In court papers filed late last night, the U.S government proposed to split the corruption case against six business executives and two former New York state officials into two trials: One trial would center around bribes allegedly paid to Joseph Percoco, once a top aide to Governor Andrew Cuomo, and the other would concern the “Buffalo Billion,” shorthand for a slew of state-funded upstate development deals, some of which federal prosecutors say were rigged.
The decision might be seen as a concession amid ongoing, pre-trial jockeying. As recently as April, federal prosecutor Janis Echenberg told the court that “severance is not appropriate here,” largely because there “is significant overlap.” More specifically, disgraced lobbyist Todd Howe, who has already pled guilty to crimes that include bribery and tax evasion, is expected to attest to his involvement in every alleged scheme, and two COR Development executives are alleged to have participated in both the Percoco- and Buffalo Billion-related schemes. If the plan for two trials moves forward, those two executives—Steven Aiello and Joseph Gerardi—would participate in both. (They, like the other defendants, have pled not guilty and maintained their innocence.)
The United States, “in the interest of facilitating trial preparation, and preventing any risk of logistical difficulties or juror confusion at trial, concedes severance of the charges related to the Buffalo Billion fraud and bribery scheme…from charges related to the Percoco bribery scheme,” the government says in the brief. Elsewhere, it says that it has proposed the split “in order to avoid potential spillover prejudice between the two schemes.”
Asked this morning about this apparent change of course, a spokesman for the U.S. Attorney’s Office for the Southern District of New York said the brief speaks for itself.
Defendants have sought to divide the case into even smaller components. An attorney for Peter Galbraith Kelly, Jr., for instance, who lobbied on behalf of Competitive Power Ventures, an energy company once seeking certain regulatory approvals in New York, has argued that there are at least four schemes alleged by the government.
Other than the proposed severance, in its 180-page brief filed late yesterday, the government argues that all of the defendants’ other, near-two-dozen motions—which include motions to change venues, suppress evidence, and dismiss charges due to “prosecutorial misconduct” related to ex-U.S. Attorney Preet Bharara’s public statements—lack merit.
The brief largely hews to what the government has already publicized in its lengthy criminal complaint filed in September and the superseding indictment from May. Still, at least one passage underscores the extent to which Todd Howe serves as a linchpin to the case’s entire, overarching narrative.
“The Government expects that the evidence at trial will establish that the Governor’s election in 2010 transformed Howe, then primarily a federal lobbyist based in Washington, D.C., into a key contact for individuals seeking public funds and other official action from New York State,” the government writes, “due to Howe’s longstanding personal and professional relationships with the Governor and other senior officials in the Governor’s administration.” (The governor has not been accused of any wrongdoing.)
Reply briefs from the defense are due July 21. It had previously been suggested that if there were two trials, one would be held in October and the other in January.
Read the filing below: