Case 7:14-cr-00440-VB Document 64 Filed 08/27/15 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

-vTHOMAS W. LIBOUS,
Defendant.

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No. 14 CR 440 (VLB)

MEMORANDUM OF LAW IN SUPPORT OF

DEFENDANTS MOTION PURSUANT TO RULE 29 AND RULE 33
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

Paul DerOhannesian II (PD0523)

Danielle R. Smith (DS2411)
DerOhannesian & DerOhannesian
677 Broadway, Suite 707
Albany, New York 12207
(518) 465-6420
Attorneys for Defendant Thomas W. Libous

Dated: August 27, 2015

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TABLE OF CONTENTS
STATEMENT OF RELEVANT FACTS ....................................................................................... 1
STANDARDS OF LAW ................................................................................................................ 4
ARGUMENT .................................................................................................................................. 6
I.

The Government Failed To Prove Venue ......................................................................... 6

II.

The Jurys Belief As To What Senator Libous Said During The FBI Interview Is Based
On Pure Speculation .......................................................................................................... 7
A. The Lack of a Transcript Coupled with Special Agent Silveris Failure to Precisely
Recall Senator Libous Statements Necessitates Reversal .............................................. 7
B. Special Agent Silveris Testimony Differed from the Statements Read to the Jury and
Necessitates Reversal ..................................................................................................... 10

III.

In Substance Was Improperly Included In The Charge To The Jury .......................... 14

IV.

There Was Insufficient Evidence To Establish Willfulness............................................ 15

V.

The Jury Should Have Been Instructed With Defendants Willfulness And Voluntary
Interview Charges ........................................................................................................... 17

VI.

Mr. Mangones Testimony Was Insufficient To Support The Verdict ........................... 19

CONCLUSION ............................................................................................................................. 22

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TABLE OF AUTHORITIES
Cases
Brogan v. United States, 522 U.S. 398 (1998).............................................................................. 18
Bronston v. United States, 409 U.S. 352 (1973)....................................................................... 9, 13
Cheek v. United States, 498 U.S. 192 (1991) ............................................................................... 18
Fotie v. United States, 137 F.2d 831 (8th Cir. 1943) .................................................................... 16
Natale v. United States, No. 13-744 (Apr. 21, 2014).................................................................... 18
Stirone v. United States, 361 U.S. 212 (1960) .............................................................................. 12
Sullivan v. Louisiana, 508 U.S. 275 (1993).................................................................................... 5
United States v. Autuori, 212 F.3d 105 (2d Cir. 2000)................................................................. 19
United States v. Brennan, 183 F.3d 139 (2d Cir. 1999).................................................................. 6
United States v. Cassese, 290 F. Supp.2d 443 (S.D.N.Y. 2003) .................................................. 16
United States v. Clifford, 426 F. Supp. 696 (E.D.N.Y. 1976) ........................................................ 9
United States v. Coplan, 703 F.3d 46 (2d Cir. 2012)...................................................................... 5
United States v. DAmato, 39 F.3d 1249 (2d Cir. 1994) .............................................................. 16
United States v. Ehrlichman, 379 F. Supp. 291 (D.D.C. 1974) ...................................................... 9
United States v. Ferguson, 246 F.3d 129 (2d Cir. 2001) ................................................................ 5
United States v. Glenn, 312 F.2d 58 (2d Cir. 2002) ..................................................................... 16
United States v. International Business Machines Corp., 415 F. Supp. 668 (S.D.N.Y. 1976) ....... 8
United States v. Klepfer, 1983 U.S. Dist. LEXIS 15057 (N.D.N.Y July 29, 1983) ....................... 8
United States v. Lincoln, 630 F.2d 1313 (8th Cir. 1980)................................................................ 5
United States v. Mahler, 363 F.2d 673 (2d Cir. 1966).................................................................... 7
United States v. Mandanici, 729 F.2d 914 (2d Cir. 1984) .............................................................. 9
United States v. Martinez, 54 F.3d 1040 (2d Cir. 1995)............................................................... 16
United States v. McCue, 301 F.2d 452 (2d Cir. 1962) ................................................................... 8
United States v. Poutre, 1980 U.S. App. LEXIS 18922 (1st Cir. 1980) ................................... 8, 10
United States v. Ramirez, 420 F.3d 134 (2d Cir. 2005).................................................................. 6
United States v. Robinson, 430 F.3d 537 (2d Cir. 2005) .............................................................. 19
United States v. Sanchez, 969 F.2d 1409 (2d Cir. 1992) .......................................................... 5, 19
United States v. Taylor, 464 F.2d 240 (2d Cir. 1972) .................................................................... 5
United States v. Whab, 355 F.3d 155 (2d Cir. 2004).................................................................... 18
United States v. Wiener, 96 F.3d 35 (1996) ................................................................................. 18
Statutes
18 United States Code 1001................................................................................................ passim
Rules
Federal Rules of Criminal Procedure, Rule 18 ............................................................................... 6
Federal Rules of Criminal Procedure, Rule 29 ................................................................. 4, 5, 6, 15
Federal Rules of Criminal Procedure, Rule 33 ...................................................................... passim

ii

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STATEMENT OF RELEVANT FACTS

In an Indictment filed on June 30, 2014, the Government alleged that in early 2010 a
Federal Grand Jury was investigating whether Senator Thomas W. Libous (Defendant or
Senator Libous) obtained a job for his son, Matthew Libous, at a law firm in exchange for a
promise to steer business to that firm. Dkt. No. 2, p. 2. The Indictment further alleged that a
portion of the sons salary was to be paid by a lobbying firm. Id. Defendant was not charged
with any crimes associated with that alleged deal. Instead, the Indictment charged Senator
Libous with violating 18 U.S.C. 1001 (Section 1001).

