The three local construction executives indicted in the Buffalo Billion bribery and bid-rigging case are seeking to have the charges dismissed, or – if that fails – at least to be tried separately from the other defendants in the indictment.
The federal indictment described four different conspiracies around the state, including in Buffalo, with eight defendants. In motions filed Friday night, attorneys for most of the defendants said they want separate trials for their clients to avoid the chance of unrelated evidence against one or two defendants tainting the others' cases.
Attorneys for the three local defendants – Louis P. Ciminelli, Michael W. Laipple and Kevin C. Schuler, all former top executives of the LPCiminelli construction company – previously had asked the judge handling the case in New York City to move their portion of the case to Buffalo.
Ciminelli's attorney, Daniel C. Oliverio, made it clear Saturday that even if U.S. District Judge Valerie E. Caproni keeps the case in Manhattan, he still wants a separate trial on the Buffalo Billion portion of the indictment.
"It's totally and absolutely unrelated to any of the charges against any of the other defendants," Oliverio said.
Federal prosecutors have not had a chance to respond to the new motions.
In March, Caproni gave the prosecution an indefinite delay in replying to the three local defendants' requests to have their trial moved to Buffalo.
The three LPCiminelli defendants asked for the move for the sake of convenience, since they and most of the witnesses likely to be called live in the Buffalo Niagara region.
The indictment was returned by a federal grand jury in New York City, which heard evidence presented by the staff of Preet Bharara, former U.S. attorney for the Southern District of New York. He was fired by President Trump on March 10.
Ciminelli, Laipple and Schuler have pleaded not guilty to wire fraud, conspiracy to commit wire fraud and paying bribes.
The indictment, which underwent some revisions in a new version filed May 11, accuses the three men of engaging in a pay-to-play scheme that won LPCiminelli a $750 million contract for the construction of the Solar City plant in South Buffalo.
That project, a key part of Gov. Andrew M. Cuomo's Buffalo Billion economic development package, was overseen by a not-for-profit State University of New York entity called Fort Schuyler Management Corp., which awarded the contract.
Todd Howe, a lobbyist and former staffer for Cuomo and his father, the late Gov. Mario M. Cuomo, was working as a consultant to SUNY Polytechnic Institute, whose job was to create public-private development partnerships.
The indictment alleges Howe took the bribes and worked with then-SUNY Polytechnic chief Alain Kaloyeros, who also was indicted, to rig the bids on the solar panel plant in LPCiminelli's favor, after the Buffalo company made contributions to the Cuomo campaign.
Oliverio said the indictment should be dismissed because it doesn't include enough detail about the elements of the alleged crimes.
"Ciminelli never paid Howe a dime," Oliverio contended. "There's no bribe that's detailed in the indictment."
The indictment also presents charges unrelated to the Buffalo Billion, including bribes allegedly paid by Syracuse business executives to Joseph Percoco, who once served as Cuomo's executive deputy secretary and was the manager of Cuomo's 2014 re-election campaign. The indictment called him Cuomo's "right-hand man."
Both of the Syracuse companies involved in the case used Howe as a consultant. Howe, whom defense attorneys called the only connection among the four alleged conspiracies, has pleaded guilty to eight charges and is poised to be the government's star witness in the yet-to-be-scheduled trial – or trials, if the defense has its way.
Friday, attorneys for Percoco said he's not charged with anything in connection with the Buffalo Billion or a Syracuse bid-rigging scheme, and they wanted him tried separately from the defendants in those matters.
Lawyers for Peter G. Kelly Jr., former senior vice president of a Syracuse energy company, sought a separate trial for him on the charges that he bribed Percoco by having the energy company hire Percoco's wife, a teacher, for an educational consulting job, and by providing Percoco with a fishing trip and a meal.
The documents backing up the dismissal motions contended that the federal bribery law under which the men are charged was in effect declared unconstitutional by the U.S. Supreme Court last year when it overturned the bribery conviction of former Virginia Gov. Bob McDonnell.
Also, attorneys for Percoco said in their filings that some of the crimes of which he is accused allegedly occurred during a time when Percoco wasn't working for the state.
Percoco resigned from Cuomo's office in April 2014 to take charge of the governor's re-election campaign, and returned to the state payroll in December 2014. His lawyers say Percoco can't be prosecuted for taking bribes to obtain government action when he wasn't a government employee.
Percoco's attorneys also demanded that the prosecution tell them the names of state officials whom Percoco is supposed to have pressured on behalf of the business needs of the Syracuse companies, instead of keeping them confidential.