ALBANY – In April, federal prosecutors sent a warning shot – heard by Democratic and Republican insiders – identifying one of their focuses in the upcoming Buffalo Billion trial: big and timely donations by allegedly corrupt developers in Buffalo and Syracuse to Gov. Andrew M. Cuomo’s campaign.
The April 25 letter by the U.S. Attorney’s Office in Manhattan to U.S. District Court Judge Valerie Caproni gave the clear impression that prosecutors were going to blow the lid off on another pay-to-play situation involving politically wired donors getting something out of Albany.
Flip ahead to June 18, the opening of the Buffalo Billion trial in a Manhattan courtroom: Prosecutor David Zhou, in his opening statement to jurors, made zero mention about anything involving any donations to Cuomo by any of the defendants.
Earlier that morning, Paul Shechtman, the lawyer for Buffalo businessman Louis Ciminelli who is one of four defendants in the corruption trial, reminded the judge – moments before the jury filed into the courtroom – that she had reserved a final decision about evidence involving donations to Cuomo until the prosecution had laid the foundation for its case against the defendants.
Was the prosecution, he wanted to know, going to use its opening statement in the case to start rolling out details about campaign contributions to Cuomo?
“No, your honor," Zhou assured the judge on behalf of the prosecution.
And so it went, for more than two weeks. If prosecutors leave the issue out of their summation to the jury Monday – a couple of days before the jury is expected to get the case – it would not be surprising; the question of whether the donations played a role in the thinking of officials who awarded big – and allegedly rigged — contracts hung over the jury trial without being explored.
Why have prosecutors ignored the campaign donations? Why did they not try to paint an image in jurors’ minds about otherwise legal political donations, as they did earlier this year in the Buffalo Billion’s sister corruption trial that led to the guilty verdict against longtime Cuomo insider Joseph Percoco?
Prosecutors would not say. There was no response to an email to a spokesman for the U.S. Attorney’s Office in Manhattan seeking clarity on the matter. The office brought the case against Ciminelli, former SUNY Polytechnic Institute leader Alain Kaloyeros and Syracuse developers Steve Aiello and Joseph Gerardi.
There are, however, several theories. They include legal questions over relevance and the inability by prosecutors to prove Kaloyeros was aware of big donations by the developers and the prosecution’s decision not to call disgraced lobbyist Todd Howe, a longtime Cuomo confidante, to bring out evidence of his help in raising money from the developers for the governor’s campaign.
Prosecutors press to identify donations to Cuomo
Federal prosecutors were hungry to bring out the campaign donations during the trial before Caproni, who also was the judge in the bribery case trial earlier this year of Percoco and others, including the same two Syracuse developers facing trial in the trial underway known by its formal name of U.S. v. Kaloyeros et al.
In the April letter to the judge, prosecutors said the government “expects to prove” that donations by Ciminelli and the Syracuse developers “were critical parts of their relationships with both co-conspirators and the Office of the Governor." Donations made by the Syracuse developers, prosecutors wrote, were intended to bolster ties with Cuomo’s office and “lead to benefits and opportunities” for their company called COR Development.
The prosecution added that donations to Cuomo from Ciminelli and his family totaled more than $100,000 from 2009 to the start of 2014, including donations when an arm of the State University of New York was considering a bid by Ciminelli’s company to become the “preferred developer” of Cuomo’s Buffalo Billion program. That deal, which LPCiminelli later won in 2014, would go on to include a $750 million, taxpayer-financed project to build a solar plant at RiverBend in Buffalo.
Further, prosecutors noted, Ciminelli hosted a fundraiser at his home for Cuomo – with the governor in attendance – that netted Cuomo’s campaign $250,000; the November 2013 fundraiser was held just after the SUNY entity issued a request for proposal for the Buffalo Billion project and, prosecutors say, LPCiminelli was given an opportunity to help shape that RFP document.
“Like those made by the Syracuse defendants, Ciminelli’s contributions caught the eye of senior officials in the governor’s office," prosecutors wrote in April.
A key June 6 hearing
The prosecution’s eagerness to raise the contributions’ issue was evident a couple weeks before the trial. But a key question would be raised by the judge during the final pre-trial conference.