Dkt. No. 2.

Specifically, the

Government alleged that Defendant knowingly and willfully lied when he made the following
seven statements to Special Agents of the Federal Bureau of Investigation (FBI) on June 20,
2010:
A. He could not recall how his son began to work at the
Westchester law firm. B. No deals were made to get his son
a job at the law firm. C. He was not aware that the lobbying
firm had paid any part of his sons salary at the law firm. D.
He never promised to refer work to the law firm. E. He was
not involved in his sons decision to work at the law firm.
F. He had no business or personal relationship with the law
firm. And G. He did not know of any relationship between
the lobbying firm and the law firm.
Trial Tr. 1157:1-9. 1
Trial commenced with jury selection on July 13, 2015. Although the prosecution called
several witnesses, only one individual testified to the alleged deal between the law firm, the
lobbying firm, Senator Libous, and the Senators son. That witness, Anthony Mangone, was a
1

The seven statements read to the jury were slightly altered from those contained in the
Indictment. Compare Trial Tr. 1157:1-9 with Dkt. No. 2, p. 3. For example, statement one in
the Indictment referred to Law Firm 1 (Dkt. No. 2, p. 3) whereas the first statement read to the
jury referred to the Westchester law firm (Trial Tr. 1157:2). Because the Indictment was not
read or shown to the jury, this motion will only discuss the statements as they were charged to
the jury.
1

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partner at Santangelo, Randazzo and Mangone (SRM), 2 the law firm alleged to have hired
Senator Libous son in exchange for the promise of business.
Mr. Mangone has daunting credibility issues. For example, Mr. Mangone admitted that
he lied when testifying under oath before a grand jury (Trial Tr. 412:13-23); when testifying
under oath before a trial jury (Trial Tr. 412:13-23); when being interviewed by the FBI (Trial Tr.
633:7-6); and when filing tax returns (Trial Tr. 638:4-639:18). He was indicted in January 2010
for several crimes and ultimately pled guilty to bribery, conspiracy, extortion, and tax related
charges. Trial Tr. 409:21-24; 414:19-22. While he was indicted in 2010 (Trial Tr. 409:21-24)
and is facing forty-five years in prison (Trial Tr. 416:12-14), he has yet to be sentenced (Trial Tr.
416:22-23) and has not spent one day in jail (Trial Tr. 455:9-13). Because no other witness had
any knowledge of this alleged deal and no evidence was introduced substantiating Mr.
Mangones claims, the prosecutions case rested entirely on the testimony of a self-professed
liar.
Turning to the June 24, 2010 interview, although two FBI Special Agents were present,
only one testified at trial. Surprisingly, Special Agent Caroline Gilmore, the case agent, did not
testify. Trial Tr. 714:6-19. Instead, the Government called Robert Silveri, a Special Agent who
played a very limited role in the investigation. Trial Tr. 725:24-726:4.
The informal interview, which Special Agent Silveri described as very conversational
(Trial Tr. 801:11), was held at Senator Libous office in Albany, New York (Trial Tr. 718:7-10).
Defendant was not warned by either Special Agent Gilmore or Special Agent Silveri that making

During the relevant time period, the law firms name changed several times as partners
came and went. For example, according to Mr. Mangone [w]hen [he] first began there, it was
Servino & Santangelo. And then it was Servino, Santangelo & Randazzo. And then sometime
thereafter, it was Santangelo, Randazzo & Mangone. Trial Tr. 409:4-6. For consistency,
Defendant will refer to all versions of the law firm as SRM.
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a false statement to the FBI constituted a federal crime. Trial Tr. 769:19-770:3. Nor was
Senator Libous informed that he was a target. Trial Tr. 769:10-12.
Special Agent Silveri testified that although the FBI had the capability to record the June
24, 2010 interview, he did not seek permission to do so. Trial Tr. 726:5-6; 777:6-7; 781:16-19.
Nor did the FBI Special Agents choose to ask Defendant if he would consent to a recording.
Trial Tr. 777:11-13. Ultimately, no recording or transcript of that interview was made. Trial Tr.
726:5-6; 781:22-25.
Given that five years had passed since June 24, 2010, and that Special Agent Silveri had
conducted over one thousand interviews, it is unsurprising that he admitted to many difficulties
remembering details from that time period. Trial Tr. 713:25-714-2; 749:20-22. For example,
Special Agent Silveri could not remember the name of the person he interviewed just prior to
Senator Libous interview or just after the interview. Trial Tr. 749:7-13. Indeed, Special Agent
Silveri did not remember the name of any person he interviewed in June 2010, other than
Defendant. Trial Tr. 749:14-19. Special Agent Silveri also admitted to having only a vague
recollection of the events just prior to the interview.

For example, he had a vague

recollection of the woman who answered the door at Senator Libous office 3 (Trial Tr. 756:4757:9); his recollection [wa]s vague as to whether he left the office after asking to speak to
Defendant (Trial Tr. 757:20-22); and he had a vague recollection that [he] left the lobby in
which this executive assistant was sitting to go into the hallway. Again its vague. (Trial Tr.
757:25-758:2). As to the interview itself, Special Agent Silveri was unable to remember the

Special Agent Silveri also testified that he did not see that woman in the courtroom.
Trial Tr. 756:11-12. The parties agreed that the woman, Ms. Mary Lee, also a prosecution
witness, was in fact in the courtroom during that line of questioning. Trial Tr. 905:5-12.
3

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word-for-word questions asked of Defendant or Senator Libous word-for-word responses.

