A federal appeals court on Wednesday upheld the convictions of Buffalo developer Louis P. Ciminelli and several other "Buffalo Billion" defendants who were found guilty of fraud and conspiracy in 2018.
But Ciminelli is probably not yet done appealing.
"I am deeply disappointed by today’s decision," Ciminelli's attorney, Paul L. Shechtman, said in an email. "We will likely ask the full Second Circuit and the Supreme Court to review the case. Lou will continue to fight to prove his innocence."
Ciminelli, who has remained free pending his appeal, will likely remain so.
"There is no surrender date," Shechtman said.
Ciminelli – along with SUNY Polytechnic Institute head Alain Kaloyeros and Syracuse businessmen Steven Aiello and Joseph Gerardi – were convicted in July 2018 of fraud and conspiracy charges in what prosecutors called a bid-rigging scheme. Joseph Percoco, formerly a top aide to then-Gov. Andrew M. Cuomo, was convicted of conspiracy and bribery in a related case in a separate trial earlier in 2018.
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All the defendants appealed, and in two separate rulings, three-judge panels of the U.S. Court of Appeals for the Second District rejected those appeals on Wednesday.
Ciminelli, Kaloyeros and the Syracuse developers contended that prosecutorial misconduct, insufficient evidence and alleged errors in the jury instructions meant their convictions should be overturned.
But Circuit Judge Denny Chin, writing for the three-judge panel that heard arguments on the appeal in March 2020, said there was no reason to overturn the convictions.
"We conclude that there was sufficient evidence to support each of defendants' convictions, the district court did not err in instructing the jury, it did not abuse its discretion in admitting the challenged evidence while precluding other evidence, and it did not err in denying Gerardi's motion to dismiss the false statement charge," Chin wrote. "Accordingly, the judgments of the district court are affirmed."
Kaloyeros' attorneys, like Ciminelli's, signaled that his client will continue to appeal.
“We are disappointed with the outcome today," the Kaloyeros lawyers, Reid Weingarten and Michael Miller, said in a statement. "We believe that Alain created enormous value for the State of New York as the leader of SUNY’s cutting edge, high-tech research and development program and committed no crimes along the way. We will continue to pursue all of Alain’s options to seek his exoneration.”
Kaloyeros has also remained free pending his appeal. His lawyers, like Ciminelli's, could appeal the three-judge panel's ruling to the full 13-judge appellate court, and eventually to the U.S. Supreme Court.
A jury convicted Ciminelli, along with Kaloyeros and the two Syracuse-area businessmen, of fraud and conspiracy in July 2018.
Prosecutors said they conspired to steer state contracts to Ciminelli’s firm, as well as to a Syracuse company, rather than allow an open-bidding process for state-backed economic development projects. The contract Ciminelli won allowed his company to build the giant RiverBend facility that now houses a Tesla plant along the Buffalo River.
Jurors sided with the prosecutors, and in the opinion he wrote for the appellate panel, so did Chin.
The judge noted the involvement of Todd Howe – identified in the other appellate court ruling Wednesday as "an influential and corrupt lobbyist" – in making the bid-rigging scheme work. Howe pleaded guilty and cooperated with prosecutors in the case.
"The trial evidence demonstrated that the defendants, by secretly tailoring the Buffalo and Syracuse RFPs (requests for proposals), took steps to reduce the possibility that companies other than their own would be seen as competitive, or even qualified at all, for the bids at issue," Chin wrote.
Kaloyeros, through Howe, kept assuring his co-conspirators "that they would be awarded the contracts while simultaneously taking steps to ensure that the bidding process appeared open and fair to the public," the judge added.
The judge in the case later sentenced Ciminelli to 28 months in prison. Kaloyeros received a sentence of 42 months. Aiello got a 36-month sentence, while Girardi was sentenced to 30 months behind bars.
Percoco, the former top Cuomo aide, was sentenced to six years in prison after his trial earlier in 2018.
Jurors found that Percoco took more than $300,000 in bribes from two companies in exchange for helping those firms land business with the state. Evidence dug up by prosecutors found that Percoco dubbed his bribe payments "ziti," just like the mobsters in the HBO drama "The Sopranos" did.
“Where the hell is the ziti???” he wrote when one bribe didn't arrive on time.
Percoco's lawyers appealed his conviction, arguing that the judge's instructions to the jury in the case were in error and that the evidence in the case was insufficient.
Writing for the three-judge appellate panel that reviewed Percoco's conviction, Circuit Judge Richard J. Sullivan wrote that the court found "no merit" in those arguments.
Percoco's attorney did not respond to a request for comment.
Unlike Ciminelli and Kaloyeros, Percoco is in prison. He is serving his sentence at a medium-security federal facility in Orange County. According to the Federal Bureau of Prisons, he will be eligible for release on April 22, 2024.