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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA - v. WILLIAM BOYLAND Jr., Defendant. : : : : S1 11 Cr. 300 (JSR)

- - - - - - - - - - - - - - - - - -X

THE UNITED STATES OF AMERICAS MOTIONS IN LIMINE

PREET BHARARA United States Attorney Southern District of New York Attorney for the United States of America

GLEN G. McGORTY WILLIAM J. HARRINGTON Assistant United States Attorneys - Of Counsel -

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TABLE OF CONTENTS PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1 BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. B. William Boyland Jr.s No-Show Consultancy.. . . . . . 3 Anthony Seminerios No-Show Consultancy.. . . . . . 10 12

MOTIONS IN LIMINE.. . . . . . . . . . . . . . . . . . . . . . I. Evidence of David Rosens Corrupt Relationship with Anthony Seminerio Should Be Admitted at William Boyland Jr.s Trial... . . . . . . . . . . . . . A. The Seminerio Evidence and the Events Surrounding his Arrest and Prosecution are Necessary to Understand Boyland Jr.s False Exculpatory Statements to the FBI ... . . . . . . . The Seminerio Evidence is Direct Evidence of the Charged Conspiracies Between Rosen and Boyland Jr... . . . . . . . . . . . . . . . . . . . The Seminerio Evidence is Admissible Pursuant to Rule 404(b) to Show Rosens Motive, Intent and Plan... . . . . . . . . . . . . . . . . . . . .

12

12

B.

16

C.

19

II.

Evidence of Boyland Jr.s Fraudulent and False Per Diem Submissions Should Be Admitted Pursuant to Rule 404(b) of the Federal Rules of Evidence . . . . . .

23 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE OF AUTHORITIES

CASES Henry v. Poole, 409 F.3d 48 (2d Cir. 2005).. . . . . . . . . . . . . . . United States v. Aleskerova, 300 F.3d 286 (2d Cir. 2002). . . . . . . . . . . . . . . United States v. Carboni, 204 F.3d 39 (2d Cir. 2000) . . . . . . . . . . . . . . . United States v. Caputo, 808 F.2d 963 (2d Cir. 1987) .. . . . . . . . . . . . . . United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980). . . . . . . . . . . . . . . United States v. Glenn, 312 F.3d 58 (2d Cir. 2002).. . . . . . . . . . . . . . . United States v. Gonzalez-Sanchez, 825 F.2d 572 (1st Cir. 1987) . . . . . . . . . . . . . . United States v. Gordon, 987 F.2d 902 (2d Cir. 1993). . . . . . . . . . . . . . . United States v. Jaswal, 47 F.3d 539 (2d Cir. 1995).. . . . . . . . . . . . . . . United States v. Lasanta, 978 F.2d 1300 (1992).. . . . . . . . . . . . . . . . . . United States v. McCourt, 925 F.2d 1229 (9th Cir. 1991). United States v. Morano, 697 F.2d 923 (11th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . .

14 14 17 24 22 14 22 14 21 21 21 22 14

United States v. Ogando, 547 F.2d 102 (2d cir. 2008). . . . . . . . . . . . . . . United States v. Parness, 503 F.2d 430 (2d Cir. 1974). . . . . . . . . . . . .

14, 15

ii

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United States v. Paulino, 445 F.3d 211 (2d Cir. 2006). . . . . . . . . . . . . . . United States v. Ramirez, 894 F.2d 565 (2d Cir. 1990). . . . . . . . . . . . . . . United States v. Rubin, 37 F.3d 49 (2d Cir. 1994). . . . . . . . . . . . . . . . United States v. Williams, 205 F.3d 23 (2d Cir. 2000).. . . . . . . . . . . . . . . United States v. Zackson, 12 F.3d 1178 (2d Cir. 1993). . . . . . . . . . . . . . . STATUTES AND OTHER AUTHORITIES

22 21 15 17 20

18 U.S.C. 371. . . . . . . . . . . . . . . . . . . . . . 1 18 U.S.C. 1349.. . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Evid. 401. . . . . . . . . . . . . . . . . . . . Fed. R. Evid. 402. . . . . . . . . . . . . . . . . . . . Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . Fed. R. Evid. 404(a) . . . . . . . . . . . . . . . . . . 22 22 20 21

