libous sentencing

8/20/2019 Libous Sentencing

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

UNITED STATES OF AMERICA :

:

- v. - : 14 Cr. 440 (VB)

:

THOMAS W. LIBOUS, :

:

Defendant. :

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

GOVERNMENT

S SENTENCING MEMORANDUM

PREET BHARARA

United States Attorney for the

Southern District of New York

Attorney for the United States

of America

James McMahon

Benjamin Allee

Assistant United States Attorneys

- Of Counsel -


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UNI TED STATES DI STRI CT COURTSOUTHERN DI STRI CT OF NEW YORK- - - - - - - - - - - - - - - - XUNI TED STATES OF AMERI CA :

:- v. - : 14 Cr . 440 ( VB)

: THOMAS W. LI BOUS, :

:Def endant . :

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

GOVERNMENT=S SENTENCI NG MEMORANDUM

The Gover nment r espect f ul l y submi t s t hi s memor andum i n

connect i on wi t h the sent enci ng of def endant Thomas Li bous, now

schedul ed f or Tuesday, November 24, 2015 at 11: 00 AM.

I . I nt r oduct i on

Cont r ary t o t he def endant ' s r epeat ed cl ai ms t hat hi s

of f ense conduct di d not i nvol ve cor r upt i on, hi s conduct i n 2005 and

2006, i n whi ch he arr anged f or a l obbyi st who r egul ar l y l obbi ed hi m

t o gi ve hi s son $50, 000, was cor r upt i n any sense of t hat wor d.

Cont r ar y t o t he def endant ' s argument t hat hi s cr i me was vi ct i ml ess,

t he peopl e of t he St ate of New York ar e vi ct i ms whenever , as here,

an el ect ed of f i ci al abuses t he t r ust t he publ i c pl aced i n hi m by

accept i ng secr et payof f s f r om l obbyi st s and by cover i ng up hi s

conduct . And, cont r ar y t o t he def endant ' s pl ea f or mer cy i n par t

because he l ost hi s j ob, t he oppor t uni t y t o ser ve i n an el ect ed

posi t i on i s an honor t hat must be earned, not an ent i t l ement t hat

shoul d gener at e consol at i on i f i t i s l ost . The def endant ' s cor r upt

conduct and t he i nst i t ut i onal har m he has caused – t he gr avi t y of

each of whi ch he evi dent l y has yet t o recogni ze – as wel l as t he


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compel l i ng need f or gener al det er r ence ar e aggr avat i ng f act or s

t hat , i n most ci r cumst ances, woul d cal l f or a cust odi al sent ence i n

t hi s case.

At t he same t i me, however , t he Cour t must consi der t he

def endant ' s medi cal condi t i on as par t of t he def endant ' s hi st or y

and char act er i st i cs and t he need f or t he sent ence i mposed t o

pr ovi de t he def endant wi t h needed medi cal car e pur suant t o Sect i on

3553( a) . The Regi onal Medi cal Di r ect or of t he Bur eau of Pr i sons

( "BOP") has sai d that t he BOP can pr ovi de t he def endant wi t h the

same medi cal care he now r ecei ves, most l i kel y at t he BOP' s

f aci l i t y i n But ner , Nor t h Car ol i na. The mor e si gni f i cant f act or

wi t h r espect t o t he def endant ' s heal t h, however , i s hi s pr ognosi s.

Based on her r evi ew of t he def endant ' s medi cal r ecords, an oncol ogy

exper t wi t h whom t he Government has consul t ed shar es t he opi ni on of

t he def endant ' s doct or s t hat t he def endant l i kel y has one year or

l ess to l i ve. As a r esul t , t he Gover nment wi l l not seek t he

cust odi al sent ence i t ot her wi se woul d have bel i eved t o be

appr opr i at e i n t hi s case.

The aggr avat i ng f act or s i dent i f i ed above - - and, most

par t i cul ar l y, t he compel l i ng need f or gener al det er r ence her e - -

st i l l cal l f or a sent ence t hat sends as st r ong a message as

possi bl e t hat our communi t y wi l l not t ol er at e cor r upt i on and

obst r uct i on of j ust i ce by el ect ed of f i ci al s. The Gover nment

submi t s t hat t he sent ence recommended by t he Pr obat i on Of f i ce of

pr obat i on wi t h a si gni f i cant peri od of home conf i nement i s


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appr opr i at e. Si nce t he def endant has managed t o amass a net wor t h

i n excess of $3. 4 mi l l i on ( and r eadi l y l i qui d assets of mor e t han

$500, 000) af t er 27 year s i n t he New Yor k St ate Senate, PSR at ¶ 63,

a subst ant i al f i ne woul d be an i mpor t ant component of a r easonabl e

sent ence. Such a sent ence woul d have a suf f i ci ent puni t i ve aspect

f or t hi s def endant and, t her ef or e, woul d hopef ul l y det er ot her s

f r om engagi ng i n cor r upt or obst r uct i ve conduct .

I I . The Of f ense Conduct

The evi dence at t r i al proved t hat t he def endant , t hen a

New Yor k St at e Senat or , made f al se st at ement s t o the FBI dur i ng an

i nt ervi ew on J une 24, 2010. The def endant made hi s f al se

st at ement s t o cover up hi s corr upt conduct i n connect i on wi t h hi s

ef f or t s t o f i nd hi s son, Mat t hew Li bous, a j ob wi t h an i nf l at ed

sal ar y i n t he f al l of 2005. Cont r ar y t o hi s f al se deni al s dur i ng

t he FBI i nt ervi ew, t he evi dence showed t hat t he def endant : 1) was

act i vel y i nvol ved i n get t i ng Mat t hew, t hen a l i censed at t or ney, a

j ob at t he f or mer Sant angel o, Randazzo & Mangone ( "SRM") l aw f i r m

i n West chest er , f or $150, 000 a year and an $800 mont hl y car l ease

al l owance; and 2) caused Ost r of f Hi f f a, an Al bany l obbyi ng f i r m

t hat r egul ar l y l obbi ed hi m, t o cont r i but e $50, 000 a year t owar d

Mat t hew' s sal ary at SRM.

I n Sept ember 2005, Mat t hew Li bous was worki ng as a l awyer

at t he New Yor k Li qui dat i on Bur eau, a New Yor k St at e agency t hat

was t hen par t of t he New Yor k St at e Depart ment of I nsur ance.

Mat t hew and t he def endant bel i eved Mat t hew was not maki ng enough


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money t her e, even af t er t he Li qui dat i on Bur eau gave hi m a $10, 000

r ai se ef f ect i ve Sept ember 12, 2005. That r ai se br ought Mat t hew' s

t otal sal ar y t o mor e t han $86, 000.

The def endant began hi s scheme t o f i nd Mat t hew a j ob t hat

pai d more money on Sept ember 17, f i ve days af t er t he $10, 000 r ai se

became ef f ect i ve, by t ur ni ng t o hi s f r i end, Fred Hi f f a. Hi f f a was

a l obbyi st at t he Al bany l obbyi ng f i r m of Ost r of f Hi f f a who

r epr esent ed cl i ent s i n t he t r anspor t at i on i ndust r y, such as t he New

Yor k St at e Associ at i on of Town Super i nt endents of Hi ghways; t he

Li qui d Asphal t Di st r i but or s associ at i on; Adi r ondack Pi ne Hi l l s New

Yor k Tr ai l ways; and Fahs- Rol st on Pavi ng Cor p. At t hat t i me, t he

def endant was t he chai r man of t he Senate' s Tr anspor t at i on

Commi t t ee, whi ch gave hi m i nf l uence over how New Yor k Stat e spent

i t s t r anspor t at i on dol l ar s. At t hat t i me, Hi f f a met wi t h t he

def endant t o l obby hi m on behal f of Ost r of f Hi f f a' s t r anspor t at i on

cl i ent s as of t en as once a week or once every t wo weeks. Hi f f a and

t he def endant wer e al so per sonal f r i ends who soci al i zed wi t h each

ot her out si de of wor k hour s.

I n addi t i on t o cal l i ng Hi f f a, t he def endant al so cal l ed

Ni chol as Spano, who was t hen a New Yor k St at e Senat or f r om t he

West chest er ar ea, on Sept ember 17. The def endant and Spano wer e

f r i ends as wel l as col l eagues. Spano was al so t he def endant ' s

cont act wi t h Anthony Mangone, who was Spano' s Senat e counsel and

f ormer chi ef of s t af f . Mangone was al so a part ner of SRM. The

def endant knew Mangone. Mangone woul d of t en have di nner wi t h t he


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def endant , Spano and others i n Al bany when the l egi sl atur e was i n

sessi on. Mangone al so t r avel ed t o Fl or i da wi t h Spano, t he

def endant and ot hers on annual t r i ps sponsor ed by Spano on the

Mar t i n Lut her Ki ng Day hol i day weekend. The def endant cal l ed Spano

because he want ed t o see i f Mangone woul d hi r e Mat t hew at hi s l aw

f i r m. Mangone t est i f i ed t hat he f i r st hear d about t he def endant ' s

i nt erest i n get t i ng Mat t hew a new j ob t hr ough Spano.