Trial Tr. 766:3-8.
The Government rested on July 20, 2015. Trial Tr. 895:11-17. Senator Libous called
just one witness, Honorable Thomas J. McAvoy, a District Court Judge for the Northern District
of New York. Trial Tr. 907:9-10. Judge McAvoy testified that Defendants reputation is one of
a hard-working, honest gentleman, and does things as best he can for our local sector. Trial
Tr. 913:17-19. The defense rested following Judge McAvoys testimony. Trial Tr. 921:1. The
Government did not introduce any rebuttal evidence. Trial Tr. 921:2-4.
The jury began its deliberations on July 22, 2015, and found Defendant guilty after
approximately six hours of deliberations. Trial Tr. 1180:12-14. Senator Libous is scheduled to
be sentenced on October 30, 2015. See Minute Entry for proceedings held before Judge Vincent
L. Briccetti, filed on July 22, 2015.
For the following reasons, Senator Libous respectfully submits that his motion for
acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure (Rule 29), based on
lack of venue and insufficient evidence, should be granted. 4

Alternatively, Defendant

respectfully submits that his motion for a new trial, under Rule 33 of the Federal Rules of
Criminal Procedure (Rule 33), based on lack of venue, insufficient evidence, and failure to
properly charge the jury, should be granted.
STANDARDS OF LAW
Pursuant to Rule 29, the court on the defendants motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a conviction. Fed. R.

Defendant duly made his Rule 29 Motion, which included venue, at the close of the
prosecutions case. Trial Tr. 896:16-897:5. That motion was renewed and denied at the close of
trial. Trial Tr. 923:6-10.
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Crim. P. 29. The Second Circuit has made clear that [i]f the evidence viewed in the light most
favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of
guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable
doubt.

United States v. Coplan, 703 F.3d 46, 69 (2d Cir. 2012) (citations omitted).

Accordingly, the defendants Rule 29 motion must be granted where [t]he evidence . . . viewed
in the light most favorable to the Government, remains, at best, in equipoise. Id. This is
because, it would not satisfy the [Constitution] to have a jury determine that the defendant is
probably guilty. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). Nor can the verdict stand if
it is based on pure speculation or where the reasonable jurymen must necessarily have such a
doubt. United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972).
Unlike Rule 29, which if granted equates to an acquittal, a motion made pursuant to Rule
33 permits the court to vacate any judgment and grant a new trial if the interest of justice so
requires. Fed. R. Crim. P. 33. When considering a Rule 33 motion, the court is free to evaluate
the weight of the evidence as well as the credibility of witnesses. See United States v. Sanchez,
969 F.2d 1409, 1413 (2d Cir. 1992) (the court is entitled to weigh the evidence and in so doing
evaluate for itself the credibility of the witnesses. quoting United States v. Lincoln, 630 F.2d
1313, 1319 (8th Cir. 1980)). Rule 33, by its terms gives the trial court broad discretion . . . to
set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice. United
States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting Sanchez, 969 F.2d at 1413).
For the following reasons, Senator Libous respectfully submits that his conviction must
be overturned pursuant to Rule 29. Alternatively, Senator Libous maintains that a new trial must
be ordered pursuant to Rule 33.

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ARGUMENT
I.

The Government Failed To Prove Venue

As codified in Rule 18 of the Federal Rules of Criminal Procedure, the government must

prosecute an offense in a district where the offense was committed. The court must set the place
of trial within the district with due regard for the convenience of the defendant, any victim, and
the witnesses, and the prompt administration of justice. Fed. R. Crim. P. 18. The government
has the burden of proving that venue is proper. United States v. Ramirez, 420 F.3d 134, 139
(2d Cir. 2005) (citation omitted). Prosecution in a district lacking jurisdiction necessitates
dismissal of the Indictment. See United States v. Brennan, 183 F.3d 139, 149 (2d Cir. 1999).
Senator Libous first argued that the Indictment should be dismissed as part of his pre-trial
motions. Dkt. No. 20. Defendants motion was repeated at the close of the prosecutions case
(Trial Tr. 896:16-897:5) and again at the close of trial (Trial Tr. 923:6-10).
No portion of the alleged crime was committed in the Southern District of New York. It
is undisputed that the June 24, 2010 interview occurred in the Northern District of New York.
According to Special Agent Silveri, after the interview, he ha[d] a vague recollection that
more information was needed, from some of the other interviews that had been conducted, and
that very possibly more interviews would be conducted. Trial Tr. 725:9-13. Special Agent
Silveris vague recollection did not identify any specific impact that the interview had on the
investigation and is not sufficient to establish venue.
Accordingly, Defendant respectfully submits that the verdict should be overturned and
the case dismissed pursuant to Rule 29. Alternatively, Senator Libous submits that a new trial
should be held pursuant to Rule 33.

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II.

The Jurys Belief As To What Senator Libous Said During The FBI Interview Is
Based On Pure Speculation
Senator Libous was charged with making seven false statements during an interview with

FBI on June 24, 2010. Dkt. No. 2. There was no recording or transcript of the interview and
Special Agent Silveri was unable to precisely recall either the questions asked of Defendant or
Senator Libous responses. The FBIs failure to record or transcribe the interview, coupled with
Special Agent Silveris failure to recall, is reason enough to vacate the verdict. Moreover,
Special Agent Silveris testimony concerning Senator Libous statements during the interview
differs significantly from Defendants alleged statements as they were read to the jury during the
Courts charge. These differences and contradictions offer a further basis to vacate.
A.

