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Todd Howe appears at Buffalo Billion trial without actually being there

NEW YORK – Lawyers for the defendants in the Buffalo Billion trial Monday offered a short and surprising defense highlighted by the parroted testimony of a disgraced prosecution witness from an earlier Albany corruption trial.

In an apparent attempt to discredit the government's case against Buffalo developer Louis P. Ciminelli and other Buffalo Billion defendants – who are accused of bid-rigging in Buffalo and Syracuse – a defense attorney called to the stand a trial consultant named Marco Heim.

The trial consultant then played the role of Todd Howe, the star government witness in the trial earlier this year of Joseph Percoco, a former close aide to Gov. Andrew Cuomo, and a key figure in the case against Ciminelli, former SUNY Polytechnic Institute leader Alain Kaloyeros and two Syracuse development figures.

Heim read portions of Howe's testimony in that trial in which he admitted to being an accomplished felon, one who stole upwards of $1 million from his employer and failed to tell the IRS about his stolen earnings.

Prosecutors opted not to call Howe as a witness in the trial of Ciminelli and the other Buffalo Billion figures, likely because Howe was arrested again halfway through his testimony last time around.

Having already pleaded guilty to eight felony counts in Percoco's case, Howe won himself another one by trying to defraud a credit card company.

All those felonies appear to have made Howe a less-than-credible witness for the government this time around. But since his name appears in plenty of emails that the defendants in the current trial circulated when concocting what the government calls a bid-rigging scheme, defense lawyers obviously tried to discredit what he said in those emails by discrediting Howe himself.

U.S. District Court Judge Valerie Caproni let them do it.

She told the jury that she was allowing the defense to put a pretend Howe on the stand because his credibility or lack thereof "may be important to you."

The hulking Heim made for a convincing mock felon, but that was by no means the limit of his role in the defense case.

Earlier, the trial consultant took the stand to help defense lawyers walk through a timeline of the Buffalo Billion case that they assembled. The timeline appeared designed, not surprisingly, to put the defendants in the best possible light.

For example, while prosecutors say Kaloyeros conspired with Ciminelli to ensure that Ciminelli's company won the bid for the state's RiverBend development, the defense timeline included a Nov. 1, 2013, email response from Kaloyeros regarding a possible late bid on the project.

"The more the merrier," that Kaloyeros email said.

Then again, that email came on Kaloyeros' university account – not the private Gmail account he was also using to discuss the Buffalo Billion bids.

And on their cross-examination, prosecutors revealed that the defense timeline omitted Gmail exchanges that were decidedly different than the ones defense attorneys wanted the jury to see.

For example, prosecutors noted that in an email sent from his Gmail account, Kaloyeros indicated that project specifications for the RiverBend development initially weren't tailored closely enough "to Lou's company."

The emails defense lawyers failed to include also include several from Howe in which the Washington fixer – a longtime ally of Cuomo – made the Buffalo Billion development sound like an inside game.

"Family," Howe said in one email to Kaloyeros. "You don't (expletive) with family."

All that happened after Caproni allowed prosecutors to reopen their case after they prematurely rested last week without presenting all the witnesses and evidence they wanted to present.

"These are not the first prosecutors who have had an 'oops' moment," Caproni said.

Prosecutors then called two witnesses aimed at proving the trial is being held in the right place – and produced evidence aimed at backing up that argument.

Renata Lewis, a custodian of records for Verizon Wireless, testified about Verizon Wireless phone records involving the defendants that prosecutors say indicate that they conspired to commit wire fraud.

Lewis said those calls, even if they were made in New York, went to Howe, who was working in Washington, D.C., at the time, meaning those calls crossed the threshold for wire fraud in that the communication crossed state lines.

But under cross-examination from a lawyer for the two Syracuse development officials, Lewis conceded that calls that were recorded as happening in Manhattan could have been transmitted by cellphone towers in Brooklyn – meaning they could have been made outside the jurisdiction of the Second Judicial District.

Prosecutors also called to the stand Gregory Phillips, who supervises data collection for Oath Inc., the company that resulted from the merger of AOL and Yahoo. He testified that emails in the case were routed through Oath's servers in Virginia, meaning they met that out-of-state threshold for wire fraud evidence.

Michael Miller, a lawyer for Kaloyeros, and other defense attorneys, objected to Caproni's decisions allowing prosecutors to reopen their case and present new evidence.

"There is substantial prejudice here in that there is new stuff that we had no opportunity to investigate," Miller said.

Caproni said she was "not happy" about reopening the case, but that she would do so because the jury should have the chance to decide it.

Ciminelli and Kaloyeros are charged with conspiracy and wire fraud. Prosecutors say they concocted a bid-rigging scheme that ensured that Ciminelli's Buffalo construction company, LPCiminelli, would win the contract to build a solar panel manufacturing plant at RiverBend, the former Republic Steel site in South Buffalo.

That SolarCity plant is the centerpiece of Cuomo's Buffalo Billion attempt to bolster the Western New York economy. Ciminelli has been a loyal contributor to Cuomo's campaigns and hosted a fundraiser for the governor in 2013, just as plans for the SolarCity plant were being developed.

While the Buffalo Billion case involves a key state economic development figure – Kaloyeros – Cuomo has not been accused of any wrongdoing.

Two Syracuse developers, Steven Aiello and Joseph Gerardi, are also on trial. Government prosecutors accused them of engaging in conspiracy and wire fraud in connection with a similar alleged bid-rigging scheme.

The trial, currently in its third week, now will be in recess until next Monday, when prosecutors and defense attorneys will present closing arguments.

The two Syracuse defendants sat stone-faced through much of Monday's court action, but Kaloyeros ended the day with a show of confidence.

Before exiting the courtroom, he gave Ciminelli a fist bump.

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