A. The Def endant Ar r anged f or Hi sSon' s J ob i n t he Fal l of 2005

1. The Def endant ' s I ni t i al Cont act wi t h Mangone

Af t er speaki ng on t he t el ephone wi t h Spano, Hi f f a and

Mat t hew f or weeks, t he def endant cal l ed Mangone di r ect l y on Oct ober

14, 2005. The def endant asked Mangone i f SRM woul d be i nterest ed

i n hi r i ng hi s son as an associ ate f or $50, 000 a year . The

def endant expl ai ned t hat he had al r eady ar r anged f or Ost r of f Hi f f a

t o pay hi s son $100, 000 a year . Mangone r esponded t hat he bel i eved

hi s f i r m woul d be i nt er est ed i n hi r i ng Mat t hew.

I mmedi at el y af t er he hung up wi t h Mangone, t he def endant

cal l ed Mat t hew and spoke t o hi m f or 15 mi nut es. Thi s cal l was t he

l ongest cal l t he def endant had wi t h Mathew i n the phone r ecords t he

Government has f or 2005. Mat t hew and Mangone spoke l at er t hat day

at 5: 10 PM. These cal l s bet ween t he def endant and Mat t hew and

Mat t hew and Mangone conf i r m Mangone' s t est i mony t hat t he def endant

spoke wi t h hi m about hi r i ng Mat t hew on Oct ober 14.


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2. The Def endant ' s Tr ot t er ’ s Di nnerMeet i ng wi t h Mangone and Sant angel o

Three days l at er , on Oct ober 17, t he def endant and

Mat t hew had di nner wi t h Mangone, Sant angel o and Spano at Trot t er ' s

r est aur ant i n Whi t e Pl ai ns. The evi dence, i ncl udi ng t he

def endant ' s cr edi t car d r ecor ds and hot el bi l l s, showed t hat he was

i n t hi s ar ea on t he ni ght of Oct ober 17 and t hat he l ef t hi s st af f

at t he hot el and went out t o di nner t hat ni ght . Mangone' s credi t

car d r ecor ds conf i r m t hi s di nner meet i ng as wel l , as t hey show

char ges t otal i ng more t han $1, 000 at Trot t er s on Oct ober 17.

Mangone, Santangel o and t he def endant t al ked about

Mat t hew' s new j ob at SRM. They t al ked about how t he f i r m woul d pay

Mat t hew $50, 000 a year and Ost r of f Hi f f a woul d pay Mat t hew $100, 000

a year . The def endant t ol d Mangone and Sant angel o t hat he woul d

hel p themget so much new busi ness f or t he f i r m t hat t hey woul d

"have t o bui l d a new wi ng" ont o t hei r of f i ce t o handl e al l t he

work. The deal f or Mat t hew' s new j ob was l argel y cut at t hat

di nner .

3. The Def endant Made t he Fi nalAr r angment s wi t h MangoneFol l owi ng t he Tr ot t er ' s Di nner

Fol l owi ng t he di nner , t her e was i ncr eased t el ephone

cont act bet ween Mat t hew and Mangone as t hey t al ked about Mat t hew' s

st ar t i ng dat e and ot her det ai l s. The def endant al so kept i n t ouch

wi t h Mangone i n t he days af t er t he Tr ot t er s di nner , i ncl udi ng a

di r ect cal l f r om t he def endant t o Mangone at some poi nt bet ween


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Oct ober 19 and Oct ober 28. The evi dence showed t he def endant

t al ked about t wo t hi ngs wi t h Mangone af t er t he Oct ober 17 di nner :

1) t he arr angement by whi ch Ost r of f Hi f f a woul d pay part of

Mat t hew' s sal ary; and 2) whet her SRM woul d make l ease payment s f or

a car f or Mat t hew.

a. The Def endant Ar r anged f orAn Al bany Lobbyi st t o PayPar t of Hi s Son' s Sal ar y

The def endant ' s or i gi nal pl an had been f or Ost r of f Hi f f a

t o pay Mat t hew $100, 000 a year and f or SRM t o pay Mat t hew $50, 000 a

year . I n t he days f ol l owi ng t he Tr ot t er s di nner , t he def endant

proposed swi t chi ng t he amounts so t hat SRM pai d $100, 000 a year and

t hat Ost r of f Hi f f a pai d Mat t hew $50, 000 a year . The def endant t ol d

Mangone t hat Hi f f a was uncomf or t abl e payi ng Mat t hew $100, 000 i f he

was goi ng t o be worki ng f ul l t i me f or Mangone' s f i r m. Mangone

agr eed t o t hi s ar r angement . He di d so even t hough Mat t hew' s sal ary

f r om t he l aw f i r m al one of $100, 000 - - much l ess hi s t ot al

compensat i on of $150, 000 - - was f ar above the market r ate f or an

at t or ney of Mat t hew' s exper i ence i n West chest er at t he t i me.

Mangone pai d hi s more exper i enced associ at es l ess t han $100, 000 a

year .

The def endant was al so wor r i ed about t he publ i c

per cept i on of a l obbyi ng f i r m t hat l obbi ed hi m payi ng money to hi s

son. He asked t hat Mangone' s f i r m t o t ake t he $50, 000 i n f r om

Ost r of f Hi f f a and t o pay i t out t o Mat t hew, appar ent l y t o pr event

anyone f r om seei ng money goi ng st r ai ght f r om Ost r of f Hi f f a t o


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Mat t hew. Mangone agr eed and paper ed over t hi s ar r angement wi t h a

r etai ner agr eement .

At t he same t i me, Hi f f a was wor ki ng to convi nce Ri chard

Ost r of f , t he pr i nci pal owner of Ost r of f Hi f f a, t o "r et ai n" SRM so

t hat Ost r of f Hi f f a coul d cont r i but e $50, 000 t oward Mat t hew' s

sal ar y. Ost r of f di d not see a need f or Ost r of f Hi f f a t o r et ai n a

l aw f i r m. He was al so concerned about t he percept i on of Ost r of f

Hi f f a r et ai ni ng a l aw f i r m t hat had j ust hi r ed t he son of a st at e

Senator t hat i t l obbi ed on a r egul ar basi s. The $50, 000 payment

was al so a l ar ge expense f or Ost r of f Hi f f a, whi ch had annual

r evenue of $1. 8 t o $2 mi l l i on a year at t hat t i me. Despi t e t hese

concer ns, Ost r of f event ual l y agr eed t o t he ar r angement . At t r i al ,

he was unabl e to i dent i f y or descr i be any wor k t hat t he l aw f i r m or

Mat t hew Li bous di d f or t he $50, 000, despi t e havi ng conduct ed a

sear ch f or such work pr oduct i n response t o a subpoena.

The $50, 000 came i nt o SRM f r om Ost r of f Hi f f a i n

i ncrement s of $4, 166 a mont h. Whi l e Mat t hew was worki ng at t he

f i r m, SRM t ook out deduct i ons f or t axes and FI CA and pai d t he r est

t o Mat t hew. Af t er t he f i r m f i r ed Matt hew i n or about Sept ember

2006, SRM si mpl y pai d out t he ent i r e $4, 166 t o Mat t hew wi t hi n days

of r ecei vi ng t hat money f r om Ost r of f Hi f f a each mont h. That

i ndi cat es t hat Ost r of f Hi f f a was not r eal l y a cl i ent of t he f i r m

and t he money was not r eal l y f or l egal wor k. Mangone t est i f i ed

t hat had Ost r of f Hi f f a been a f i r m cl i ent , t he f i r m woul d not have

passed al l t he money t hr ough t o Mat t hew. The f i r m woul d have t aken


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some of t he money f or overhead, such as support st af f , r ent ,

t el ephone, t he copi er s and el ect r i ci t y. Fur t her , had Ost r of f Hi f f a

act ual l y been a l egal cl i ent of Mat t hew' s, Mat t hew woul d have t ol d

t hem when he l ef t SRM and Ost r of f Hi f f a woul d then have sent t he

l egal f ees t o hi m.

b. The Def endant Ar r anged f or SRM To Make Hi s Son' s Car Lease Payment s

The second t hi ng t he def endant di scussed wi t h Mangone i n

t he days af t er t he Tr ot t ers di nner was t hat t he def endant want ed t o

be sur e t hat Mat t hew got a car as par t of hi s pay at SRM. Mangone

agr eed t o t hat . He di d so despi t e t he f act t hat he di d not gi ve

hi s ot her , more exper i enced, associ ates any payment s f or a car .

Mat t hew t hen l eased a Range Rover at $1, 100 a mont h on

Oct ober 27. When Mangone l earned about t he Range Rover a f ew weeks

l at er , he t ol d Mat t hew t hat SRM coul d not , and woul d not , make

l ease payment s i n t hat amount . SRM eventual l y ended up

cont r i but i ng $800 a mont h t o Mat t hew' s l ease payment s and Mat t hew

was l i abl e f or t he r emai nder .

I n hi s appl i cat i on t o l ease t he car , Mat t hew cl ai med t hat

he had been worki ng at "Si r vi no & Sant angel o" 1 f or one month and

t hat he made $12, 500 a mont h, whi ch wor ks out t o be $150, 000 a

year . That document shows t hat t he deal t hat SRM woul d pay Mat t hew

1 Servi no & Santangel o was t he name of SRM i n Oct ober 2005. Among ot her t hi ngs,Matt hew' s l ease appl i cat i on bel i es t he defendant ' s suggesti on at t r i al t hat Matt hewst ar t ed work at t he f i r m i n Oct ober 2005. Matt hew obvi ousl y was not al l t hat f ami l i arwi t h t he f i r m at t he end of Oct ober 2005 because he spel l ed t he f i r m' s name wr ong onhi s l ease appl i cat i on.


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a t ot al of $150, 000 and a car was done by t he t i me Mat t hew execut ed

t hi s l ease appl i cat i on on Oct ober 27.

4. The Def endant Met Mangone Agai nFor Di nner i n New Yor k Ci t y

Mangone and Sant angel o went t o a f undr ai ser t he def endant

hel d on Oct ober 27, 2005 at t he Penn Cl ub i n New Yor k Ci t y. Tr i al

t est i mony conf i r ms that Mangone was t here. He t est i f i ed t hat a

f ormer f oot bal l pl ayer f or t he New Yor k J et s, who had pl ayed f or

t he J et s i n t he 1969 Super Bowl - - t he one and onl y year t he J ets

won t he Super Bowl - - was at t he f undr ai ser . Mary Lee, t he

def endant ' s l ong- t i me empl oyee on hi s Senat e st af f , al so t est i f i ed

t hat t here was a f ormer J et s f oot bal l pl ayer who pl ayed i n t he

Super Bowl at t he f undr ai ser .

Fol l owi ng t he f undr ai ser , Mangone, t he def endant and

Sant angel o went out t o di nner at t he La Ci t e r est aur ant . Cr edi t

card r ecords conf i r m Mangone and Sant angel o at t ended t hi s di nner.

B. Mat t hew' s Dr unken Behavi or at t he SRM Hol i day Par t y J eopardi zed Hi s New J ob

SRM hel d a hol i day part y on Sat ur day, December 17, 2005

at Emi l i o' s rest aur ant i n Har r i son. As the f i r m' s new associ at e

who was schedul ed t o st ar t work t hat J anuary, Mat t hew at t ended t he

part y. Li sa Sant angel o, who was Mi chael Sant angel o' s wi f e at t hat

t i me, al so at t ended t he par t y. Ms. Sant angel o had br oken her l eg a

f ew days bef ore and was i n a cast . She t est i f i ed t hat Mat t hew got

dr unk and, i n her wor ds, "hi t on" her . Ms. Sant angel o was unabl e

t o move away f r om Mat t hew because she di dn' t have her cr utches.


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Someone had t o br i ng her cr utches t o her so that she coul d move t o

anot her t abl e.

The pat t er n of t el ephone cal l s t hat ni ght and t he next

f ew days conf i r ms t hat t he def endant r eal i zed t hat hi s son' s

conduct was goi ng t o be a pr obl em. As t he def endant ' s cel l phone

r ecor ds show, t he def endant was i n Fl or i da on t he ni ght of t he

hol i day par t y on December 17. The def endant cal l ed Mat t hew f or t wo

mi nut es at 9: 09. At 11: 32 t hat ni ght , t he def endant cal l ed Mat t hew

agai n f or a t wo mi nut e cal l . The l ast r el evant cal l t hat ni ght was

f r om Mat t hew t o Mangone at 1: 11 AM f or a mi nut e.

Mat t hew' s cal l t o Mangone at t he l at e hour of 1: 11 AM

i ndi cat es t hat Mat t hew knew how ser i ous a pr obl em he had. Mat t hew

had al r eady r esi gned f r om t he Li qui dat i on Bur eau. Hi s l ast day

t her e was December 23, t he next Fr i day. I f Mangone' s f i r m di d not

t ake hi m on as pl anned, Mat t hew woul d be out of a j ob.

Mat t hew went i nt o damage cont r ol over t he next sever al

days. He spoke t o hi s f at her over t he next f ew days and al so had

sever al cal l s wi t h Mangone. Mangone t est i f i ed t hat he and Mat t hew

were tal ki ng about t he i mpact Mat t hew' s behavi or had on hi s pendi ng

j ob and whet her he woul d be abl e t o wor k at t he f i r m at al l .

Wi t hi n a f ew days of t he i nci dent , Mat t hew had apol ogi zed over t he

phone t o Ms. Sant angel o and sent her f l owers.

The def endant al so engaged i n damage cont r ol . He asked

Mangone and Sant angel o t o meet wi t h hi m i n per son. Mangone and

Sant angel o went up t o Al bany on J anuar y 4, 2006 and met wi t h t he


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def endant i n t he def endant ' s of f i ce i n t he capi t ol of f i ce bui l di ng.

Dur i ng t hi s meet i ng, t he def endant assured Mangone and Sant angel o

t hat Mat t hew woul d not r epeat hi s behavi or . He r epeat ed hi s

pr omi se t o st eer work t o SRM.

Mangone had hel d of f on br i ngi ng Mat t hew on boar d but t he

def endant ' s r epeat ed pr omi se t o st eer work t o SRM was enough t o

convi nce hi m and Sant angel o to go ahead wi t h t he pl an t o hi r e

Mat t hew. As t he f i r m r ecords show, Mat t hew st ar t ed work at t he

f i r m on Fr i day, J anuary 6, 2006, t wo days af t er Mangone and

Sant angel o met wi t h t he def endant i n Al bany.

C. Mat t hew' s Perf ormance at SRM

SRM i ni t i al l y pai d Mat t hew at a r at e of $150, 000 a year .

Wi t hi n a f ew mont hs, Sant angel o and Mangone r educed Mat t hew' s

sal ary t o $100, 000 a year because t he def endant had not r ef er r ed

any work t o t he f i r m and because Mat t hew had not per f ormed wel l .

Mat t hew' s at t endance was poor . He once f ai l ed t o appear i n cour t

and he l i ed t o Mangone and Sant angel o about where he was when he

shoul d have been i n cour t . Sant angel o and Mangone event ual l y

di scover ed that Mat t hew had secr et l y cont i nued wi t h hi s own

pr act i ce of l aw on t he si de. I n or about Sept ember 2006,

Sant angel o and Mangone l et Mat t hew go. As descr i bed above, SRM

passed t hr ough t o Mat t hew t he ent i r ety of each of t he $4, 166

payment s i t t her eaf t er r ecei ved f r om Ost r of f Hi f f a each mont h

t hrough December 2006.


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D. The Def endant ' s Fal se St atement s t o t he FBI

On J une 24, 2010, t he FBI conduct ed si mul t aneous

i nt er vi ews of t he def endant , Mat t hew, Hi f f a and Ost r of f as par t of

i t s i nvest i gat i on i nt o t hi s mat t er . The FBI i nt er vi ewed t he

def endant i n hi s Al bany of f i ce. Dur i ng t he i nt er vi ew, t he

def endant made t he f ol l owi ng st atement s, each of whi ch was charged

as a mat er i al l y f al se st at ement i n t he i ndi ct ment : 1) he coul d

not r ecal l how hi s son began t o work at SRM; 2) no deal s were made

t o get Mat t hew t he j ob at SRM; 3) he was not aware t hat Ost r of f

Hi f f a had pai d any part of Mat t hew' s sal ar y at SRM; 4) he never

pr omi sed t o r ef er work t o SRM; 5) he was not i nvol ved i n hi s son' s

deci si on t o work at SRM; 6) he had no personal or busi ness

r el at i onshi p wi t h SRM; and 7) he di d not know of any rel at i onshi p

between SRM and Ost r of f Hi f f a.

I I I . Appl i cat i on of t he Rel evant Sect i on 3553( a) Fact or s

An anal ysi s of t he r el evant Sect i on 3553( a) f act or s shows

t hat t he sent ence recommended by t he Pr obat i on Of f i ce, al ong wi t h a

subst ant i al f i ne, woul d be t he appr opr i at e sent ence i n t hi s case.

A. The Nat ur e and Ci r cumst ances of t he Of f ense

The def endant ' s cr i me was a ser i ous one. He l i ed t o t he

FBI t o cover up hi s conduct i n 2005 and 2006, whi ch conduct can

onl y be char act eri zed as cor r upt . The evi dence pr oved t hat t he

def endant sought , and r ecei ved, a $50, 000 payof f over t wel ve mont hs

i n 2006 f r om a l obbyi st t hat r egul ar l y l obbi ed hi m, t hen as

Chai r man of t he Senat e' s Tr anspor t at i on Commi t t ee, on behal f of t he


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l obbyi st ' s cl i ent s i n t he t r anspor t at i on i ndustr y. There i s l i t t l e

pr act i cal di f f er ence bet ween t he def endant ' s ar r angement f or , and

accept ance of , t hi s $50, 000 and a hypothet i cal passage of $50, 000

i n cash f r om l obbyi st t o l egi sl at or i n a br own paper bag under a

t abl e i n a di ner . The br each of publ i c t r ust and t he cor r osi ve

ef f ect on our pol i t i cal syst em i s t he same.

Few l obbyi st s woul d gi ve a l egi sl at or $50, 000 wi t hout a

r easonabl e expect at i on of get t i ng somet hi ng i n r et ur n. That i s

par t i cul ar l y t r ue wher e, as her e, t he $50, 000 was pai d by a f i r m

t hat had $1. 8 t o $2 mi l l i on i n r evenue i n 2006. There was al so no

t emporal l i mi t on Mat t hew' s empl oyment at Mangone' s f i r m and t he

def endant l i kel y hoped t hat t he l obbyi st ' s mont hl y payment s woul d

cont i nue i ndef i ni t el y. That hope i s i n di r ect conf l i ct wi t h t he

def endant ' s dut y t o the peopl e of New Yor k t o spend t he St ate' s

t r anspor t at i on dol l ar s as ef f i ci ent l y and ef f ect i vel y as possi bl e,

wi t hout r egar d t o per sonal i nt er est s. The peopl e of t hi s St at e di d

not get t he obj ect i ve r evi ew of t r anspor t at i on pr oj ect s and

cont r act or s t o whi ch t hey wer e ent i t l ed f r om t hei r Senat e

Tr anspor t at i on Commi t t ee chai r man. Fur t her , cont r act or s and

vendors i n the t r anspor t at i on i ndust r y who di d not know enough to

r et ai n t he l obbyi st t hat was payi ng of f t he Tr anspor t at i on

Commi t t ee chai r man and hi s son di d not get t he f ai r hear i ng and

consi der at i on t hat t hey expected and t o whi ch t hey were ent i t l ed as

wel l .


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The def endant knew t he payments he ar r anged f r om t he

l obbyi ng f i r m t o hi s son wer e wr ong, as evi denced by t he st eps he

t ook t o conceal t he payment s. Fi r st , as Mangone t est i f i ed, t he

def endant pr oposed l aunder i ng t he payment s by havi ng SRM bi l l t he

l obbyi ng f i r m t o creat e t he appear ance t hat t he payment s wer e l egal

f ees. That t est i mony was cor r obor at ed by t he f al se r et ai ner

agr eement bet ween SRM and the l obbyi ng f i r m, as wel l as by the

mont hl y bi l l s f r om SRM t o the l obbyi ng f i r m t hat t he Gover nment was

abl e t o f i nd. Second, t he def endant obst r uct ed t he FBI ' s

i nvest i gat i on of t hi s mat t er when he l i ed t o them r epeat edl y about

i t dur i ng hi s 2010 i nt er vi ew. Thi r d, t he def endant r epeated some

of t hose l i es t o t he publ i c, i ncl udi ng hi s const i t uent s, i n a pr ess

r el ease and pr ess conf er ence i n 2012. The def endant , i n f al sel y

denyi ng Mangone’ s account when he knew f ul l wel l t hat Mangone had

si mpl y t ol d the t r ut h about what t r anspi r ed between t he t wo men,

went so f ar as t o say he woul d “pr ay f or hi m” because “he needs

hel p. ”2

2 The Government wi l l pr ovi de a copy of t he audi o recordi ng and/ or a t r anscr i pt of t hepress conf erence, whi ch t he def endant gave f ol l owi ng Mangone’ s t est i mony i n t he Annabit r i al and t he r esul t i ng gui l t y ver di cts, shoul d t he Cour t r equest i t . The por t i on t owhi ch t he Government herei n ref ers was t he f ol l owi ng:

Q: Senator Tom, your opponent s woul d say t he j ury bel i eved you- uhMangone, t he… he was under oat h. Why shoul d we have uh

r eason to doubt hi s credi bi l i t y?

A: Wel l I ’ m not so sur e t he j ur y di d bel i eve hi m. But I wi l l t el l yout hi s t hat, uh, i t was report ed by um by a coupl e of l awyer s i n t he caset hat he was a ser i al perj ur er and t hat he was moral l y bankrupt um I woul dsay that , uh, you woul d have t o bel i eve my word over hi s. And I woul d askmy const i t uent s based on t he t r ust t hat I have gi ven them, t o t r ust meand bel i eve me over someone who’ s, uh, who has admi t t ed per j ury. ( Pause)Any ot her quest i ons on t hi s t opi c? As you can t el l t hat I f eel r at herser i ous about t hi s. Thi s has not been a a good t hree weeks f or me, um, t osee my name dr agged through the medi a. But I underst and. I ’ m a publ i c


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The cor r osi ve ef f ect of t he def endant ' s cor r upt conduct ,

and conduct l i ke i t by ot her el ect ed of f i ci al s, i s undeni abl e.

Ever y t i me a publ i c of f i ci al commi t s a cr i me, hi s conduct t ai nt s

t he body i n whi ch he ser ves and t he government as a whol e. I t

hel ps perpet uat e t he bel i ef , now common among New Yorker s, t hat New

Yor k' s government i s hopel essl y cor r upt . 3 I t tai nt s unf ai r l y t hose

el ect ed of f i ci al s who ar e l aw- abi di ng and who ser ve t hei r

const i t uent s wi t h i nt egr i t y. Fi nal l y, one of t he most damagi ng

ef f ect s of cor r upt conduct i s t hat i t di scour ages many honest

ci t i zens who woul d ot her wi se vol unt eer f or publ i c ser vi ce f r om

get t i ng i nvol ved at a t i me when t hei r ser vi ce i s sorel y needed.

B. Hi st or y and Char act er i st i cs of t he Def endant

Rather t han now owni ng up t o hi s ser i ous unethi cal ,

dest r uct i ve, cr i mi nal conduct , t he def endant cont i nues t o mi ni mi ze

t he nat ur e of hi s of f ense by cl ai mi ng r epeat edl y t hat hi s conduct

was not cor r upt . Hi s stat ement s si nce t he j ur y’ s gui l t y ver di ct

of f i ci al . I have t o be exposed t o t hese t hi ngs. But I woul d hope t hatyou, uh, you woul d, uh, heed what I am sayi ng to you t oday and, um, gi veme now t he oppor t uni t y t o have my st atement , um, out t her e. Yes, si r ?

Q: I f you were i n a r oom wi t h Mr . Mangone, what woul d you t el l hi m?

A: You know what J ef f , I am Chr i st i an and I f eel - I f eel badl y f orhi m. He i s a f l awed character. I mean i f you r ead t he ar t i cl es publ i shed

by your si st er newspapers and what ever, um, about t he gambl i ng debts andabout hi s l i f e and al cohol i sm and dr ugs, um, you know what? I woul d woul dpr ay f or hi m because i t ’ s sad. But on t he ot her hand, on t he ot her hand,I amcer t ai nl y not happy about what he sai d but I woul d, I woul d- I woul dpr ay f or hi m. He needs hel p.

3 That such a bel i ef i s common among New Yorkers became appar ent on the f i r st day oft r i al i n t hi s case, when t he Court asked t he cour t r oom f ul l of pot ent i al j urors i ft hey had seen any st ori es i n t he medi a about pol i t i ci ans bei ng charged wi t h cr i mes. The r espondi ng l aughter f r om t he potent i al j uror s spoke vol umes about t he l ack ofconf i dence the publ i c i n New Yor k has i n i t s st ate government .


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show t hat he i s ei t her unabl e or unwi l l i ng t o acknowl edge t he

seri ous nat ur e of hi s conduct .

For exampl e, t he def endant t ol d the medi a on t he

cour t house st eps i mmedi at el y af t er hi s arr ai gnment t hat " [ t ] her e’ s

no br i ber y char ges, t her e’ s no conspi r acy char ges . . . . You can’ t

compare t hat t o some of t he ot her char ges t hat I t hi nk some of my

col l eagues have [ been] t hr ough. ” "GOP St ate Senat or I ndi ct ed on

Char ge of Lyi ng t o FBI , " New York Post , J ul y 1, 2014. Two weeks

l at er , he sai d dur i ng a radi o i nt er vi ew t hat " [ y]ou know t her e was

no br i bery char ges. There were no corr upt i on charges. Um, you know

l i ke, I know peopl e ar e sayi ng, uh, ya know, ever ythi ng t hat ’ s

goi ng on i n Al bany, but t her e was no br i ber y, cor r upt i on,

conspi r acy, not hi ng l i ke t hat . " Gov. Ex. 13 ( at t ached her et o but

not admi t t ed at t r i al ) .

Even t hough t hese pret r i al st at ement s went beyond a mere

deni al of gui l t , t hey coul d st i l l be vi ewed as ef f or t s by a

pol i t i ci an t o put t he best spi n on a bad si t uat i on. The def endant ,

however , showed he r eal l y bel i eved what he was sayi ng when he

cont i nued wi t h hi s deni al s of cor r upt i on af t er t he t r i al , af t er he

l ef t t he Senat e, af t er t her e was a need f or hi m t o cul t i vat e vot er s

and af t er i t woul d have been i n hi s i nt er est t o acknowl edge t he

seri ous nat ur e of hi s of f ense. I n hi s sent enci ng submi ssi on, t he

def endant cont i nued t o deny t hat hi s act i ons wer e cor r upt . Def .

Br . at 5- 6 ( "Def endant ' s act i ons wer e not ' cor r upt ' as t hat t er m i s

t r adi t i onal l y def i ned") . He al so suggest ed t hat hi s conduct i n


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2005 and 2006 was not hi ng more than hi s " assi st [ i ng] hi s son i n

obt ai ni ng a j ob. " Def . Br . at 6. I n hi s l et t er t o t he Cour t , he

sai d onl y t wo t hi ngs about hi s conduct : 1) t hat he never sent

busi ness t o SRM; and 2) t hat he di d not pr opose bi l l s t hat "woul d

benef i t t he l obbyi st t hat hi r ed t he l aw f i r m. " 4 Docket No. 73- 13 at

13. The def endant , however , mi sses t he poi nt s t hat he t ook t he

$50, 000 f r om t he l obbyi st , t hat he creat ed a cl ear conf l i ct of

i nt er est as a resul t and t hat he conceal ed hi s conduct by causi ng

t he payment s t o hi s son t o be l aundered and by obst r uct i ng t he

FBI ' s i nvest i gat i on of hi s conduct .

Not surpr i si ngl y, t he def endant has been abl e t o must er a

subst ant i al number of l et t er s f r om hi s f r i ends and f ami l y and t hose

whom he has hel ped i n t he past . Whi l e t he Cour t shoul d consi der

t hese l et t ers, t he voi ces of t hose who have been bet r ayed by t he

def endant ' s conduct - - t he ci t i zens of New Yor k - - must al so be

hear d. Fur t her, a r evi ew of t he l et t er s shows t hat many of t he

aut hor s, whi l e wel l - meani ng, di d not f ul l y appr eci at e t he ser i ous

natur e of t he def endant ' s conduct . I nst ead, t hey r epeat ed t he

def endant ' s t heme t hat t he def endant had l i ed about not hi ng more

t han obt ai ni ng a j ob f or hi s son.

I t i s cur i ous, t o say the l east , t hat t he def endnat woul d

of f er hi s publ i c ser vi ce and good deeds as mi t i gat i ng f act or s. I t

was, af t er al l , hi s posi t i on as a publ i c of f i ci al t hat gave hi m t he

4 The def endant , however , di d pr esumabl y have an i nf l uence over how t he St ate spenti t s t r ansport ati on dol l ars and vot ed on t r anspor t ati on budgets dur i ng t he r el evantyear s. Undoubt edl y, t he l obbyi ng f i r m r ecogni zed t hat t he defendant enj oyed t hati nf l uence.


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abi l i t y t o per suade a l obbyi ng f i r m t o pay hi s son $50, 000 f or

not hi ng i n r et ur n. Whi l e t he def endant may have done good deeds

f or hi s const i t uent s, as descri bed i n many of t he l et t er s, t hose

act s must be vi ewed i n l i ght of t he f act t hat t he def endant was

el ect ed and pai d t o ser ve hi s const i t uent s. The good deeds

descr i bed i n t he l et t er s descr i be t he ki nd of conduct t hat i s t o be

expect ed f r om a St at e Senat or t owar d hi s const i t uent s - - especi al l y

a St ate Senator who hopes t o generate goodwi l l t hat can l ead t o re-

el ect i on.

Char i t abl e wor ks by pr of essi onal l y successf ul def endant s

r ar el y, i f ever , ar e mat er i al l y mi t i gat i ng f actors at sent enci ng

because cour t s r ecogni ze that i t i s usual and or di nar y f or such

def endant s to be i nvol ved i n char i t i es and chur ches. See, e. g. ,

Uni t ed Stat es v. Barbera, 2005 WL 2709112 at * 12- 13 ( S. D. N. Y.

2005) , ci t i ng Uni t ed St at es v. McCl atchey, 316 F. 3d 1122, 1135

( 10t h Ci r . 2003) ( communi t y i nvol vement not out of t he or di nar y f or

hi gh r anki ng busi nessmen; " [ l ] i kewi se, excel l ent char act er

r ef er ences ar e not out of t he or di nar y [ f or whi t e col l ar

def endant ] ; one woul d be sur pr i sed t o see a person r i se t o an

el evat ed posi t i on i n busi ness i f peopl e di d not t hi nk hi ghl y of hi m

or her ") ; Uni t ed St at es v. Kol bach, 38 F. 3d 832, 838 ( 6t h Ci r .

1994) ( "i t i s usual and or di nar y, i n t he pr osecut i on of whi t e- col l ar

cr i mes i nvol vi ng hi gh- r anki ng cor por at e execut i ves . . . t o f i nd

t hat a def endant was i nvol ved as a l eader i n communi t y char i t i es .

. . and chur ch ef f or t s") ( emphasi s i n or i gi nal ) ; Uni t ed St at es v.


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Haver sat , 22 F. 3d 790, 796 ( 8t h Ci r . 1994) ( "hi gh- l evel busi ness

execut i ves . . . enj oy suf f i ci ent i ncome and communi t y st at us so

t hat t hey have t he oppor t uni t i es t o engage i n char i t abl e and

benevol ent act i vi t i es") .

The def endant ' s ar gument t hat t he l oss of hi s seat i n

t he St at e Senat e shoul d be a mi t i gat i ng f act or i s mi spl aced. The

def endant abused t he i nf l uence t hat came wi t h hi s posi t i on by

causi ng t he l obbyi ng f i r m t o pay hi s son t he $50, 000. He t hen l i ed

about t hat conduct t o cover up what he knew t o be hi s wr ongf ul act ,

whi ch l ed t o hi s convi ct i on. He can har dl y now poi nt t o hi s

expul si on f r om t he Senat e as a f act or t o be consi der ed i n hi s

f avor . Fur t her , t he oppor t uni t y t o ser ve i n an el ect ed posi t i on i s

an honor t hat must be ear ned, not an ent i t l ement t hat shoul d

gener at e consol at i on i f i t i s l ost t hr ough a wr ongf ul act .

The def endant ' s cont i nued deni al s, mi ni mi zat i on and l ack

of r emor se f or hi s conduct ar e aggr avat i ng f act ors t hat t he Cour t

shoul d consi der i n f ashi oni ng an appr opr i at e sent ence i n t hi s case.

C. Need f or t he Sentence I mposed t o Pr omot e Respectf or t he Law and t o Af f ord Adequat e Det err ence

The publ i c percept i on t hat New Yor k' s l egi sl at ure i s

cor r upt i s not basel ess. Si nce 2010, t hi r t een New Yor k l egi sl at or s

have been convi ct ed or f ound gui l t y of f el ony char ges and

addi t i onal cases ar e pendi ng. Gi ven t he har m caused by publ i c

cor r upt i on and t he ext ent of t he cor r upt i on pr obl em i n New Yor k,

t he sent ence her e needs t o send a message that vi ol at i ons of publ i c


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t r ust wi l l not be met si mpl y wi t h t ough t al k but wi t h a si gni f i cant

sent ence i n or der t o det er ot hers . Whi l e t he def endant i s no

l onger i n t he St at e Senat e, hi s r ef usal t o acknowl edge the ser i ous

natur e of hi s conduct and hi s l ack of r emorse ar e f act or s

demonst r at i ng t he need f or speci f i c det er r ence as wel l .

D. Need f or t he Sent ence t o Provi de J ust Puni shment

As descr i bed i n mor e detai l above, t he ser i ous nat ur e of

t he def endant ' s of f ense and r el at ed conduct , hi s l ack of r emor se

and t he need t o det er ot her s war r ant a si gni f i cant sent ence i n t hi s

case.

E. Need f or t he Sent ence t o Provi de t he Def endantWi t h Medi cal Care and t he Ki nds of Sent ences Avai l abl e

Shoul d t he Cour t i mpose a cust odi al sent ence, t he Bur eau

of Pr i sons woul d be abl e t o pr ovi de t he def endant wi t h the same

medi cal car e he r ecei ves now at Memor i al Sl oan Ket t er i ng. I f t he

Cour t i mposes a pr obat i on wi t h a condi t i on of home conf i nement , an

except i on coul d be made t o per mi t t he def endant t o l eave hi s home

f or medi cal t r eat ment .

F. The Sent enci ng Gui del i nes

To t he ext ent t hat t he Cour t deter mi nes i t must r esol ve

di sput es bet ween the par t i es r egar di ng the appl i cat i on of t he

Sent enci ng Gui del i nes, t he Gover nment not es addi t i onal l y t hat i t

agr ees wi t h t he Pr obat i on Of f i ce r egar di ng appl i cat i on of t he two-

l evel enhancement f or t he def endant ’ s abuse of a posi t i on of publ i c


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t r ust . U. S. S. G. § 3B1. 3. 5 The def endant argues t hat t hi s

enhancement i s i nappl i cabl e because ( 1) no i dent i f i abl e vi ct i m

ent r ust ed t he def endant , and ( 2) he di d not hol d a posi t i on of

publ i c t r ust wi t h r espect t o t he of f ense of convi ct i on, t hat i s, he

di d not abuse a posi t i on of publ i c t r ust by l yi ng t o t he FBI . For

t he r easons bel ow, t he Government di sagr ees.

Sect i on 3B1. 3 set s f ort h a t wo- l evel enhancement t hat

appl i es “[ i ] f t he def endant abused a posi t i on of publ i c . . . t r ust

. . . i n a manner t hat si gni f i cant l y f aci l i t at ed t he commi ssi on or

conceal ment of t he of f ense. ” The Gui del i nes speci f y t hat “[ t ] he

det er mi nat i on of a def endant ’ s r ol e i n t he of f ense [ under Sect i on

3, Par t B, whi ch i ncl udes t he adj ust ment f or abuse of a posi t i on of

publ i c t r ust ] , i s t o be made on t he basi s of al l conduct wi t hi n t he

scope of § 1B1. 3( a) ( 1) - ( 4) [ r el evant conduct ] , and not sol el y on

t he basi s of t he el ement s and act s ci t ed i n t he count of

convi ct i on. ” Rel evant conduct i ncl udes, among other t hi ngs,

conduct t hat was par t of t he same “common scheme or pl an, ” whi ch

i ncl udes of f enses t hat ar e “subst ant i al l y connect ed t o each ot her

by at l east one common f act or , such as common vi ct i ms [ and] . . .

common pur pose. ” U. S. S. G. § 1B1. 3( a) ( 1) ( 2) and App. Note 9.

Cour t s have f ound t hat when a def endant i s convi ct ed of maki ng

f al se st at ement s, t he conduct he sought t o conceal by maki ng t hose

5 The Government al so t ook t he posi t i on wi t h the Pr obat i on Of f i ce t hat upwarddepart ur es were warr ant ed because the of f ense l evel subst ant i al l y underst ates theseri ousness of t he of f ense, see U. S. S. G. § 2B1. 1 Note 20( A) ( i ) , and because thedef endant commi t t ed t he of f ense i n or der t o conceal t he commi ssi on of another of f ense,see U. S. S. G. § 5K2. 9. Whi l e t he Government st i l l bel i eves t hese depart ur es woul d bewar r ant ed, i t al so bel i eves i t i s unnecessar y f or t he Cour t t o rul e on t hesedepar t ures gi ven i t s r ecommendat i on of what t he sentence shoul d be.