The Lack of a Transcript Coupled with Special Agent Silveris Failure to

Precisely Recall Senator Libous Statements Necessitates Reversal

At the outset, it is important to remember the following undisputed facts: first, there is no
recording or transcript of the June 24, 2010 interview (Trial Tr. 726:5-6; 781:22-25); and second,
Special Agent Silveri admitted that he could not remember the word-for-word questions he
and Special Agent Gilmore posed to Defendant nor could he remember Senator Libous wordfor-word responses (Trial Tr. 766:3-8). Accordingly, by Special Agent Silveris own testimony,
the jurys belief as to what Defendant said on June 24, 2010, was based on pure speculation.
Senator Libous is unaware of any prosecution of Section 1001 in which the defendant
was charged with making several distinct unrecorded false statements during a voluntary
interview and the sole witness testifying to those statements was unable to precisely repeat the
accuseds words. For example, the two preeminent Second Circuit cases applying Section 1001
to oral statements dealt with testimony, which, by its very nature, meant that it was recorded or
transcribed. United States v. Mahler, 363 F.2d 673 (2d Cir. 1966) (defendant was charged with

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violating Section 1001 based on his subpoenaed testimony before Securities and Exchange
Commission investigators); United States v. McCue, 301 F.2d 452 (2d Cir. 1962) (defendants
were charged with violating Section 1001 based on voluntary testimony they provided under
oath).
As the First Circuit aptly noted, the lack of a transcript in a Section 1001 prosecution
requires the jury [to] engage in a disturbing degree of speculation. United States v. Poutre,
1980 U.S. App. LEXIS 18922, *5 (1st Cir. 1980) (although the court did not need to decide []
whether or in what circumstances the absence of a reliable transcript [would] preclude a false
statement prosecution, it noted its concern with the difficulties inherent in a such a
prosecution because [w]ithout clear proof of what exactly was said the jury must engage in a
disturbing degree of speculation). Indeed, courts within the Second Circuit have questioned
whether oral statements made during an informal interview and not transcribed should be the
basis for a Section 1001 prosecution. For example, the Southern District found it questionable
whether interview reports would form the basis of a conviction under 18 U.S.C. 1001 where
[t]he interviews in question . . . are not conducted under oath, are voluntarily acceded to, and no
verbatim transcription is made by the interviewer. United States v. International Business
Machines Corp., 415 F. Supp. 668, 672 n. 14 (S.D.N.Y. 1976). The Northern District similarly
expressly le[ft] open the question of whether oral statements made to FBI agents in an informal
setting may in some circumstances fall without the scope of the Fraud and False Statements
Act. United States v. Klepfer, 1983 U.S. Dist. LEXIS 15057, *9 (N.D.N.Y July 29, 1983). 5

Under the specific facts of that case, the Northern District was unwilling to overturn the
defendants guilty verdict for lack of a transcript because it [wa]s alleged that the defendant
himself recanted the statements which form the basis of the indictment. Klepfer, 1983 U.S.
Dist. LEXIS 15057, *9.
8

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The need for an accuseds precise wording, and the precise questions, is especially so
where, as here, the defendant raises a literal truth or Bronston defense. 6 Trial Tr. 1066:16-19;
1083:19-1084:2; 1087:12-20; see also Dkt. No. 53, p. 2.

For example in a Section 1001

prosecution based on the defendants oral statements, an Eastern District Court overturned a
guilty verdict in light of the accuseds literal truth defense. United States v. Clifford, 426 F.
Supp. 696 (E.D.N.Y. 1976). Although the Court decline[d] to adopt a rule that would mandate
dismissal of a 1001 count as a matter of law in the absence of a verbatim transcript or a written
statement, the court overturned the guilty verdict because the absence of a transcript of what
was said places [the defendant] in the . . . untenable situation . . . [of] trying to argue that his
statements were literally true. Id. at 702. The Court further reasoned that the words become
crucial in a Section 1001 prosecution, and without a transcript there was no basis, other than
pure speculation upon which a reasonable juror could determine what question was asked and
what response was given. Without knowing the question asked or answer given, a finding that a
false statement was made is unreasonable. Id. at 703; see also United States v. Ehrlichman, 379
F. Supp. 291, 292 (D.D.C. 1974) (In the instant case, defendant Ehrlichman was faced with the
difficult task of arguing that his statements to the F.B.I. were literally true on the sole basis of the
agent's sketchy notes, which do not purport to be a verbatim record of either the questions or the
answers at issue and which were not even shown to him until shortly before trial.). In failing to
record the interview, Senator Libous was deprived of the opportunity of demonstrating precisely
what he said, the truthfulness of his statements, and what he meant.

The Supreme Court in Bronston v. United States, 409 U.S. 352 (1973), overturned a
perjury conviction where the defendants statement was literally true. The Bronston defense has
since been applied to Section 1001 violations. United States v. Mandanici, 729 F.2d 914, 921
(2d Cir. 1984).
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Based on the foregoing, Defendant respectfully submits that without a transcript or

recording of the informal and FBI initiated interview, and in light of Special Agent Silveris
testimony that he could remember neither the precise questions asked of Senator Libous nor
Defendants precise responses, there is a disturbing degree of speculation, Poutre, 1980 U.S.
App. LEXIS 18922 at 5, and the verdict must be overturned. Furthermore, as discussed below,
Special Agent Silveris testimony as to each of the seven alleged false statements differs from
the statements read to the jury during the courts charge. Accordingly, the verdict should be
overturned on that basis as well.
B.

