. This email is from tow?
7 A. Yes.
8 Q. In the email Todd Howe is referring to "something never
9 ending with these assholes." Do you know what he means by
10 that?
11 A. I would say that is alluding to requests from Jim Heaney
12 and the media.
13 Q. Had there been other requests by the media around this time
14 period? This is December 2013.
15 A. I don't recall.
16 Q. Was it unusual for Todd Howe to be on an email such as
17 this?
18 A. No, it was not.
19 Q. If we could now take a look at what's been marked for
20 identification as Government Exhibit 205. Let me know when you
21 have had a chance to familiarize yourself with it.
22 A. I'm familiar with.
24 A. Yes.
25 Q. What is it?

(212) 805-0300
1 A. It is an email to Todd and myself with a cc to Dr.
2 Kaloyeros's executive assistant to set up a call. Then it gets
3 into an issue with the Buffalo RFP that was a requirement to
4 bid on the project, that you had to be a going concern for 50
5 years, you had to be in business for 50 years, versus
6 ultimately what it was changed to was 15 years. So there is an
7 allusion to that. And also that he had --
8 Q. We'll get into the contents of the email.
9 A. Okay.
10 MR. BOONE: Your Honor, the government offers
11 Government Exhibit 205 in evidence.
15 MR. BOONE: If we could publish that to the jury,
16 please.
17 Q. To go back to what you were saying, you were saying there
18 was a requirement.
19 A. When the RFP was issued, as I said, there was a requirement
20 that to be a bidder or a participant, you had to be in business
21 for 50 years, which was ultimately determined to be a typo to
22 my understanding and was changed to 15 years. I see a
23 reference to that in here.
24 Q. The RFP we are talking about is Buffalo RFP?
25 A. Yes.

(212) 805-0300
1 Q. You said your understanding was that 50 years was a typo.
2 How did you gain that understanding?
3 A. That's what I was told.
4 Q. Who told you that?
5 A. Dr. Kaloyeros.
6 Q. If we could look more closely at the email chain, I want to
7 start with the first email. It appears to be from Kaloyeros to
8 yourself, Todd Howe. Who is Erin Coultry?
9 A. Executive assistant.
10 Q. If you could read this email into the record, please.
11 A. "What's a good time to talk this a.m. I might or might not
12 have started the ball rolling with the Buffalo News. Dr.
13 Doyle, is it my imagination or did Heaney tell you that we had
14 50 years in the developer requirements for Buffalo to favor
15 Ciminelli? You know what that means. Yes, I'm slow. It means
16 the lying expletive knew there was an RFP contrary to his
17 earlier claims that there was no process."
18 Q. If we could break this down. Starting with the first line,
19 "What's a good time to talk a.m.? I might or might not have
20 started the ball rolling with the Buffalo News," what did you
21 said Kaloyeros to mean by that?
22 A. That he had engaged with the Buffalo News in an effort to
23 get what was believed to be the accurate story with the correct
24 facts into the media.
25 Q. Did that have any relation with the second part of this

(212) 805-0300
1 email, where there is a discussion of Jim Heaney?
2 A. I would think so, yes.
3 Q. What is the relationship? To put this email together,
4 what's going on here?
5 A. I believe that Jim Heaney was continuing to dig into this
6 issue of the RFP, both the 50 and the 15 years, from the prior
7 email, sort of the process. I think Dr. Kaloyeros wanted to
8 set the record straight with the Buffalo News, which was sort
9 of the paper of record in western New York. That's how I read
10 this.
11 Q. What do you mean by paper of record?
12 A. Sort of the largest, most reputable media outlet in
13 Buffalo, western New York.
14 Q. Then it looks like you respond suggesting a time to talk.
15 What are you referring to in the second part of this? He
16 mentioned it and that change?
17 A. He mentioned that the 50 changed to 15 after he had
18 inquired about it. But I think he was also saying that there
19 was no process, whereas I was always told there was a process
20 by the book.
21 Q. What you are saying is Heaney had said there was no
22 process?
23 A. Yes. Sorry.
24 Q. And Kaloyeros had told you it was by the book?
25 A. Yes.

(212) 805-0300
1 Q. Now I want to show you Government Exhibit 1083. It will
2 come up on your screen.
3 THE COURT: You said something when you were away from
4 the microphone. If it's important, you have to say it again.
5 Otherwise, it's not going to be on the record.
6 MR. BOONE: Yes.
7 Q. I want to show you Government Exhibit 1083R.
8 MR. BOONE: I believe there is, due to prior
9 discussions, agreement this can be admitted, your Honor?
10 THE COURT: Is that correct?
11 MR. MILLER: Yes, your Honor.
12 THE COURT: Without objection, 1083R is received.
13 (Government's Exhibit 1083R received in evidence)
14 MR. BOONE: If we could have that published for the
15 jury and for the witness, please.
16 Q. Let me know when you have had a chance to look at the
17 document.
18 A. I've looked at it. I haven't read it in its entirety
19 though.
20 Q. Do you know what this document is?
21 A. This is a story by Jim Heaney of the Investigative Post
22 entitled "Suppression of Buffalo Billion Spending Records."
23 Q. In broad strokes, do you know what this article is about?
24 A. This is I think Jim Heaney's sort of initial investigative
25 report on his quest to undercover certain things about the RFP

(212) 805-0300
1 process and records, documents.
2 MR. BOONE: If we could highlight the top left corner
3 where it says December the 2nd. If we could also now go to the
4 very last page. Thank you. And if we could blow up that
5 portion here.
6 Q. What is the date there?
7 A. December 22, 2014.
8 Q. Going back to Government Exhibit 205, approximately how
9 many days have passed since Kaloyeros has an issue we know and
10 the article we just looked at?
11 A. It looks like six.
12 Q. If I could now show you, if you can take a look at, what's
13 been marked as Government Exhibit 206 for identification.
14 MR. COFFEY: Judge, with regard to these newspaper
15 articles, I would like to ask for a limiting instruction.
16 THE COURT: Denied. I'm sorry. Once they come in,
17 yes, I will.
18 MR. COFFEY: Thank you.
20 A. Yes.
21 Q. What is it?
22 A. This is an email circulation of another Jim Heaney story
23 that this time was published in the Albany Times Union.
24 Q. Are you a part of this email exchange?
25 A. Yes.

(212) 805-0300
3 THE COURT: R?
4 MR. BOONE: R, yes, the redacted version.
5 THE COURT: Any objection to 206R?
7 THE COURT: It is received.
9 THE COURT: Ladies and gentlemen there are a series of
10 newspaper articles. The prior one came in as well. Remember I
11 told you a couple of days ago the reporters do their best, but
12 anything in a newspaper article is not being received for the
13 truth. It is being received for what happened next or to
14 complete the story in some way or another, but it is not being
15 accepted for the truth. In this case these are relevant to Dr.
16 Kaloyeros's state of mind.
17 Q. Starting with the first email of the chain, the very
18 bottom, it looks like from on June 21, 2015, at 8:49 a.m. What
19 does Kaloyeros say in this email?
20 A. "The guy loves us."
21 Q. It looks like there is an attachment below. What is the
22 attachment?
23 A. That would be the article.
24 Q. Is there a date associated with the article?
25 A. June 20, 2015.

(212) 805-0300
1 Q. How much time has passed between this article and the
2 previous Heaney article we just looked at?
3 A. Six months about.
4 Q. Generally speaking, what is discussed in this article?
5 A. That secrecy --
6 Q. If you could try to read from the redacted version on your
7 screen.
8 A. The subheadlines sort of give you the gist of what the
9 article is: a lot of allegations of secrecy, lack of
10 transparency, that the company that was chosen -- or that an
11 agreement was made to operate a factory was on shaky ground, I
12 think is the language from the article.
13 THE COURT: This is about the Buffalo project?
14 THE WITNESS: Yes.
15 Q. If we could go back to the email chain. What did you
16 understand Kaloyeros to mean when he said "the guy loves us"?
17 A. I think he is being tongue-in-cheek and that the guy does
18 not love us.
19 Q. The guy being who?
20 A. The reporter Jim Heaney.
21 Q. Looking at the next part of the chain, it looks like Todd
22 Howe comments. What does he say?
23 A. "He has no regard for facts whatsoever."
24 Q. Is it uncommon for Todd Howe to be on this type of email
25 communication?

(212) 805-0300
1 A. No.
2 Q. If we could look at the next part of the chain, what does
3 Kaloyeros say here?
4 A. "Exactly, and it's obviously a reaction to the issues with
5 his legal case."
6 Q. What did you understand him to mean by that?
7 A. There were a number of legal back-and-forths with Jim
8 Heaney and the Investigative Post. I believe he had filed a
9 freedom of information suit to try to acquire these documents
10 that he was looking for, and at some point in time there was a
11 countersuit to also FOIA I think who his donors were.
12 THE COURT: There was a countersuit by SUNY Poly?
13 THE WITNESS: I believe so, yes.
14 MR. MILLER: Objection. Move to strike.
15 THE COURT: Overruled.
16 Q. What was happening with the suit?
17 A. Again, there was a lawsuit by I believe the Investigative
18 Post to attempt to acquire documents, freedom of information
19 law, and at some point either SUNY Poly or an affiliated entity
20 also either FOIA'd or filed a FOIA suit against Investigative
21 Post. That's my understanding.
22 Q. You said something about donors?
23 A. Investigative Post, my understanding is it is not a
24 traditional subscription-based or advertising-based media
25 outlet. Rather, it relies on fundraising efforts.

(212) 805-0300
1 Q. If we could now take a look at the last email on the chain.
2 It looks like Todd Howe is sending an email to you and
3 Kaloyeros. What does he say in this email?
4 A. "Absolutely. If we weren't in this lawsuit, I'd love to go
5 back line by line in his story, total fabrications to support
6 his bogus claims. All I can say is 'payback is a bitch.'"
7 Q. What did you understand Howe to mean by those statements?
8 A. I know, I think, there was an effort made -- as I said, the
9 Investigative Post was dependent on fundraising, and there was
10 an effort made by people that Todd knew that had donated to
11 Investigative Post in the past, there was an effort to get them
12 to stop doing that.
13 Q. People like who?
14 A. Western New York businesses and individuals, philanthropic
15 individuals.
16 Q. Do you know any of them?
17 A. I think Ciminelli was a donor at one point in time.
18 MR. MILLER: Objection. Move to strike.
20 MR. SHECHTMAN: May I ask Mr. Boone a question?
21 THE COURT: You may.
22 MR. SHECHTMAN: Thank you.
23 Q. Now if we could move on and take a look at Government
24 Exhibit 143 marked for identification purposes.
25 THE COURT: 143?

(212) 805-0300
1 MR. BOONE: Yes, your Honor, one-four-three.
3 A. Yes.
4 Q. What do you recognize it to be?
5 A. This is sort of a set the record straight media release and
6 some emails back and forth regarding it.
7 Q. Are you involved in this email exchange?
8 A. Yes, I am.
9 Q. This is also regarding the Buffalo RFP?
10 A. Yes.
11 MR. BOONE: Your Honor, the government moves to admit
17 MR. BOONE: If we could post that for the jury,
18 please.
19 Q. Let's start with the first email in the chain, which I
20 believe starts on page 2. If we could highlight the very
21 bottom. This appears to be an email from Kaloyeros to several
22 individuals. First of all, who is Jerry Gretzinger?
23 A. He was also a communications staffer at the school.
24 Q. What about Steve Ference?
25 A. Yes, same. Steve worked for Jerry, under Jerry.

(212) 805-0300
1 Q. You are copied as well?
2 A. I am.
3 Q. Is Todd Howe copied?
4 A. He is.
5 Q. If you could read Jerry and the paragraph underneath that.
6 A. "Jerry, I want you to prepare a press release ASAP that
7 states that in response to recent misguided and misinformed
8 reports in certain media outlets, SUNY Poly states the
9 following facts. Anything else, Doyle, Todd?"
10 The next paragraph too?
11 Q. Before we get to that, do you know what Kaloyeros means by
12 misguided and misinformed reports?
13 A. I believe referencing the earlier news articles that we
14 went over.
15 Q. The Jim Heaney articles?
16 A. Yes.
17 Q. Now if you could read point number 1.
18 A. "Alain Kaloyeros is a New York State public employee
19 subject to all state rules and oversight, including by SUNY and
20 JCOPE. To our knowledge, Alain Kaloyeros is not the target of
21 any government inquiry, and we have no reason to believe
22 otherwise. Any reports or implications that he is or should be
23 are totally false and misleading. Moreover, publication of
24 such inaccurate reports would constitute irresponsible
25 reporting. SUNY Poly would pursue all available legal remedies

(212) 805-0300
1 to the full extent of the law."
2 Q. If you could now read point number 2.
3 A. "As a public SUNY institution, all funding and contracts to
4 SUNY Poly and its expenditures are subject to the same
5 approvals, rules, regulations, and oversight as any other New
6 York government agency. This includes public and transparent
7 reviewing and oversight by all appropriate state agencies,
8 including state department of the budget, Empire State
9 development, the State University of New York, the New York
10 State comptroller, and the Attorney General."
11 Q. If you could read point number 3.
12 A. "The RFP process for the Buffalo Billion was open and
13 transparent and was made public, including on the FSMC website
14 nearly a year ago as demonstrated in the story published in the
15 Buffalo News on December 17, 2014. Attach the PDF to the
16 release."
17 Q. Do you know what article is being referred to there?
18 A. Not without seeing it.
19 Q. If you could now read the last point.
20 A. "Mr. Heaney's change of heart about the SUNY Poly model
21 reeks of hypocrisy and double standard and is driven purely by
22 personal agenda after SUNY Poly refused to join his misguided
23 campaign against the government as demonstrated by the
24 following two stories written and published by Mr. Heaney
25 himself."

(212) 805-0300
1 Q. We started off saying this was an email concerning a press
2 release, I believe. This is from Kaloyeros. Was it unusual
3 for Kaloyeros to draft press releases?
4 A. Not unheard of.
5 Q. If we could zoom out so we could look at the rest of the
6 chain. Very quickly, it looks like Jerry Gretzinger says he's
7 on it, Kaloyeros then says "ASAP." If we could go to the next
8 page. It looks like Gretzinger is now -- it's another message.
9 Read the first sentence. What is Gretzinger saying in this
10 message?
11 A. "PR drafted as requested below and attached along with PDF
12 to be included when issued."
13 Q. Zoom out. Does this draft appear, in terms of what is in
14 the points, appear to be the same as what you just read in the
15 draft written by Kaloyeros?
16 A. It appears to be.
17 Q. If we could now take a look at the top email in the chain,
18 could you read what Todd Howe is saying.
19 A. "Gents, is this wise? David, should you run by gov's
20 office on this? Rich, should outside counsel approve?"
21 Q. The email is addressed to you and Richard Leckerling. Who
22 was Richard Leckerling?
23 A. He was a senior person at Whiteman Osterman Hannah, which
24 was Todd's firm.
25 Q. What did you understand Todd Howe to mean when he asks "Is

(212) 805-0300
1 this wise? David, should you run by gov's office on this?"
2 A. Basically, is it strategic, is it smart to send out a
3 statement like this, should we flag this for the governor's
4 office. It's very straightforward.
5 Q. What about "Rich, should outside counsel approve," what did
6 you understand that to mean?
7 A. I'm not sure which outside counsel he is referring to. But
8 basically should legal look at this and weigh in.
9 Q. Now if we could take a look at what's been marked for
10 identification as Government Exhibit 208. Do you recognize
11 this document?
12 A. Yes, I do.
13 Q. What is it?
14 A. It is an email exchange between a reporter for Newsday, the
15 Long Island-based newspaper, reacting to the previous statement
16 after it went out, asking additional questions.
17 Q. Are you part of this chain?
18 A. Yes, I am.
19 MR. BOONE: Your Honor, the government moves to have
20 Government Exhibit 208 into evidence.
21 THE COURT: Any objection to 208?
25 Q. If we could blow up the bottom portion, the first email.

(212) 805-0300
1 Starting with the header, it looks like this is from someone
2 named Michael Gormley to yourself. Who is Michael Gormley?
3 A. He is an Albany-based New York State Capitol-based reporter
4 for Newsday.
5 Q. Generally speaking, what is he saying in this message to
6 you?
7 A. It's a very long, in-depth, very deep dive into the RFP
8 process.
9 Q. If we could highlight number 1 and the paragraph
10 immediately beneath it.
11 A. To you want me to read that?
12 Q. My first question is, looking at number 1, it appears to be
13 a quote. Do you know where that quote is from?
14 A. That came from the media statement that we just went over.
15 Q. There appears to be a question after the quote. If you
16 could read the question.
17 A. "But the open book New York website and the state
18 controller's office confirmed that each of the six state
19 contracts to LPCiminelli Inc. or its construction company were
20 'not subject to OSC preaudit.' Those preaudits are designed to
21 examine the bid process for fairness and legality. The
22 preaudits look for fairness and the legality of the process.
23 Is there some other process that was used to compensate for a
24 lack of preaudit?"
25 Q. Do you know what he means by OSC preaudit?