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st at ement s may be r el evant conduct . See Uni t ed St ates v.

Fr i edber g, 558 F. 3d 131, 133- 34 ( 2d Ci r . 2009) ( basi ng § 3B1. 3

enhancement on r el evant conduct ) ; see, e. g. , Uni t ed St at es v.

McConnel l , 273 Fed. Appx. 351 ( 5t h Ci r . 2008) ( unpubl i shed) ; Uni t ed

St at es v. Lewi s, 113 Fed. Appx. 336, 337- 39 ( 10t h Ci r .

2004) ( unpubl i shed) ( “[ T] he di st r i ct cour t di d not er r i n f i ndi ng

t he conduct was par t of a “common scheme or pl an” under USSG §

1B1. 3( a) ( 2) si nce [ t he def endant ’ s] f al se st at ement s wer e desi gned

t o evade det ecti on of her t hef t s. ”) .

Her e, t he def endant abused hi s posi t i on of publ i c t r ust

i n connect i on wi t h t he br i ber y scheme i n whi ch he par t i ci pat ed i n

vi ol at i on of , among ot her t hi ngs, 18 U. S. C. § 666 or §§ 1341, 1343

& 1346. These of f enses were par t of a common scheme wi t h t he

of f ense of convi ct i on f or t he def endant ’ s maki ng f al se st at ement s.

The def endant , whi l e head of t he Senat e’ s Tr anspor t at i on Commi t t ee,

sol i ci t ed and obt ai ned f r om a t r anspor t at i on l obbyi st a $50, 000

payment f or t he def endant ’ s son, f or whi ch t here was no busi ness or

ot her pur pose. Whi l e hi s son r ecei ved t he mont hl y i nst al l ment s of

t hi s br i be, t he def endant engaged i n of f i ci al act s t o t he

l obbyi st ’ s benef i t , such as by meet i ng weekl y wi t h t he

t r anspor t at i on l obbyi st , who l obbi ed t he def endant on mat t er s t hat

wer e t he subj ect of t he Senat or ’ s di scret i on as an el ect ed of f i ci al

and head of t he Transpor t at i on Commi t t ee.

The def endant t hereby abused hi s posi t i on of publ i c

t r ust , as t he ci t i zens of New Yor k St at e had ent r ust ed hi m t o act


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24

i n t hei r best i nt er est s, not t he f i nanci al i nt er est s of hi s f ami l y.

And t he def endant ’ s br i bery scheme, and hi s l yi ng t o t he FBI about

t he br i ber y scheme, wer e par t of a common scheme. They had common

vi ct i ms – t he ci t i zens of New Yor k who expect ed t he def endant t o

act i n t hei r i nt er est and not t o cover up t hei r f ai l ur e t o do so

when i t i s under i nvest i gat i on – and a common purpose – t he

enr i chment of t he def endant ’ s son t hr ough t he secret use of t he

def endant ’ s power .


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CONCLUSI ON

The sent ence i n t hi s case shoul d send as r obust a message

as possi bl e under t he ci r cumst ances t hat corr upt i on i n government

wi l l not be t ol erat ed and wi l l be met wi t h vi gor ous pr osecut i on and

puni shment . The Government submi t s t hat , f or t he r easons st at ed

above, t he Probat i on Of f i ce' s r ecommendat i on, al ong wi t h a

subst ant i al f i ne, woul d st r i ke t he r i ght bal ance i n t hi s case.

Dat ed: November 9, 2015Whi t e Pl ai ns, NY

Respect f ul l y submi t t ed,

PREET BHARARAUni t ed St at es At t or ney

/ s

By: _________________________________ J ames McMahonBenj ami n Al l eeAssi st ant Uni t ed St at es At t or neys

( 914) 993- 1936/ 1962

cc: Paul Der Ohannesi an I I , Esq. ( by ECF)


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DATE: July 8, 2014

LOCATION: New York, NY

PARTICIPANTS: Thomas LibousBob Joseph

ABBREVIATIONS: (UI) = Unintelligible

____________________________________________________

BOB JOSEPH: We welcome back to the program New

York State Senator Thomas Libous.

Good Morning, Senator Libous.

THOMAS LIBOUS: Good Morning, Bob Joseph. How are

you?

BOB JOSEPH: I’m ok, but more importantly, how areyou?

THOMAS LIBOUS: Well, I’m good. I’m very good actually.

Um we’re doing good, um, you know,

unfortunate circumstances last week, but

um, um we’re confident that things will

go well, very confident actually. And, uh,um, you know we’re just gonna work

through it and continue to do my job as

the Senator for the people of the 52nd

district.


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2

BOB JOSEPH: Now I was away last week, a week ago

today, so, and, and of course sadly, uh,

well news travels fast and bad news

travels faster. So, even though I was

away, I heard quickly about theannouncement from the FBI and from the

U.S. Attorney, Preet Bharara that you and

your son had been indicted. Tell me about

the sequence of events. What happened

last Tuesday? How did this all transpire

at least as so far as you were concerned?

THOMAS LIBOUS: Well, we, we, we got a call from our

attorneys on Monday, and uh, they told

us that uh, an investigation that had been

going on, at least with me, I can speak for

me better, uh, had ended and that I uh,

that I was going to be um, arrested on acharge, of one charge of lying to an FBI

agent. And um, at that time uh, I said to

my attorney what do we do next, and I

met him in White Plains, and we went

through the arraignment. And, um, the,

the process actually was, was a good

process. They were very respectful. Wewent through the arraignment process and

um, and then uh, it was completed. We,

we came back uh…actually I was in New

York for treatment. I’m in New York for

treatment this week. And I do want to


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Bob, hopefully you’ll save some time so

that I can dispel any rumors that are out

there because I think that’s very

important about my health, and I want to

be able to do that. But um, in the processwas completed, and um, as I said, as I

said, several years ago and I said recently

um, you know um, we’re, we’re innocent

of these charges, we’re, we’re not guilty

of these charges, and um, we’re gonna

fight them. You know there was no

bribery charges. There were no

corruption charges. Um, you know like, I

know people are saying, uh, ya know,

everything that’s going on in Albany, but

there was no bribery, corruption,

conspiracy, nothing like that. There were

no, there weren’t even any charges herethat dealt with anything that was alleged

about me and my son. It was just, uh, theonly charge is that I lied to the FBI, or...I,

I, I prefer to say false statements to an

FBI in an interview, which I didn’t do by

the way. I’m not guilty of.

BOB JOSEPH: But, and again, as you provide the

context here, it certainly is a case that

differs from many of the other highly publicized uh, corruption cases over the

years involving some Democrats and


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some Republicans in Albany and New

York City. The fact is even one count of

lying to the FBI, this a very serious

matter.

THOMAS LIBOUS: Oh, there’s no question about it. If you, if

you did it or if it took place, it is a very

serious matter, but um you know, the one

thing that I just want to continue to, to

stress is that um, you know, this situation

um, did not, this indictment did not, you

know again, have any conspiracy,

bribery. Uh, it’s, it’s really not a

corruption charge. It’s a, it’s a charge of a

false statement. And, yeah, it is, it is

serious. And um, we’re gonna have our

day in Court. We look forward to it. Um,

we’re gonna, we’re gonna prove that weare, that we are not guilty of any of this

um, of this particular charge and uh,we’re gonna move forward.

BOB JOSEPH: Now the assertion according to the

indictment, according to the news release

that was issued a week ago today, FBIagents interviewed you a little over four

years ago. It says June 24, 2010 as part

of a grand jury investigation. And, theirassertion is that uh, during the interview

you could not recall how your son began


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working at a law firm. I believe that’s the

law firm that we’ve talked about in the

past because of testimony that came up in

an unrelated uh, case in Westchester

County. So, they make certain, certainstipulations, certain allegations. So, they

seem to be pretty sure of themselves. It

seems to me that Preet Bharara, the U.S.

Attorney, would not move on something

this serious unless he felt there was a

reasonable chance of, of prevailing if the

case actually goes to trial.

THOMAS LIBOUS: Bob, all I, all I can really share with you

and your listeners at this time is that,

look, I’m very confident. My attorney is

very confident that um, we’ll be able to

um, prevail and we’ll go to courtsometime soon, I don’t know when. And

um, I would ask that the people who havesupported me so strongly over the past 26

years would um, would be patient and,

and look at the, you know, at the good

things that I’ve done as Senator and not

presume guilt before one is been proveninnocent. And, that is our court system in,

in this country and I’m telling you that

I’m very confident of, um, of, of winningthis case and um, we’re not guilty of, of

the charges, and I really can’t get into too


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much more at this time because it will

um, it will all come out and prevail at the,

at the right time. Um, I feel very good

about it and I mean that.

BOB JOSEPH: Well, it’s 9:37 and we’re talking live with

State Senator Thomas Libous. I’m Bob

Joseph from the Binghamton Now studio.

Senator Libous is um, joining us now by

phone from New York City. Now a little

over a year ago I’m sure you’ll recall, we

had a prolonged discussion after

Bloomberg put out a report that, that

suggests the FBI was looking at some of

your personal financial dealings. And,

and one of the things that we talked about

at that time was of course a couple years

ago, then Binghamton Mayor MatthewRyan, filed a formal complaint with the

Joint Commission on Public Ethics,JCOPE, um, because he wanted some

matters looked into. Uh, we, after the

Bloomberg story came out, in fact, it just

coincided I think that day when we were

already scheduled to speak, I asked you a bit about people uh, who had questioned

you regarding various things. And this is

just a portion of that interview that goes back to May of last year:


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“So, have you been interviewed by

any JCOPE representatives?”