Fed. R. Evid. 404(b).. . . . . . . . . . . . . 19, 20-22, 24

iii

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PRELIMINARY STATEMENT The Government respectfully moves in limine to seek rulings concerning certain evidence that the Government intends to offer at trial of New York State Assemblyman William Boyland Jr. scheduled to begin on November 1, 2011. Boyland Jr. is

charged with conspiring with hospital executive David Rosen (1) to commit honest services fraud, in violation of Title 18, United States Code, Section 1349; and (2) to commit bribery and violate the Travel Act, in violation of Title 18, United States Code, Section 371. These charges arise from the no-show consultancy

established by Rosen for Boyland Jr. through which Rosen paid Boyland Jr. bribes from 2003 through at least 2008 in exchange for official acts as opportunities arose. First, the Government seeks to offer limited evidence of the corrupt relationship between David Rosen and New York State Assemblyman Anthony Seminerio during its case-in-chief. Seminerio, like Boyland Jr., was on Rosens payroll as a consultant, receiving bribery payments in exchange for official acts. The Seminerio evidence, including the fact of his arrest

and prosecution, is necessary to provide context for the false exculpatory statements made by Boyland Jr. when interviewed by the Federal Bureau of Investigation (the FBI), which the Government will offer at trial. Furthermore, the Government

expects to elicit evidence that Seminerio was bribed by Rosen to assist on matters involving New York State budgets and

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expenditures as well as Rosens efforts to acquire the Caritas Hospitals the very same official assistance provided by Boyland Jr. This evidence is admissible as direct proof of the charged

conspiracy against Boyland Jr. because it establishes Rosens strong interest in the same official acts during the same time period. In short, the evidence of Rosens payments to both

Seminerio and Boyland Jr. at the same time and on the same issues is inextricably intertwined as part of a single story of how Rosen utilized corrupt public officials in the New York State legislature to further his interests. The evidence is also

admissible pursuant to Rule 404(b) of the Federal Rules of Evidence because it proves Rosens motive, intent, and plan. The

Government must establish that Rosen joined the conspiracy with Boyland Jr., a fact that the Government fully expects the defendant to dispute at trial. Second, the Government seeks to offer evidence related to Boyland Jr.s false and fraudulent submissions to the New York State Assembly for per diem and travel reimbursements while serving as a State Assemblyman, pursuant to Rule 404(b). Government respectfully submits this evidence which demonstrates an effort by Boyland Jr. to obtain monies which he had not earned and to which he was not entitled are directly relevant to rebut any claim that Boyland Jr. lacked criminal intent with respect to his no-show consultancy at Brookdale University Hospital and Medical Center and the Urban Strategies 2 The

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Family Care Clinic, as well as any claim of mistake or lack of intent regarding his fraudulent submissions about his consultancy to the New York State Legislative Ethics Committee. For the reasons set forth below, these two categories of evidence should be admitted at trial. BACKGROUND On April 7, 2011, Superseding Indictment S1 11 Cr. 300 (JSR) (the Indictment) was returned by a federal grand jury, charging eight defendants, including Boyland Jr. and Rosen, with a variety of overlapping counts related to the bribery of several New York State public officials. The Court granted both Rosens

and Boyland Jr.s severance motions, both with the Governments consent. As relevant to the upcoming trial of Boyland Jr., Count

Eight of the Indictment charges Boyland Jr. and Rosen with conspiring to commit honest services fraud from in or about 2003 through in or about 2008. Count Nine charges Rosen and Boyland

Jr. with conspiring to commit bribery and violate the Travel Act from in or about 2003 through in or about 2008. These charges

arise from the no-show consultancy job established by Rosen to benefit Boyland Jr. from 2003 through at least 2008. A. William Boyland Jr.s No-Show Consultancy

At all times relevant to this case, Rosen was the Chief Executive Officer of the MediSys Health Network (MediSys), which includes Jamaica Hospital Medical Center (Jamaica Hospital or Jamaica), Flushing Hospital, and Brookdale 3

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University Hospital and Medical Center (Brookdale Hospital or Brookdale). Rosen Trial Tr. at 42-43.1 In the late 1990s,

Boyland Jr. whose father, William Boyland, Sr. was a long-serving Assemblyman in the State Legislature began working full-time as a marketing associate for Brookdale Hospital in one its ambulatory care clinics, Urban Strategies. Id. at 651.

This position was prior to the takeover of Brookdale and its entities in or about 2000, by Rosen and MediSys. Id. As a

marketing associate, Boyland Jr. worked on community outreach for Urban Strategies, which entailed attending community events (such as health fairs) and visiting community organizations (such as churches and schools), in an effort to recruit patients for the clinic. Id. at 652. By all accounts, Boyland Jr. was a less

than satisfactory employee, and he frequently did not show up for work. See id. at 656-58. Nonetheless, by 2003, he was earning In February 2003,

$35,000 a year.