Special Agent Silveris Testimony Differed from the Statements Read to the
Jury and Necessitates Reversal

Of the seven statements read to the jury, statements three through seven were clearly
never testified to by Special Agent Silveri and therefore are insufficient to support the
conviction. These five statements will be discussed in turn.
The third alleged false statement is that Defendant was not aware that the Albany
lobbying firm had paid any part of his sons salary at the law firm. Trial Tr. 1157:3-5.
However, according to Special Agent Silveri, Defendant stated that [h]e was not aware that any
payments were being made from Ostroff Hiffa to Mangone or his son while his son was
employed there. Trial Tr. 722:7-9 (emphasis added). Thus, while the indicted statement
referred to the law firm i.e., SRM Special Agent Silveri referred to Mangone. It is
axiomatic that Mr. Mangone and SRM are two entirely different entities. Accordingly, the
record is devoid of any evidence that Senator Libous made the third alleged false statement.
The fourth alleged false statement is that Senator Libous never promised to refer work to
the law firm. Trial Tr. 1157:5. During direct examination, the prosecution questioned Special
Agent Gilmore if he ask[ed] whether the Senator made any promises in connection with the
10

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other subjects you were asking about, his sons working at the law firm? Trial Tr. 723:1-3. In
response, Special Agent Silveri stated the following:
Promises to we asked [Senator Libous] about whether or not he
was ever approached to provide business to Mangones firm in
return for his son being there, and he said absolutely not. He did
add that they may have -- they may have assumed that they were
getting business from, you know, the State of New York, but -- but
that was simply not ever gonna happen.
Trial Tr. 723:4-9. Special Agent Silveris testimony that Defendant was not approached by SRM
to provide business is a far cry from the Indictments statement that Senator Libous did not
promise to refer work.
The fifth alleged false statement is that Senator Libous was not involved in his sons
decision to work at the law firm. Trial Tr. 1157:6-7. However, Special Agent Silveri testified
during direct examination that Defendants statement was in fact that he kinda stayed out of his
sons affairs. His son was an adult and could make his own decisions. Trial Tr. 722:12-14.
Accordingly, there is a significant and major difference between Senator Libous general
statement that he kinda stayed out of his sons affairs and that Indictments specific statement
that he was not involved in his sons decision to work at the law firm.
The sixth alleged false statement is that Defendant had no business or personal
relationship with the law firm. Trial Tr. 1157:7-8. However, Special Agent Silveris testimony
is devoid of any such statement. Instead, according to Special Agent Silveri, Senator Libous
said that he had no personal or business relationship with Mr.
Mangone, but had met him or at least spoke to him on a number of
occasions when Mr. Mangone and Mr. Spano were together. Mr.
Spano and Mr. -- Senator Libous told us that he and Senator Spano
were -- were good friends, and when Mr. Mangone would come
over, that they would they would see each other and speak.

11

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Trial Tr. 720:4-10 (emphasis added). Thus, not only did Defendant refer to Mr. Mangone
instead of SRM but also Senator Libous clearly articulated an acquaintance with Mr. Mangone.
That acquaintance is supported by the record. Accordingly, not only is Defendants statement as
testified to by Agent Silveri substantially different than the version read to the jury, but it is also
true.
The final alleged false statement is that Senator Libous did not know of any relationship
between the lobbying firm and the law firm. Trial Tr. 1157:8-9. However, Special Agent
Silveri testified on direct examination that he and Special Agent Gilmore inquired into whether
he was aware of any relationship between Ostroff Hiffa and Anthony Mangone, his son, and
Senator Spano. Trial Tr. 721:21-23 (emphasis added). According to Special Agent Silveri,
Senator Libous responded that [h]e was not aware of any relationship between Ostroff Hiffa and
Anthony Mangone. Trial Tr. 721:25-722:1 (emphasis added). Thus, at no point did Senator
Libous state that he did not know of any relationship between Ostroff Hiffa and SRM. It is worth
repeating that, although the Government consistently conflates Mr. Mangone with SRM, they are
not the same entity. If the Government wished Defendant prosecuted for his alleged statements
concerning Mr. Mangone, the Indictment should have referenced Mr. Mangone and not the law
firm. 7
Thus, statements three through seven, as testified to by Special Agent Silveri, were
entirely different than the versions read to the jury and are therefore insufficient to support a
guilty verdict. As for statements one and two, cross-examination of Special Agent Silveri
7

By presenting proof of Mr. Mangone rather than the law firm and conflating the two
entities, the Government constructively amended the Indictment. See Stirone v. United States,
361 U.S. 212, 217 (1960) (reversing defendants conviction where the proof established the
transportation of steel by the Indictment charged the transportation of sand). This theory applies
to other variances between the Governments proof at trial and the statements alleged in the
Indictment.
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revealed that Senator Libous alleged false statements were uttered in the context of a discussion
regarding Senator Spano and therefore differed substantially than the versions read to the jury.
The first alleged false statement is that Senator Libous could not recall how his son
began to work at the Westchester law firm. Trial Tr. 1157:1-2. During direct examination,
Special Agent Silveri testified that he and Special Agent Gilmore asked Senator Libous how it
came to be that his son Matthew gained employment with Anthony Mangone, who, again, was a
lawyer for Senator Spano. How did that come to be? Trial Tr. 720:22-25. According to
Special Agent Silveri, Senator Libous response was that he had no recollection of how that had
happened.

Trial Tr. 721:1-2.

However, on cross examination, Special Agent Silveri

acknowledged that the question asked of Senator Libous was whether Senator Nicholas Spano
had anything to do with Defendants son getting a job. Trial Tr. 788:4-13. Senator Libous
response to that question was that he was not aware.

