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Menendez New Trial Brief

Menendez New Trial Brief

Page 1: Menendez New Trial Brief

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Date Created:August 29, 2017

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Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4298
UNITED STATES DISTRICT COURT
DISTRICT NEW JERSEY
UNITED STATES AMERICA
ROBERT MENENDEZ and
SALOMON MELGEN,
Defendants.
__________________________________________)
No. 2:15-cr-155
Hon. William Walls
UNITED STATES TRIAL BRIEF November 2012, the relationship between Robert Menendez, United States Senator
from New Jersey, and Salomon Melgen, wealthy ophthalmologist from South Florida, came
under unwelcome public scrutiny. The press revealed for the first time that Menendez had flown
free charge multiple times 2010 Melgen private jet fact that Menendez had omitted
from the annual financial disclosure form required file. Once exposed, January 2013,
Menendez wrote $58,500 check Melgen cover two roundtrip flights, more than two years
after Menendez took them 2010. few weeks later, when the FBI executed search warrant Melgen offices January
30, 2013, Menendez swiftly issued statement: Senator Menendez has traveled Dr. Melgen
plane three occasions, all which have been paid for and reported appropriately. That was
lie. The truth that Menendez and his personal guests had enjoyed more than dozen flights
Melgen private jet, dating back least far 2006 not single one which Menendez had
paid for reported his annual financial disclosure forms.
Menendez persisted the
obfuscation just few days later, telling CNN February that the reason wrote the $58,500
check Melgen over two years after the flights was that the payment fell through the cracks.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4299 month later, Melgen repeated the three occasions lie interview appearing online
newspaper owned Melgen.
What both defendants false public statements sought hide was that the $58,500 check
did not cover all the private flights that Menendez accepted from Melgen covered just the
two personal trips that the defendants believed the public knew would find out about. But
Menendez and Melgen lies the public were aimed covering more than just flights.
They were aimed hiding corrupt pact spanning seven years, which Melgen showered many
more things value the New Jersey Senator than just flights private jet, and Menendez
reciprocated with official action advancing the South Florida eye doctor personal whims and
business interests. described below, the evidence trial will prove the defendants bribery scheme beyond reasonable doubt. effort save time trial, this memorandum intended provide
guide for the Court regarding the evidence the Government will offer and preview several legal
issues that may arise.
THE GOVERNMENT PROOF THE DEFENDANTS BRIBERY SCHEME
The Government evidence trial will demonstrate that, over time, the defendants
bribery scheme grew magnitude and breadth. The jury will hear testimony from variety
individuals who witnessed the scheme unfold, including guests and pilots who were present for
the lavish vacations Melgen furnished for Menendez, public officials that Menendez pressured
Melgen behalf, and Menendez staffers who helped carry out Menendez advocacy. addition,
the jury will see evidence the defendants corrupt bargain scores contemporaneous
communications between the defendants, their agents, and the officials they endeavored
influence, well records spanning everything from flight manifests and hotel bills credit
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4300
card statements and Federal Election Commission (FEC) filings. Together, this testimony and
these documents will expose the defendants corruption.
Melgen provided stream benefits Menendez, and Menendez engaged scheme conceal it.
The defendants bribery scheme began shortly after Menendez elevation the Senate
2006, when Melgen began pattern treating Menendez weekend and week-long getaways
the Dominican Republic that would continue for the next several years. For the first four years
the corruption scheme, the all-expense paid trips Melgen provided often included free roundtrip
flights Melgen private jet for Menendez and his various guests. When the doctor private jet
was unavailable, Melgen supplied equally luxurious travel for the Senator. Melgen once secured
the private jet business associate fly Menendez, himself, and others one-way from the
Dominican Republic Fort Lauderdale cost $20,000. another occasion, purchased first-class ticket for Menendez fly from New Jersey West Palm Beach and $8,000
chartered jet for his return. The vacations typically included lodging Melgen villa Casa
Campo, cloistered resort the southeastern coast the Dominican Republic with renowned
golf courses, spa, polo fields, marina, restaurants, and other amenities. The tranquil Caribbean
enclave, venerated for its seclusion, frequently visited luminaries sports, entertainment,
and business, including Beyonce, Jay-Z, Jennifer Lopez, Richard Branson, and Bill Gates.