(212) 805-0300
1 A. OSC is a reference to the Office of the State Comptroller.
2 Preaudit, I'm not exactly sure what the nuts and bolts of a
3 preaudit are. So not exactly.
4 Q. Let's take a look at the very next paragraph, "The
5 companies." If you could read that.
6 A. "Did the companies that showed interest in the project
7 submit any protest or complaint about the process? I request
8 copies of those statements."
9 Q. Did you know what he meant by protest or complaint?
10 A. I guess some sort of formal objection to the process.
11 Q. By process, to be clear, you are talking about the Buffalo
12 RFP process?
13 A. Yes.
14 Q. If we could zoom out. First, just so the record is clear,
15 does there appear to be a second page to this?
16 A. Yes.
17 Q. Is Mr. Gormley asking more questions about the process?
18 A. He is.
19 Q. If we could highlight the first three paragraphs. If you
20 could read those paragraphs.
21 A. "The story also states 'a couple of developers from other
22 regions' expressed interest, but they were 'rebuffed.' Can you
23 please tell me which companies these were and under what
24 grounds they were rebuffed? I also request copies of
25 correspondence with the companies on this issue.

(212) 805-0300
1 "The story further indicates that a conference call
2 was held in October 2013 with the remaining interested
3 companies to provide more information. The article states
4 Mensch Capital Partners didn't confirm its participation in the
5 call 'in a timely manner' and was eliminated. Can you please
6 explain how late the company was in responding to the call?
7 Was the notification before or after the call? Please provide
8 correspondence to the company on this issue.
9 "The article states that at that time state officials
10 noticed a typographical error in which 50 years' experience was
11 required rather than 15 years. The article states all bidders
12 were then contacted. Does that mean all nine were contacted?
13 Please note which bidders were contacted and how long they were
14 provided to amend their bid or to reconsider submitting a bid.
15 What date was the correction sent to bidders and what date was
16 the deadline to receive bids? Was there any consideration of
17 issuing a new RFP?"
18 Q. If we could zoom out and go back to the first page. It
19 appears you forward these questions on. Who do you forward
20 them to?
21 A. To Dr. Kaloyeros, to Todd Howe, to Peter Cutler, and to
22 Carl Kempf.
23 Q. Who was Carl Kempf?
24 A. He was, is, the lawyer for Fort Schuyler, did a lot of the
25 legal work, contracts, etc.

(212) 805-0300
1 Q. Why did you forward this email on to those individuals?
2 A. One, whenever we got media inquiries, I would circulate
3 them. There was a lot of the nuts and bottles of the RFP and
4 legal questions, so I felt clearly the need to include the
5 attorney.
6 Q. Why did you forward it to Kaloyeros in particular?
7 A. I would always forward press inquiries to Dr. Kaloyeros.
8 Q. Why?
9 A. Because he was the boss.
11 identification as --
12 MR. BOONE: I believe, your Honor, this is a document
13 we have already discussed. This is Government Exhibit 144R.
14 With the parties' agreement, I would ask to go ahead and move
15 it into evidence.
16 THE COURT: 144R?
17 MR. BOONE: Yes.
18 THE COURT: No objection as redacted?
20 THE COURT: As redacted, 144 is received.
22 Q. Mr. Doyle, a redacted version of what is probably in your
23 binder is on the screen. To the extent I ask you to read, I
24 ask you to focus on what is on the screen.
25 A. Yes. I closed the binder.

(212) 805-0300
1 Q. Thank you. First of all, do you recognize this document?
2 A. I do.
3 Q. What is it?
4 A. This was a letter to the editor or an op-ed that was
5 submitted to the Albany Times Union.
6 Q. If we could zoom out so we could see it. Focusing, this
7 looks like it is a letter to the editor that is attached to an
8 email or part of an email.
9 A. Correct.
10 Q. If we could zoom in starting where it says "On September
11 22nd." It may be too big to zoom the whole thing. We could
12 start with that part, "On September 22, 2015." Who does this
13 appear to be from?
14 A. As far as the email or the author?
15 Q. The email at the very top.
16 A. Dr. Kaloyeros.
17 Q. What is below where it says "Kaloyeros"?
18 A. The title and then my name and my title.
19 Q. If we now could zoom in on the "everything by the book" and
20 what's below that. How did this op-ed piece come to be?
21 A. I think that there must have been a desire to, again, try
22 to set the record straight, that the process was by the book as
23 the headline states.
24 Q. Who would have been involved in the process to create this?
25 A. Certainly myself, certainly Dr. Kaloyeros, possibly others.

(212) 805-0300
1 I don't recall exactly.
2 Q. Do you know why your name is associated with it?
3 A. I was the communications guy, so it comes with the
4 territory.
5 Q. If you could read the two paragraphs that are on the
6 screen, "Such matters" and the next paragraph.
7 A. "Such matters are not SUNY Poly's care and concern. As a
8 public institution, our care and concern is developing
9 facilities, programs, and industry partnerships for the best
10 value that place New York and this institution at the leading
11 edge of academics, research and discovery, and the creation of
12 high-tech jobs in emerging fields all across upstate New York."
13 Keep going?
14 Q. Yes, sir, please.
15 A. "Of course, SUNY Poly and our related entities follow New
16 York State government's well-established and legally defined
17 procurement procedures, to the letter. Selections are always
18 made on the merits, and we are neither privy to nor aware of
19 the political persuasions of the bidders. It is simply a
20 nonfactor, and implications otherwise are false and
21 misleading."
22 Q. I believe there is a second page. Please read what's left
23 on the second page.
24 A. "We will leave the politics to the politicians, as we
25 always have. We are committed to being good neighbors, job

(212) 805-0300
1 creators, and educators in the many communities we serve, as we
2 always have. And SUNY Poly will continue to operate openly,
3 transparently, and by the book, as we always have."
4 Q. If we could go back to let's start with the first page. I
5 want to focus on that second paragraph. The information
6 contained in this paragraph about SUNY Poly and its related
7 entities follow New York State government's procurement
8 procedures, where did that information come from?
9 A. This is reflective of what I always heard, that everything
10 was always done by the book, politics had nothing to do with
11 it, and everything was open and transparent.
12 Q. Who told you those things?
13 A. That was Dr. Kaloyeros's -- the company line. That was Dr.
14 Kaloyeros's line. I heard it repeatedly.
15 Q. If we could zoom out. It looks like this is sent to Todd
16 Howe and he comments an how great it is. I want to now show
17 you what the parties have agreed can be admitted, which is
19 MR. MILLER: Your Honor, I renew our objection and
20 request to discuss it at the sidebar.
21 THE COURT: 1082. No, we are not going to the
22 sidebar. We discussed this already. Are you objecting to its
23 admission?
24 MR. MILLER: I am, your Honor.

(212) 805-0300
1 MR. MILLER: May I have an opportunity to voir dire
2 the witness, please?
3 THE COURT: No. 1082 is received.
5 MR. BOONE: I am handing the witness 1082.
6 THE COURT: Ladies and gentlemen, this document that I
7 have just admitted, Government Exhibit 1082, is the New York
8 State Procurement Guidelines. I have admitted the guidelines
9 solely for their potential relevance to Dr. Kaloyeros's state
10 of mind, and it may not be considered for any other purpose.
11 As is made clear by testimony, the procurement policies were
12 not binding on Fort Schuyler. None of the defendants other
13 than Dr. Kaloyeros is alleged to have any knowledge of these
14 policies.
15 Mr. Boone.
16 MR. BOONE: If we could publish it for the jury. Mr.
17 Q. Doyle, if you could read what is here on the first page.
18 It should be on your screen as well.
19 A. "New York State Procurement Guidelines. State Procurement
20 Council. July 2009, David A. Patterson, Governor."
21 Q. If we could now look at what is numbered as page 1. For
22 this it may be easier to look at the screen to make sure we are
23 on the same page. And if we could please highlight the second
24 paragraph that begins "The procurement guidelines." If you
25 could read what is stated there.

(212) 805-0300
1 A. "The procurement guidelines presented in this document are
2 established by the state procurement council pursuant to state
3 finance law 161-2(d). The guidelines are to state agencies in
4 making procurements efficiently and effectively by providing
5 agency program and fiscal staff with a source of basic
6 systematic guidance about state procurement policies and
7 practices.
8 Q. If we could now take a look at what is marked in the
9 document as page 12. And if we could highlight the section
10 that begins "Procurement ethics." Mr. Doyle, if you could just
11 read that section into the record, please.
12 A. "Procurements are an expenditure of public moneys, and
13 public employees must always ensure that all procurements are
14 conducted so as to not cause any concern that special
15 considerations have been shown to a vendor. Actions such as
16 providing a vendor with information that is not available to
17 other vendors, accepting a gift, or having lunch with a
18 potential vendor could be construed as showing favoritism to a
19 vendor and may violate state law. Questions regarding
20 procurement ethics should be directed to the agency ethics
21 officer and/or the New York State Commission on Public
22 Integrity."
23 Q. If we could now take a look at page 15 of the document, and
24 if we could highlight the section "Draft Requests for
25 Proposal." If you could read that into the record, please.

(212) 805-0300
1 A. "An agency may submit a draft RFP to all potential bidders
2 for remarks/comments prior to issuance. The cover letter
3 releasing the draft RFP should state for which sections of the
4 document the agency is requesting feedback. It should be noted
5 that certain sections of the RFP are not subject to amendment,
6 e.g., Appendix A, which sets forth the standard clauses for New
7 York State contracts."
8 Q. Thank you. If we could now zoom in on section F of the
9 same page, which begins "Procurement lobbying law." If you
10 could read this into the record, please.
11 A. "State finance law 139-j and 139-k impose certain
12 restrictions on communications between an agency and an
13 offeror-bidder during the procurement process. An
14 offeror-bidder is restricted from making 'contacts' defined in
15 the law as communications intended to influence the procurement
16 from the date of the earliest notice of intent to solicit
17 offers/bids through the date of the final award and, if
18 applicable, approval of the contract by the Office of the State
19 Comptroller to other than designated staff as identified by the
20 agency. The interval between" --
21 Q. That's fine. If we could stop there. If we could now take
22 a look at page 19. If we could highlight the very bottom, step
23 2, development specifications. Actually, we just need the
24 first sentence.
25 A. "The specifications must ensure that bidders know exactly

(212) 805-0300
1 what is required."
2 Q. And the next sentence as well.
3 A. "Specifications should be as clear, inclusive, and
4 informative as possible."
5 Q. I would now like to show you what's been I believe approved
6 by the parties as Government Exhibit 1045R.
7 MR. BOONE: We would ask that it be admitted into
8 evidence. Wait until it is admitted to put it up on the
9 screen.
10 THE COURT: Any objection as redacted?
12 THE COURT: 1045R is received.
14 MR. BOONE: If you could publish that.
15 Q. Mr. Doyle, what are we looking at in this exhibit?
16 A. This looks like the published version of the letter we just
17 talked about.
19 identification as Government Exhibit 211. Let me know when you
20 find it.
21 A. I have it.
23 A. Yes, I do.
24 Q. What is it?
25 A. It is an email exchange from a reporter with the Buffalo

(212) 805-0300
1 News and a long list of questions and then subsequent
2 circulation among the staff.
6 MR. MILLER: One second, your Honor.
7 THE COURT: No objection?
9 THE COURT: The 11 is received.
11 MR. BOONE: If we could publish it for the jury.
12 Q. If we could go to the third page, which I believe contains
13 the first email. Yes, we can highlight this section here.
14 Looking at the screen, it looks like you're receiving an email
15 from Tom Precious. Who was that individual?
16 A. He is an Albany-based reporter with the Buffalo News.
17 Q. It looks like you are trying to coordinate talking. If we
18 could zoom out and go to the third email in this chain. It
19 looks like Tom Precious has sent you another email. What is he
20 saying in this email?
21 A. "In no particular order," and then a whole long list of
22 questions regarding the RFP process.
23 Q. We don't need to go through all the questions. Let's start
24 with the first two. If you could read those into the record
25 number 1, where it says "Which."

(212) 805-0300
1 A. Number 1. "Which individual or individuals wrote the
2 original RFP with the 50-year experience requirement? How many
3 people read the RFP before it was published, and from what
4 agencies, authorities, etc., beyond Fort Schuyler was the RFP
5 preapproved or reviewed by any entity beyond Fort Schuyler
6 before being published?"
7 Q. If we could read questions 3 and 4, and I can move on.
8 A. "What was the date in October or so of 2013 that the
9 50-year requirement was changed to 15 years? How was the error
10 caught? Was the error discovered by a state, SUNY, or Fort
11 Schuyler official, or was it raised by any of the prospective
12 bidders? Did any of the prospective bidders complain about the
13 50-year requirement?"
14 Q. If we could zoom out to look at the rest of the chain. Did
15 you respond to his list of questions?
16 A. I sent it to Dr. Kaloyeros, Carl Kempf, and Todd Howe, and
17 I said I don't want to respond to any of this.
18 Q. What did you mean by that?
19 A. I think there is just a level of frustration. I think you
20 also have to remember what else was going on at that time.
21 This is just a snapshot of lots of media inquiries and tons of
22 scrutiny of these projects. I was a little shell-shocked, I
23 think. There was a lot incoming.
24 Q. If we could go on to look at the rest of the chain, it
25 looks like there is a response from Kaloyeros. What does

(212) 805-0300
1 Kaloyeros say to you?
2 A. He agreed with my initial take.
3 Q. If you could read it looks like there is a second sentence
4 "I think you send him." Do you see that? It's sort of split.
5 I think it's just split on the page. It looks like Howe writes
6 you first. What does Howe say in response?
7 A. "I think you send him the respective press release and say
8 that's all we have to offer." Then Dr. Kaloyeros agrees with
9 that.
10 Q. Then if we could look at the next part of the chain. What
11 do you say in response to Kaloyeros?
12 A. I say, "Any objections if I send this? I refer you to our
13 numerous public statements on this matter as well as all the
14 documents related to the process that have been online for
15 months and months. We have nothing further to add."
16 Q. That's a draft of what you wanted to send to Tom Precious?
17 A. Mm-hm.
18 THE COURT: You have to say yes or no.
19 A. Yes.
20 Q. If we could move up to the rest of the chain. What does
21 Kaloyeros say in response?
22 A. "Send him the release too as an attachment after adding
23 'key pertinent details are included in this release which was
24 issued to the Buffalo News nearly a week ago.'"
25 Q. What do you say in response?

(212) 805-0300
1 A. "Got it."
2 Q. It looks like Todd Howe sends an email response to you.
3 A. "Reminded him just now that the Buff News has not done an
4 op-ed, so let's not be antagonistic."
5 Q. Who is included in this particular email exchange?
6 A. Just Todd and myself.
7 Q. What did you understand Mr. Howe to mean by his statement?
8 A. The Buffalo News editorial page had not come out on this
9 issue, so let's not be nasty with the reporters.
10 Q. What is the significance of an editorial page?
11 A. The editorial page is sort of walled off from the
12 journalists. It's opinion. A positive or negative op-ed can
13 be very influential in a community.
14 Q. If we can now take at a look at Government Exhibit 146,
15 which is marked for identification purposes, so just for the
16 witness. Do you recognize this document?
17 A. Yes.
18 Q. What is it?
19 A. It's an email exchange between a SUNY Poly staffer Michael
20 Fancher to Dr. Kaloyeros, who then responded and copied Todd
21 and myself.

(212) 805-0300
3 MR. BOONE: If we could now publish for the jury. If
4 we could highlight the bottom portion. If you could read into
5 the record starting with "Alain" and that first paragraph.
6 A. "Alain, I received a call from Larry Harris, Saab's CFO,
7 who wanted me to communicate up the chain that they spoke with
8 the CEO in Sweden over the weekend and received very positive
9 feedback and a lot of positive energy about working with SUNY
10 Poly and the consolidation of their North American operations
11 in Syracuse. He asked that we be patient and said things are
12 moving in a positive direction with the executive leadership.
13 The CEO is on a worldwide trip and was planning to visit SUNY
14 Poly in December for direct dialogue. They knew about Soraa
15 and noted that they would have a great deal of interest in GaN
16 fabrication capability in New York State, that they could
17 utilize for their detector sensor development, but wanted to
18 keep the discussion narrow on headquarters for now with their
19 executive team. Michael."
20 Q. Who is Michael Fancher?
21 A. He is a long-time staffer at SUNY Poly, works in a lot of
22 economic development, business partnerships.
23 Q. In layman's terms, what is he talking about here?
24 A. He's talking about a potential partnership with Saab about
25 working with SUNY Poly and potentially moving into Syracuse.

(212) 805-0300
1 Q. Do you know what type of company Saab is?
2 A. A defense contractor, I believe.
3 Q. If we could zoom out. And it looks like Kaloyeros
4 responds. You are a part of this exchange. Who else is on
5 this e-mail exchange?
6 A. Michael Fancher, Todd Howe, and myself.
7 Q. What does Kaloyeros say in this e-mail?
8 A. "Why Gmail? This is my personal e-mail. Resend on work."
9 Q. Do you know why Kaloyeros was directing Fancher to his work
10 e-mail?
11 A. I don't.
12 Q. If we can now take a look at Government Exhibit 201 which
13 is marked for identification.
14 Do you recognize this document?
15 A. Yes.
16 Q. What is it?
17 A. That's a media inquiry from an Albany-based reporter for
18 Politico.
19 Q. Are you a part of the e-mail exchange?
20 A. Yes, I am.
21 MR. BOONE: The government moves Government Exhibit
22 201 into evidence.

(212) 805-0300
2 Q. Starting with the first e-mail in the chain. It appears to
3 be from someone named Jimmy Vielkind. Who is he?
4 A. He is the Albany bureau chief for Politico, which is a like
5 a politically focused news website.
6 Q. If you could read that, what's the subject line?
7 A. "Todd Howe."
8 Q. What does he say in this e-mail?
9 A. "Is he still a government relations consultant for SUNY
10 Poly? That was how you described him to me in July."
11 Q. What's the date of this e-mail?
12 A. April 29, 2016.
13 Q. If we can now look at the next part of the chain. Looks
14 like you forward this question on. Who do you forward it to?
15 A. Todd Howe and Dr. Kaloyeros.
16 Q. Why did you do that?
17 A. Pretty standard for any media inquiry that would go to
18 these guys.
19 Q. Okay. If we can zoom out and just finish the chain. Does
20 Kaloyeros respond?
21 A. "Check my e-mail."
22 Q. Okay. If we can now take a look at what I also believe the
23 parties have agreed to Government Exhibit -- let's offer it
24 first. Government Exhibit 1044-R.
25 THE COURT: Any objection as redacted?

(212) 805-0300
1 MR. MILLER: No, your Honor.
2 THE COURT: 1044-R is received.
3 (Government's Exhibit 1044-R received in evidence)
4 MR. BOONE: If we can publish it for the witness and
5 the jurors.
7 A. Yes.
8 Q. What is it?
9 A. It is the article that Jimmy wrote following up on the
10 prior e-mail.
11 Q. Just so the record is clear, who is Jimmy?
12 A. Jimmy Vielkind from Politico. This is the article he wrote
13 about Todd Howe.
14 Q. What's the date of the article?
15 A. May 2nd, 2016.
16 Q. Generally speaking, what is this article about?
17 If you could, if you're going to reference the
18 article, if you can look at the screen version. It contains
19 redactions.
20 A. Hmm-hmm. It is about Todd Howe and his client and client
21 relationships. And I mean, without, I'd have to scroll down.
22 I'm stuck on the first page.
23 Q. If we can scroll through.
24 A. So, yeah, again, it's about Mr. Howe and his relationships
25 with various developers, entities, SUNY Poly. There are some

(212) 805-0300
1 blind quotes. I'm quoted in it.
2 Q. Why don't we take a look at your quotes. I believe on page
3 two, if we could highlight the top three paragraphs. If you
4 could read those paragraphs into the record.
5 A. "Todd Howe, whose relationship with the Cuomo family spans
6 three decades, has been advising Syracuse based COR
7 Development, which has erected two buildings for SUNY Poly in
8 DeWitt, as well as LPCiminelli, a major contractor in Buffalo
9 that is building the $750 million solar panel factory that is
10 the Buffalo Billion's signature project. This comes on top of
11 Howe's work for SUNY Poly, which was part of an agreement the
12 school struck with the Albany law firm of Whiteman, Osterman &
13 Hanna in 2007.
14 "SUNY Poly spokesman David Doyle said the school had
15 no direct relationship with Howe, but that he is "one of a
16 number of individuals at Whiteman, Osterman & Hanna's law firm
17 who are assigned to assist SUNY Poly in legal, business and
18 strategy matters.""
19 Q. So, focusing on the third paragraph that attributes quotes
20 to you, what is the origin of the statements attributed to you?
21 A. As in how do we get here?
22 THE COURT: Did you say that? Let's start there.
23 THE WITNESS: It would be in writing. It would be in
24 writing. It would be something that I would have e-mailed to
25 the reporter after going through, you know, the usual

(212) 805-0300
1 conversations with Dr. Kaloyeros and potentially other folks on
2 crafting a response.
3 Q. So the information that's contained in this quote, Todd
4 Howe had no direct -- or sorry. SUNY Poly had no direct
5 relationship with Howe.
6 Where did that information come from?
7 A. That would have come, you know, from Dr. K.
8 Q. And then what about the second part, referencing Howe as
9 one of a number of individuals at WOH law firm who are assigned
10 to assist SUNY Poly in legal, business and strategy matters.
11 Where would that have come from?
12 A. Dr. Kaloyeros.
13 MR. BOONE: If we can zoom out. If we could take a
14 look at page four of this document. If we can highlight the
15 bottom portion where it says Doyle.
16 Q. If you can be sure to read the redacted version, but if you
17 can read those two paragraphs into the record.
18 A. "Doyle, the SUNY Poly spokesman, did not say whether the
19 school was aware that Howe was also advising Ciminelli and COR.
20 First of all, Alain does not need a chief of staff, and whoever
21 told you that is peddling hearsay, Doyle said in an e-mail.
22 The facts are as follows: SUNY Poly's contract with Whiteman
23 dates back to 2007. WOH provides services in assisting in
24 establishing contacts and partnerships in the private sector
25 and between the private and public sector and Todd is their

(212) 805-0300
1 lead guy."
2 Q. Okay. So breaking this down, starting with the beginning
3 where it says "Doyle did not say whether the school was aware
4 that Howe was also advising Ciminelli and COR." Where did that
5 sentiment come from?
6 A. I don't really remember.
7 Q. Let's look at the actual quoted language that's attributed
8 to you.
9 A. Right.
10 Q. "First of all, Alain does not need a chief of staff and
11 whoever told you that is peddling hearsay." What's the origin
12 of that quote?
13 A. That would have come from Alain.
14 Q. Just so the record is clear, Alain who?
15 A. Alain Kaloyeros.
16 Q. The next quoted language, "The facts are as follows. SUNY
17 Poly's contract with Whiteman dates back to 2007. WOH provides
18 services in assisting in establishing contacts and partnerships
19 in the private sector and between the private and public sector
20 and Todd is their lead guy."
21 The information contained there, where did that come
22 from?
23 A. That would have come from Dr. Kaloyeros.
24 MR. BOONE: We can take the document down.
25 Q. Did there come a point in time when you learned that Fort

(212) 805-0300
1 Schuyler's awarding of certain development projects to
2 developers was being investigated?
3 A. Yes.
4 Q. How did you learn that?
5 A. I don't remember exactly. But, you know, there was a time,
6 I don't remember exactly chronologically, but there was a time,
7 you know, when we received retention, you know, document
8 retention orders or advisories that means we had to retain all
9 of our e-mails and any documents. So that made it kind of
10 clear. And then ultimately it broke in the press.
11 Q. When you say "we," who are you referring to?
12 A. Myself, others around me, you know, the people, the folks
13 that worked on economic development or what was of interest,
14 you know, that was covered by this document retention and
15 other, you know, legal maneuvering by yourself, I would assume.
16 Q. To be clear, "we" you're referring to SUNY Poly?
17 A. SUNY Poly, SUNY Poly employees.
18 Q. You said retention letters. What did you mean by that?
19 A. Document retention. You know, we were, we were told by,
20 you know, counsel that we had to retain our e-mails, our
21 documents, etc.
22 Q. What was your understanding as to the nature of the
23 investigation?
24 THE COURT: At that time?
25 MR. BOONE: Yes.

(212) 805-0300
1 A. That it was, you know, looking into the RFP process, you
2 know, how the contracts were awarded.
3 Q. Do you remember approximately when this was, year-wise?
4 A. It must have been around, probably 2015ish.
5 Q. Are you familiar with something known as Wickr?
6 A. Yes, I am.
7 Q. What is Wickr?
8 A. It is a messaging app that you can put on your telephone,
9 much like text messaging, but it's instead of retaining the
10 text message, they disappear or there's no allegedly no record
11 of them. That's how it's I guess advertised.
12 Q. How did you learn about Wickr?
13 A. Todd Howe and Alain Kaloyeros were using it. And then I
14 ultimately used it as well.
15 Q. Well, did there come a time when you were asked to use it?
16 A. Yes.
17 Q. Who asked you to use it?
18 A. It was either Todd or Alain, I don't remember exactly.
19 Q. Do you recall Kaloyeros saying why you should use Wickr?
20 A. No, I don't, exactly. What I recall is there was a novelty
21 to it at first, and then also I guess, given everything else
22 that was going on, it was a sense of security I suppose when
23 there was a perception or an unknown as to what was being read
24 and who was listening to what. It was kind of an uncertain
25 time.

(212) 805-0300
1 Q. What was going on during this time period?
2 A. The -- I guess the investigation.
3 Q. Did you use the application?
4 A. Yes.
5 Q. Who did you use it with?
6 A. Dr. Kaloyeros and Todd.
7 Q. Generally speaking, what did you discuss?
8 A. I think, generally speaking, it would be the same sort of
9 things that you would see in our e-mails. Just kind of
10 migrated over, or at least some of it did.
11 Q. When you would communicate using Wickr, would you
12 communicate one on one with either Howe or Kaloyeros, or would
13 you communicate in sort of a group chat?
14 A. Both.
15 Q. Have you discussed any other messaging applications with
16 Kaloyeros?
17 A. There was a brief use of WhatsApp. But it wasn't anything
18 that I personally used more than a time or two at most.
19 Q. So what's WhatsApp?
20 A. I believe it is a similar platform for messaging in that
21 manner.
22 Q. What's that manner again?
23 A. Like a secure confidential, you know, messaging cell phone
24 app.
25 Q. Do you recall when you discussed using WhatsApp with

(212) 805-0300
1 Kaloyeros?
2 A. I think it was around the same time as when the -- when
3 Wickr came to be.
4 Q. I believe you said you ultimately only used it a couple
5 times; is that right?
6 A. I'm not an expert in WhatsApp at all. I don't really know
7 anything about it, except it was used a time or two that I
8 recall came up.
9 Q. Do you recall what you discussed that time or two?
10 A. No.
11 MR. BOONE: One moment, your Honor. No further
12 questions.
13 THE COURT: Mr. Miller.
14 Actually, why don't you come up.
15 THE WITNESS: Can I use the restroom? Is that
16 possible?
17 THE COURT: Do you need a break.
18 THE WITNESS: Just two minutes.
19 THE COURT: Why don't we ask you to step back in the
20 jury room. I'm not excusing you for the day. Just step back
21 into the jury room. We'll call you back in a few minutes.
22 Don't discuss the case.
23 (Jury excused)
24 THE COURT: You can step down now.
25 THE WITNESS: Thank you.

(212) 805-0300
I6R3KAL7 1864
1 THE COURT: Please be seated, everybody. Let's talk
2 scheduling.
3 Mr. Miller, how long are you going to be with him?
4 MR. MILLER: Could be up to an hour.
5 THE COURT: Up to an hour. Okay. Nobody else is
6 going to cross him, right?
7 MR. SHECHTMAN: No, Judge.
8 THE COURT: Okay. What I'm inclined to do is stop.
9 We'll pick up tomorrow morning. We've got a number of hanging
10 chads that need to be resolved before the government can rest.
11 So I'm inclined to bring the jury in --
12 MR. WEINGARTEN: Noon?
13 THE COURT: No, I was thinking 10:30. Because my goal
14 is to get everything done tomorrow. And given the fact that
15 today two hours turned into three and a half, I want to err on
16 the side of having them here. So I'm going to bring them in at
17 10:30.
18 MR. SHECHTMAN: Judge, could you say what you think
19 the chads are just so we can prepare?
20 THE COURT: I think the hanging chads are the -- I
21 ruled on the Verizon stipulation, but the e-mails that the
22 government wants to put in that the Syracuse defendants are
23 objecting to.
25 THE COURT: Did you change your mind?

(212) 805-0300
I6R3KAL7 1865
1 MR. PODOLSKY: No, we'll be prepared to speak about
2 that in the morning.
3 THE COURT: I need you to send me those e-mails.
5 THE COURT: I think that's it on the government's
6 case. Is there anything else that's open on the government's
7 case?
8 MR. PODOLSKY: I think that's right at the moment,
9 your Honor.
10 THE COURT: Okay. You got a bunch of stuff that
11 hasn't been moved in. You know that?
12 MR. PODOLSKY: Yes, your Honor. We're prepared to do
13 that before we rest.
14 THE COURT: Before you rest. Okay. So that's it on
15 the government's case. I presume you will have motions to
16 make.
17 MR. SHECHTMAN: We will.
18 THE COURT: That's going to take a little bit of time.
19 Then we have the issue of assuming, I deny the motions, the
20 defense case.
21 Syracuse has witnesses. How long are your witnesses?
22 MR. ISEMAN: Your Honor, right now we have two
23 witnesses, and I would like an opportunity to speak to the
24 government one more time about one of them. They would be
25 short.

(212) 805-0300
I6R3KAL7 1866
1 THE COURT: Like how long?
2 MR. ISEMAN: No more than 15 minutes each.
3 THE COURT: On direct?
4 MR. ISEMAN: On direct.
5 THE COURT: Do you anticipate lengthy cross?
6 MR. ISEMAN: No. I wouldn't anticipate lengthy cross.
7 THE COURT: Who are these witnesses?
8 MR. ISEMAN: One is Kate Johnson. Kate Johnson at the
9 time in 2013 --
10 THE COURT: Can you be closer to a mic.
11 MR. ISEMAN: Kate Johnson in 2013, Katherine Johnson,
12 she was an attorney at COR in their counsel's office. Legal
13 department. There is an e-mail that we're going to be asking
14 her some questions about that's in evidence regarding the
15 Syracuse RFP.
16 The second is Dan Young, which relates to Government
17 Exhibit 647 which we raised to the Court earlier upon
18 submission saying it had no relevance to this case. Made an
19 offer, invited the government to speak to Mr. Young's counsel.
20 We provided there has been some materials that Mr. Young has
21 reviewed, and would be able to say that the e-mail that comes
22 in here has nothing to do with the Syracuse RFP. It has do
23 with totally separate projects, so Mr. Aiello's response to it
24 we think is misapplied to this case. And I invited the
25 government to call Mr. Young's attorney, and he's in the

(212) 805-0300
I6R3KAL7 1867
1 process of flying down here right now though for him to come
2 and testify about it. That is the one I wanted the opportunity
3 to speak to them about again. If they withdraw that exhibit,
4 from both the summary chart as well as that exhibit from
5 evidence, we would no longer have a need to call Mr. Young.
6 MR. PODOLSKY: Can I respond just to Dan Young.
7 THE COURT: Sure. Get closer to a microphone so the
8 public needs to be able to hear you.
9 MR. PODOLSKY: Thank you, your Honor.
10 THE COURT: Much better.
11 MR. PODOLSKY: I think we pulled the document at issue
12 up. And frankly, we just don't see what possible relevance Dan
13 Young's testimony could have.
14 What I understand from Mr. Iseman is Dan Young may or
15 may not recall that he that in his conversation with someone
16 name Dino Dixie, Dino Dixie may have been speaking about a
17 project that's different than the Syracuse Nano project.
18 What's relevant about this e-mail is that Steve Aiello
19 was sent an e-mail about the Syracuse RFP. And his reaction to
20 seeing -- excuse me. The Nano RFP. Was to reach out to Todd
21 Howe and make sure, and Todd Howe to respond and say got it too
22 late. Right. And then Steve Aiello to say I think so.
23 So whether or not Dino Dixie, Dan Young understood
24 Dino Dixie to in fact be talking about the right Nano RFP is
25 really neither here nor there as to Mr. Aiello's reaction and

(212) 805-0300
I6R3KAL7 1868
1 the purpose this e-mail was offered and admitted.
2 THE COURT: Look, I want to get the jury out of here.
3 So, we'll come back to this and argue about it after I've sent
4 them home for the day. Yes.
5 MS. PATEL: We also anticipate calling Kate Johnson on
6 behalf of Gerardi. The scope would be different than the
7 purpose Mr. Iseman articulated.
8 THE COURT: Get closer to the mic, please.
9 MS. PATEL: The scope would be different on behalf of
10 Mr. Gerardi, COR's qualification and the contract negotiations
11 subsequent to the RFP award.
12 THE COURT: So this is the hard-fought negotiations.
13 MS. PATEL: That's right, your Honor.
14 THE COURT: Okay. How about the Buffalo defendant?
15 MR. SHECHTMAN: The only chad we have, your Honor, is
16 the no Lou chart, and the government says they will look at it
17 and get back to us soon.
18 THE COURT: But you are not calling any witnesses.
19 MR. SHECHTMAN: We're not.
20 THE COURT: How about Mr. Kaloyeros?
21 MR. MILLER: Dr. Kaloyeros --
22 THE COURT: Putting aside Todd Howe for a second.
23 MR. MILLER: Yes. Understood. Leaving Todd Howe off
24 to the side, we do anticipate at this time having a witness
25 read e-mails to the jury. I think I gave you an estimate of

(212) 805-0300
I6R3KAL7 1869
1 two hours when we spoke last time. I think that remains a
2 fairly accurate estimate. It might even be faster than that.
3 But that is something that we would like to have teed up for
4 tomorrow, if you think that will fit with the schedule
5 tomorrow.
6 THE COURT: It will fill the schedule tomorrow.
7 MR. MILLER: We have one other issue, I don't know if
8 it qualifies yet as a --
9 THE COURT: Hang on a second. I want to get the jury
10 out of here. But I am concerned about a 10:30 start. We've
11 got two short witnesses from Syracuse and we've got two hours,
12 plus we've got Todd Howe.
13 MR. MILLER: And we've got cross on the witness who is
14 on the stand.
15 THE COURT: So I'm going to bring them in a little
16 later. I'm going to bring them in at 10. But I'm going to
17 bring you all in at 8:30. We may be able to -- if we can
18 resolve some of these issues this evening, then you don't have
19 to come in at 8:30. That's how I'm going to deal with it.
20 Okay? So, Mike let's get the jury back in.
21 MR. SHECHTMAN: Judge, just before you do. I don't
22 know how, I think there are real motions in this case. And so,
23 I'm concerned about --
24 THE COURT: They may be good. I can't hear your
25 motion until the government rests.