A document known as the “trial indictment,” which was filed by prosecutors, said large publicly funded contracts were illegally won by Ciminelli and the Syracuse developers after “each made sizable contributions to the governor’s re-election campaign.’’
On June 6, lawyers and the judge kicked off a hearing by wrestling over answers given by prospective Buffalo Billion jurors to a written questionnaire used to help qualify them to serve on the trial. It soon became clear that many jurors, though, had issues about how money is raised by politicians.
Many raised opinions about the connection between campaign donations and actions by politicians. One would-be juror wrote that contributions can be made to “gain favor” by people with business before the government. “I would assume that a contribution comes with some strings attached," wrote another juror, according to a transcript of the hearing.
Defense lawyers, later on the same day, raised their concerns about campaign contributions becoming the subject of evidence and testimony during the trial. Reid Weingarten, one of the lawyers for Kaloyeros, said the issue “runs the risk of making this trial a pay-to-play trial," which he called “really dangerous," because he estimated 99 percent of people surveyed on the street “would say it’s dreadful and criminal."
“There is nothing wrong with campaign contributions. It runs the risk of completely overwhelming this trial,’’ Weingarten told the judge. He added: “So what’s the remedy? Obviously our preferred remedy – keep the campaign contributions out and make it a bid-rigging case – and see if they can prove it."
Zhou, one of the prosecution lawyers, said the government never alleged campaign donations to Cuomo were part of any illegal quid pro quo deal in the Buffalo Billion case. Cuomo has not been accused of any wrongdoing in the matter.
But, Zhou told the judge, the donations demonstrate the developers’ “view on the importance of state action’’ regarding the development deals.
Caproni, the judge, questioned the relevance of that notion to the trial. “Their motivation to participate in the bid rigging scheme was the fee that they got off the contract. And the publicity and the stake that it gave them in the community. It’s why they’re in the business. They’re in business to build things and even better to build things if you don’t have to compete to get the contract," she said, according to a transcript of the hearing.
Then the judge asked a key question: Could prosecutors “close the link” proving that Kaloyeros, a key force in the awarding of the Buffalo Billion and Syracuse deals, knew about the contributions to Cuomo?
“Your honor, we think so," responded Matthew Podolsky, one of the prosecutors.
“I’ll hold it in abeyance," the judge said, meaning she would hold off ruling whether the contribution evidence would be admissible. “Re-raise the issue before you try to introduce the contribution.’’
Silence on contributions
No such linkage would be made during the trial by prosecutors, suggesting the government was not able to “close the link” as the judge demanded.
In fact, on July 2, the indictment itself was altered to remove references about donations. In a conference with other lawyers after the jury had left, Shechtman complained to the judge that the trial indictment included the wording about campaign donations. Stephen Coffey, a lawyer for Aiello, the Syracuse developer, openly differed – at first – with Shechtman’s bid to get the indictment amended to drop the campaign donation reference.
Coffey offered an interesting plan he was considering. "The government has charged in their indictment that campaign contributions were a central part of what happened. They haven’t proved it. And I would like to be able to sum up on the idea of showing the jury the indictment and talk about the campaign contribution the government said was part of this," Coffey told the judge.
The judge urged defense lawyers to reach a consensus on the indictment’s wording. After a break, Shechtman said the four defense teams agreed that they wanted the government’s indictment redacted of any wording related to campaign donations.
“That will be done," Caproni ordered – after prosecutors earlier said they had no objection to the wording being deleted.
For Cuomo, the lack of references to jurors during the high-profile trial about donations to his campaign presented a political gift at a time when he is facing both primary and general election challengers this year as he seeks a third term in office.
Steven Cohen, a Manhattan lawyer who for years served in top posts when Cuomo was New York State attorney general and as governor, including secretary to the governor, noted the different scenarios that played out by prosecutors before versus during the trial.
“The evidence that they intended to present at the time the case was indicted has changed by a matter of significant degrees by the time they got to trial," Cohen said in an interview when asked about the prosecution's not raising the campaign contributions issue.
“And what you’re seeing now is the consequence of that reality playing out in the courtroom," Cohen added.