Moreover, least one occasion, Melgen arranged for Menendez and his girlfriend stay
Punta Cana, exclusive oceanside resort town the easternmost tip the Dominican Republic. trial, the jury will hear about Menendez luxurious Dominican travel through witness
testimony from those who were there, and they will see Melgen resources placed Menendez
disposal for these trips in, among other things, contemporaneous emails, resort records, flight
records, and credit card and bank statements.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4301
But the vacations Melgen provided Menendez were not constrained Melgen ties the
Dominican Republic. Nor were they provided only Melgen overture. Email exchanges
between the defendants and their agents will establish that Melgen also supplied them
Menendez demand. March 24, 2010, the Senator sent his patron email informing him that wanted either Park Suite King Park Deluxe King room the Park Hyatt Hotel Paris,
France, for three-night stay April. The hotel one Europe most elite, routinely hosting
celebrities from the world over, including the likes George Clooney and Maria Sharapova.
his email, Menendez specified that the rooms featured king bed, work area with internet,
limestone bath with soaking tub and enclosed rain shower, views courtyard streets, and
instructed Melgen: You call American Express Rewards and they will book for you. would
need name. Within day, Melgen complied, bettering the Senator request
booking him even more expensive Park Executive Suite, which hotel and credit card records
will show retailed for over $1,500 per night.1 Moreover, testimony and records from American
Express will establish that the 650,000 rewards points Melgen used book the room far outstripped Menendez own points-earning ability.
Like the dollar value the stay, evidence the hotel luxury presented through
photographs and testimony and similar evidence the jets which Melgen allowed Menendez fly and the amenities Melgen provided Menendez Casa Campo Tortuga Bay provide
evidence the value the bribes Melgen paid Menendez. Just like the details the official
acts Melgen paid Menendez perform, details the bribes value are highly probative the
defendants corrupt intent. These details demonstrate Menendez willingness influenced
his official action, well Melgen intent exert that influence, keep Menendez retainer,
and obtain official action needed. The luxury Melgen afforded Menendez all the more
probative intent this case, where, discussed more below, the defense claims that the
motivation for Melgen gifts and Menendez acceptance them was friendship, not corruption;
the lavishness the gifts Melgen provided Menendez evidence that Menendez accepted them, least part, influenced his official action.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4302
Menendez enjoyed these flights and vacations free charge. But, scheme hide the
trips from public view and keep the corrupt pact secret, Menendez mentioned nothing the gifts his annual financial disclosure forms. trial, the Government will offer those forms
evidence, demonstrating the Senator indisputable obligation report the flights, Paris vacation,
and other reportable gifts accepted from Melgen, and his willful decision omit them.
Menendez took several opportunities perform official acts for Melgen
exchange for the stream benefits Melgen supplied.
Although Menendez did not pay Melgen back for the lavish gifts money, did pay him
back using the currency his Senate office take official action benefit the South Florida
doctor. Email exchanges between the defendants, their agents, and officials from Executive
Branch agencies will show Menendez considerable efforts pressure the Executive Branch
Melgen behalf. And testimony from the agency officials over whom exerted that pressure
will illuminate the relentlessness those efforts.
Menendez first opportunity repay Melgen arose when Melgen wanted bring his
foreign girlfriends the United States visit him. The women from Brazil, the Dominican
Republic, and Ukraine all needed visas enter the United States. Between trips Melgen
Caribbean villa, witness testimony, internal emails, and State Department records chronicling
the visa application process will show, the New Jersey Senator helped them obtain those visas.