(212) 805-0300
I6R3KAL7 1870
1 MR. SHECHTMAN: I understand completely. So the
2 scheduling is problematic. But, if I'm right that they're real
3 motions, it seems to me you've got a fairly long defense case,
4 too. A half a day. And so I wonder if there is a reason to
5 bring them in late. They're going to be out of pocket for a
6 while during the motions. Is there a reason not to get them in
7 here and get started?
8 THE COURT: The reason is because I'm concerned that
9 we're going to have them sitting in the jury room for another
10 hour because the attorneys haven't worked out the things they
11 could have worked out other than when I had a jury sitting in
12 the room. That's why.
13 MR. SHECHTMAN: Just for the record, we didn't get
14 those exhibits until this morning. But, be that as it may, I
15 don't think there are issues left. I think we're close to
16 chadless. So it seems to me the earlier we get them in, the
17 earlier we get the motions, and the earlier we get the chance
18 to get the full defense in.
19 THE COURT: We're going to get the full defense case
20 in.
21 MR. SHECHTMAN: I understand. If for some reason that
22 runs long, that will be a bad thing.
23 THE COURT: Subject to the Todd Howe problem.
24 MR. SHECHTMAN: Subject to the Todd Howe problem. My
25 sense is we don't have any chads.

(212) 805-0300
I6R3KAL7 1871
1 THE COURT: We'll resolve everything we can resolve
2 tonight. If we can resolve everything tonight, I'm the
3 happiest person on earth.
4 (Jury present)
5 THE COURT: Okay, ladies and gentlemen. Thank you for
6 your patience. This has been a day where we've spent much of
7 the day in the jury room, and I apologize for that.
8 Here's what we're going to do for tomorrow. The
9 schedule is you're going to leave now. We're not quite, we're
10 not finished with this witness, but it will take too long to
11 stay and finish up ton. Tomorrow I'm going to bring you in at
12 10 instead of 9:30, which you may have to stay a little later
13 on the other end, so we may not end right at 5. My goal is, if
14 possible, to have both sides rest tomorrow. That may not
15 happen. It may slop over until Monday. But, that's kind of
16 where we're looking at the schedule for now. Okay?
17 So 10 o'clock tomorrow. I need you in the jury room
18 by about 9:30, 9:45 so we can hopefully start right at
19 10 o'clock.
20 Don't discuss the case. Don't listen to the TV or
21 radio about the case and don't read about the case. Have a
22 wonderful evening, and I'll see you tomorrow morning at
23 10 o'clock.
24 (Jury excused)
25 THE COURT: Take a five-minute break. Let's try to

(212) 805-0300
I6R3KAL7 1872
1 resolve all the hanging chads we can, including the issue of
2 what the defense will do on Todd Howe.
3 (Recess)
4 THE COURT: Okay. Please be seated, everybody. Why
5 don't we start with hanging chad of the Syracuse issue.
6 Can I see the e-mails or do you need some time to
7 gather things?
8 MR. PODOLSKY: Sorry, which issue are we -- the venue
9 issue?
10 THE COURT: The venue issue.
11 MR. PODOLSKY: I think we were hoping to have a little
12 bit of time to gather e-mails. We can resolve that in the
13 morning.
14 THE COURT: Okay.
15 MR. PODOLSKY: Thank you.
16 THE COURT: That brings us to Todd Howe.
17 MR. WEINGARTEN: Do you mind if I use the podium?
18 THE COURT: Please.
19 MR. WEINGARTEN: Judge, as we've observed, I think
20 there are interesting strategic and interesting legal and
21 interesting evidentiary issues. It boils down rather simply.
22 What happened last night in the ongoing good faith effort to
23 reach an agreement to the government, I represented to them
24 that I would eliminate four of the snippets.
25 THE COURT: Four or more?

(212) 805-0300
I6R3KAL7 1873
1 MR. WEINGARTEN: Four. And told them which ones.
2 They graciously -- I'm not being sarcastic -- received my
3 information and respectfully declined and said they would
4 continue to discuss whether or not there are other areas where
5 we could reach agreement. And I said why don't we take it up
6 with the Court. There are three remaining snippets that we'd
7 like to introduce.
8 The evidence -- not the evidence. The law is the law.
9 And I would like, I respectfully suggest that the thing to do
10 now would be to identify the three, and I make argument.
11 THE COURT: Okay. Why don't you identify the three.
12 MR. WEINGARTEN: The first would be the direct
13 examination, it is the first snippet, and designated crimes in
14 this case. And I did say to the government if there were
15 particular passages or questions that they wished for me to
16 eliminate, I would be all ears. But what it reduces down to
17 and, obviously, I know the law on 804.
18 THE COURT: This is your first binder. So when he
19 acknowledges, these are all of his crimes other than, as I
20 recall, you don't include the fact that he pled guilty to this
21 wire fraud.
22 MR. WEINGARTEN: No. What I think the understanding
23 is, obviously, under 609 we can introduce all his felonies. I
24 don't think there is any dispute there. What we tried to do is
25 limit the testimony in the snippet to first and foremost the

(212) 805-0300
I6R3KAL7 1874
1 crime against the law firm, ripping off his own firm, and a few
2 representative pieces of testimony relating to other things
3 that we think are relevant. Certainly not every bit of
4 evidence in the direct case or cross-examination of Todd Howe
5 relating to those crimes is included in here. We tried to be
6 very selective.
7 THE COURT: Some of this under the first tab looks
8 like bad acts, but it doesn't look like convictions.
9 MR. WEINGARTEN: Well --
10 THE COURT: I could be wrong, but like borrowing money
11 from friends and not paying it back and all that kind of stuff.
12 None of that resulted in a conviction.
13 MR. WEINGARTEN: Well, and again, this is the direct
14 examination. We've not sat down with the government and gone
15 over every jot and tittle as to whether or not they objected to
16 some of it. The primary purpose here was to talk about the
17 crime against his law firm and a few other selected pieces that
18 would be representative of his integrity. That was the point
19 here.
20 THE COURT: Okay.
21 MR. WEINGARTEN: And the argument, obviously, I
22 understand about unavailability and we can talk about that or
23 not. But the point is, the whole reluctance for courts to
24 allow prior testimony is that it can be disadvantageous to the
25 receiving party. That is the other proceeding, different

(212) 805-0300
I6R3KAL7 1875
1 questions could be asked, could be unrelated, it could be
2 different, whatever.
3 Here, what we're talking about is evidence that was
4 elicited by the government in a virtually identical proceeding.
5 So, to me, it seems impossible to imagine what prejudice there
6 could be to the government. So, I know we poo-pooed 807 last
7 time I was up here. I actually --
8 THE COURT: Which is 807? I'm sorry.
9 MR. WEINGARTEN: The residual clause. And for
10 whatever it's worth, we took a very quick look at some law of
11 the residual clause and there are judges in this court who take
12 it seriously. It just turned out about a year ago, Judge
13 Pauley wrote about it extensively in U.S. v. Prevezon, 319
14 F.R.D. 459. I also took a look at an opinion by Jack Weinstein
15 from 2009. In his inimitable way he talked about United States
16 v. Carneglia. So I assume you're familiar with that case.
17 THE COURT: Well, not personally.
18 MR. WEINGARTEN: Generally. But the point is, where
19 appropriate, 807 fits.
20 THE COURT: I'm not opposed to the residual exception
21 when it is an appropriate exception to apply.
22 MR. WEINGARTEN: It sort of boils down to this.
23 Obviously, Schuler's testimony from start to finish had Todd
24 Howe all over it. In a respectful, limited way, we would like
25 this jury to know who he is. Simply laying out his nine

(212) 805-0300
I6R3KAL7 1876
1 felonies helps, but I think there should be a little more. To
2 their credit, I think the government has tried to get close to
3 that. And I mean, we're left with this. We want a little more
4 than what they've offered. I think the government's direct
5 testimony in the previous trial is a reasonable place to go at
6 the outset.
7 So we respectfully request that chunk, and if there is
8 a piece or two that should not be in there, we'll obviously
9 discuss it. Obviously discuss it with the Court or with the
10 government, after this hearing.
11 THE COURT: Okay. Who is talking for the government?
12 MR. ZHOU: I am, your Honor. So, we have reached out
13 to the defense. We have proposed a stipulation that covers
14 several categories. I take it Mr. Weingarten has indicated
15 that the defense is looking for a little bit more.
16 We do object to the introduction of any of the prior
17 testimony from the previous trial. I think on multiple
18 grounds, your Honor. So first of all, we do not believe that
19 Todd Howe is unavailable. And therefore, the hearsay exception
20 I don't think applies.
21 THE COURT: Maybe, with all due respect,
22 Mr. Weingarten, why don't we start there. Because that is a
23 little bit of my problem with going through this, is Todd Howe
24 is next door.
25 MR. WEINGARTEN: Look --

(212) 805-0300
I6R3KAL7 1877
1 THE COURT: I can appreciate why it is a difficult
2 strategic question whether the defense wants to call him. But
3 why, what's the basis for arguing that he is unavailable?
4 MR. WEINGARTEN: I'm not arguing that.
5 THE COURT: Oh. You've given up on that.
6 MR. WEINGARTEN: Well, let me say the following. I
7 think what is true, I think obviously it is an incredibly
8 complicated case. I think he dare not do anything that he
9 thinks will antagonize the government anymore. If we brought
10 him over here, I would bet everything but my son's life he
11 would take the Fifth, if there is a rational piece in his head,
12 but I don't want to go through all of that.
13 THE COURT: Why you do you think he's got Fifth
14 Amendment protections still, for what?
15 MR. WEINGARTEN: Because we believe the story doesn't
16 stop with Waldorf. That's why. I think we believe --
17 THE COURT: Do you have a basis for that?
18 MR. WEINGARTEN: Yes.
19 MR. SHECHTMAN: We do, your Honor.
20 THE COURT: Which is?
21 MR. SHECHTMAN: Which is other things just like it,
22 that of expenses after his cooperation agreement where he tried
23 to reduce, reverse charges and then lied about it.
24 THE COURT: And then what happened? This one is not
25 as black and white as some people want it to play, given what

(212) 805-0300
I6R3KAL7 1878
1 he said, and I forgot the days, his explanation for what
2 happened. Which I have no idea whether it was accurate or not.
3 That was his explanation.
4 MR. WEINGARTEN: If I may on that, Judge, and snippet
5 number three is that story and --
6 THE COURT: Is that tab three?
7 MR. WEINGARTEN: Is the Waldorf story. Snippet number
8 two.
9 THE COURT: Is that your third tab?
10 MR. WEINGARTEN: No. It's number two. So number one
11 is what I just said, the direct examination. Number two,
12 altering conversations, we'll pass on that. Number three is
13 the history of lying. That's three pages of Barry Bohrer
14 listing occasions where Todd lied. And then we're prepared to
15 give up all the rest with the exception of the arrest during
16 the January trial. The Waldorf story.
17 I read it carefully, and I think what Todd Howe does
18 is he concedes wrongdoing on Waldorf and tries to defend his
19 conduct with the Acela, and he -- I think that's the story.
20 And it's pretty direct in his evidence.
21 THE COURT: But this does not include --
22 MR. WEINGARTEN: It goes through the whole thing.
23 THE COURT: Wait a minute. I got it. Maybe it is the
24 tape itself where there is a more convoluted explanation for
25 what happened.

(212) 805-0300
I6R3KAL7 1879
1 MR. WEINGARTEN: He directly admits wrongdoing.
2 THE COURT: I thought there was, this is obviously
3 many months ago, but I thought there was a longer explanation.
4 MR. WEINGARTEN: He comes back after he's locked up
5 and he waffles and he tries to give some explanation for it.
6 Maybe that's what the Court recalls.
7 THE COURT: Which is not in here.
8 MR. WEINGARTEN: Yes, it is.
9 THE COURT: No. Not what I remember. But I may be
10 misremembering. But in any event, okay.
11 MR. WEINGARTEN: And I should say as an aside, Judge,
12 you did ask me to see whether or not you could put someone on
13 just for purposes of impeachment.
14 THE COURT: Right.
15 MR. WEINGARTEN: And I thought I'd seen everything in
16 court and I think I know the rules of evidence, and you caught
17 me by surprise. And it turns out there is a line of cases that
18 says you can't.
19 THE COURT: You cannot.
20 MR. WEINGARTEN: Cannot.
21 THE COURT: I was confident of that line of cases, but
22 this is a little different.
23 MR. WEINGARTEN: I agree.
24 THE COURT: Because you're really, and that's what
25 creates a big issue on scope.

(212) 805-0300
I6R3KAL7 1880
1 MR. WEINGARTEN: I agree.
2 THE COURT: Because in effect, what you're doing is
3 you're treating his out-of-court statements as though he
4 testified to them.
5 MR. WEINGARTEN: I get it completely.
6 THE COURT: Yeah, yeah, yeah.
7 MR. WEINGARTEN: And what I'm trying to do, is come up
8 with a solution to this problem, and, you know, and again, I've
9 said it 26 times, I think the government and I at least in
10 theory want the same end. We want the jury to have an idea in
11 truth who this guy is. What we're talking about, this guy
12 bites the hand that feeds him without the feeder knowing it.
13 The story about the law firm is a perfect example. He
14 works with the law firm, he gets busted, and they go to the
15 court to get him out of trouble, at the very same time he's
16 stealing from them. That's an amazing story. The story about
17 how he enters into a cooperation agreement, and on the day he
18 comes to New York he tries to rip off the Waldorf is not the
19 brilliant --
20 THE COURT: That's not accurate at all. But that's
21 nice rhetoric, but that's not what happened. It was later.
22 MR. WEINGARTEN: The timing is the point, of course.
23 THE COURT: I know. But to say the very day.
24 MR. WEINGARTEN: Okay.
25 THE COURT: That's not true.