THOMAS LIBOUS: Are you asking me now?

BOB JOSEPH: “Have you been um, contacted at all

by the FBI or any other state

investigators?”

THOMAS LIBOUS: “ No.”

BOB JOSEPH: “Do you expect to be?”

THOMAS LIBOUS: “Um, I, you know, I don’t know. It’s

just that this is a, obviously a

statement that somebody made to a

reporter. I don’t know what thecontent means and uh, um, I can’t, I

can’t answer that. I really can’tanswer that.”

BOB JOSEPH: Ok, now Senator Libous we’re back live.

Now the reason I played that excerpt

some people who heard that from May oflast year wanted me to ask about the

assertion that you hadn’t spoken with

anybody from the FBI, and they wantedme to at least ask you to clarify because

obviously now that um, the indictment


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says that you had conversations with FBI

agents going back to 2010.

THOMAS LIBOUS: Um, those conversations in 2010, I think

uh, I thought were, were a little different.When you asked me that question I

thought you were talking about recently.

BOB JOSEPH: Ok, so uh, and this…

THOMAS LIBOUS: I’m not, I’m not, and you know what

when your--, when there’s an

investigation going on um, those, those

um, issues um, um, are, are not issues

that you were instructed to talk about.

BOB JOSEPH: In fact, when, in, in excuse me for asking,

it sounds uh…

THOMAS LIBOUS: No, go ahead.

BOB JOSEPH: ...because again, un-, fortunately for me I

hadn’t had to be questioned by, by

Federal investigators, but when they are

investigating allegations, and as youknow, you know as much as anybody

else, anybody can make allegations and

allegations are made, they ultimately,frequently are investigated. When federal

officials, FBI agents or others are, are


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asking you questions, do they also say

afterwards that you, you really had better

not talk about this while we’re

investigating?

THOMAS LIBOUS: Well, I’m not, I’m not gonna get into

that. I mean, you might wanna reach out

to them and they’ll talk to you about how

they do their investigations.

BOB JOSEPH: Okay.

THOMAS LIBOUS: It’s really not a place for me to go right

now.

BOB JOSEPH: Okay, well, then you’ll understand

though my, uh, need to ask, just...

THOMAS LIBOUS: Yeah, no, sure, but…

BOB JOSEPH: So, now what happens we, we have heard

for example, the State Republican

Chairman Ed Cox has said it’s his belief

and many other Republicans, and some

non-Republicans around the state theycontend that the action by Preet Bharara

and the Justice Department is politically

motivated. What’s your impression?


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THOMAS LIBOUS: I, you know, I wasn’t privy to that. I’m

down in the city this week, uh, I’m

finishing up some treatments and I’ll be

very honest with you, I’m, I’m not, I’m

not privy to Ed Cox’s statements, orwhere he made those statements.

BOB JOSEPH: You don’t, uh, have a personal opinion

about whether politics were involved?

THOMAS LIBOUS: Bob, people, people can make whatever

statements they want. I will tell you this.

Um, the, the charges against me deal with

a false statement to the FBI. Um, we will

deal with those charges. We are innocent

of those charges, and um, um, we’re

gonna continue to do our job every day,

the job that I was elected to do. And, um,other people can make whatever

comments they want. And, they canmake whatever assertions they want. Uh,

but my, my uh, my plan here is to

continue to work on the behalf of the

people of the 52nd district. I’ve got some

things that we, we need to continue towork on every day as they do I’m doing

my job. I’m working around my health

concerns and uh, you know, other peoplewill make whatever comments they want.

I’m not gonna, I’m not gonna get into, to


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uh the validity of people’s--, everybody’s

has an opinion, everybody’s entitled to

make.

BOB JOSEPH: I would want to ask for your reaction tothis though; Rob Astorino, the

Republican candidate for Governor, the

other day tweeted, and, and uh, at a link

to the New York Times editorial, which

uh, cited your, your recent indictment,

Rob Astorino, Westchester County

Executive and Republican candidate for

Governor, tweeted, that “it stands as a

reminder that Mr. Cuomo has failed to

make good on his promise to clean up

Albany.” That’s a pulled quote from the

New York Times editorial. So, Rob

Astorino, the Republican candidate, isusing your current indictment situation

to, to suggest that this is tied intoGovernor Cuomo’s efforts to improve the

ethical situation in Albany. What was

your reaction to that?

THOMAS LIBOUS: My reaction is that’s unfortunate and heshouldn’t.

BOB JOSEPH: Were you surprised?


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THOMAS LIBOUS: Um, Bob, I’ve been in politics for a long

time. Nothing surprises me at this point.

Nothing surprises me. As I said, people

are entitled to their opinion and uh, he’s

running for Governor. He’s gonna dowhatever he I guess ah, has to do to get

elected Governor. And, that’s his

business, but uh, I’m, I’m not gonna

waste any time, you know, thinking about

what people say. I’m gonna work

forward. I will tell you this. Um, over the

course of the last week, I have gotten

hundreds of emails and letters and notes

from people and uh, of encouragement

from the district and I think that’s great.

And, Facebook page, we got over a

thousand likes on some of the statements

we made. So the support from my districtfor me, uh, has been overwhelming. I’m

excited about it and gonna keep workinghard on behalf of people that I worked

hard for for over 26 years. And, I will,

um, when this thing has its day in court, I

would ask everybody to be patient, but,

uh, give, give me that opportunity. Um,I, I know that we’re gonna win. I’m very

confident that we’re gonna win.

BOB JOSEPH: Just a few days before the indictment was

announced, you appeared in (UI) with


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Governor Cuomo at uh, a signing

ceremony for the, the package of heroin

related bills, and before the Governor

signed that legislation, he had effusive

praise for you. It’s, it’s well known thatyou and Andrew Cuomo have a very

good working relationship, and

apparently a very good personal

relationship. Um, has the Governor

spoken with you since the indictment was

announced?

THOMAS LIBOUS: Um, he did leave a message for me and I

have not had a chance to hook up with

him, but we have not spoken directly, but

he did leave a, he did leave a message for

me on my phone.

BOB JOSEPH: And, without divulging a specific

personal message, did he express supportfor you?

THOMAS LIBOUS: You know, I, I think, again that, that sort

of thing I don’t see why he wouldn’t, but

that sort of thing you have to ask theGovernor directly. I’m not gonna, I’m not

gonna start, you know, sharing what

message people left on my phone and um,what support they leave and what have

you. But, he’s always been uh, very


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supportive and I would expect him to be

supportive moving forward.

BOB JOSEPH: Speaking with State Senator Thomas

Libous live on Binghamton Now. Anduh, as people have, have noted the timing

is, is curious. We’re very close to the, to

the cut off of, of the date for candidates,

both Republican and, and Democratic

candidates to be circulating signatures.

So, you know that um, uh challenges that

didn’t exist prior to a week ago suddenly

are, are rising. And I guess that’s to be

expected. I guess you being a very uh, um

astute student of politics, can’t be

surprised that suddenly uh, at least one

Republican, and at least one Democratic

are preparing to challenge you when justa week ago, they had no intention.

THOMAS LIBOUS: Well, I’m gonna continue to run on, on

the good things that I’ve done for the

people of the Southern Tier. I’m very

proud of my record. Um, I’m very proud

of my position in Albany. And um, Ithink I’ve, um, I’ve helped the Southern

Tier move forward. And if, if people

choose to run against me now because ofa particular situation then that’s certainly

their business, but I’m, I’m gonna run


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hard and I’m gonna continue to talk about

the um, accomplishments that we’ve had

and um, you know people are gonna have

to challenge me. And um, as I’ve said,

I’m moving forward. This is uh, this issomething that I think moving forward in

the election is um, will, will give people

the opportunity to um, talk about what

they’re gonna do for the people of the

Southern Tier.

BOB JOSEPH: About four weeks ago when Carl

Palladino was on this program, and you

probably heard about it. He, he made the

suggestion that you would not be on

ballot in November. He said on

Binghamton Now that although your

people have been circulating ballot petitions in preparation for re-election,

Palladino said that you fully intend to usea committee on vacancies to ultimately

appoint another candidate. And Palladino

said in other words, he’s picking his

successor and nobody’s saying a word

about it. Now, the one thing that I foundinteresting when I contacted your office

for a reaction we never did get any kind

of response to Carl Palladino’s assertionabout some sort of plan that would uh,

possibly have another Republican


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candidate running in the district in

November instead of you.

THOMAS LIBOUS: Well, you shouldn’t have found anything

interesting about it, Bob. I mean, I wasn’tabout to give Carl Palladino any validity.

I didn’t know he was my doctor and I

didn’t know, um ya know, he had any

um, intimate uh, knowings of what’s

going on with my health quite frankly.

Um, look let me make this very clear. My

petitions are being circulated. They’re

gonna be filed this week. Um, I am, um I

am not gonna drop out and, and, and have

a vacancy committee pick. There’s only a

very small opportunity for that. Um, you

know, I’ve uh, I’ve spoken with my

doctors. And, my health is beingmanaged and my doctors have um, my

doctors have given me the green light togo, to go forward and they think I should

run. They think I’m very capable of

running and managing my disease and

that’s something that um, I expect to do

and wanna do. And, um, um so I wouldnot put too much uh, uh faith in any

statements that others may have made on

this program. I’m telling you andeverybody that I’m, I’m filing petitions,

and I’ll be running this Fall.