Menendez most fervent efforts behalf Melgen girlfriends came after Melgen Dominican
girlfriend and her sister were initially denied visas because the interviewing agent was [n]ot fully
convinced motives for travel. When Melgen alerted Menendez, Menendez told one his
Senate staffers wanted [c]all Ambassador asap. month later, the Ambassador
request, documented consular record, Melgen girlfriend and her sister were re-interviewed different official, who reversed the decision deny the visas. Upon hearing the reversal,
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4303
Menendez staffer emailed Menendez chief staff: view, this ONLY DUE the fact
that intervened.
Menendez took other opportunities repay Melgen through official action when Melgen
found himself the middle two multimillion dollar disputes. One those disputes arose from
Melgen purchase cargo screening contract the Dominican Republic despite its
performance being indefinitely halted after was wrapped litigation for years. But perhaps
even more important Melgen, and thus Menendez, was multimillion dollar dispute the
doctor had with Medicare over his billing practices for the drug Lucentis.
Melgen fortune was anchored his South Florida ophthalmology practice, and
substantial portion that practice involved treating Medicare-eligible patients for macular
degeneration, eye disease treated with the drug Lucentis. His lucrative practice was threatened 2009, when post-payment review his Lucentis claims the Centers for Medicare and
Medicaid Services (CMS) revealed that had billed Medicare for millions dollars worth
the drug that never actually bought, leading formal demand that repay Medicare $8.9
million overbillings for the years 2007 and 2008. That when Melgen called upon Menendez, one staffer memorialized email, weigh with CMS.
Lucentis injectable preservative-free solution that stored single-use vials. The
label approved the Food and Drug Administration (FDA) specifies: Each vial should only
used for the treatment single eye. the contralateral eye requires treatment, new vial should used. Each single-dose vial, which costs approximately $2,000, deliberately packaged with
more Lucentis than actually needed for single dose case any spilled while preparing
administer the drug; this overfill ensures that there will sufficient amount for the dose. Any
overfill that remains after administration should discarded. The Centers for Disease Control
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4304
and Prevention (CDC) warns that using single-dose vial treat multiple patients risks
infection. Medicare reimbursement policy reflects the one-vial, one-eye administration
Lucentis allowing for full reimbursement single vial, despite the overfill lost after the single
dose from that vial administered.
Testimony from CMS officials, Menendez staffers, and others, along with internal records,
correspondence, and Melgen own admissions, will demonstrate that, from least 2007 through
2012, Melgen disregarded the FDA label, defied the CDC warning, and exploited Medicare
billing procedures.
Under Melgen direction, his ophthalmology practice, Vitreo-Retinal
Consultants (VRC), routinely extracted and harvested overfill from single-dose Lucentis vials,
used the overfill treat multiple patients, and billed Medicare for full vial each time the drug
was administered. Because VRC managed extract multiple doses Lucentis per vial, but billed
Medicare for full vial for each dose, Melgen was paid millions Medicare for vials never
bought.2
Witness testimony, contemporaneous emails, and internal memoranda will also establish
that, shortly after Melgen was caught for this fraudulent practice and served with the $8.9 million
repayment demand 2009, Menendez arranged for call with CMS Director the Center for
Medicare advocate Melgen behalf. During the call, July 17, 2009, what the
Because Melgen overbilling dispute with CMS central the bribery charges and
critical establishing the defendants motives and intent, the Government will introduce concise
and clear evidence establish the nature Melgen overbilling and ensuing dispute. The
probative value Melgen billing practices not somehow diminished his recent guilty
verdict the Southern District Florida, which need not come into evidence for the Government establish the gravamen his dispute with CMS. fact, unless the defense opens the door certainly could one the defendants takes the stand, the Government does not intend admit the fact the conviction itself, but rather intends limit its evidence the fact that
Melgen multi-dosed Lucentis, billed for vials never bought, and persisted that practice
throughout the course the corruption scheme and Senator Menendez knew about it.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4305
Government anticipates participant will describe prosecutal tone, Menendez personally
argued that CMS reimbursement policy was confusing and pressed the agency approve
Melgen bills. The confusing policy which Menendez referred was the straightforward
expectation that Medicare not billed for medicine doctor neither bought nor used. The
Director did not budge, informing the Senator that Melgen had due process and appellate rights
could pursue through CMS administrative appeals process. Menendez replied that did not
want told about the doctor appellate rights and hung up. few weeks later, Menendez
emailed his chief staff: Dr. Melgen still the nonlitigant stage, should determine who
has the best juice CMS and Dept Health. will displayed the jury emails written events unfolded, along with the
testimony several witnesses, Menendez persisted trying help Melgen keep his $8.9 million
over the next three years, deploying the power his office perform series official acts
aimed reversing CMS decision. painstakingly elevated his advocacy until, 2012,
described more below, directly pressed CMS highest ranking official and arranged for the
Secretary Health and Human Services (HHS) hailed the U.S. Capitol office the Senate
Majority Leader, where personally pressured her intervene the billing dispute.
Melgen provided campaign contributions return for Menendez exercise
specifically requested official action.
The Government evidence will show that, eventually, Melgen bribes Menendez grew include more than just private flights and luxury vacations, and Menendez official acts moved
beyond merely advancing Melgen personal interests and placing phone calls Executive Branch
officials. The Government will offer emails, checks, mail receipts, ledger, FEC records, and
testimony from fundraising personnel showing that, just five month-period spanning May
October 2012, Melgen gave $771,500 Menendez legal defense fund and assorted campaign
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4306
committees fueling the New Jersey Senator reelection bid, and did manner that obscured
the relationship between benefactor and beneficiary. return, emails, memoranda, and witness
testimony will show, Menendez performed his most aggressive and pointed advocacy, including
personally meeting with and pressuring Cabinet Secretary and Assistant Secretary State,
advance financial interests that implicated tens millions dollars profit for the Florida doctor.
For example, early 2012, Melgen acquired full control Dominican company, ICCSI,
SA, which had contract giving the exclusive right install and operate X-ray imaging
equipment the Dominican Republic ports for years. Melgen projected the contract
worth $115 million. But, since before Melgen acquisition, performance the
contract had been tied litigation between the Government the Dominican Republic and
ICSSI. reap any reward, Melgen had resolve the long-standing dispute. One State
Department official observed that Melgen Florida eye doctor with apparent container
screening experience expertise simply purchased lawsuit. fact, the Government will
introduce correspondence indicating that Melgen was willing accept, and was actually seeking, financial settlement walk away. trial, emails and the testimony State Department officials will establish that
Menendez and his staff exerted substantial pressure the State Department intervene with the
Dominican Government resolve the contract dispute Melgen favor. But simultaneous
correspondence between the defendants agents, along with financial records, will establish that, order for Menendez use his office this way, Menendez demanded $60,000 campaign
and legal defense fund contributions and Melgen complied. May 10, 2012, Menendez office began arranging meeting with Assistant
Secretary State that Menendez could question him about Melgen multimillion dollar
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4307
contract. The same day, after months putting off requests from Menendez fundraisers and
chief staff for large campaign contributions, Melgen finally agreed give $60,000 entities
supporting Menendez. Six days later, May 16, Menendez met with the Assistant Secretary
State. That same day, Melgen satisfied the contribution commitment had made, orchestrating series payments support Menendez exactly Menendez chief staff had bade
email Melgen personal assistant:
Four family members contribute $10,000 each New Jersey Democratic State
Committee Victory Federal Account.
Two family members contribute $10,000 each The Fund Uphold the
Constitution. would great the contributions could sent via Fedex home address and
distribute them once receive them.
Just instructed, Melgen and his wife wrote $20,000 check Menendez legal defense fund,
The Fund Uphold the Constitution. Next, they wrote separate $20,000 check the New Jersey
Democratic State Committee Victory Federal Account. the memo line the check the words
MFS Contribution were written and subsequently crossed out. MFS are the initials
Menendez for Senate, the name Menendez Senate campaign committee which Melgen
already had contributed the maximum allowed under federal law. Finally, Melgen daughter and
her husband also wrote $20,000 check the New Jersey Democratic State Committee. Like the
check written Melgen and his wife, the memo line bore the crossed-out words, (MFS)
Menendez Contribution. Bank records will reveal the jury that Melgen simultaneously
reimbursed the couple with $20,000 check from his ophthalmology practice, VRC, leaving
question about who the benefactor really was. And emails will show that Melgen had the checks,
Applicable federal giving limits prevented Melgen from making the $60,000 demanded
contributions solely his name.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4308
all three which were dated May 16, sent Federal Express the home Menendez chief staff exactly directed.
Meanwhile, the meeting, Menendez pressed the Assistant Secretary the State
Department lack initiative convince the Dominican Republic resolve Melgen contract
dispute. After the meeting, the Assistant Secretary sent email his staff instructing them
explore port initiative and see could leverage correct GODR decision the port contract,
cautioning: [Menendez] said wanted hear solution July not, would call
hearing discuss it. Emails and testimony will show that the Assistant Secretary and his staff
subsequently explored ways appease the Senator, including tacitly broaching the subject the
contract dispute meeting with the Dominican Republic president.
The Government evidence will show that the $60,000 buy pressure Assistant
Secretary State was just the start the large contributions Melgen would write for the New
Jersey Senator 2012. the summer that year, Melgen problem with CMS finding that owed Medicare $8.9 million was worsening, had lost multiple levels the
administrative appeals process and his case sat languishing. What more, even after received
the first demand letter, Melgen had continued overbill for Lucentis, subjecting him millions
more potential repayment demands. Melgen therefore needed intensify his efforts for
political solution. And used campaign contributions try buy through Menendez.
Emails, internal memoranda, and witness testimony will establish that June 2012,
Melgen joined Menendez New Jersey the annual Pegasus Dinner, Menendez fundraiser,
where delivered long-time Menendez confidante $300,000 VRC check made payable
Majority PAC. Majority PAC was Super PAC supporting Democratic Senate candidates
nationwide, but Melgen earmarked his check specifically for New Jersey. And just Menendez
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4309
omissions his financial disclosure forms left public trace the South Florida doctor, passing
the contribution through Majority PAC which was not required disclose Menendez name
the New Jersey earmark its public FEC filing left trace the New Jersey Senator. What more, issuing the check from VRC, Melgen assured that only person familiar with his
ophthalmology practice could readily discern its source.4 trial, the Government will introduce
internal PAC records and fundraiser testimony showing the clear earmarking for New Jersey,
which can compared with the public FEC records that show such designation for the
contributions.
The same day that Melgen $300,000 check arrived Majority PAC, June 2012,
Menendez met with the Acting Administrator CMS its highest-ranking official and pressed
for CMS change the reimbursement policy leading the $8.9 million repayment demand.
Emails and mail receipts will establish that Melgen $300,000 Majority PAC check had been put the mail just two days prior, the same day that Menendez met with Melgen lobbyist prepare
for the meeting with the Acting Administrator. Menendez followed after the meeting with the
Acting Administrator phone July which time she informed the Senator that CMS would
not revise its policy. Witness testimony will establish that Menendez was upset and responded
that intended elevate the issue the HHS Secretary.