(212) 805-0300
I6R3KAL7 1881
1 MR. WEINGARTEN: I didn't mean to not be accurate.
2 You got my point.
3 THE COURT: You got carried away.
4 MR. WEINGARTEN: I got carried away. That's what we
5 seek to do.
6 THE COURT: I understand that and I appreciate that.
7 I think there are ways for you to get there. My problem is, I
8 think he's available. And I'm not convinced that 807 is the
9 right answer to this to wend your way through this as opposed
10 to calling him.
11 You may be right that he'll take Five, and if he takes
12 Five, then it becomes an easy question because then he's
13 unavailable and then the question is what testimony comes in
14 via 804. Right?
15 MR. WEINGARTEN: Yes.
16 THE COURT: Assuming we end up there, what is the
17 government's objection going to be?
18 MR. ZHOU: Well, your Honor, I think I refer you to
19 our letter dated June 11, 2018. Your Honor, I don't think it
20 is at all clear in this circuit that extrinsic evidence should
21 be allowed to just impeach on collateral matters. I think we
22 would object to the admission of this testimony.
23 Even if Mr. Howe is unavailable and hearsay is no
24 longer a problem, we still object under 806. I don't think it
25 is permissible to introduce that extrinsic prior testimony for

(212) 805-0300
I6R3KAL7 1882
1 the purposes of attacking or supporting his credibility.
2 THE COURT: What do you think can come in for that
3 purpose?
4 MR. ZHOU: Well, your Honor, certainly, we certainly
5 think 609 applies. So, in the stipulation that we proposed,
6 we've laid out all the crimes that he's been convicted of and
7 noted the sentence he received on his 2010 crime.
8 In addition, your Honor, for the purposes of
9 stipulation, we have offered a couple other categories that we
10 would be willing to stip to if that would resolve the matter,
11 your Honor.
12 But I think if we can't reach a resolution through the
13 stip, your Honor, then our position is I think 806 envisions,
14 and based on my reading of the rule, it envisions attacking the
15 declarant for the statements he made that are relevant to the
16 case, your Honor. So, if they have impeachment for statements
17 that were introduced through Mr. Schuler that they believe are
18 untrue or they wanted to attack, I think that would be
19 appropriate. But I don't think introducing extrinsic evidence
20 about a lot of different collateral matters is appropriate
21 under that rule. Furthermore, your Honor --
22 THE COURT: So your objection is really kind of a pure
23 608 objection, that this is just all collateral information and
24 even if your witness was lying on the stand, it doesn't really
25 count because if he lied on the stand, you would be supporting

(212) 805-0300
I6R3KAL7 1883
1 his -- he would be testifying as a cooperating witness which
2 would be slightly different.
3 MR. ZHOU: That's right, your Honor.
4 THE COURT: So Mr. Weingarten, why aren't you
5 stumbling over 608(b)?
6 MR. WEINGARTEN: Well, I mean, I think as we discussed
7 at some other time, sort of the battle between 608 and 806 is
8 interesting I think.
9 THE COURT: Fascinating.
10 MR. WEINGARTEN: It is fairly interesting. And I
11 think the Second Circuit tends our way. There are other
12 circuits where the law is less favorable. But I think what's
13 clear is you have discretion. You know, and there are Second
14 Circuit cases where clearly extrinsic evidence has been allowed
15 in to impeach when appropriate. And the government points to a
16 case from Judge Mukasey where Judge Mukasey said no, that's not
17 allowed. The law does go both ways.
18 THE COURT: I get it is discretionary. But help me
19 actually, just philosophically, why does the fact -- and this
20 is a little bit my problem with kind of the general scope of
21 his cross-examination as to Howe. How does the fact that he
22 was stealing from his law firm bear on whether in the back and
23 forth where he was the go-between between Ciminelli and
24 Kaloyeros and when a lot of times they were seeing what each
25 other was saying and they would know, like, how does it bear on

(212) 805-0300
I6R3KAL7 1884
1 whether in that context, he was truthful?
2 MR. WEINGARTEN: But there are other contexts where
3 Schuler was relying on his word and --
4 THE COURT: But he was relying on his word, in the
5 context of the thing that, look. As I've said, Todd Howe is a
6 scoundrel. But Todd Howe was an incredibly successful fixer.
7 And for his job, this is why everybody hired him, was that he
8 was incredibly effective at schmoozing this guy and schmoozing
9 that guy and getting these two guys together to advance their
10 interests, which in turn advanced his interests.
11 So the fact that he was stealing WOH money, the fact
12 that he borrowed money and couldn't repay it and was promising
13 he could repay it, all of that stuff, how does it really have
14 anything to do with whether he was telling his co-conspirators
15 the truth?
16 MR. WEINGARTEN: But he betrays everybody. He's two
17 faced. He compartmentalizes. Many of the things consistent
18 with his criminal activity fits squarely into this case.
19 THE COURT: How does that work, Mr. Weingarten? How,
20 like, what was the lie? And I'm not saying anything in
21 particular. But how could he have been lying and have the
22 things that happened, happened, right? I don't get that.
23 MR. SHECHTMAN: Can I try one. I think what
24 Mr. Schuler said is I said this to Todd Howe. Right.
25 THE COURT: I don't remember. Like anything in

(212) 805-0300
I6R3KAL7 1885
1 particular?
2 MR. SHECHTMAN: Whatever it might be. I said this to
3 Todd Howe. And then it did go to Dr. Kaloyeros? Yes. How do
4 you know? Todd told me. So that came in as co-conspirator
5 exception.
6 THE COURT: Right. And you're entirely dependent on
7 the truth of that statement to get to Kaloyeros. Except for
8 all of the e-mails they've got where it's A to Todd Howe, Todd
9 Howe to Kaloyeros. Confirming that the train is working.
10 MR. SHECHTMAN: That I understand. But there are
11 several where the train didn't go there.
12 THE COURT: Well, there is no evidence that the train
13 went there.
14 MR. SHECHTMAN: That's right. Except for Todd Howe's
15 word. So there is a situation where Todd Howe's credibility is
16 critical.
17 THE COURT: I completely agree with that. But maybe
18 I'm not asking the right question. In all, in the entire
19 bloodbath in Percoco, there was no evidence of him lying about
20 to his co-conspirators about each other. Right? There was
21 evidence that he was defrauding people relative to money they
22 had lent him. There was no --
23 MR. ISEMAN: I would disagree with that. There are
24 altered e-mails.
25 THE COURT: But the altered e-mails were not as to

(212) 805-0300
I6R3KAL7 1886
1 substance. They never changed the substance. Other than one
2 that kind of puffed up his importance to Cuomo.
3 MR. ISEMAN: We don't have to relitigate the --
4 MR. SHECHTMAN: Judge, you're not prepared to instruct
5 this jury that when Todd Howe said --
6 THE COURT: No.
7 MR. SHECHTMAN: When Todd Howe said it's going to
8 Dr. K, that they should believe it's true. So, they have to
9 decide whether it's true.
10 THE COURT: Of course.
11 MR. SHECHTMAN: If they have to decide whether it's
12 true, then his credibility is at issue and then 806 is at
13 issue.
14 THE COURT: That's right. But 806 as an issue
15 includes the fact that you're not entitled to put in extrinsic
16 evidence. That's why I was sort of pushing for --
17 MR. SHECHTMAN: Judge I don't think 806 does. And
18 I've always thought --
19 THE COURT: Tell me why not.
20 MR. SHECHTMAN: Let's take a simple example. Let's
21 take a case where a co-conspirator statement was critical. And
22 he had submitted 400 false documents in order to get payments
23 for things. And there is no conviction. So it is a 608(b)
24 issue.
25 THE COURT: He hasn't been convicted. It is an

(212) 805-0300
I6R3KAL7 1887
1 admitted bad act.
2 MR. SHECHTMAN: He hasn't admitted, but it's a bad
3 act. If he was on the witness stand I could say to him, isn't
4 it a fact, sir, that you submitted 400 false applications or
5 false documents, right? And he would say yes or no. If he
6 said yes, I've got information.
7 THE COURT: But that doesn't allow you to put in 400.
8 MR. SHECHTMAN: I understand. But if he says no, I'm
9 stuck with his answer.
10 THE COURT: Correct.
11 MR. SHECHTMAN: This is a situation where because he's
12 not on the witness stand, right, if you can't put in extrinsic
13 evidence, right, you can't ask the question.
14 THE COURT: No, no, no. I get that. The question is
15 what, given the fiction that you are impeaching the -- so
16 you've got out-of-court declarant and you are allowed to
17 impeach him the way you would impeach a witness. That rule is
18 that you are not allowed to bring in extrinsic evidence, right?
19 So what are you entitled to use? You're entitled to use his
20 convictions.
21 MR. SHECHTMAN: But that is not what the rule says.
22 The rule doesn't exclude 608(b). The rule says, basically,
23 cross him as if he were on the witness stand. Now, because of
24 the nature of 608(b), I can't. I can't ask him the questions
25 to which he would say yes. In fact, we have asked him the

(212) 805-0300
I6R3KAL7 1888
1 questions to which he said yes, because we have the transcript
2 of the prior trial.
3 But, what your Honor is going to do is read 608(b) out
4 of this rule as a way of cross-examining co-conspirators whose
5 credibility is at issue. They're just going to read it out.
6 By definition, I can't ask him a question. I can't be stuck
7 with his answer. I can't get an answer. So there has to be
8 some play in the joints here to allow to do it. The play is we
9 have his answers.
10 So, whether -- look, you have discretion because you
11 always have discretion. But, the only difference between
12 608(b) and 609 is convictions aren't time consuming. That's
13 why we have 608(b) rule that you're stuck with the answer.
14 This isn't time consuming. We have his answers.
15 So, the question is, other than cumulative, too long,
16 all that you have discretion. Right. But as to the basic
17 question of can you cross-examine this witness under 608(b),
18 the rule says cross-examine him like you can any other witness,
19 608(b) is the way you cross-examine other witnesses, you can't
20 ask him the question.
21 And so there's got to be some play in the joints,
22 particularly someone is sitting with the 400 false documents,
23 that you can let the jury know this person lied 400 times.
24 And that's all we want to do here. And we're subject
25 to whatever limitations that are reasonable. But the

(212) 805-0300
I6R3KAL7 1889
1 alternative is, read 608(b) as a way of cross-examining a
2 co-conspirator. That seems awfully strong medicine for a
3 defendant.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(212) 805-0300
I6rrkal8 1890
1 THE COURT: Okay. Mr. Zhou.
2 MR. ZHOU: Your Honor, I think 608(b) continues to
3 modify rule 806. That is something that other circuits have
4 expressly found. The Second Circuit has not squarely addressed
5 this issue. But as we noted in our letter, there was a
6 footnote in the case Friedman, and then subsequently there was
7 a case Moskowitz where they talk about 806. Then they quote
8 from 608(b), the entirety of it, including the part that says
9 extrinsic evidence is not allowed.
10 THE COURT: What is the extrinsic evidence that you
11 want to keep out? The transcripts?
12 MR. ZHOU: The transcripts, your Honor.
13 THE COURT: Let's assume that he is not available.
14 How else are you going to prove it? How else are they going to
15 impeach his direct? You think they should only be limited to
16 convictions?
17 MR. ZHOU: I think convictions are a way, your Honor.
18 We are willing to work with the defense, as we have indicated.
19 I think a factual stipulation would be one way to put certain
20 facts about Mr. Howe's credibility in front of the jury.
21 THE COURT: What do you want to stipulate to in terms
22 of the facts?
23 MR. ZHOU: Your Honor, in terms of a stipulation that
24 we circulated to the defense several days ago, we do mention
25 his embezzlement from Whiteman Osterman & Hannah. We do talk

(212) 805-0300
I6rrkal8 1891
1 about him seeking reimbursement for expenses that were already
2 covered. We lay out his convictions. We note that in the past
3 courts have entered money judgments against him for failure to
4 pay back vendors and certain friends and family for personal
5 loans.
6 Then we note as well that on past occasions, receiving
7 an email that he then forwarded, Mr. Howe altered the words of
8 the original email without the knowledge of the sender. We
9 also note that there is no evidence that any of the emails
10 admitted into evidence in this case contain any alterations.
11 That's kind of the stipulation that we have proposed
12 to the defense, your Honor. I think a factual stipulation
13 would resolve this.
14 I will note very quickly, your Honor, I think the
15 admission of the transcript is very problematic under rule 403.
16 I think it creates confusion for the jury. They will wonder
17 about this prior proceeding where this person testified. In
18 particular, if there are transcript portions coming in that
19 indicate that he had a cooperation agreement with the
20 government, where he indicates he thought he violated the
21 cooperation agreement --
22 THE COURT: That is definitely not admissible.
23 MR. ZHOU: I agree, your Honor. I think the admission
24 of the past transcript also creates the risk of unfair
25 prejudice.

(212) 805-0300
I6rrkal8 1892
1 THE COURT: Mr. Weingarten, why isn't that what you
2 want or what you need?
3 MR. WEINGARTEN: We want more, and it seems so
4 axiomatic that evidence they elicited a few months ago, that
5 they deliberately elicited in your court that fits the bill is
6 the best solution.
7 THE COURT: He was a witness in that case. Therefore,
8 it was testified about lots and lots and lots of things.
9 MR. WEINGARTEN: We tried very hard to narrow it down.
10 The transcript is like this, and we tried to narrow it down to
11 the pieces that were appropriate.
12 THE COURT: I understand that you would prefer the
13 transcript. Why doesn't the Zhou stipulation cover the things
14 that you want the jury to know: that is, he embezzled from his
15 firm. You got in there that they bailed him out of his D.C.
16 conviction.
17 MR. WEINGARTEN: No.
18 MR. ZHOU: Mr. Weingarten proposed that this morning
19 and we are considering that.
20 THE COURT: Assuming they add that. Does it go to
21 just how bad a liar he is? Maybe. But what else? Why aren't
22 those the relevant facts?
23 MR. WEINGARTEN: I've always said there is a good
24 faith process going on here and we are reasonably close.
25 THE COURT: What are the other facts aside the

(212) 805-0300
I6rrkal8 1893
1 transcript. Put aside the drama that you would get of reading
2 the transcript. What are the facts that you want to elicit
3 that are not in Mr. Zhou's stipulation, the government's
4 stipulation?
5 MR. WEINGARTEN: One of the stipulations reads, "On
6 past occasions courts have entered civil money judgments."
7 It's my understanding 50 times. I think that is a relevant
8 piece. We are talking about civil money judgments.
9 THE COURT: There were more than 50 civil money
10 judgments?
11 MR. WEINGARTEN: I think. That's what someone said.
12 Whatever the number is.
13 THE COURT: More than 10? Is that right? Who put him
14 on? You all are looking blankly. Deny all knowledge of Todd
15 Howe. You said the email that said there is no Todd Howe.
16 MR. PODOLSKY: I'm told more than 10 is fair.
17 THE COURT: How about more than 10, Mr. Weingarten?
18 MR. WEINGARTEN: I have no idea what the number is.
19 THE COURT: I'm sure it is more than 10. I think
20 Gitner went through 10 or Bohrer or one of them.
21 MR. WEINGARTEN: It is more than 15, I would like
22 that. It has to be an objective number we can reach. Nobody
23 is making it up.
24 THE COURT: I think more than 10 gets you what you
25 need. What else?