See id. at 1590, 1768.

several years after MediSys acquisition of Brookdale, Boyland Jr. was elected to the State Assembly seat that had previously been held by his father. Id. at 661. After his election, even

though he continued to collect a full salary from Urban Strategies, he pretty much stopped coming to work. Id. Instead of
1

Citations herein to Rosen Trial Tr. and Rosen Trial Gov. Ex. are references to the trial transcript pages and admitted Government Exhibits in the trial of United States v. David Rosen, S1 11 Cr. 300 (JSR), which began before Your Honor on July 25, 2011. Most of the facts referenced in this background section were found by the Court in its Findings of Fact and Conclusions of Law filed on September 12, 2011. 4

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firing Boyland Jr., Rosen, who had agreed to bribe Seminerio since 1999 by giving him a consulting job, requested in June 2003 the assistance of by-now-Assemblyman Boyland Jr. in lobbying a State Department of Health official with respect to MediSys application for the requisite State approval for MediSys planned establishment of new diagnostic and treatment center. Rosen Trial Gov. Ex. 2300. Boyland Jr., for his part, had become

increasingly resistant to demands by supervisors at Brookdale that he at least had to punch in at Urban Strategies if he wanted to continue to receive his salary. By the fall of 2003,

Rosen addressed this issue by directing Mounir Doss, MediSys Chief Financial Officer, to get [Boyland Jr.] off the payroll . . . so he doesnt have to punch in and pay him the same money as a consultant. Rosen Trial Gov. Ex. 2100B. In that same e-

mail, Rosen indicated that he would develop a consulting agreement, id., but no written consulting contract between MediSys and any of its entities and Boyland Jr. was ever created. See Rosen Trial Gov. Ex. 101. By April 2004, MediSys was paying

Boyland Jr. the same salary as a consultant that he had previously been receiving as a full-time employee, i.e., $35,000 a year. Rosen Trial Tr. at 743-44. He also received full

payment for the interim period between November 2004 and April 2004, even though he was essentially a no-show employee during this period and no formal consulting agreement was in place. Id.

Over the next few years, Boyland Jr. received in excess 5

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of $175,000 in consulting payments from MediSys, ostensibly to perform community outreach and recruitment services for Urban Strategies. See Rosen Trial Gov. Ex. 2105. In truth, however,

Boyland Jr. did not perform any material community outreach or recruitment services for Urban Strategies during this entire period. See Rosen Tr. Gov. Exs. 2200-2203 (lists created by

Phoebe Lane, Brookdales Director of Community and Government Affairs, cataloguing Brookdales community outreach activities). Indeed, among the community and outreach staff at MediSys, not a single person was even aware that Boyland Jr. was supposedly consulting on such matters. See Rosen Trial Tr. at 637, 661-62, Instead, the

696-97, 822-23; see Rosen Tr. Gov. Ex. 2103.

relevant MediSys staff believed that, from at least November 2003, Boyland Jr. was no longer affiliated with MediSys in any way, either as an employee or as a consultant. Trial Tr. at 661-62. Instead, Boyland Jr. earned his fees by assisting MediSys through official acts taken in his capacity as an Assemblyman. Most notably, during the State budgeting process, See, e.g., Rosen

Boyland Jr. made repeated requests for State funding to directly benefit MediSys and its hospitals. For instance, on February 6,

2004, Boyland Jr. sent a letter to Speaker Silver requesting the allocation of three million dollars to Brookdale Hospital for the purpose of help[ing] this Institution provide quality health care. Rosen Trial Gov. Ex. 2303. 6 As another example, on

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February 12, 2004, Boyland Jr. sent a letter to Silver seeking restoration of a Medicare budget cut, which would benefit hospitals such as Brookdale. See Rosen Trial Gov. Ex. 2304. On

February 28, 2007, Boyland Jr. made a funding request of $3 million for Jamaica. Rosen Trial Gov. Ex. 2305. Some of these

funding letters arose from specific requests by Rosen to Boyland Jr., and some were even drafted at least in part by Rosen himself with Boyland Jr.s Assembly Office on at least one occasion calling Rosen to ask him to send the necessary letter requesting $750,000 for patient billing at Jamaica, $1.5 m. for equipment and [Emergency Department] renovation at Brookdale, as well as an unidentified amount for Flushing. Rosen

Trial Gov. Ex. 2315. None of those facilities were in Boyland Jr.s Assembly District, with Jamaica and Flushing being miles away. See Rosen Trial Gov. Ex. 25. To further the object of

directing State funds to MediSys, Boyland Jr. also coordinated meetings between himself, Rosen, and other State legislators, including Seminerio, to discuss the State budget. Trial Gov. Ex. 2317, 2321, 2321A. See Rosen

Separately, during this

period, Rosen sought and received Boyland Jr.s assistance with respect to MediSys effort to acquire the Caritas Hospitals. Rosen Trial Gov. Ex. 2306. For instance, in May 2005, Boyland See

Jr. in his capacity as an Assemblyman but at Rosens urgent request met with representatives of Local 1199, the healthcare workers union, in an effort to gauge its support for the MediSys 7

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acquisition.

Id.

After the meeting, Boyland Jr. reported back

to Rosen and MediSys COO Bruce Flanz the results of his meeting with the union. Rosen Trial Tr. at 928-29.

On an annual basis, Boyland Jr. submitted financial disclosure forms to the New York State Legislative Ethics Committee detailing any income earned outside the legislature. See Rosen Trial Gov. Exs. 420-427. In these financial disclosure

forms, Boyland Jr. made numerous false statements regarding his consultancy including references to where his office was located and what tasks he performed for Brookdale Hospital. See id. In

addition, on every annual form, Boyland Jr. failed to claim any salary earned from his consultancy, or that his employer, Brookdale Hospital, was licensed by any state or local agency, was regulated by any state regulatory agency or local agency, or, as a regular and significant part of the business or activity of said entity, did business with, or had matters other than ministerial matters before, any state or local agency. Id. In

many instances, Boyland Jr. wrote N/A in response to this question, and in others, left it blank entirely. See id.

Finally, when the Legislative Ethics Committee advised Boyland Jr. that his disclosure forms from 2002 through 2008 needed to be amended to reflect, inter alia, his income from Brookdale Hospital, Boyland Jr. filed amended forms which falsely indicated that his income from Brookdale as between $5,000 and $20,000, rather than the $35,000 he in fact received. 8 See Rosen Trial

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Gov. Ex. 421A-426A; Rosen Trial Tr. 743-44, 1590, and 1768.

All

of these lies served to disguise the true nature of this criminal relationship. Rosen also made false statements about Boyland Jr.s consultancy with MediSys. In both a Vendex form submitted to the

City in 2004, and in a Vendor Questionnaire Report submitted to the State in 2006, Rosen failed to disclose that Boyland Jr. was being paid by MediSys. See Rosen Trial Gov. Exs. 53, 64. In

2007, Rosen, whether because he had become aware of Boyland Jr.s disclosures to the Legislative Ethics Committee or otherwise, finally did disclose in a Vendex form that MediSys was paying Boyland Jr. as a consultant. See Rosen Trial Gov. Ex. 56.

However, even in that disclosure, Rosen, to hide his previous failure to disclose, misrepresented to the City that the consultancy began in January 29, 2006, rather than November 2003, or at the latest, April 2004. See id.; see also Rosen Trial Tr. at 601-02. A few weeks before the filing of the 2007 Vendex, an

unidentified person directed the payroll department to falsify MediSys personnel records to make it look like Boyland Jr. became a MediSys consultant in 2006, after Tracy Boyland, Boyland Jr.s sister, left her position on the City Council. Tr. at 544-45. Rosen Trial

Tracy Boyland had previously secured large See Rosen Trial

quantities of city funds for Brookdale Hospital. Gov. Ex. 2003, 2400.

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B.

Anthony Seminerios No-Show Consultancy

The evidence at the Rosen trial revealed that his relationship with William Boyland Jr. was not the first time Rosen hired a sitting legislator on the payroll in exchange for that legislators official assistance.2 In the late 1990s, after

years of assisting Rosen and Jamaica Hospital, New York State Assemblyman Anthony Seminerio asked Rosen to hire him as a consultant, but this was simply a cover for Rosens payment of Seminerio bribes in exchange for official acts as opportunities arose. Rosen directed MediSys to hire Seminerio as a

consultant to Jamaica Hospital Medical Center, see Rosen Trial Gov. Ex. 1102. Rosen directed these financial benefits to Seminerio so that Seminerio, in his official capacity as an Assemblyman, would continue taking action favorable to Rosen and MediSys. Seminerio

was not in fact being paid to consult on any non-New York State business, in truth and in fact, and as Rosen well knew, the only meaningful assistance that Seminerio provided as a consultant was assistance Seminerio provided in his capacity as an Assemblyman by, among other things, holding himself out to third parties as acting in his official capacity for the benefit of MediSys, sponsoring legislation to benefit MediSys and directing state money to MediSys, and lobbying State officials on behalf of The Government sets forth this fuller narrative here in support of its motion. At trial, the Government will only seek to offer a small subset of this evidence, as discussed below. 10
2

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MediSys, for example, lobbying State officials to allow MediSys to take over the Caritas Hospitals located in Queens. See, e.g.,

Rosen Trial at 237, 309-311, 914-17, 943-45, 948-50, 951-52, 1555, 1604, 1618; Rosen Trial Gov. Ex. 1120, 1222, 1225B, 1245A, 1246A, 1248, 1306R, 1305R, 1307R, 1309R, 1320R, 2501. The link

between the payments and official action was demonstrated most tellingly in conversations or communications in which Seminerio and Rosen discussed Seminerios assistance to MediSys on State matters and then, in the very same conversations or communications, discussed making payments to Seminerio. Additionally, the salaried MediSys employees responsible for the sort of work Seminerio was purportedly paid to perform as a consultant were unaware that Seminerio was, in fact, being paid to consult in connection with such work. 267. Thus, the evidence for the better part of a decade, David Rosen employed two New York State legislators, William Boyland Jr. and Anthony Seminerio, on his payroll, not for legitimate consulting work, but rather to perform official acts to benefit Rosen and MediSys, as opportunities arose. See id. at 251, 264,

11

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MOTIONS IN LIMINE The Government respectfully moves in limine to seek rulings concerning certain evidence that the Government intends to offer at trial. I. Evidence of David Rosens Corrupt Relationship with Anthony Seminerio Should Be Admitted at William Boyland Jr.s Trial. As described above, Anthony Seminerio was involved in a long-standing bribery conspiracy with David Rosen, which ended in the wake of Seminerios arrest on September 10, 2008, his prosecution in this District, and his guilty plea and conviction on March 26, 2009. From 1999 through 2008, Rosen bribed

Seminerio in the form of phony consultant fees in exchange for his official actions on a variety of issues, including the acquisition of necessary state funds and financial relief from the state legislature, and lobbying of other state officials in connection with a MediSys attempt to take over the Caritas Hospitals. These are the same specific issues for which Rosen

paid phony consultant fees in exchange for Boyland Jr.s assistance during the same time period. The Government submits

that, for the reasons below, the evidence of Seminerios corrupt relationship with Rosen should be admitted at Boyland Jr.s trial in the Governments case-in-chief. A. The Seminerio Evidence and the Events Surrounding his Arrest and Prosecution are Necessary to Understand Boyland Jr.s False Exculpatory Statements to the FBI. The jury will learn that, on or about December 16, 12

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2009, after Seminerio had been prosecuted in this District, the FBI conducted an interview of William Boyland Jr. Based on the

evidence the Government expects to offer at trial, it is clear Boyland Jr. lied to the FBI about numerous things related to his consultancy, including David Rosens role in the defendants consulting relationship lies that the evidence will show were motivated by the fact that Anthony Seminerio had already been arrested for a similar corrupt consulting relationship with Rosen. During his interview with the FBI, Boyland Jr. stated that he was only employed for approximately two years at Brookdale Hospital following his election to office, when in fact he remained on the hospital payroll until at least 2008, well after his 2003 election. Boyland Jr. told the FBI that the terms

of his employment did not change after he assumed office, and that he remained a W-2 employee and was never a consultant. Witness testimony and documents offered at trial will demonstrate that Boyland Jr. was specifically made a consultant by Rosen so he no longer had to physically punch in at work to be paid. Boyland Jr. told the FBI that he never set up meetings with the Department of Health or local politicians in furtherance of Brookdales business, when he had set up at least one such meeting. As for David Rosen, Boyland Jr. said he did not have

conversations directly with Rosen regarding changes to his employment following his election, when evidence offered at trial 13

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will prove otherwise. As an initial matter, it is clear Boyland Jr.s statements can be offered by the Government at trial as false exculpatory statements. The Second Circuit long ago declared it

axiomatic that exculpatory statements, when shown to be false, are circumstantial evidence of guilty consciousness and have independent probative force. United States v. Parness, 503 F.2d

430, 438 (2d Cir.1974); see also Henry v. Poole, 409 F.3d 48 (2d Cir. 2005) (citing the axiomatic language from Parness). And

the Second Circuit has consistently and repeatedly reaffirmed that proposition, explaining that although false exculpatory statements by a defendant do not alone prove guilt, they provide circumstantial evidence of the defendants consciousness of guilt that may strengthen inferences supplied by other pieces of evidence. See, e.g., United States v. Glenn, 312 F.3d 58, 69 (2d

Cir. 2002); United States v. Aleskerova, 300 F.3d 286, 294 (2d Cir. 2002); United States v. Gordon, 987 F.2d 902, 907 (2d Cir. 1993).3

The Second Circuit has cautioned that [w]hile false exculpatory statements made to law enforcement officials are circumstantial evidence of a consciousness of guilt and have independent probative force ... falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant's innocence as it is to the Government's theory of guilt. United States v. Ogando, 547 F.3d 102 (2d Cir. 2008) (citation omitted). Here, however, the evidence of Boyland Jr.s guilt is not weak or exclusively circumstantial. 14

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The Government should be permitted to prove the fact that Boyland Jr. provided false exculpatory statements regarding Rosen and his consultancy. Indeed, the evidentiary value of

Boyland Jr.s false exculpatory statements can only be established if the Government is permitted to prove up the false nature of those exculpatory statements. And precedent of this

Circuit supports the Governments right to prove the false nature of Boyland Jr.s statements. See, e.g., Parness, 503 F.2d at 438

(exculpatory statements, when shown to be false, are circumstantial evidence of guilty consciousness (emphasis added)); United States v. Rubin, 37 F.3d 49, 52 (2d Cir. 1994)

(consciousness of wrongdoing can be inferred by exculpatory statement ultimately proven false). As part of the proof that Boyland Jr.s statements were false, the Government will argue that Boyland Jr. clearly believed that he needed to distance himself from Rosen and from his consultancy because it was precisely the same type of criminal relationship for which Seminerio had been prosecuted. In other words, Boyland Jr.s motivation to lie about Rosens involvement in his consultancy was not innocent, but a deliberate attempt to hide the true nature of his relationship given that the Government had already prosecuted Seminerio for such a corrupt relationship with Rosen. Indeed, Boyland Jr.

specifically referenced Seminerio in his statement to the FBI, and stated that he and Rosen never discussed Seminerios criminal 15

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case and any changes in his employment that could result. such, the evidence of Seminerios consultancy and his prior prosecution is necessary context to understanding the deliberately false inculpatory nature of Boyland Jr.s statements.

As

For all these reasons, the Government should be

permitted not only to introduce Boyland Jr.s statements to the FBI, but also to prove Boyland Jr.s statements were false, and to show what motivated him to lie. B. The Seminerio Evidence is Direct Evidence of the Charged Conspiracies Between Rosen and Boyland Jr. As described above, the Government expects to present evidence that Boyland Jr. assisted Rosen on matters involving New York State budgets and expenditures as well as Rosens efforts to acquire the Caritas Hospitals. In order to support the

Governments contention that Rosen had a strong interest in these issues, the Government will offer evidence that Rosen also paid Seminerio for assistance on these same matters at the same time. This evidence is admissible as direct proof of the charged conspiracies between Rosen and Boyland Jr., because it establishes Rosens interest in the same official acts provided by Boyland Jr. and is inextricably linked to the story of how Rosen sought to further his agenda in Albany at the time he was paying Boyland Jr. Indeed, Rosens corrupt relationships with form the basis of the single honest

Boyland Jr., and Seminerio,

services fraud scheme of which Rosen was recently tried and 16

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convicted. Evidence of other criminal acts here, the bribing of Seminerio by Rosen is often admitted to explain the background, formation, and development of the illegal relationships among coconspirators. See United States v. Williams, 205 F.3d 23, 23-34

(2d Cir. 2000) (in conspiracy prosecution, government is usually allowed considerable leeway in offering evidence of other offenses to inform the jury of the background of the conspiracy charged, to complete the story of the crime charged, and to help explain to the jury how the illegal relationship between the participants in the crime developed). Evidence of uncharged

criminal activity is not considered other crimes evidence if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial. Carboni, 204 F.3d 39, 44 (2d Cir. 2000). United States v. Here, in order to fully

understand Boyland Jr.s corrupt relationship with Rosen, it must be placed in the context of Rosens broader scheme. These two

aspects of Rosens scheme Seminerios no-show consultancy and Boyland Jr.s no-show consultancy are inextricably intertwined and necessary to complete the story of the crime on trial. It should be made clear that the Government is not attempting to conduct a mini-trial of Anthony Seminerio or David Rosen within Boyland Jr.s trial. 17 On the contrary, the evidence

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that the Government anticipates seeking to offer is limited to the following: The Seminerio had a consulting contract, which explains in part Rosens statement in a September 11, 2003 e-mail (Rosen Trial Gov. Ex. 2100B) that he would get a contract for Boyland Jr. A summary chart and bank records showing that Rosen paid Seminerio about $40,000 per year during the time Boyland Jr. was a consultant. Documents which demonstrate Seminerio assisted with loan forgiveness, secured financing, and discretionary funds for MediSys benefit. Emails and correspondence showing among other things that Rosen asked Seminerio to intercede with the Speaker of the Assembly in relation to various legislative issues including MediSyss designation as a long term managed care organization. Testimony from Dennis Whalen that Seminerio lobbied him to award the Caritas Hospitals to David Rosen in 2008. E-mails showing that Boyland Jr. organized a meeting with Rosen, Seminerio and a State Senator to discuss the New York State budget in 2006. Testimony from certain hospital employees that they are aware of no bona fide consulting services provided by Seminerio or Boyland Jr. during the time that Boyland Jr. 18

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was a consultant, including witnesses who filled the functions for which Seminerio and Boyland Jr. purportedly were hired to consult. For reasons including a concern for judicial efficiency, the Government does not intend to offer any wiretap or consensual recordings regarding the Seminerio relationship with Rosen. Nor

will the Government seek to offer any evidence with respect to Rosens corrupt relationship with Kruger, except to rebut any unexpected defense arguments. Thus, the Government intends to offer these limited pieces of evidence to provide the jury with information about Seminerios relationship with Rosen. C. The Seminerio Evidence is Admissible Pursuant to Rule 404(b) to Show Rosens Motive, Intent and Plan. To the extent the Court believes that Rosens corrupt relationship with Seminerio is not admissible as direct or at least background evidence of the charged conspiracies between Boyland Jr. and Rosen, it should be admitted as other act evidence under Rule 404(b) of the Federal Rules of Evidence. evidence of Rosens corrupt relationship with Seminerio proves Rosens participation in a broad scheme to bribe public officials including both Seminerio and Boyland Jr. and is highly probative evidence of Rosens motive, intent, and plan to pay bribes. This is relevant at Boyland Jr.s trial because the The

Government must establish that Rosen joined a conspiracy with 19

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Boyland Jr. a fact that the Government fully expects the defendant to dispute. The Government respectfully submits that

the Seminerio evidence would still be admissible pursuant to Rule 404(b) even if the acts concerned matters wholly separate from the official assistance that Boyland Jr. provided for example, hypothetically, bribes Rosen paid many years ago to unrelated politicians, on unrelated issues but the fact that these acts occurred during the same time period on the same legislative issues makes them even more probative. Rule 404(b) of the Federal Rules of Evidence provides for the admission of evidence of other acts where they are relevant to such things as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed. R. Evid. 404(b). It is well-established that

evidence of other crimes, wrongs or acts is admissible under Rules 404(b) and 403 if such evidence is relevant to some issue at trial other than the defendants propensity to commit the crime charged, and if the probative value is not substantially outweighed by the risk of unfair prejudice. See, e.g., United

States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) (such evidence is admissible if it is (1) advanced for a proper purpose; (2) relevant to the crimes for which the defendant is on trial; (3) more probative than prejudicial; and (4) if requested, admitted subject to a limiting instruction); United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995); United States v. 20

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Ramirez, 894 F.2d 565, 568 (2d Cir. 1990) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). The Second Circuit

has repeatedly endorsed the inclusionary approach to the admission of other act evidence, under which evidence of prior crimes, wrongs or acts is admissible for any purpose other than to show a defendants criminal propensity. United States v.

Lasanta, 978 F.2d 1300, 1307 (1992) (emphasis in original) (citations omitted). Here, the evidence of the Rosen-Seminerio

relationship has no bearing on Boyland Jr.s propensity to do anything. While it certainly most frequently comes up in the context of a defendants other acts, Rule 404(b) applies to situations even when the defendant is not the perpetrator of the other acts in question. Rule 404(b) explicitly provides that

evidence of other crimes is not admissible to prove the character of a person, but may be admissible for numerous other delineated purposes. This is in contrast to Rule 404(a) which

makes reference to an accused, a victim, and a witness, suggesting that Congress considered the term person and the analysis triggered by Rule 404(b) to apply to individuals beyond a trial defendant. See United States v. McCourt, 925 F.2d

1229 (9th Cir. 1991) (concluding that Rule 404(b) applies to third parties). By contrast, however, other courts have found

that it is not necessary to apply the Rule 404(b) rubric to other acts evidence when the defendants conduct is not at 21

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issue.

See United States v. Morano, 697 F.2d 923 (11th Cir.

1983) (Rule 404(b) does not specifically apply to exclude evidence because it involves an extraneous offense committed by someone other than the defendant. The evidence was not

introduced to show that the defendant has a criminal disposition and that he can be expected to act in conformity therewith, so the policies underlying Rule 404(b) are inapplicable) (citing United States v. Krezdorn, 639 F.2d 1327, 1333 (5th Cir.1981) (dictum)); United States v. Gonzalez-Sanchez, 825 F.2d 572, 580 n.17 (1st Cir. 1987) (Rule 404(b) does not exclude evidence of prior crimes of persons other than the defendant)). Whether the Court determines that it needs to consider the evidence of Rosens intent under Rule 404(b) or merely as relevant direct evidence under Rules 401, 402, and 403, it is clear that Rosens intent, motive, and plan will squarely be at issue at Boyland Jr.s trial.4 As such, the Government should be

entitled to present evidence of Rosens corrupt intent and common plan with respect to Seminerio on the same issues for which he

A defendant may avoid introduction of such evidence by clearly and unequivocally removing the relevant issue from the case. See United States v. Figueroa, 618 F.2d 934, 942 (2d Cir. 1980). See also United States v. Paulino, 445 F.3d 211, 222 (2d Cir. 2006) (noting that a defendant may not use ambiguity tactically and upholding admission of Rule 404(b) evidence in case where defendant declined to take an explicit position on knowledge at trial and instead left [the defense position on the issue] ambiguous) (citations omitted). Here, legitimacy of the consulting arrangement and the intent of the two co-conspirators to enter into a criminal agreement is certainly at issue. 22

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paid for Boyland Jr.s assistance the state budget, financial assistance and relief for MediSys entities, and the acquisition of the Caritas Hospitals. Furthermore, the Government submits that this evidence is far more probative than prejudicial under the analysis of Rule 403. The extent to which Rosen was willing to go to secure

certain assistance for MediSys and its hospitals, including the payment of bribes, is highly probative of Rosens intent and plan to extend a no-show consulting job to Boyland Jr. in exchange for his official assistance on these issues. As this evidence

reflects on Rosens intent and motivation, not Boyland Jr.s, Boyland Jr. is not prejudiced in a way that other act evidence of a defendant often can be unduly prejudicial and thus any prejudice is easily outweighed by its probative value. To the

extent that a limiting instruction is necessary, one could be fashioned to address any possible unfair prejudice. II. Evidence of Boyland Jr.s Fraudulent and False Per Diem Submissions Should Be Admitted Pursuant to Rule 404(b) of the Federal Rules of Evidence. The Government has obtained evidence during the course of its investigation which revealed that Boyland Jr. has made regular submissions to the New York State Assembly for per diem and travel reimbursements which were fraudulent and false. Specifically, on numerous occasions while in office, Boyland Jr. personally submitted claim forms which reflect trips to Albany when, in fact, he was present elsewhere. 23 One example of such a

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fraudulent statement was regarding March 10, 2011, when Boyland Jr. claimed per diem expenses, but had, in fact, spent the entire day in Federal Court in Manhattan being presented on the instant charges. The Government provided notice to the defense of its Last week,

intention to offer such evidence on October 3, 2011.

the Government received documents from the Assembly reflecting the Boyland Jr.s submissions and has already produced them in discovery to the defense. It is currently reviewing them to

determine the relevant instances of the false submissions it hopes to present at trial. The per diem form reflecting the

March 10, 2011 reimbursement request, by way of example, is attached hereto as an exhibit. The Government respectfully submits that this evidence is squarely relevant in this case and admissible for at least two specific purposes under Rule 404(b). First, the evidence of the

per diem payments goes directly to prove Boyland Jr.s intent to engage in a bribery conspiracy through a no-show consulting job. See United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987) ([w]here intent to commit the crime charged is clearly at issue, evidence of prior similar acts may be introduced to prove that intent.). The trial defense will certainly challenge Boyland

Jr.s criminal intent in receiving over $175,000 in consulting fees in exchange for no legitimate consulting work, but rather in exchange for his official actions as opportunities arose. Both

Boyland Jr.s reimbursement claims and his acceptance of bribes 24

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go to the heart of Boyland Jr.s intent to fraudulently utilize his official position to obtain monies to which he was not legitimately entitled. Second, the evidence of the per diem payments goes directly to prove absence of mistake with respect to specific acts of concealment undertaken by Boyland Jr. in connection with the charged conspiracies. As described above, the evidence will

show that from 2003 through 2009, Boyland Jr. made annual financial disclosures to the New York State Legislative Ethics Committee regarding his position at Brookdale Hospital. In these

forms, Boyland Jr. made numerous false statements or omissions about the nature of his work, the location of his office, the salary he received, and whether his employer had any specific business with the State of New York. The evidence will further

reflect that, in 2009, Boyland Jr. filed numerous amendments upon consulting with the Committee representative because his prior submissions were incomplete, but those amendments regarding his salary were also false. The proposed evidence of Boyland Jr.s

false and fraudulent per diem reimbursement claims would rebut any argument that untruthful statements on the financial disclosure forms were the product of some sort of mistake or carelessness by showing other clear examples of false statements that Boyland Jr. deliberately submitted to benefit himself. Thus, for the forgoing reasons, the Government respectfully submits that the evidence of Boyland Jr.s false and 25

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fraudulent reimbursement claims to the State Assembly should be admitted. CONCLUSION For the reasons stated above, the Government respectfully submits that the Court should grant the motions to admit evidence of David Rosens corrupt relationship with Anthony Seminerio, and evidence of William Boyland Jr.s false and fraudulent reimbursement claims to the New York State Assembly. Dated: New York, New York October 18, 2011 Respectfully submitted, PREET BHARARA United States Attorney Southern District of New York By: __/s/______________________________ Glen G. McGorty William J. Harrington Assistant United States Attorneys

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CERTIFICATE OF SERVICE On October 18, 2011, I served one copy of the Governments In Limine Motions by electronic mail on the following: Richard H. Rosenberg, Esq. Michael K. Bachrach, Esq. Counsel for William Boyland, Jr. 217 Broadway, Suite 707 New York, NY 10007 (212) 586-3838/(212) 962-5037 (fax) I declare under penalty of perjury that the foregoing is true and correct. Dated: 28 U.S.C. 1746.

New York, New York October 18, 2011

__/s/______________________________ Glen G. McGorty William J. Harrington Assistant United States Attorneys (212) 637-2505/2331/1079

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EXHIBIT A

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