Menendez ushering $300,000 Melgen corporate money Majority PAC
benefit Menendez reelection effort was made possible the Supreme Court 2010 decision
Citizens United FEC, 558 U.S. 310 (2010), which invalidated federal prohibitions corporate
contributions political action committees. Less than week after the decision was handed down, January 24, 2010, Menendez took CNN condemn it, calling dark day for democracy our country and dark day for the average citizen. Said Menendez: The last thing need big oil, big health insurance companies, big banks being able spend unlimited amounts
money from their treasury influence the result elections. continued: The last thing that
the average citizen needs who already feels that these big monied interests already have too much
influence Washington add more money.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4310
The Government evidence will show that Menendez called upon the Senate Majority
Leader help him just that.5 August 2012, Menendez met with the HHS Secretary
the Majority Leader Capitol office, where, according witnesses the meeting, argued
vehemently for Melgen position the billing policy. But the Secretary informed Menendez
that she was powerless intervene pending CMS administrative appeal, and the meeting
ended without resolution satisfactory Menendez. October 12, 2012, confronted with the Secretary assertion that she lacked the
authority intervene the administrative appeals process, Melgen issued second $300,000
VRC check Majority PAC, which the PAC records and fundraiser testimony will prove
again earmarked for New Jersey, that would directly benefit Menendez. Checks and VRC
ledger will establish that, that very same day, Melgen also issued more than $100,000 VRC
checks local Democratic party organizations New Jersey. week later, October 19, after
obtaining confirmation that the Majority PAC check had been received, Melgen forwarded
Menendez and his chief staff memorandum arguing that the HHS Secretary fact had the
authority intervene his Medicare appeal. Before Menendez could press Melgen matter
Menendez had first enlisted the Senate Majority Leader help amplify the pressure
CMS reverse course November 2011. that time, the Majority Leader reached out the
White House Deputy Chief Staff, informing her that Menendez was upset about how Florida
ophthalmologist was being treated CMS and asking that she call the agency. Recognizing that
the matter involved dispute between single doctor and administrative agency, not policy
matter, the White House Deputy Chief Staff demurred. Because the conduct direct proof
official action and Menendez intent apply pressure another official perform official
act, advise another official, knowing intending that such advice will form the basis for
official act, McDonnell United States, 136 Ct. 2355, 2372 (2016), admissible trial.
See United States Green, 617 F.3d 233, 248-49 (3d Cir. 2010) (holding that uncharged conduct admissible intrinsic evidence when directly proves the charged offense (internal quotation
marks and citation omitted)).
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4311
further, however, the pair was confronted with the public revelation that Menendez had enjoyed
free flights Melgen private jet.
Just few months later, February 2013, news the relationship between the New
Jersey Senator and South Florida doctor unraveled the press and only week after Menendez
lied the public about the number times flew Melgen private jet The Washington
Post published detailed account Menendez advocacy HHS Melgen behalf.
Menendez chief staff emailed his boss the article, advising strategy shift blame:
suspect you see, your quote tps for tmrw will have highlight some surprise and disdain for
anybody who would try use your relationship for some end. Menendez replied minute later:
Yes, course. expedite the presentation documentary evidence, the Government
intends recall law enforcement agent various points the trial and use
summary exhibits. aid the jury understanding the scheme advanced from Dominican trips and
visas for girlfriends hundreds thousands dollars campaign contributions and pressuring Cabinet Secretary, the Government intends present thematic case-in-chief, punctuated
substantial documentary evidence. save time and promote clarity, the Government intends
take pragmatic approach introducing this documentary evidence, using two commonly
accepted practices.
First, the Government intends recall one its case agents different points the trial streamline the presentation documentary evidence the Government case moves through
the various categories official acts and things value that the defendants exchanged. This will
help the trial move apace preventing the need call multitude law enforcement agents,
each whom the Government would have take time introducing the jury, for the sole purpose
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4312 introducing documentary evidence. Recalling law enforcement agents commonly allowed
promote the efficient and orderly presentation evidence. See, e.g., United States Butera, 677
F.2d 1376, 1381 (11th Cir. 1982) (affirming district court discretion under Federal Rule
Evidence 611(a) permit case agent take the stand four separate occasions describe events chronological order); United States Rodgers, 2014 3735585, (W.D. Pa. July 28,
2014) (permitting recall law enforcement officers pursuant the court authority under Rule
611(a) allow the government present its evidence chronologically); United States Bacon,
2012 5381415, (W.D. Pa. Oct. 31, 2012) (same); United States Edelin, 128 Supp. 23, (D.D.C. 2001) (collecting cases that have approved the practice recalling witnesses;
allowing recall witnesses throughout the government case-in-chief the best way
providing clear and orderly trial cf. United States Coleman, 805 F.2d 474, 482 (3d Cir.
1986) The district court has discretion allow the recall witness, even the witness has
consulted with the prosecutor the interim.