(212) 805-0300
I6rrkal8 1894
1 MR. WEINGARTEN: The Waldorf story is going to be
2 talked about forever in this courthouse and it is going to be
3 talked about not because Gitner is so brilliant, although he is
4 a very good lawyer --
5 THE COURT: Don't tell Dan Gitner that.
6 MR. WEINGARTEN: The fact that he essentially betrayed
7 the government and violated his cooperation agreement is
8 breathtaking.
9 THE COURT: Maybe, but it doesn't go to whether he is
10 a truth-teller. He admitted it.
11 MR. WEINGARTEN: Here is the story. He gets on the
12 stand and he said, I walk with Jesus. That's the point. He
13 makes that representation both to the jury and solemnly enters
14 into this cooperation agreement at the same time he continues
15 to commit crimes. How can that be relevant?
16 THE COURT: It's not because it doesn't go to his
17 character for truthful's. It goes to his character of being a
18 scoundrel. It's not the same.
19 MR. WEINGARTEN: He represents in court before you
20 that he had a walk in the woods, saw Jesus, and all of that.
21 That's utter BS. That's the core of this. That's why what
22 happened was breathtaking.
24 MR. ZHOU: Yes, your Honor. I think the relevant
25 point here is that the statements elicited from Mr. Schuler

(212) 805-0300
I6rrkal8 1895
1 that came from Mr. Howe were statements that were made in 2013,
2 2014, 2015. His cooperation didn't begin until September of
3 2016. The idea of rule 806 is to attack his credibility so
4 they can challenge the out-of-court statements of the
5 declarant.
6 There is a case from the Eastern District, Judge
7 Garafis, where he says, "If the government does not admit any
8 statement made by the out of court" -- I added an alteration --
9 "by the out of court cooperator on or after the date on which
10 he first expressed an interest in cooperating with the
11 government, then the fact of his cooperation would have no
12 impeachment value whatsoever, and as a result rule 806 would
13 not provide a basis for admitting the fact of that person's
14 cooperation."
15 I think that is directly relevant here, your Honor.
16 The fact that he was cooperating starting in September 2016 and
17 whatever he did after that has no bearing on his credibility
18 and the statements that he made to Mr. Schuler in 2013 and
19 2014.
20 THE COURT: I think they say that a leopard doesn't
21 change his spots that quickly.
22 MR. ZHOU: In any case, your Honor, we have other
23 facts that are in the relevant time period. He was stealing
24 money from WOH in the relevant time period. We have the civil
25 money judgments that we have mentioned, some of which are in

(212) 805-0300
I6rrkal8 1896
1 the relevant time period. So whatever happened following his
2 cooperation, I think it is cumulative of those other
3 impeachment factors, your Honor. We think there is a high risk
4 of unfair prejudice as a result from making that known.
5 THE COURT: It's more prejudicial than probative.
6 Comment.
7 MR. WEINGARTEN: Here is where we are. I respectfully
8 request the opportunity to present the three snippets that I
9 have indicated to the jury.
10 THE COURT: Tell me again what the three snippets are.
11 They are tab 1, which is 2085 through 2108. It's not
12 contiguous. There are a bunch of gaps in there.
13 MR. WEINGARTEN: Exactly. Number 2 would be the
14 history of lying, 2589 to 2591. The final would be arrest
15 during January trial 3103 to 14 and 3210 to 14, with the
16 obvious understanding if the Court was receptive to that, there
17 might be things eliminated.
18 If the Court declines the request, my suggestion is we
19 have further opportunity to discuss the stip with the
20 prosecutors. We will make more suggestions. Then we report
21 back to you tonight or first thing tomorrow if there are still
22 open issues, and the Court will rule. Either we will have for
23 purposes of presentation to the jury portions of the transcript
24 and/or -- we assumed if we get a piece or two of the
25 transcript, we would also have the remaining pieces agreed to

(212) 805-0300
I6rrkal8 1897
1 with the government, for example, the convictions.
2 THE COURT: Do I understand correctly that the
3 government's objection to any transcript is a philosophical
4 objection together with your 403 objection and the fact that he
5 is not unavailable? What are you going to do, Mr. Weingarten,
6 if I tell you I'm not prepared to assume that he is
7 unavailable, that you are going to have to call him, and if he
8 testifies, he testifies?
9 MR. WEINGARTEN: The truth is part of that would be
10 fascinating. Me having an interesting legal experience as a
11 lawyer is something I look forward to, but everybody else in
12 this room would kill me. So if you say you've got to call him
13 or you have no chance of getting the transcript in, just being
14 completely honest, we would not.
15 If I could say one more word on the transcript, your
16 Honor? In terms of priorities, the first would be the
17 government's direct. It's impossible for me to see how the
18 government could be prejudiced by us introducing evidence of
19 their witness that they elicited.
20 THE COURT: Mr. Zhou?
21 MR. ZHOU: I'm sorry, your Honor. I didn't mean to
22 cut you off.
23 THE COURT: I'm looking at what you have given me,
24 which includes the blackout. Didn't he also plead guilty to
25 this TAM?

(212) 805-0300
I6rrkal8 1898
1 MR. ZHOU: He did, your Honor.
2 MR. WEINGARTEN: That's included.
3 THE COURT: Is it? I'm not seeing it.
4 MR. WEINGARTEN: For obvious reasons, we don't get
5 into the substance of that.
6 THE COURT: He didn't testify about the substance of
7 it.
8 MR. ZHOU: He did not, your Honor. We kept that out
9 of the first trial.
10 THE COURT: Right. I see. So there is no transcript
11 of that.
12 MR. ZHOU: That's correct, your Honor. We actually
13 redacted the cooperation agreement as well to exclude that.
14 THE COURT: You wanted to say something else, Mr.
15 Weingarten?
16 MR. WEINGARTEN: If you're interested in our
17 priorities, which ones we want most --
18 THE COURT: Yes, what is your priority?
19 MR. WEINGARTEN: The government's direct would be
20 first, second would be the history of lying, and third would be
21 the Waldorf story.
22 THE COURT: Assuming that I were to go with this, why
23 is the information on page 2108, which is the fact that he
24 entered into a cooperation agreement, why would that be
25 admissible?

(212) 805-0300
I6rrkal8 1899
1 MR. WEINGARTEN: We can take it out.
2 THE COURT: Government, if I were to let this in, does
3 the government want that in for purposes of completion or any
4 other reason?
5 MR. ZHOU: I think we would want it out, your Honor.
6 I would note that if there are specific facts that are in these
7 portions of transcripts that the defense is particularly
8 interested in, we have certainly been open to considering them
9 putting them in a factual stip, your Honor.
10 We just don't think it is appropriate under rule 403
11 to have testimony from a prior trial. I think it would raise a
12 host of questions about why this person isn't here, why they
13 testified last time, why they are not testifying this time. I
14 think Mr. Coffey pointed out in his opening that Mr. Howe is
15 not dead, so that may raise those questions to the jury.
16 THE COURT: He hasn't proved that. How? Do you want
17 to call him?
18 MR. COFFEY: No. I'll call someone who knows him.
19 THE COURT: When was the last time they saw him?
20 MR. COFFEY: This morning.
21 THE COURT: I bet not. The jury is going to be
22 charged they can't speculate and that the witnesses are equally
23 available, which is why I was dumbfounded by Mr. Coffey's
24 agreeing. If he wants him so bad, he can call him.
25 MR. COFFEY: I appreciate that.

(212) 805-0300
I6rrkal8 1900
1 THE COURT: Let me just say my reaction to this. I am
2 surprised that the defense wants to read this to the jury
3 because, of course, this was direct. He's putting his best
4 spin on all of this, which is I'm a scoundrel, but he has kids'
5 tuition, he had this, he had that.
6 MR. WEINGARTEN: We thought it would be more likely
7 that it would be admitted if the government elicited it, that
8 there would be less prejudice to the party who elicited the
9 evidence.
10 THE COURT: This would be in lieu of the stipulation
11 other than a stipulation as to what his actual felony
12 convictions are?
13 MR. WEINGARTEN: It depends on what we read. There
14 are one or two other pieces that for the sake of completing I
15 think would not be controversial.
16 THE COURT: Everything in this case seems to be
17 controversial. Does the government want to be heard further on
18 this? Just on his direct testimony. This would be 2085
19 through 2108. There must be some missing pages in here.
20 MR. WEINGARTEN: There are.
21 THE COURT: It flows okay. You go from IRS over to
22 stealing from the employer.
23 MR. ZHOU: Just to reiterate our objection, your
24 Honor, the probative value of this compared to a factual
25 stipulation, I think the probative value is outweighed by the

(212) 805-0300
I6rrkal8 1901
1 risk of unfair prejudice and jury confusion.
2 THE COURT: Unfair prejudice is what?
3 MR. ZHOU: Your Honor, I think it will create
4 confusion in the jury's minds about what this proceeding was,
5 why this person was in a prior proceeding, and why this person
6 is not here for this proceeding.
7 THE COURT: The jury is going to be charged that both
8 sides have an equal ability to call witnesses and that that is
9 neither here nor there.
10 MR. ZHOU: I think just the format, too, your Honor.
11 The fact that it is in transcript form, Q and A, I think it is
12 unfairly prejudicial. It is something that can be resolved by
13 factual stipulation.
14 THE COURT: It can be, but just as I frequently say to
15 the defense the government is entitled to try their case the
16 way they want to try their case, and the fact that you are
17 willing to stipulate to it doesn't mean they can't put on
18 evidence of it. It seems to me you are in the same boat but
19 the shoe is on the other foot.
20 MR. ZHOU: Your Honor, the defense is limited by the
21 rules 608(b).
22 THE COURT: They are, but I'm not sure that I agree
23 with you that 608(b) prohibits this way of approving it. I'm
24 persuaded on the direct testimony from the first trial.
25 Your next is history of lying.

(212) 805-0300
I6rrkal8 1902
1 MR. WEINGARTEN: Yes, your Honor, three pages.
2 MR. ZHOU: Your Honor, just to clarify, absent the
3 portion about the cooperation agreement?
4 THE COURT: Correct. It's in the binder that Mr.
5 Weingarten included. What should be further redacted is on
6 page 2108 lines 7 through line 18. How are you planning to do
7 this?
8 MR. WEINGARTEN: An idea would be when we have the
9 email reader finish the emails and then get to this.
10 THE COURT: No dramatic reading.
11 MR. WEINGARTEN: Give me an idea, your Honor. Of
12 course not.
13 THE COURT: That takes us to history of lying. This
14 seems cumulative. This seems to be exactly the same thing that
15 I just read through in much more gory detail on the direct.
16 MR. WEINGARTEN: I thought the point here was it's
17 succinct, it covers the waterfront, there are no anecdotes, it
18 goes directly to the credibility issue.
19 THE COURT: Do you want this or do you want the more
20 lengthy direct? It's the same thing, it's cumulative. It was
21 cumulative when they did it on cross. Having lived through the
22 accumulation once, I don't want to live through it again.
23 MR. WEINGARTEN: Can I have the opportunity to discuss
24 this with the others?
25 THE COURT: You may. You get one or the other, you

(212) 805-0300
I6rrkal8 1903
1 don't get both. If you get this one, line 11 through 20 is out
2 because that's about cooperation agreement.
3 MR. WEINGARTEN: Okay.
4 THE COURT: Then on page 2590 line 20 through 23 will
5 be out.
6 MR. WEINGARTEN: The last piece, of course, is the
7 Waldorf story. I had a thought that if you were receptive to
8 this, that we cut it at the point where he admits wrongdoing
9 and don't go further. It may be that the government wants to
10 go further because he waffles a little and makes it more
11 complicated, and we include that part.
12 THE COURT: You're saying you're not interested in all
13 of this stuff starting on page 3843?
14 MR. WEINGARTEN: No. The Waldorf story is 3103 to 14.
15 THE COURT: Okay.
16 MR. WEINGARTEN: Judge, my thought was to get to page
17 3108, when he confesses to what he admits to.
18 THE COURT: You are overstating it.
19 MR. WEINGARTEN: He makes an admission. He said, "I
20 believe so, yes." I'm speaking shorthand.
21 THE COURT: He says, "I don't -- I believe I did,
22 yes," and then he sort of later on gives a further explanation.
23 MR. WEINGARTEN: Then skip the rest. He confirms it
24 again on 3113, so there is no mistake about it. We will stop
25 there.

(212) 805-0300
I6rrkal8 1904
1 THE COURT: This to me was relevant when he was a
2 witness because he violated the cooperation agreement. In this
3 case the fact that he has a cooperation agreement is irrelevant
4 because he is not testifying. While it is true his hearsay
5 statements are coming in, it is relevant whether he has a
6 reputation or in fact has a history of lying. That I get. But
7 the fact that he violated his cooperation agreement is neither
8 here nor there because they are not putting him up as a witness
9 in this case.
10 MR. WEINGARTEN: That has been the government's
11 position. My rejoinder is we see it as the essence of lack of
12 integrity. He made representations in his cooperation
13 agreement that he violated, and he violated them with
14 duplicity. That's what makes it about his integrity plus.
15 THE COURT: But you also have that he cheated his law
16 firm who had come to his defense, which is the same idea. At
17 some level it becomes cumulative and confusing to separate it
18 out and to get out of this the fact that there was a
19 cooperation agreement, which is throughout all of this. That's
20 what makes it dramatic and that's why you want it.
21 But the fact that he had a cooperation agreement is
22 not relevant. And to the extent it is relevant, I am excluding
23 it because the probative value is outweighed by the prejudice
24 to the government. So I won't let that in.
25 You get one. You get either his direct or the Bohrer

(212) 805-0300
I6rrkal8 1905
1 cross, and a stip on what his convictions are. Right?
2 MR. ZHOU: That's correct, your Honor. Given the fact
3 that there will be transcript portions being read, we'll limit
4 the stip to just convictions.
5 THE COURT: Okay. Anything further?
6 MR. PODOLSKY: On another topic.
7 THE COURT: Thank you.
8 MR. PODOLSKY: I want to raise the defense witnesses
9 for tomorrow. This is the first we have heard of any of these
10 witnesses. We haven't received any sort of discovery
11 materials. Our first question is, I understand Kate Johnson,
12 Captain Johnson, is being called by two of the defendants. I
13 think we had some proffer Mr. Mr. Gerardi's attorneys, but we
14 would like to have some understanding of the relevance from Mr.
15 Aiello's attorney.
16 THE COURT: Mr. Coffey, Mr. Iseman.
17 MR. ISEMAN: As I said, your Honor, Captain Johnson is
18 an attorney at Cor during the period of time. There is an
19 email that is in evidence --
20 THE COURT: What exhibit is it?
21 MR. ISEMAN: I don't know if it's September 23 or 24th
22 email where Steve Aiello forwards the RFP that he receives from
23 Todd Howe to Mr. Gerardi.
24 THE COURT: This is the advance copy, all right.
25 MR. ISEMAN: The advance copy of the RFP to Mr.

(212) 805-0300
I6rrkal8 1906
1 Gerardi, Mr. Johnson, and their partner Aiello. Mr. Johnson is
2 an attorney in the firm, the development office, talking about
3 the structure and responsibilities in different areas. She
4 will answer some questions about her response to that email.
5 THE COURT: What are you trying to prove?
6 MR. ISEMAN: Good faith.
7 THE COURT: Tell me more. Good faith on what?
8 MR. ISEMAN: Mr. Aiello is alleged to have been in a
9 criminal conspiracy.
10 THE COURT: Correct.
11 MR. ISEMAN: This is one of the exhibits the
12 government is going to use to say he got advance notice and
13 that is evidence of his criminal conspiracy. Mr. Aiello
14 forwards it not just to his alleged co-conspirator Mr. Gerardi,
15 but he also forwards it to a lawyer within his company.
16 THE COURT: That's in evidence.
17 MR. ISEMAN: But not that she is a lawyer.
18 THE COURT: I'm confident that the government will
19 stipulate to that.
20 MR. ISEMAN: Not that she is a lawyer and not what the
21 responsibilities are. What her response was upon receiving it.
22 I don't expect it to be long.
23 THE COURT: What is her response?
24 MR. ISEMAN: That no red flags were raised within COR
25 and this was the normal course of the responsibilities within

(212) 805-0300
I6rrkal8 1907
1 COR; that Mr. Aiello, when something came in, he would push it
2 out to the team that would handle the response. I think it
3 goes to show good faith that Mr. Aiello has, that he isn't
4 trying to hide this, he is giving it to an attorney. No red
5 flags are raised at COR.
6 THE COURT: Have you found the email yet?
7 MR. SHECHTMAN: It's 612, 613, or 615.
8 THE COURT: I thought surely you would know the
9 exhibit number if you are putting a witness on.
10 MR. ISEMAN: 613, your Honor. It's the second to the
11 top, Steve Aiello to Joe Gerardi, Catherine Johnson, Joe
12 Aiello. Catherine Johnson is the expected witness.
13 THE COURT: Mr. Podolsky?
14 MR. PODOLSKY: Your Honor, I'm frankly not sure how
15 she can speak to the defendant's inner thinking. The fact that
16 this was forwarded to her is apparent from the email. If it
17 will make a difference, we are happy to stipulate that her
18 position is attorney and that there are attorneys at COR. I'm
19 not sure what additional relevant testimony Johnson will
20 provide other than I suppose that she doesn't think the jury
21 should believe this was illegal.
22 THE COURT: Why is the fact that it raised no red
23 flags with her relevant?
24 MR. ISEMAN: She's a lawyer.
25 THE COURT: So am I.

