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Buffalo Billion was like a bad meal, prosecutors say

NEW YORK – Comparing the Buffalo Billion to a dinner gone bad, prosecutors Monday described the selection of LPCiminelli as precooked and defendant Alain Kaloyeros as a chef all too eager to serve his friends in Buffalo and Syracuse.

Over and over again, Assistant U.S. Attorney Matthew Podolsky returned to the cooking metaphor to remind the jury of the allegation that Kaloyeros and Buffalo's Louis Ciminelli conspired to steer a $750 million construction contract to Ciminelli's company.

Podolsky, in his closing statement, referred to former LPCiminelli executive Kevin Schuler and his testimony that his company was illegally set up to become the Buffalo Billion's preferred developer in Buffalo.

"He said it was a precooked process," the prosecutor said of Schuler. "It was not merit based process. It was cooked for LPCiminelli."

Portraying Schuler as an insider with intimate knowledge of the scheme, Podolsky said the jury should view his testimony as truthful. Schuler admitted his role in the conspiracy and agreed to cooperate as part of a plea deal earlier this year.

"You can convict Ciminelli and Kaloyeros on his word alone in this case," Podolsky told the jury. "They rigged the process and committed fraud, and he did it too."

The defense also spent a good part of the day talking about Schuler, the man they described as the government's star witness, a witness they believe was motivated first and foremost by a desire to testify in a fashion that pleased federal prosecutors.

During his closing, defense attorney Michael Miller speculated that Schuler pleaded guilty, not because he is guilty, but because he fears a long prison sentence and the possibility he might be separated from his wife and young children.

"I firmly believe Kevin Schuler is an innocent man," Miller said at one point Monday. "For the life of me,  I do not know why he pled guilty, and I'm not even sure he knows what crime he committed."

Miller also questioned the credibility of Todd Howe, a Washington, D.C., lobbyist who, like Schuler, admitted his role in the scheme. Howe, however, did not take the witness stand against Kaloyeros, Ciminelli and the two Syracuse developers on trial with them.

Howe, a longtime associate of Gov. Andrew Cuomo, testified at an earlier public corruption trial but was arrested and jailed when prosecutors discovered he had violated his cooperation agreement by seeking a fraudulent reduction on a hotel bill. Howe also has a previous criminal record.

"Todd Howe is a stone cold fraudster," Miller told the jury. "One of the oddest parts of this trial is that Todd Howe was here but he wasn't here."

Both the defense and prosecution spent much of their summations addressing emails the government described as smoking guns.

Prosecutors said the defendants' words provide concrete evidence of the bid-rigging scheme that stretched from Albany to Buffalo and included top advisers to the governor.

In one of those messages, Kaloyeros complained about the lack of bid requirements favorable to Ciminelli. "These are not unique to Lou's company. We need more definite specs," he said in the email.

Even more important, perhaps, both sides tried to make a case for why Kaloyeros and Ciminelli deleted those same emails. Prosecutors claimed the messages were eliminated when the two defendants learned about an FBI investigation into the Buffalo Billion.

"Ciminelli tried to delete the evidence of his crimes to prevent you from ever seeing it, but he was too late," Podolsky told the jury.

Miller countered by acknowledging the emails were flippant but suggesting they fell short of providing solid proof of a behind-the-scenes scheme to cheat taxpayers.

Kaloyeros and Ciminelli are charged with fraud and conspiracy.

Miller also asked the jury to read the bids that went out in Syracuse and Buffalo and pay close attention to the only two differences – the date and city.

"It raises questions about whether this was tailored for anyone," Miller said of the two requests for proposals.

The federal court trial resumed Monday after a Fourth of July holiday break and the revelation that prosecutors offered Kaloyeros a plea deal in recent weeks. Kaloyeros turned down the offer.

"Was it your decision not to take it?" U.S. District Judge Valerie Caproni asked him at one point last week.

"Oh, I rejected the offer," Kaloyeros answered.

Kaloyeros' decision to stay on trial and challenge the accusations against him came as defense lawyers argued with Caproni over the need to introduce evidence about the quality of work done in Buffalo and Syracuse.

Over and over, Ciminelli's defense lawyer, Paul Shechtman, insisted that the government's references to "taxpayers" during the trial suggested that someone was "ripped off" and, yet, there is no evidence to support that claim.

"When you say 'taxpayers' several times, the implication is that people were harmed, and they weren't," said Shechtman. "There was no harm to the public. It is unproven."

The defense wants the judge to remind the jury that there is no allegation that LPCiminelli and COR Development of Syracuse failed to deliver on what they promised the state.

LPCiminelli built the solar manufacturing plant in Buffalo that is now home to Tesla and Panasonic.

In the end, Caproni said she would consider the addition. Her instructions to the jury will follow closing statements.

Ciminelli and Kaloyeros, president of SUNY Polytechnic Institute at that time, are on trial with Steven Aiello and Joseph Gerardi of COR  Development.

The trial is casting a spotlight on Cuomo's Buffalo Billion, one of his signature economic development programs, and comes as the governor embarks on a re-election campaign.

The trial will resume Tuesday.

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