Second, further advance the efficiency its case-in-chief, the Government intends
introduce several charts that summarize many types relevant records, totaling more than 20,000
pages admissible evidence, such as: (1) U.S. Department Homeland Security records the
flights that the defendants and their guests took Melgen private jet and from the Dominican
Republic; (2) flight data collected from the Federal Aviation Administration; (3) credit card
statements for accounts held the defendants and Melgen personal assistant covering almost
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4313
seven years; and (4) bank records for accounts held the defendants, VRC, and Melgen
personal assistant also covering almost seven years.6
Summary charts are properly admissible under Federal Rule Evidence 1006, which
allows their use prove the content voluminous writings [or] recordings that cannot
conveniently examined court. Fed. Evid. 1006. Rule 1006 does not require that
literally impossible examine all the underlying records [before summary chart may
utilized], but only that in-court examination would inconvenience. United States Onque,
169 Supp. 555, 574 (D.N.J. 2015), affd, 665 App 189 (3d Cir. 2016) (internal quotation
marks and citations omitted) (alteration original).
Courts routinely permit the use such
summary charts where, here, their use will aid the jury understanding the evidence and
expedite trial. See, e.g., United States Onque, 665 App 189, 198 (3d Cir. 2016) (affirming
admission summary chart deposits into several co-conspirators accounts, and rejecting that
the inference that each deposit was conspiracy-related payment rendered the chart improper);
United States Bansal, 663 F.3d 634, 668 (3d Cir. 2011) (affirming admission two exhibits
summarizing invoices and providing revenue percentages). Moreover, summary charts can
used the jury its deliberations and can properly admitted whether not the underlying
documents are also placed into evidence. See United States Velasquez, 304 F.3d 237, 240 (3d
Cir. 2002) The use summaries and charts proper and may put before jury with limiting
instructions. United States Bertoli, 854 Supp. 975, 1050 (D.N.J.), affd part, vacated
Many the records the Government will introduce summarize trial are business
records accompanied certification complying with Federal Rule Evidence 902(11).
required under the Rule, the Government notified counsel for the defendants the records the
Government intends introduce such certifications. the same letter, the Government
notified defense counsel the records which its summary charts rely and provided the
summary charts pre-marked exhibits.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4314
part other grounds, F.3d 1384 (3d Cir. 1994) One the most significant aspects Rule
1006 that there prerequisite that the underlying documents have been submitted into
evidence. (citations omitted)).
II.
LEGAL ISSUES PRESENTED ANTICIPATED DEFENSES
From the defendants motions dismiss, trial subpoenas, and public statements, the
Government anticipates the defendants will attempt rebut the Government proof several
ways. Legal issues presented these anticipated defenses are previewed below.
The Court should prohibit the defendants from distracting and confusing the
jury with their baseless claims that the investigation and indictments are
political retribution.
Since well before New Jersey grand jury returned the initial indictment April 2015, the
defendants have attempted undermine the legitimacy the investigation and resulting charges repeatedly using public statements and court filings promote unfounded claims that this case the result global conspiracy led Menendez political opponents. And needed suit
their agenda, the defendants have shifted their conspiracy theories, even when one conflicts with
another. The defendants began their diversion campaign with claim supposed Cuban
Republican effort undermine Menendez. See Evan Perez and Pamela Brown, Spies, GOP and
Chris Christie: Menendez prostitute story theories, CNN, July 11, 2014 (citing letter from
Menendez attorney urging the Government turn its focus away from his client and toward
Cuba Chris Christie two possible sources smear campaign). They then turned their focus inconsistent claim retribution the Obama administration. See Elizabeth Llorente, Key
Democrat lawmaker steps criticism White House Iran deal Obama term nears end, FOX
NEWS.COM, Dec. 2016 (quoting Menendez claiming that [t]here have been attempts punish for what said about the administration policy Iran and Cuba Most recently, they
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4315
have spun yet another contradictory theory, this time pointing the current administration which
was not even office the time that either the indictments against the defendants were
returned the source political retaliation. See Dkt. No. 201 (suggesting that the
Government goal requesting that Menendez treated the same any other defendant
actually prevent him from voting upcoming legislation).