(212) 805-0300
I6rrkal8 1908
1 MR. ISEMAN: I would like to think if you're my
2 lawyer, Judge, and I send you something that I shouldn't have
3 and I'm asking you to do something that you shouldn't be doing,
4 you're going to say, whoa, Mr. Iseman, you shouldn't do that,
5 I'm your legal counsel, and I'm going to advise you as your
6 legal counsel that's a bad idea. I would hope you would do
7 that.
8 I think Mr. Aiello would hope that his lawyer would do
9 that. I think the jury should know that Mr. Aiello said it to
10 his lawyer and that his lawyer would say if I thought there was
11 a problem, I would have brought it to Mr. Aiello's attention.
12 No red flags were raised.
13 MR. PODOLSKY: Sounds like what they want the lawyer
14 to do is advise the jury that they should find no red flags
15 here and that it wasn't illegal. If they want to argue to the
16 jury that this was forwarded to a lawyer, they can do that
17 directly from the lawyer. We will stipulate that she was a
18 lawyer. The lawyer shouldn't be able to come in and testify to
19 the jury I'm a lawyer and --
20 THE COURT: The fact that she saw no red flags is
21 fine. The issue is not whether she saw any red flags. The
22 issue is whether your client was part of a conspiracy. That is
23 up to the jury to decide, whether giving an RFP a week in
24 advance of it being issued is itself problematic and given all
25 the other evidence in this case is evidence of a criminal

(212) 805-0300
I6rrkal8 1909
1 conspiracy.
2 MR. ISEMAN: I think it is circumstantial evidence,
3 your Honor, of Mr. Aiello's good faith that he did not believe
4 there was anything wrong when he received this email forwarding
5 it along to his team and asked them to start preparing a
6 response. The fact that she did not raise a legal issue with
7 him, being his legal counsel, is circumstantial evidence of Mr.
8 Aiello's good faith of proceeding with the process.
9 THE COURT: I disagree. I think I intrudes on the
10 province of the jury. But I agree with you that you are
11 entitled to prove that he sent it to his lawyer, that Kate
12 Johnson is a lawyer. If that's all you are trying to prove,
13 the government can save you a trip and the government will
14 stipulate.
15 MR. ISEMAN: She already flew down this afternoon, so
16 I can't save her a trip.
17 MR. WILLIAMS: We are calling her.
18 THE COURT: So you don't need a stipulation because it
19 will come out that she was an attorney.
20 MR. ISEMAN: The other thing, and this is part of our
21 opening, too, is the different sections, the way that COR is
22 organized and different responsibilities that they have, which
23 is part and parcel to that line of questioning, which is COR
24 has attorneys, they review things to make sure the corporation
25 isn't getting into trouble. That would be part of her

(212) 805-0300
I6rrkal8 1910
1 testimony. If they are going to be able to stipulate that she
2 is an attorney, would they stipulate to the fact that their
3 responsibilities as attorneys is to make sure COR is not
4 running afoul of laws and regulations?
5 MR. PODOLSKY: Your Honor, I don't see this as
6 different from what he was arguing a moment ago, number one.
7 Number two, I'm trying to understand if Mr. Aiello is now
8 asserting a defense of counsel advice.
9 THE COURT: Advice of counsel.
10 MR. PODOLSKY: Advice of counsel, excuse me. It's far
11 too late. That seems to be what Mr. Iseman is getting to.
12 MR. ISEMAN: It is not what I'm getting to, your
13 Honor. There is no affirmative advice that Mr. Aiello sought
14 out to receive and relied upon affirmative advice. We believe
15 that it is clearly evidence of his good faith that he sent this
16 to folks that are outside of the alleged conspiracy, including
17 an attorney, and that no red flags were raised that allowed him
18 to continue forward with the additional conduct, as the
19 government continues to remind us or claims, after this date.
20 He continues to go forward with the RFP process.
21 THE COURT: I agree on the first step, which is I
22 agree it's relevant to his good faith that he sent it to his
23 lawyer, and that I will allow you to get in.
24 MR. ISEMAN: Okay.
25 THE COURT: Mr. Williams, what do you want to do with

(212) 805-0300
I6rrkal8 1911
1 this woman?
2 MR. WILLIAMS: Ms. Patel already laid it out for your
3 Honor.
4 THE COURT: I'm sorry. I have long ago forgotten what
5 she told her. In fact I think I cut her off and said we could
6 talk about it later.
7 MS. PATEL: Your Honor, Ms. Johnson is going to
8 testify to COR qualifications -- she was legal counsel but is
9 now CEO -- in terms relating to the parameters and conditions
10 that were in the RFP, also as to the negotiations.
11 THE COURT: The negotiation, that piece of it is
12 relevant. No one is contesting or suggesting that they lied
13 about their qualifications in the response to the requests for
14 proposal, are they?
15 MR. PODOLSKY: No, your Honor.
16 MS. PATEL: Part of the government's theory is that
17 Mr. Gerardi's comments on the RFP were attempts to tailor to
18 RFPs so they would be leaning towards COR's qualifications.
19 But the way her testimony will come out is that some of the
20 comments where he crossed things out or there are comments on
21 the side wouldn't have needed to be there to allow COR to
22 qualify for the resulting RFP because they would have qualified
23 for the RFP as it was before Mr. Gerardi made the comments on
24 the RFP.
25 THE COURT: By way of example, the Gerardi edit was to

(212) 805-0300
I6rrkal8 1912
1 change "audited financial statement" to "audited financial
2 statements or letter of reference from a bank." You're
3 saying -- I'm not saying this is true, but hypothetically --
4 COR has audited financial statements?
5 MR. WILLIAMS: Judge, it is not on that one. I'm
6 being very specific. There is a line where Mr. Gerardi
7 comments about institutional clients, COR has had institutional
8 clients. Mr. Gerardi says, including but not limited to
9 institutional clients. She is just going to say that COR has
10 institutional clients.
11 She is just going to say in the RFP there is another
12 example where it talks about performance bonds, and Mr. Gerardi
13 comments on that, that that may be unnecessary and limiting.
14 She is just going to say that COR has done lots of performance
15 bonds, it's common. Then there is another thing with regard to
16 class A office space. All she is going to say is COR has done
17 class A office space.
18 It is very short testimony, those three that I just
19 enumerated and maybe one more, then the hard-fought
20 negotiations. About 15 minutes worth of testimony.
21 THE COURT: Mr. Podolsky.
22 MR. PODOLSKY: It sounds like the negotiations,
23 depending on how the testimony comes out, may be relevant. On
24 the other questions, we'll take them as they come and may have
25 an objection depending on what the questions and answers are.

(212) 805-0300
I6rrkal8 1913
1 THE COURT: Okay. That's it from Syracuse, right?
2 Have you talked about Dan Young?
3 MR. PODOLSKY: This is the one I raised before when
4 the jury was still here.
5 THE COURT: Can you put that email back up. Every
6 time I read it I'm not quite sure what it's saying. Help me
7 read this. The Dan Young email is to Steve Aiello and others.
8 Does Steve Aiello forward it to Todd Howe saying "Could be
9 trouble"?
10 MR. PODOLSKY: That's how we read the email.
11 THE COURT: Then Todd Howe said got it, "Too late."
12 At this point on October 30th was it too late for the Syracuse
13 RFP?
14 MR. PODOLSKY: That's right, your Honor.
15 THE COURT: Got it. So you're going to call Dan Young
16 and Dan Young is going to say what?
17 MR. ISEMAN: Dan Young is going to say that the line
18 down here in Dan Young's email, John Dixie from Titan
19 Construction called me to say I'm asking when the RFP for
20 potential Nano Center is coming out. He is going to say this
21 has nothing to do with the Syracuse developer RFP.
22 THE COURT: How does he know that?
23 MR. ISEMAN: Because he wrote the email. It may
24 surprise the government, but COR does other things besides this
25 preferred developer RFP. There is a separate project that COR

(212) 805-0300
I6rrkal8 1914
1 was selected after a request for qualifications by SUNY Upstate
2 Medical College for a parcel of land called Kennedy Square or
3 Logan Crossing, depending on how it is referred to in different
4 projects, in downtown Syracuse that has an affiliation with
5 SUNY Upstate Medical College. It's right in the heart of the
6 city.
7 In July of 2013 Dr. Kaloyeros comes out up to SUNY
8 Upstate Medical College, meets with the president of SUNY
9 Upstate. COR representatives are there. I'm making some
10 representations here, but my understanding is that Dr.
11 Kaloyeros is out there at the request of the governor to try
12 and help bring some development to SUNY Upstate Medical
13 College's kind of flagging project they had.
14 They had a facility there that was largely vacant.
15 They wanted Dr. Kaloyeros to bring a little attention to it.
16 He goes out and says maybe we will consider a partnership with
17 SUNY Upstate Medical College. Kaloyeros has a project nearby
18 called Kennedy Square, Logan Crossing. It's a totally separate
19 project.
20 THE COURT: Then what happens?
21 MR. ISEMAN: I just noted this to the government. As
22 an example, on September 26, 2013 -- you don't have this.
23 THE COURT: I'm just trying to keep track of dates.
24 MR. ISEMAN: September 25, 2013 -- for the record,
25 this is Bates number FS underscore SDNY 011640 -- Todd Howe

(212) 805-0300
I6rrkal8 1915
1 sends an email to Erin Coultry, who is Dr. Kaloyeros's
2 assistant, copies Steve Aiello, Dr. Kaloyeros, and David Smith,
3 who is the president of SUNY Upstate Medical College. He says,
4 "Erin, could you set up a conference call tomorrow afternoon
5 with the above to go over the upstate/Nano start opportunity.
6 Thanks, Tom."
7 What Dan Young knows is that there is a separate
8 project at Kennedy Square that has no relationship to the
9 strategic partnership that Fort Schuyler was issuing the RFP
10 for. At this time there is no project that is contemplated by
11 Fort Schuyler.
12 The Court will remember Dean Fuleihan testified that
13 there was no project contemplated for the Syracuse region until
14 well into 2014. So it doesn't make any sense that there is a
15 specific project at Kennedy Square for Nano to be involved in
16 unless they are referring to this other project, which actually
17 exists and as a separate project at issue in this case.
18 THE COURT: There had been an RFP for that?
19 MR. ISEMAN: I don't know if there was an RFP for
20 that.
21 THE COURT: Was there an RFP for that that had been
22 issued before October 30th?
23 MR. ISEMAN: Judge, I don't know. All I know is that
24 Dan Young --
25 THE COURT: I'm sure your client knows and you can

(212) 805-0300
I6rrkal8 1916
1 find out. I get your desire to say this is talking about
2 something else, but how does it make sense given what came
3 above that? Had there been an RFP for this Kennedy Square
4 Upstate Medical Center, then it would make sense that this is
5 just a terrible mistake and this has nothing to do with
6 anything.
7 MR. ISEMAN: It doesn't even say that there is an RFP.
8 It says that there is a potential RFP.
9 THE COURT: He says, "Called me this a.m. asking when
10 the RFP will be coming out."
11 MR. ISEMAN: For the potential Nano center.
12 THE COURT: Then your client, for a site that has no
13 RFP, which is just at the very beginning of talks, says, "Could
14 be trouble," and Howe's response is "Too late." How could it
15 be too late if there isn't an RFP? I just don't understand the
16 logic, Mr. Iseman.
17 MR. ISEMAN: Judge, at that time COR is demolishing
18 buildings. What the email had suggested from September of
19 2013, there may be some contemplation of a partnership with
20 SUNY Upstate Medical College. There may have been rumors of an
21 RFP. I don't know.
22 THE COURT: I get that, Mr. Iseman. But you're saying
23 Young is going to say my conversation with Dino Dixie was
24 clearly about Upstate Medical and the Kennedy Square site; I,
25 Dan Young, know that what he was calling me about was not the

(212) 805-0300
I6rrkal8 1917
1 potential RFP that was already out for a potential development
2 in Syracuse?
3 MR. ISEMAN: That is my understanding from speaking to
4 his attorney.
5 THE COURT: Okay.
6 MR. COFFEY: Judge, if I might, it seems to me we are
7 reversing what the question should be, and that is to the
8 government: how is it you know when you put that in there that
9 in fact this applies to that? We objected at the time, and we
10 said by the end of this trial you're going to hear testimony
11 that it's far different.
12 Really, the analysis should not be on the defendant as
13 to why we have to prove it. The analysis should be the govern-
14 ment. How do you know that? Well, it must be because it's an
15 RFP and it's in that line of emails so it must be? That's a
16 very dangerous assumption they have made. As they sit here
17 now, they can't tell you that they know for a fact that that
18 isn't the case. So why are we being called upon to tell you
19 that it is? Why is that our burden?
20 THE COURT: I'm just trying to explore. It's your
21 burden at the moment because you are proposing to call Young.
22 MR. COFFEY: The government has put it in and we
23 warned them ahead of time that they don't have enough knowledge
24 of that. We told them that, Judge, last week.

(212) 805-0300
I6rrkal8 1918
1 MR. PODOLSKY: Your Honor, what was in the mind of
2 Dino Dixie as to what project would ultimately come out of this
3 is irrelevant. The point is they are asking about a Nano RFP.
4 The question is a Nano RFP gets sent to Steve Aiello who
5 forwards it to Todd Howe who says "could be trouble." Todd
6 Howe says got it, "too late," right.
7 There is no other RFP. There is no other RFP in
8 Syracuse. There is only one RFP in Syracuse. It doesn't
9 matter if Dino Dixie was thinking about Kennedy Square or
10 thinking about the film hub which the defendants say wasn't
11 even in the mind' eye yet. The point is there was one Nano RFP
12 that was relevant to Syracuse at the time.
13 MR. ISEMAN: How does he know that? They don't know.
14 They haven't talked to Dan.
15 THE COURT: Is there any evidence of any other RFP? I
16 asked you that earlier, and you said you did not know. The
17 government is saying based on their investigation there is no
18 other RFP.
19 MR. ISEMAN: Judge, there is a separate project. I
20 can tell you for certain that there is a separate project
21 called Kennedy Square and Logan Crossing. This is referring to
22 something that is potential. What I can tell you is that there
23 is a separate project going on, Kennedy Square/Logan Crossing.
24 I went on in cross-examination with the special agent about
25 documents that are in evidence here that are referring to that

(212) 805-0300
I6rrkal8 1919
1 and COR contemporaneously inquiring about pursuing funding for
2 that project.
3 I don't know exactly what Dino Dixie said to Dan Young
4 for Dan Young to put those words in that email. What I can
5 tell you is that the government has it wrong. Dan Young is
6 going to say it's for a separate project. We won't call Dan
7 Young if they withdraw this exhibit and remove it from the
8 summary chart.
9 THE COURT: I don't think they are going to do that,
10 but I could be wrong.
11 MR. PODOLSKY: We are not going to do that, your
12 Honor. The point is that the testimony that Dan Young is being
13 offered to give, which is that, I take it, Kennedy Square is a
14 different project than the project that the Syracuse defendants
15 are saying didn't exist yet, has no relevance to this trial.
16 The question is on October 30th did Steve Aiello react
17 to an email about a Nano RFP by forwarding it to Todd Howe,
18 expressing concern, and Todd Howe saying it's too late. What
19 was in Dan Young's mind about what was happening in Kennedy
20 Square has no relevance to what was happening in Steve Aiello's
21 mind.
22 THE COURT: It could because it could be circum-
23 stantial evidence of what was in Steve Aiello's head, that is,
24 they know what each other is talking about. I'm not bowled
25 over by that for the very reasons that I have said, which is

(212) 805-0300
I6rrkal8 1920
1 the back-and-forth between Aiello and Howe makes no sense under
2 that theory.
3 That could mean that there was a misunderstanding, it
4 was two ships named Peerless, and what Dino was talking about
5 was the unknown, unissued RFP yet, but Steve Aiello on his
6 iPhone, not in Manhattan at that time, forwarded along, says
7 could be trouble because he is seeing Nano RFP, here comes
8 another competitor, and the back-and-forth then becomes about
9 the other RFP. I don't know.
10 You can call him. I'm going to let him call him.
11 Cross-examine. I don't find this to be overwhelmingly
12 persuasive evidence one way or the other, but be that as it
13 may.
14 Mr. Miller.
15 MR. MILLER: Your Honor, you may recall yesterday you
16 saw --
17 THE COURT: I don't remember nothing from yesterday.
18 MR. MILLER: Let me get you back up to speed.
19 THE COURT: Please.
20 MR. MILLER: Yesterday we attempted to show, we did
21 show, Stephen Bills Defense Exhibit 1278. 1278 is an RFP
22 response --
23 THE COURT: Can somebody pull it up for me, please.
24 MR. MILLER: Your Honor, I have a copy of the document
25 that may be easier to work with than on the screen.