Trial Tr. 788:14-16.

Accordingly,

Defendants statement, as testified to by Special Agent Silveri, was uttered during questioning
regarding Senator Spano and thus not congruent with the alleged false statement as read to the
jury. If Special Agent Silveri felt that Senator Libous statements were inconsistent with the
information he received (Trial Tr. 806:2-807:10) it was incumbent upon him to pin the witness
down and seek clarity in his responses. Bronston, 409 U.S. at 362 ([T]he examiners awareness
of unresponsiveness should lead him to press another question or reframe his initial question
with greater precision.).
The second alleged false statement is that Senator Libous stated that no deals were made
to get his son the job at the law firm. Trial Tr. 1157:2-3. During direct examination, Special
Agent Silveri testified that [w]e had followed that up with if he was aware whether or not there
were any deals to get Matthew a job there, to which he was very definitive about that, that no

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deals had been made to get him a job there. Trial Tr. 721:3-6. However, on cross examination,
it was revealed that Senator Libous answer of no deals was in response to the above line of
questioning concerning Senator Spano.

Trial Tr. 788:7-21.

In other words, Defendants

statement that no deals were made was said in the context of whether Senator Spano was
involved in helping Defendants son obtain the job. Thus, the alleged false statement contained
in the Indictment and the statement to which Special Agent Silveri testified, are not the same.
Based on the foregoing, Defendant respectfully submits that Special Agent Silveri, the
only witness to testify about the June 24, 2010 interview, failed to articulate the questions asked
of Senator Libous and failed to testify with any specificity that Defendant in fact made any of the
seven alleged false statements. Accordingly, the verdict must be overturned. Alternatively,
Senator Libous requests a new trial.
III.

In Substance Was Improperly Included In The Charge To The Jury

Compounding the above errors was the Courts decision, over Defendants objection, to

allow the jurors to return a guilty verdict if they determined that any one of the alleged false
statements was expressed in substance. Trial Tr. 1156:25. The phrase in substance was not
defined to the jury and no limit was placed on the jurys potentially expansive view of that
phrase. The members of the jury were therefore free to go far beyond the seven distinct
statements included in the Indictment and find Defendant guilty on any similar statement
regardless of how remote that similarity may be.
Mr. Mangone and SRM, for example, are unquestionably two different entities, and yet
they are repeatedly treated as one by the Government. The Courts in substance language
permitted the jury members to conflate them as well. For instance, while the sixth alleged false
statement is that Senator Libous had no business or personal relationship with the law firm

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(Trial Tr. 1157:7-8) the in substance phrase permitted the jury to find Defendant guilty based
on Special Agent Silveris testimony that Senator Libous had no personal or business
relationship with Mr. Mangone. Trial Tr. 720:4-5 (emphasis added). The Government chose to
not prosecute Defendant based on any alleged false statements relating to Mr. Mangone and yet
the in substance language permitted them to do so.
This is but one example of how the in substance phrase allowed the jury to
unreasonably expand the meanings of the seven distinct statements far beyond what was
indicted. There was simply no need for this language and Defendants objection should have
sustained. The in substance language also improperly allowed the jury to find Senator Libous
guilty despite Special Agent Silveris ambiguous testimony and despite his admission that he
was unable to remember the word-for-word questions he and Special Agent Gilmore posed to
Defendant or Senator Libous word-for-word responses (Trial Tr. 766:3-8).
Accordingly, Defendant respectfully submits that this Court should order a new trial
pursuant to Rule 33.
IV.

There Was Insufficient Evidence To Establish Willfulness 8

There was no direct evidence of willfulness presented by the prosecution.

The

prosecution in summation presented no argument as to the facts supporting Defendants

willfulness, 9 highlighting the lack of willfulness evidence. Although the Court must view the
evidence in the light most favorable to the Government when considering a motion for judgment
8

Defendant also renews his Rule 29 sufficiency arguments as to all Section 1001
elements, including knowingly and materiality.
9
Instead, the Government simply repeatedly and summarily argued that Defendants
actions were willful. For example, the prosecution argued that [t]he defendant knew full well
that he was not telling the agents the truth when he made those statements. Theres no mistake
here. There's no failure of memory here. These were knowing lies. And they were willful too.
Trial Tr. 1054:4-7. Notably absent from the Governments argument were any facts from the
trial record to support that conclusion.
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of acquittal, the prosecution still bears the burden of proving a defendants guilt beyond a
reasonable doubt. Furthermore, [w]here a fact to be proved is also an element of the offense . . .
which is usually established only by interference, it is not enough that the inferences in the
governments favor are permissible. United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.
1995); see also United States v. Cassese, 290 F. Supp.2d 443, 447-48 (S.D.N.Y. 2003). The
Court must also be satisfied that the inferences are sufficiently supported to permit a rational
juror to find that an element, like all elements, is established beyond a reasonable doubt. Id.;
see, eg., United States v. DAmato, 39 F.3d 1249, 1256 (2d Cir. 1994) (a conviction based on
speculation and surmise alone cannot stand). It follows then that when the evidence, viewed in
the light most favorable to the prosecution, gives equal or nearly equal circumstantial support to
a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a
reasonable doubt. United States v. Glenn, 312 F.2d 58, 70 (2d Cir. 2002) (internal quotations
and citations omitted).
Something more is necessary to convict than proof that the act, not remembered, did in
fact occur. Indeed, the Government is obligated to prove beyond a reasonable doubt that on the
morning of June 20, 2010, Defendant not only remembered the events in question but also lied
about them. Fotie v. United States, 137 F.2d 831, 842 (8th Cir. 1943). There is simply no
evidence to support that conclusion.
Based on the foregoing, Defendant respectfully submits that verdict must be overturned.
Alternatively, Senator Libous requests a new trial.

