ALBANY – Three former LPCiminelli executives charged in the Buffalo Billion corruption case have a constitutional right to be tried where they are accused of committing the crime – in Western New York – not lower Manhattan, their attorneys say.
A team of defense lawyers made that request of U.S. Southern District Court Judge Valerie Caproni, who is scheduled in April to set a trial schedule for several bid-rigging cases involving projects and players from across upstate.
“The transfer is in the interest of justice, for the convenience of witnesses and the parties and for judicial economy,’’ states one of the legal filings.
But the request is not based solely on convenience. The documents state that U.S. Attorney Preet Bharara should not get a Manhattan-based jury trial because none of the alleged crimes occurred in the southern district of New York.
“Accordingly, not only is Buffalo the center of gravity of conduct by the Buffalo defendants, but it is also the location of relevant documents and the center of gravity of the government’s own investigation,’’ the documents state.
The FBI field office in Buffalo was instrumental in the probe of the three former LPCiminelli executives, the defense lawyers state.
The judge's decision will determine whether Louis Ciminelli, Kevin Schuler and Michael Laipple face a brief commute from their homes in the Buffalo area to a federal courtroom in downtown Buffalo or have to travel to Manhattan each week for what lawyers have said could be a trial lasting two to three months.
Lawyers for the three sought to make clear that requiring a trial in Manhattan would be a legal stretch.
“Both the government and the Federal Bureau of Investigation have made clear that the investigation leading to the indictment was, is, and will be a Buffalo-initiated and Buffalo-investigated matter,’’ wrote Daniel C. Oliverio, a lawyer for Ciminelli, in one of the filings.
The defense lawyers argue that the defendants all live and work in the Buffalo area and that they will be calling numerous defense witnesses from Western New York, whose travel expenses will soar if the trial is held in Manhattan.
Among the witnesses the defense intends to call, the documents say, are Frank Ciminelli II, the son of Louis Ciminelli and president of LPCiminelli. They also intend to call executives with McGuire Development, the Buffalo firm chosen as the “preferred” developer for the Buffalo Billion at the same time LPCiminelli was selected to provide construction services for then-unnamed projects. LPCiminelli was later awarded the construction contract to build a plant for SolarCity at RiverBend.
Other witnesses will include companies that may have sought or been interested in the Buffalo Billion contract, the documents note.
Lawyers from Whiteman Osterman & Hanna, the Albany law and lobbying firm retained by LPCiminelli and that employed lobbyist Todd Howe, who did work at the same time for the state-created not-for-profit corporation that awarded the Buffalo Billion contract. Howe last year pleaded guilty in the case touching various upstate projects.
Defense lawyers portrayed a hardship their clients will face if tried in Manhattan. Schuler will have to “go it alone” at a Manhattan trial because his family will not be able to regularly attend. The filing states he has a mother in the Buffalo area caring for his debilitated father and that his wife, an elementary school teacher, cannot get leave from her job to attend a lengthy trial.
The documents said the “most compelling” case for moving the trial is contained in a sealed declaration by Oliverio. That document has not yet been filed.
Bharara declined comment Wednesday, according to a spokesman. The U.S. attorney’s response will be in the weeks ahead when his lawyers respond in writing to the judge.
The judge has set a hearing date in April, when she is expected to set a trial date.
Defense lawyers are seeking an expedited hearing to consider their new motion to either dismiss the case or move it to Buffalo.
Before the judge considers moving the trial to Buffalo, the defense asked her to first consider dropping the charges against Ciminelli, Schuler and Laipple. The court papers claim the case – three separate counts involving wire conspiracy, wire fraud and bribery – should be dismissed, in part, because prosecutors picked the wrong venue where the charges were brought.
The three men were charged as part of an alleged bid-rigging scandal in which prosecutors say a major Buffalo Billion contract was awarded to LPCiminelli through a conspiracy involving company officials and people connected to Fort Schuyler Management Corp., the not-for-profit tied to SUNY Polytechnic Institute in Albany formerly run by Dr. Alain Kaloyeros. He has also been charged in the Buffalo Billion and other upstate economic development projects.
In all, eight people are embroiled in the alleged pay-to-play scandal involving separate projects.
Lawyers for Ciminelli, Schuler and Laipple sought to highlight what they called legal flaws in the case against their clients. They noted one charge lumped in allegations involving a Syracuse developer into a section on “Buffalo Billion,’’ even though the Syracuse-area project overseen by Fort Schuyler was a separate process that had nothing to do with the Buffalo development.
Moreover, the lawyers claim prosecutors got it wrong in characterizing the Buffalo Billion deal as a “bidding process.’’ It was a request for proposals process, they said, “for unspecified projects in the Buffalo area’’ that could be terminated at any time by SUNY’s Fort Schulyer.
Only after “arms’ length and prolonged and heated negotiations” did LPCiminelli enter into a deal to build RiverBend, the papers state, adding that the company did not sign a “state contract” with a state agency but with Fort Schuyler, which is not a state entity. The process using Fort Schuyler was able to get around usual contracting procedures, including oversight by the state comptroller’s office.
The new court papers say LPCiminelli executives did not bribe Howe.
“They did not give him money, they did not give any entity controlled by him money, they did not give him loans and they did not give him gratuities,’’ the court filings state.
Howe worked for Washington-based WOH Government Solutions, a subsidiary of Albany’s Whiteman Osterman & Hanna. It was the Albany firm that was retained by LPCiminelli.
“Absent from the Indictment is the result of this alleged fraudulent scheme,’’ wrote Timothy Hoover, an attorney with Buffalo’s Hodgson Russ LLP and one of the lawyers for Ciminelli.
“Simply put, the contract for design-build services that LPCiminelli ultimately executed for the RiverBend project resulted in the highest quality building being constructed on an expedited schedule, on time, on budget, and on target, with significant preparation work and construction occurring during the extremely difficult 2014-2015 Buffalo winter, all with no monetary loss of any kind to Fort Schuyler, the State of New York, or to its taxpayers,’’ he wrote in a declaration to the court accompanying the motion to dismiss the case.