(212) 805-0300
I6rrkal8 1921
1 THE COURT: Okay. Oh, yes, I remember this one.
2 MR. MILLER: Your Honor, by way of background --
3 THE COURT: No, I remember it. I do remember it from
4 yesterday.
5 MR. MILLER: We would like to offer this into
6 evidence. The government has indicated they don't have an
7 issue with authenticity. Their issue is with relevance. I'd
8 like to address that for a moment.
9 THE COURT: You may have missed your opportunity on
10 the argument you are about to make but go ahead.
11 MR. MILLER: Why is that?
12 THE COURT: Make the argument and let's see where
13 you're going.
14 MR. MILLER: This is a response to a Fort Schuyler RFP
15 for the city of Rochester. It was submitted by a joint team, a
16 lot of these seem to be joint teams, of Buckingham Properties
17 and Le Chase Construction. As you can see from the first page,
18 Stephen Bills was the team contact person. If you were to turn
19 the pages, he is identified as the lead construction person on
20 this joint submission. You can see the developer proposal was
21 submitted to Alicia Dicks and Joe Schell, names that are very
22 familiar.
23 If you turn to page 69 of this exhibit, the Chase
24 Buckingham Properties submission sets forth its fee
25 methodology. With respect to the construction components of

(212) 805-0300
I6rrkal8 1922
1 that fee methodology, which appear on page 69 in the paragraphs
2 numbered 4 and 5, with respect to modernization,
3 rehabilitation, and construction on the one hand and tenant
4 improvements or repair projects on the other, the construction
5 management fee is quoted to be in a range of 3 to 10 percent,
6 which would apply to all hard costs.
7 And after both sections 4 and 5, which relate to those
8 two types of construction, there is the added sentence, "We
9 understand that each project brought forward will be unique,
10 and we are negotiable on a fee structure that will be
11 competitive to the market and add value to Fort Schuyler."
12 The only testimony that's been introduced so far in
13 this trial about actual construction management fee ranges was
14 offered by Mr. Bills when he testified.
15 THE COURT: I thought the other guy did too.
16 MR. BOONE: He did.
17 THE COURT: Balling did too.
18 MR. MILLER: So they have introduced it through two
19 witnesses. Here is a document that was generated in July of
20 2014 in response to a very similar RFP to the two that are at
21 issue in our case by the very same private, not-for-profit
22 entity, by someone who was familiar with the Buffalo and
23 Syracuse RFPs, that quotes a 3 to 10 percent range with a
24 willingness to negotiate for construction management fee.
25 With respect to the potential for economic harm, we

(212) 805-0300
I6rrkal8 1923
1 think that that is relevant evidence. We pulled this off of
2 the Fort Schuyler website, so this is as filed on the Fort
3 Schuyler website.
4 THE COURT: They are not challenging authenticity.
5 MR. MILLER: No, they are not challenging
6 authenticity. And if the Court agrees this is relevant, they
7 are amenable to its being introduced into evidence. Its really
8 an issue to you. We believe it is relevant. We believe it is
9 important, it is contemporaneous. It is by an individual that
10 the jury has already heard from. It's exactly the same type of
11 preferred developer agreement.
13
14
15
16
17
18
19
20
21
22
23
24
25

(212) 805-0300
I6R3KAL9 1924
2 MR. PODOLSKY: Your Honor, the witness was asked
3 questions about these fees, he was subject to
4 cross-examination. Mr. Miller had the opportunity to impeach
5 him with this document.
6 THE COURT: He chose not to.
7 MR. PODOLSKY: And --
8 THE COURT: He, I'm sorry. Hang on a second. He
9 walked away when the witness said this wasn't me. It is a
10 mystery to me why you didn't turn it to the first page and say,
11 Mr. Bills -- and every time I say that I think about Saturday
12 Night Live. Mr. Bills, you're listed as the team contact.
13 What do you mean this isn't yours?
14 MR. MILLER: Your Honor, I asked you up at the bench
15 whether I could introduce this exhibit and you said I couldn't
16 because you believed it was not relevant. You allowed me to
17 use it to refresh his recollection.
18 THE COURT: Mr. Miller, wait a minute. Correct. And
19 then he said, no, this isn't me. This a different company, I
20 don't know anything about it. And you walked away. I'm sorry.
21 You're looking at me so blankly. You know how to do this. You
22 turned to page one and you say, Mr. Bills, your name is on
23 this.
24 MR. MILLER: I most certainly do know how to do this.
25 You had already told me at the bench. I asked you.

(212) 805-0300
I6R3KAL9 1925
1 THE COURT: Negative, Mr. Miller. This is not because
2 I limited your cross. Who expected that he was going to say I
3 don't know anything about this. I didn't limit you to asking
4 another question to say what do you mean you don't know
5 anything about this. Your name is on the document.
6 MR. MILLER: So, your Honor, I could call somebody
7 from Fort Schuyler to come in and testify that this is an RFP
8 response that they received in the ordinary course of business
9 which has a construction management fee percentage in it. I
10 don't agree with your assessment of what happened with
11 Mr. Bills as a witness, but we have alternative ways of getting
12 it into evidence and we would be happy to do that.
13 THE COURT: Here's what I don't understand. Why
14 doesn't the government want this in?
15 MR. MILLER: Pardon?
16 THE COURT: I don't understand why the government
17 doesn't want it in. This is further evidence that a
18 construction management fee is highly negotiable and there's a
19 wide range. For the same reason I don't understand why the
20 defense wants it in.
21 MR. MILLER: Right now I think the evidence that's
22 before the jury is that what I seem to recall is Mr. Bills'
23 testimony that the range was two and a half percent to
24 5 percent. Something in that range. This is three to
25 10 percent.

(212) 805-0300
I6R3KAL9 1926
1 THE COURT: So what? All of it says that there is
2 economically valuable information. That is, if you say you've
3 got a competitive process and you don't, there is competition
4 of potential value. And the answer would be yes, because
5 you've got a wide range of a construction management fee.
6 MR. WEINGARTEN: That's not what they're doing, Judge.
7 MR. MILLER: My point is I think they are going to get
8 up and point to the contracts that they showed the jury today
9 and say look at the percentages that are charged here, and then
10 compare that with the testimony they got from these contractors
11 who said, yeah, two and a half to 5 percent is the range. And
12 say, look, somebody came out on the short end of the stick here
13 and the reality is --
14 THE COURT: Is that your argument?
16 THE COURT: I didn't think so. Y'all don't understand
17 what they're going to argue. That is amazing to me.
18 MR. SHECHTMAN: That's for sure.
19 THE COURT: You're to the end of trial. It is like
20 you're trying two separate cases.
21 MR. SHECHTMAN: Judge --
22 MR. COFFEY: That's why you should dismiss it.
23 MR. SHECHTMAN: We don't understand --
24 THE COURT: I'll dismiss the defense's case but keep
25 the government's case.

(212) 805-0300
I6R3KAL9 1927
1 MR. SHECHTMAN: We don't understand.
2 THE COURT: I can't explain it more clearly.
3 MR. SHECHTMAN: I understand if the notion is that
4 this is helpful to us, then we ask you to admit it. If it is
5 harmful to us, we ask you to admit it.
6 THE COURT: What's the government's objection? Just
7 relevance?
8 MR. PODOLSKY: We understood this would be used to try
9 to undermine Mr. Bills' testimony. We didn't think it was
10 appropriate as collateral impeachment material. We didn't
11 think it was appropriate to use it to undermine the testimony
12 that Mr. Bills got --
13 THE COURT: That I won't let you do. Are you willing
14 to, as opposed to putting this in, if the government will
15 stipulate there was a proposal in the Rochester RFP that
16 proposed the construction management fee of three to 10 or five
17 to two, whatever it is does. That accomplish what you need?
18 MR. MILLER: I think so. It depends on the exact
19 language.
20 THE COURT: Done. You can track the language in here.
21 And this doesn't go in. You get the fact. You don't care.
22 Perfect.
23 MR. MILLER: Happy ending.
24 MR. PODOLSKY: Can we just --
25 MR. SHECHTMAN: Can I get one last one --

(212) 805-0300
I6R3KAL9 1928
2 MR. PODOLSKY: I want to be clear for the record. I
3 understood earlier that the witnesses that we were quoted
4 earlier are the only witnesses, and that the defendants will
5 not be testifying. I wanted to make sure that our
6 understanding was correct.
7 THE COURT: I'll allocute them tomorrow, but that's
8 right, right?
9 MR. SHECHTMAN: Correct.
10 THE COURT: Don't let me forget to allocute them.
11 MS. PATEL: We have a short thing. We had mentioned
12 we might have one additional exhibit that we would like to move
13 into evidence via stipulation, and I confirmed with the
14 government that Defense Exhibit 4, they stipulated admission to
15 it.
16 THE COURT: Defense Exhibit 4. Is that the one that
17 was it was identified yesterday but not moved in?
18 MS. PATEL: It was identified through the witness
19 Schell. It was the Rochester RFP and he had testified it had
20 hadn't in fact been issued, but it has. It was on the Fort
21 Schuyler website. It would come in as a business record. The
22 government has stipulated it was in fact a business record and
23 was issued.
24 THE COURT: Is that correct?
25 MR. BOONE: No objection, your Honor.

(212) 805-0300
I6R3KAL9 1929
1 THE COURT: Are you moving it in now?
2 MS. PATEL: Yes.
3 THE COURT: There is no objection to doing this
4 outside the presence of the jury?
6 THE COURT: Defense Exhibit 4 is received.
8 MR. ISEMAN: We similarly, your Honor, had a agreement
9 with the government, Defense Exhibit 718. I don't know if you
10 have a copy. I can bring one up. It is a chart, an accurate
11 rendering of the chart that I did with Special Agent Giattino
12 on cross-examination. And the government has no objection to
13 it being admitted as a summary.
14 THE COURT: Being admitted, meaning it is going back
15 to the jury?
16 MR. ISEMAN: That's my understanding, your Honor.
17 MR. PODOLSKY: Yes, your Honor. That's fine.
18 THE COURT: Okay. That's 718. So again, no objection
19 to doing this outside the presence of the jury. So Defense 718
20 is admitted.
22 MR. SHECHTMAN: And the government has promised to
23 look at our chart tonight and we'll hopefully get to the same
24 place.
25 THE COURT: Anything further from the government?

(212) 805-0300
I6R3KAL9 1930
1 MR. PODOLSKY: I have one scheduling, so we can be
2 prepared. Is the Court still entertaining the notion we might
3 sum up before July 4?
4 THE COURT: No. I haven't told the jury yet because
5 I'm not entirely confident everybody will rest tomorrow. But
6 assuming everybody rests tomorrow, I'm going to adjourn them
7 over until the Monday after 4th of July, we'll do a charge
8 conference Monday morning, or sometime Monday. I'll get back
9 to you on the time.
10 MR. SHECHTMAN: This coming Monday.
11 THE COURT: Correct. Monday, July 2. Mr. Shechtman,
12 you had something?
13 MR. SHECHTMAN: Ms. Masella persuaded me I was wrong
14 so I withdraw.
15 THE COURT: Okay. Anything further from anybody?
16 So the only hanging chad we've got then is this
17 Syracuse venue documents. And have you sent them, have you
18 e-mailed them to me or given me a list of them?
19 MR. ZHOU: You have a list, your Honor. And if you
20 don't have the electronic copies, we can certainly send them.
21 THE COURT: We have electronic copies. Give me the
22 numbers.
23 MR. ZHOU: No problem, your Honor. If you have the
24 list, your Honor.
25 THE COURT: I have the list.

(212) 805-0300
I6R3KAL9 1931
1 MR. ZHOU: The second block. 490 something and 600 --
2 THE COURT: Minus 662.
3 MR. ZHOU: That's exactly right. Six documents.
4 THE COURT: Five documents. I thought we've already
5 agreed that 662 is not admissible.
6 MR. ZHOU: I think we're going to look back at the
7 time. Your Honor, that was the July 2014 document, so we'll
8 look at the time.
9 THE COURT: Okay. So those are the open issues. So
10 the question is can we resolve that in an hour and the answer
11 is we can. So 9 o'clock tomorrow.
12 MR. MILLER: I do want to give you a heads up. We
13 plan to submit a letter at some point this evening with respect
14 to the decision of the Court to admit the New York State
15 procurement guidelines.
16 THE COURT: Okay. I'll be waiting for it with bated
17 breath.
18 (Adjourned until June 28, 2018, at 9 a.m.)
19
20
21
22
23
24
25

(212) 805-0300
1932
1 INDEX OF EXAMINATION
2 Examination of: Page
3 KATHLEEN GARVER
4 Direct By Mr. Zhou . . . . . . . . . . . . . .1681

Cross By Mr. Williams . . . . . . . . . . . .1700
5
6 JUSTIN ELLARD
7 Direct By Mr. Zhou . . . . . . . . . . . . . .1702

Cross By Mr. Miller . . . . . . . . . . . . .1740
8 Cross By Mr. Shechtman . . . . . . . . . . . .1748
Redirect By Mr. Zhou . . . . . . . . . . . . .1751
9
10 DAVID DOYLE
11 Direct By Mr. Boone . . . . . . . . . . . . .1809
12
13 GOVERNMENT EXHIBITS
14 Exhibit No. Received
15 6, 7-R, 8-R, 10, 12, 14, 200 . . . . . . .1673
16 S9 . . . . . . . . . . . . . . . . . . . .1705
17 143 . . . . . . . . . . . . . . . . . . . .1833
18 144R . . . . . . . . . . . . . . . . . . .1841
19 146 . . . . . . . . . . . . . . . . . . . .1853
20 201 . . . . . . . . . . . . . . . . . . . .1855
21 204 . . . . . . . . . . . . . . . . . . . .1820
22 205 . . . . . . . . . . . . . . . . . . . .1824
23 206R . . . . . . . . . . . . . . . . . . .1829
24 208 . . . . . . . . . . . . . . . . . . . .1837
25 GOVERNMENT EXHIBITS

(212) 805-0300
1933
2 211 . . . . . . . . . . . . . . . . . . . .1849
3 230, 490, 491, 492, 1050, 1055-1062 . . . .1673
4 1044-R . . . . . . . . . . . . . . . . . .1856
5 1045R . . . . . . . . . . . . . . . . . . .1848
6 1082 . . . . . . . . . . . . . . . . . . .1845
7 1083R . . . . . . . . . . . . . . . . . . .1827
8 1503 . . . . . . . . . . . . . . . . . . .1707
10 DEFENDANT EXHIBITS
12 31 . . . . . . . . . . . . . . . . . . . .1750
13 4 . . . . . . . . . . . . . . . . . . . . .1929
14 718 . . . . . . . . . . . . . . . . . . . .1929
15
16
17
18
19
20
21
22
23
24
25

(212) 805-0300

Heaney Buffalo Billion Trial

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Heaney Buffalo Billion Trial

Загружено:

Авторское право:

Доступные форматы

I6R3KAL1 1653

1 UNITED STATES DISTRICT COURT

3 UNITED STATES OF AMERICA,

4 v. 16 Cr. 776 (VEC)

5 ALAIN KALOYEROS, New York, N.Y.

21 STEPTOE & JOHNSON, LLP

SOUTHERN DISTRICT REPORTERS, P.C.

6 WALDEN MACHT & HARAN, LLP

20 DELEASSA PENLAND, Agent USAO

21 JONATHAN CONCEPCION, Paralegal, USAO

22 SYLVIA LEE, Paralegal, USAO

23 MARIA JOSE ALANIS, Paralegal, Bracewell

SOUTHERN DISTRICT REPORTERS, P.C.

1 (Trial resumed; jury not present)

3 MR. ZHOU: Good morning, your Honor. David Zhou for

4 the government. Here with me at counsel table are Matt

5 Podolsky, Robert Boone, Special Agent Penland, Sylvia Lee and

7 THE COURT: Good morning.

8 MR. MILLER: Good morning, your Honor. Michael

9 Miller, with Reid Weingarten and Michael Scavelli, on behalf of

10 Dr. Kaloyeros, who is before the court today. Good morning.

11 THE COURT: Good morning.

12 MR. COFFEY: Good morning, Judge. Steve Coffey, with

13 Scott Eisemann, Pam Nichols, and Steve Aiello.

14 THE COURT: Good morning.

15 MR. SHECHTMAN: Your Honor, Paul Shechtman, Jessica

16 Masella, and Mr. Ciminelli.

17 MR. WILLIAMS: And, your Honor, Milton Williams, Avni

18 Patel and Jake Gardener for Mr. Gerardi.

19 THE COURT: Good morning. Let me just sign on and we

21 MR. SHECHTMAN: Judge, can I approach to ask Mr. Boone

23 THE COURT: It's okay with me if it's okay with him.

24 Okay. At my request the government sent me the the

25 two documents that there is some issue over. That would be

SOUTHERN DISTRICT REPORTERS, P.C.

1 Government Exhibit 206 and Government Exhibit 1044.

2 Let's start with, from the government's perspective,

3 do you intend to put both articles in, in their entirety?

5 starting with 206 is this article explains Kaloyeros' actions.

7 THE COURT: Can you be closer to a microphone.

8 MR. BOONE: Yes.

9 THE COURT: So members of the press can hear you and

10 anyone else from the public who is present.

11 MR. BOONE: Yes. So starting with 206, this article

13 THE COURT: So I've read the article.

14 MR. BOONE: The reason we think it is important is

15 because it obviously provides context for Kaloyeros' reaction

17 testimony that Kaloyeros took sort of great issue with the

18 article and sort of the work of Jim Heaney in regards to his

21 use to argue show that consciousness of guilt more or less.

22 THE COURT: Give me a flavor. Because my concern

25 are a lot of facts in here that are highly prejudicial because

SOUTHERN DISTRICT REPORTERS, P.C.

1 they are highly indicative of Kaloyeros and Fort Schuyler

2 trying to hide the ball.

3 There are also assertions in here that are at issue in

4 this case, if not directly, sort of tangentially, like what is

5 Fort Schuyler. It is a 501(c) but is it really private. Well,

6 apparently, according to the state agency that deals with FOIL,

7 not entirely. It is still subject to FOIL.

8 So you've got a lot of facts in here that I think

9 maybe not entirely reasonable to believe that a limiting

10 instruction will accomplish the desired result of not having

11 the jury view those as facts.