ALBANY – Longtime Buffalo businessman Louis Ciminelli has formally filed an appeal of his conviction last year as part of the Buffalo Billion scandal that eventually resulted in the massive RiverBend solar manufacturing facility being awarded to Ciminelli’s construction firm.
Paul Shechtman, Ciminelli’s Manhattan lawyer, urged a federal appeals court to overturn the bid-rigging conviction of his client – resulting in a 28-month prison sentence – because the Buffalo businessman delivered a financially sound project with no actual monetary harm to the state.
“ 'No harm, no foul’ may not be a legal maxim, but it should govern this appeal," wrote Shechtman in an appeal filed Wednesday.
Also appealing their 2018 convictions Wednesday were Joseph Percoco, a longtime top insider to Gov. Andrew M. Cuomo, and Alain Kaloyeros, the former SUNY Polytechnic Institute president who was convicted as part of the Buffalo Billion case. Percoco is already serving prison time for his conviction on using the power of his government office to personally benefit financially, while Ciminelli and Kaloyeros were allowed to remain free during their appeals.
The men were part of schemes that showed a dark underside of Albany, which has been hit by years of corruption scandals. The appeals cases involving Ciminelli, Kaloyeros and Percoco have been joined together as one case.
“Even if the government’s theory were sound, the evidence against Mr. Ciminelli was legally insufficient," Shechtman told an appeals court in Manhattan.
Ciminelli’s firm was awarded an approximately $750 million contract by Fort Schuyler Management Corp., a nonprofit entity affiliated with the state university system through which various upstate projects were handled on behalf of the state.
Ciminelli was convicted of wire fraud and wire fraud conspiracy for his role in a case prosecutors previously said showed how big money donors in Buffalo and Syracuse were able to use connections to have mega-development projects steered their way.
Ciminelli and his family contributed more than $100,000 to Cuomo’s campaign. The governor was not accused of any wrongdoing in the cases.
Ciminelli’s firm won a bidding process to be considered the “preferred developer” for Buffalo Billion projects; a separate contract was needed, and won, by Ciminelli for the RiverBend project. But prosecutors presented evidence that bidding documents were changed after input from Ciminelli’s firm that helped the company win the development rights.
In his appeal paperwork, Shechtman argued that courts have rejected wire fraud charges when the “purported victim” – which in this case is Fort Schuyler – “received the full economic benefit of its bargain." At the trial, Shechtman said Fort Schuyler was given a sound deal by Ciminelli’s firm for the RiverBend construction.
“Despite that clear statement, the district court declined to require the government to prove that Fort Schuyler had not received the full economic benefit of its bargain. Indeed, the court went further: it refused to allow the defense to prove that Fort Schuyler had, in fact, received the benefit its bargain – i.e., that the RiverBend project was completed on time, on budget, at a reasonable price and with quality workmanship," he wrote.
Shechtman says the government’s legal theory – that Ciminelli engaged in fraud as part of a scheme that deprived Fort Schuyler of making a “fully informed economic decision” in awarding the Buffalo deal – was already rejected 25 years ago by the same appeals court in Manhattan.
Shechtman also is repeating concerns he raised at the jury trial last year that the “preferred developer” status awarded Ciminelli was only a foot in the door and that his firm still had to go through another process to be chosen as the RiverBend general contractor. Thus, the preferred developer designation could not be considered as “property” that was illegally gotten through wire fraud, he told the appeals court.
Ciminelli’s lawyer said the conviction should also be overturned because the lower court let prosecutors elicit testimony from two other executives interested in the preferred developer deal about what they would have charged to do the RiverBend project – even though they did not bid on that actual contract.
The appeal also delves into prosecution claims introduced at the trial that the original RFP was written in such a way to favor Ciminelli’s firm, including an original requirement that the winning bidder have 50 years’ of experience.
“In sum, there is not a scintilla of proof that Mr. Ciminelli tailored the Buffalo RFP to favor his company," Shechtman wrote.