ALBANY — Indictments against six defendants in the Buffalo Billion case have been amended, for the second time, after defense lawyers sought to get the corruption case dismissed.
The previously amended indictment against the six individuals is being changed “to provide further clarification of the government’s theory in its case,’’ Acting U.S. Attorney Joon Kim wrote the federal judge handling the case in Manhattan.
The changes appear relatively minor on the surface.
But they come after defense lawyers last month asked a federal judge to toss the charges citing a federal judge's overturning a fraud conviction in an unrelated matter involving a construction project at the World Trade Center.
“With respect to my client, Mr. (Louis) Ciminelli, and the other LPCiminelli clients, we believe it doesn’t change anything with our motions to dismiss and we intend to go forward with them,’’ Daniel C. Oliverio, a Buffalo lawyer, said of the amended indictment.
“Again, the government changes course in a never-ending search for a viable theory to support their claims against the Buffalo Billion defendants when there simply has been no crime,’’ added Terrence Connors, a Buffalo lawyer who is representing Kevin Schuler.
The amended indictment makes clear that the government is targeting LPCiminelli executives attempts to influence the awarding of a request for proposal that prosecutors say paved the way for it to win the contract to build the Tesla factory in Buffalo.
Prosecutors have charged former LPCiminelli’s executives Ciminelli, Schuler, Michael W. Laipple, along with former SUNY Polytechnic Institute President Alain Kaloyeros, in an alleged bid-rigging and bribery scheme to steer the deal to the Buffalo company.
The new amendments state that the four men engaged in a scheme to defraud Fort Schuyler Management Corp., the private entity created by SUNY to oversee big economic development projects in Buffalo and elsewhere, “of its rights to control its assets and thereby exposed Fort Schuyler to risk of economic harm.’’
The newly filed indictment also separates what had been a single count against two Syracuse developers – Joseph Gerardo and Steven Aiello of Cor Development – into four counts of lying to FBI agents and prosecutors during interviews in June 2016. Two of the counts involve allegedly false answers about payments they steered to Joseph Percoco, a longtime friend and advisor of Gov. Andrew M. Cuomo; Percoco was charged as part of the original Buffalo Billion case for his acts involving the developers of a downstate power plant.
In August, Judge Loretta A. Preska overturned a jury conviction of a Canadian steel executive accused of defrauding a program intended to help women and minorities get work in the reconstruction of the World Trade Center complex in Lower Manhattan owned. The judge said the evidence “was not sufficient for a rational jury to find that the alleged misrepresentations went to an essential element of the contract or that they exposed the Port Authority to potential or actual economic harm," Preska wrote.
That decision led Buffalo Billion defense lawyers to say that the RFP process – which prosecutors have zeroed in on – was not binding on the actual contract that led to the awarding of the RiverBend solar plant for Tesla. Further, they say the work on the Buffalo plant was performed so that there was no economic harm to Fort Schuyler.
A spokesman for Kim, the acting U.S. Attorney for the Southern District, declined comment.
Kim took over for Preet Bharara, who was fired in March by President Trump after he asked Bharara last fall to stay on in his job as the chief federal prosecutor in the Southern District.