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V.

The Jury Should Have Been Instructed With Defendants Willfulness And
Voluntary Interview Charges 10
Defendant requested the following willfulness charge be given to the jury:
The word willfully means that the defendant committed the act
voluntarily and purposely, and with knowledge that his conduct
was, in a general sense, unlawful. That is, the defendant must have
acted with a bad purpose to disobey or disregard the law. The
defendant acted willfully if he acted with knowledge that his
conduct was unlawful and with the specific intent to deceive.

Dkt. No. 53, p. 1. For similar reasons, Senator Libous also requested that the jury be instructed
that [a] defendant must be aware that making an unsworn false statement in a voluntary
interview is a violation of law. Dkt. No. 58, p. 2.
Defendants voluntary charge request was denied outright. Senator Libous willfulness
charge request was also denied and a substantially more limited instruction was read to the jury.
Specifically, the Court charged the jury as follows: [a]n act is done willfully if it is done with an
intention to do something the law forbids, that is with a bad purpose to disobey or disregard the
law. Trial Tr. 1160:5-7. For the following reasons, it was error to not instruct the jury as
Defendant requested.
At the outset, there is no evidence that Senator Libous was aware that making a false
statement to an agent of the FBI constituted a federal crime. Special Agent Silveri described the
informal interview as very conversational (Trial Tr. 801:11) and testified that neither he nor
Special Agent Gilmore informed Defendant that any false statements could be prosecuted 11

10

Defendant also renews his requests to (Dkt. Nos. 53, 58), specifically the request for
good faith which is necessary to define the element of willfulness.
11
Congress did not intend Section 1001 and the perjury statutes to have exactly the same
function. Perjury prosecutions result when the informality of the interview is removed by
administering an oath. False statement prosecutions apply to either written statements or to
situations where the maker of the false statements affirmatively approaches the Government to
obtain a benefit, such as a passport application. See Ehrlichman, 379 F. Supp. at 291-92 (cited in
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(Trial Tr. 769:22-770:3). No other witness testified as to what knowledge, if any, Defendant had
regarding the criminality of making a false statement to the FBI.
The Government recently informed the Supreme Court that it is now the view of the
United States that the willfully element of Sections 1001 and 1035 requires proof that the
defendant made a false statement with knowledge that his conduct was unlawful. Br. in Opp. at
11-12, Natale v. United States, No. 13-744 at *12 (Apr. 21, 2014). This pronouncements opens
the door to the specific intent requirement included in Defendants instruction.
The Second Circuit also declined the opportunity to close this door. United States v.
Whab, 355 F.3d 155 (2d Cir. 2004). In considering the willfulness instruction in a Section 1001
violation, the Second Circuit in Whab was afforded the opportunity to find that a specific intent
instruction unnecessary. Id. Instead, of issuing that finding, the Second Circuit merely h[e]ld
that--in the absence of binding precedent from the Supreme Court or this Court--it was not plain
error for the District Court to fail to instruct the jury that willfully under 1001 required
something more than that the defendant have been aware of the generally unlawful nature of his
conduct. 12 Id. at 162. Here, plain error is not required because Defendant requested the
specific intent instruction. Dkt. No. 53, p. 1.
Moreover, a specific intent requirement for a false or fraudulent charge is hardly novel.
For example, the Supreme Court, in Cheek v. United States, 498 U.S. 192, 201-04 (1991), found
that specific intent was necessary to violate a tax charge.

the concurring opinion of Justice Ginsberg in Brogan v. United States, 522 U.S. 398, 410-411
(1998)).
12
Prior to Whab, Justice Ginsburg, in analyzing the problematic nature of Section 1001,
similarly noted that the Second Circuit has court left open the question whether to violate
Section 1001, a person must know that it is unlawful to make such a false statement. Brogan,
522 U.S. at 416 (Ginsburg, J., concurring) (quoting United States v. Wiener, 96 F.3d 35, 40
(1996)).
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The need for this instruction was particularly important where, as here, the alleged oral
statements were made during an informal conversation that was not recorded or transcribed and
Defendant was not warned that any false statements would be prosecuted under Section 1001.
These informal circumstances of a conversation as set forth in this case do not sufficiently alert
citizens to the danger that false statements may lead to a felony conviction, necessitating an
instruction that the jury find a specific intent to violate Section 1001.
Accordingly, Defendant respectfully submits that this Court should order a new trial
pursuant to Rule 33.
VI.

Mr. Mangones Testimony Was Insufficient To Support The Verdict

As previously discussed, the Court is free to evaluate witness credibility when evaluating

the merits of a Rule 33 motion. See Sanchez, 969 F.2d at 1413. One factor to consider is the
importance of that witness testimony. For example, the Second Circuit in Autuori affirmed the
district courts decision granting a new trial because the credibility of the principal witnesses
was weak and [] the soundness of the verdict is highly doubtful. United States v. Autuori, 212
F.3d 105, 121 (2d Cir. 2000). The Second Circuit reaffirmed that finding five years later again
upholding the district courts decision to order a new trial where the sole identification witness
faced considerable credibility issues. United States v. Robinson, 430 F.3d 537, 543 (2d Cir.
2005). As discussed below, Mr. Mangone fits both criteria: his testimony was critical to the
prosecution and he is an individual with formidable credibility issues. Accordingly, Defendant
respectfully submits that his testimony alone is insufficient to support the verdict and this Court
should order a new trial.
Mr. Mangones importance to the prosecutions case cannot be overstated. Indeed, the
case rested entirely on Mr. Mangones testimony. No other witness testified as to the alleged