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BOB JOSEPH: During your court appearance a week

ago, on Tuesday afternoon, you did give

uh, a public assessment of your health

and it sounded far more serious thananything you’ve said up until that point.

THOMAS LIBOUS: Well, it’s, it’s, it’s all in how things get

written. Um, there were um, some, some

discussions on my health. There was a

number of reporters there. Um, I will tell

you this, that while my cancer is not

curable, it is being managed um, and I

have had discussions with my doctors

about running and they all feel that it’s

the right thing for me to do, and that I’m

very capable of maintaining the busy

schedule that I have maintained this yearand that uh, if I continue with treatment,

which I will continue because I need tocontinue. Um, I can do the job that the

people have asked me to do. So um, I, I

feel good, I feel good and pretty

confident about it. You as I said before

Bob, I think it’s important for people likemyself and now certainly the county

executive’s going through it, to show

people that there are many of us that aremanaging our diseases and go to work

every day and that are contributing to


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society. I think that’s very important um,

for all of us to do.

BOB JOSEPH: Some people have expressed concern that

this type of development, being indictedeven on one count of lying to FBI agents

is a serious count at this juncture where

you’re facing a very serious health

challenge, that this could be potentially

devastating that it could have a negative

impact on your ability to fight the

disease. Do you believe that that could

occur?

THOMAS LIBOUS: Well, you know, look everybody is

entitled to their opinion. I know that my

treatments have been going well. My

doctors have been consulted and um, no,I think look, I have the energy to, to uh

move forward. I want to move forward ifthe people will have me, and the only

thing I ask of them is please be patient.

Do not, you know, do not make a

decision without getting all the facts. You

know, I’ve worked hard on behalf of the people of the Southern Tier. I’m still the

same person I was two weeks ago. Um,

and, I know that there are people outthere um, that will continue to support me

and there are people out there that will


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not, but I just uh, I believe that we’ll

come through this. As I said, I’m very

confident that we’ll come through this.

Uh, I want to continue to serve and um,

I’m, I think I’m very capable of doingthat, both uh, both going to treatment and

managing my health and also I’m going

through this challenging time.

BOB JOSEPH: One of the people who has spoken out

publicly uh, expressing a great deal of

support for you is the former Senate

majority leader Joseph Bruno and Senator

Bruno certainly knows a thing or two

about fighting uh, allegations and a long

fight it was before he ultimately was

acquitted after another trial. Uh, I take it

you’ve heard at least uh the publiccomments of Senator Bruno. Have you

spoken with him about uh, about thissituation and, and how he prevailed?

THOMAS LIBOUS: I actually listened to him and Fred

Dicker. Fred Dicker was somewhat

shocked at the charges himself. I meanhe, in that same program, Fred Dicker

was, um, very concerned about what had

happened and um, I was pleased, I guessum, you would call it support from a

radio host. It seemed to me that there


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was uh, at least he was speaking

positively on my behalf and yeah, I’ve

spoken to Senator Bruno. Senator Bruno

has been a friend for a long time and he

uh, he told me to uh, ya know, to staystrong and I told him that um, we’re

gonna, we’re gonna fight this and move

forward.

BOB JOSEPH: So you sound so committed to fighting,

and, and obviously you don’t have much

of a choice about, about…

THOMAS LIBOUS: I didn’t do anything wrong. I know in my

heart. I sleep nights. I know in my heart I

didn’t do anything wrong. I’m being

accused of something that I didn’t do.

Um, I am committed to it. I am strong toit. Um, I mean when people get accused

of something that they didn’t do and they,and they, they feel rather adamant about

it as I do, I mean, uh, I’m, I’m I’m gonna

fight this and I just ask the voters of my

district to have the faith in confidence

that they’ve had in me for the last twenty-six years that this is gonna come out

okay. And, um, um, I guess if you don’t

have that faith and confidence then that’sfine do whatever you need to do. But,


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um, I, I, I believe that this is gonna come

out fine. I really mean that.

BOB JOSEPH: Have you heard from some friends and

family members who say yes focus onfighting the charge, but why don’t you

consider stepping down from the Senate

and, and enjoying some time to relax

after, after serving in the Senate for well

over two decades. Are you hearing from

some people say, yeah you actually owe

it to yourself , uh given what you’ve been

through over the last several years, health

wise and, and now this that’s to, to step

back and, and just appreciate uh, life and,

and, and get out of the glare of Albany,

spend some time to relax in the coming

years?

THOMAS LIBOUS: Well, Bob, I’ve had, I’ve had like I saidhundreds of calls, and emails and people

are encouraging me to go forward. They

believe that I’ve done a good job. They

want me to continue. Um, you know one

of the first things they say is we need youthere, uh, we need you for the

community. Uh, you know those are the

kinds of things they start with. Yeah, I’vehad probably one or two family members

say to me, uh, you know, maybe you


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wanna retire, but you know what? Um,

again, I’m, I’m managing a disease that

uh, that is a tough one. I’m not gonna sit

home. I’m not gonna retire and sit home.

I worked you know the last month ofJune in session. I ran the Senate floor. I

worked 15 hours a day. Um, I still have

the energy to do it. Um, I’m very proud

of my record. Um, I’m very upset about

these charges. They upset me, uh,

tremendously because I know they’re not

true, and, and I want to fight hard. I want

to show the people of the Southern Tier

that, that this is the same guy you’ve

elected time after time. Nothing’s

changed. And, um, um, I’m real proud of

some of the things I’ve done. I’m proud

of saving the psych center this year. I’m proud of cutting a deal for the, for the

developmental center. I wanna build that pharmacy school at BU. These are the

things that I was elected to do and again I

would just ask the people to, to be fair

and let me have my opportunity. In the

meantime, I’m going to continue to workevery day, Bob.

BOB JOSEPH: Were you shocked when your attorneytold you that he had received a call about

your indictment?


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THOMAS LIBOUS: Um, I, I, I just um, shock...it’s not

something you look forward to. I guess I

don’t know if shocked is the word.

BOB JOSEPH: Well, or given what had transpired over

the last few years had you sort of braced

yourself for this eventuality.

THOMAS LIBOUS: I don’t know, I don’t know. I don’t think

you’d ever brace yourself for that. I

always believed in my heart I did nothing

wrong. I still know today in my heart I

did nothing wrong. And, then when I saw

the charges, um I knew there was no

corruption. I knew there was no bribery. I

knew there was no conspiracy. I knew

that there was nothing along those linesand then when I saw the charge of giving

um, giving the false statement to anagent. Um, I just said um, I gotta deal

with it. Again, that’s why I say to the

people that are listening, I’m sure there’s

people that are listening this morning that

are gonna say you know what, you know,I’m not, I’m happy with this guy, but I

would ask everybody remember that this

is America, give me the benefit of thedoubt, and at the end of the day I am

saying that I am very confident that we’ll


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24

come out of this, uh, without being guilty

of this charge.

BOB JOSEPH: Also on Tuesday your son was indicted

and he faces several charges regardingallegations, failure to report income from

various sources. How is Matthew Libous

doing?

THOMAS LIBOUS: He’s doing great. Because again, he um,

he knows and he, he knows that he, uh,

didn’t commit any of these charges and

he’s um, you know, doing what he has to

do to get the right experts and the people

to prove, or if he moves forward that um,

that he is innocent and, uh, you know, I

really, I really don’t wanna get into this

too much because it kind of, you know,it’s his business, and he um, likes to deal

with his business. He doesn’t, you know,he doesn’t need to be on the public end.

You know, I’ve said this publicly, I love

my son and I’m, I’m confident that he’ll

come out of this, uh, in a very positive

way.

BOB JOSEPH: One other thing and you mention you’re

in New York City again…

THOMAS LIBOUS: Yeah.


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BOB JOSEPH: ...for the treatments you need every three

weeks. Now the Governor has signed the

medical marijuana legislation. We’ve

discussed medical marijuana in the past,this compromised measure that was

signed into law over the weekend, does

not allow for the use of, of marijuana

being smoked, but in other ways,

restricted ways. So, under those

circumstances now, is that something

now, now that it’s legal and the process is

in motion for medical marijuana for

people with cancer and other certain

diseases to be able to avail themselves of

this medicine. Is that something you now

might consider trying?

THOMAS LIBOUS: Uh, I’m not sure anybody is ever gonna

get the medical marijuana that wasapproved the way the system was set up.

Um, you know, I did vote against the bill

and I voted against it and I gave a very

compelling speech on the floor, which is

available on YouTube, if people wannalook at and listen to, and, uh one of the

problems with the medical marijuana is

that you can only buy it if you have cash.You can’t buy it through an insurance

fund. And um, what I thought what was


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very bad there iss, uh, you know they’re

making it only available to people that

have money and um, it’s gonna be

eighteen months to two years before it

gets up and going. Uh, I don’t, I’m notsure it’s ever gonna be available in New

York, Bob.

BOB JOSEPH: New York State Senator Thomas Libous,

I appreciate your answering the questions

at length. You’ve been available on this

program in the past and I trust that you

will be in the future. I wish you well in

the coming weeks and months.

THOMAS LIBOUS: I thank you and uh, we’ll be talking again

in the future. Thanks, uh, for giving mean opportunity this morning.

BOB JOSEPH: Thank you. New York State Senator

Thomas Libous live from New York

City.

[END]

libous sentencing

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