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deal between the law firm, the lobbying firm, Senator Libous and Defendants son. Nor did any
piece of evidence corroborate Mr. Mangones allegations concerning this deal. Although the
Government will likely point to evidence corroborating phone calls and a dinner meeting, at best
this evidence establishes only that phone calls occurred and that Mr. Mangone and Defendant
may have been in the same restaurant at the same time. However, it is incontrovertible that no
evidence or testimony corroborates Mr. Mangones allegations concerning the content of any
phone or dinner conversations.
Furthermore, if Mr. Mangone was truthful, the Government was capable of corroborating
his allegations through the testimony of several other individuals but chose not to. Mr. Fred
Hiffa, for example, was the only witness at the lobbying firm that could have testified to his
firms involvement in the alleged deal. The prosecution, however, chose to not call Mr. Hiffa
and instead questioned his partner, Mr. Richard Ostroff. Mr. Ostroff did not testify to any
knowledge of the alleged deal and admitted that he was not in a position to know what type of
work Defendants son was doing for Mr. Hiffa at the law firm. Trial Tr. 110:7-19. Notably,
when questioned by the FBI about Defendants son, Mr. Ostroff recommended that they speak to
Mr. Hiffa a suggestion he maintained at trial. Trial Tr. 110:16-23.
Nor did the Government call Mr. Michael Santangelo, a partner at the law firm.
According to Mr. Mangone, Mr. Santangelo was present at the October 2005 Trotters meeting
with Senator Libous, Senator Spano and Defendants son, at which Matthew Libous
employment was discussed.

Trial Tr. 425:14-20.

Mr. Mangone also claimed that Mr.

Santangelo accompanied him to Senator Libous fundraiser (Trial Tr. 432:10-18), the dinner at
Cite following the fundraiser (Trial Tr. 434:1-6); and the trip to Albany to meet with Senator

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Libous in January 2006 (Trial Tr. 444:22-445:6). According to Mr. Mangone, these meetings
were critical to Mr. Matthew Libous employment at the law firm.
Given Mr. Mangones daunting credibility issues, as discussed below, it is surprising that
the Government chose to not call either Mr. Hiffa or Mr. Santangelo. Indeed, in scrutinizing the
Governments failure to call these critical witnesses, the only logical conclusion is that Mr.
Mangones allegations could not be corroborated because they were untruthful.
As to Mr. Mangones credibility, he is a documented and self-professed liar with a long
history of criminal activity. Mr. Mangone admitted that he lied when testifying under oath
before a grand jury (Trial Tr. 412:13-23); when testifying under oath before a trial jury (Trial Tr.
412:13-23); and when being interviewed by the FBI (Trial Tr. 633:7-16). He admitted to filing
false tax returns that failed to document hundreds of thousands of dollars in taxable income.
Trial Tr. 638:2-639:18. He issued checks that he knew did not have funds to cover over
$150,000 in gambling losses. Trial Tr. 640:23-641:19. He also bribed, conspired and extorted.
Trial Tr. 414:19-22. In order to conceal his illegal activities and protect himself, he admitted to
attempting to influence a grand jury by instructing his client to pass on false information (Trial
Tr. 631:23-632:4); failing to report cash transactions of more than $10,000 (Trial Tr. 632:8-21);
and falsifying the law firms QuickBooks entries (Trial Tr. 637:13-638:1).
His family and friends were not exempt from his lies and criminal actions. For example,
he admitted to lying to his wife about gambling losses and the tax returns she unknowingly
signed believing they were truthful. Trial Tr. 646:23-646:8. Similarly, Mr. Mangones actions
exposed his family and friends to criminal prosecution. For example, Mr. Mangone used his
family and friends to conceal campaign contributions, an act he admitted knowingly exposed

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them to criminal liability. Trial Tr. 645:25-646:22. He also admitted that the fraudulent tax
returns his wife signed exposed her to criminal penalties. Trial Tr. 647:3-8.
Although the Government submits that Mr. Mangone must tell the truth because he is
subject to a cooperation agreement (Trial Tr. 419:22-420:24; 1043:2-9), Mr. Mangone admitted
to lying when subject to an earlier cooperation agreement (Trial Tr. 455:24-457:9).

It is

therefore clear that Mr. Mangone places little stock in cooperation agreements. In light of the
foregoing, perhaps the only reliable information to be discerned from Mr. Mangones testimony
is that he has no qualms about lying under oath, to juries, to his family, to his friends, with or
without a cooperation agreement.
Senator Libous therefore respectfully submits that Mr. Mangones testimony alone when
scrutinized with great care and viewed with special caution, as this Court instructed, (Trial Tr.
1150:21-23) was insufficient to convict and requests that this Court order a new trial pursuant to
Rule 33.
CONCLUSION
WHEREFORE, Senator Libous respectfully submits that the verdict must be overturned
pursuant to Rule 29. Alternatively, Senator Libous respectfully submits that this Court should
grant a new trial pursuant to Rule 33, together with such other and further relief that this Court
deems just and proper.

Dated: August 27, 2015

Respectfully submitted,
By:

22

/s/ Paul DerOhannesian II

Paul DerOhannesian II (PD0523)
Danielle R. Smith (DS2411)
DerOhannesian & DerOhannesian

Case 7:14-cr-00440-VB Document 64 Filed 08/27/15 Page 26 of 26

677 Broadway, Suite 707

Albany, New York 12207
(518) 465-6420
Attorneys for Defendant Thomas W. Libous

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