The defendants various claims are nothing more than unprincipled attempts distract
from the evidence against them. This Court recognized much almost two years ago, rejecting meritless the defendants assertions selective prosecution based their groundless claims the retributive origins the investigation. Dkt. No. 123 5-6 (finding that the defendants
offer evidence that the Government had improper motive investigate Senator Menendez Dr. Melgen The issue has thus been resolved and should not renewed front the
trial jury. See United States Armstrong, 517 U.S. 456, 463 (1996) selective-prosecution
claim not defense the merits the criminal charge itself. see also Fed. Crim.
12(b)(3) (requiring that claims selective vindictive prosecution must raised pretrial
motion cf. United States Cordova, 157 F.3d 587, 594 (8th Cir. 1998) (holding trial court
properly limited defendant cross-examination government agent regarding what had not
done during the investigation because exhaustive exploration things not done the
investigation would time-consuming and little relevance United States Sherman, 821
F.2d 1337, 1341 (9th Cir. 1987) (holding district court did not abuse its discretion precluding
the defendant from questioning informants motives where the government proof was not based the informants tips). Any effort the defendants could only aimed inviting
jury nullification, which indisputably improper. See United States Boone, 458 F.3d 321, 329
(3d Cir. 2006) [A] juror who commits jury nullification violates the sworn jury oath and
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prevents the jury from fulfilling its constitutional role. United States Rosado, 728 F.2d 89,
(2d Cir. 1984) (noting that the defendants had invited jury nullification questioning [at trial]
the Government motives subpoenaing [the defendants] and prosecuting them for contempt
This case about serious questions fact and law related the corruption one the
highest elected offices the United States government. not about anonymous tips, Cuba,
Iran, party politics, the political consequences conviction. The question whether the
defendants engaged corrupt scheme cannot answered the defendants conspiracy
theories. Rather, only can answered through focused examination the defendants and
their agents own contemporaneous statements, black-and-white financial, government, and
business records, and live, non-anonymous witness testimony.
The defendants groundless
allegations about how the investigation began whether the Government sufficiently investigated claimed smear campaign are irrelevant the issue the jury will asked decide this case:
whether Melgen and Menendez exchanged things value for official action. The Court should
reject any effort the defendants interfere with the jury deliberation this question
injecting their frivolous conspiracy theories into this trial.7
The Government explained the actual origins the investigation its pre-trial response the defendants prosecutorial misconduct motion. See Dkt. No. 4-7; see also Dkt. No. 3-11. And, although the true origins the investigation are irrelevant resolving the charges this case, and the Government has intention ever referencing them, the Government would
necessarily permitted should the defendants allowed suggest some improper basis
for the investigation the jury. United States Homick-Van Berry, 240 App 966, 969 (3d
Cir. 2007) (affirming, robbery case, the district court admission testimony from
informant about his prior work for the FBI investigating the defendant prior, unrelated bribery
scheme after the defense elicited testimony from the informant cross-examination that left the
misimpression that all his payments from the FBI were related his work the robbery
investigation); Rosado, 728 F.2d (finding entirely appropriate criminal contempt
case for the government offer evidence what the grand jury was investigating once the
defendants had argued that the grand jury before which they had refused appear was being used
for political oppression).
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The defendants are guilty bribery any part their intent was corrupt.
The defendants have repeatedly claimed two motivations other than bribery explain
Menendez relentless advocacy for Melgen and Melgen showering lavish gifts and campaign
contributions Menendez: friendship and the merits Melgen positions. Even the jury were credit those claims, however, credit any other lawful motivation the defendants may offer for
their actions, the defendants still can found guilty bribery. black-letter bribery law that defendant who partially motivated take official acts provide things value friendship, the merits those acts, some other non-corrupt reason, still guilty bribery the jury finds that any part the defendant intent was corrupt that
is, effect quid pro quo. See United States Wright, 665 F.3d 560, 572 (3d Cir. 2012) [F]riendship bar honest services fraud conviction. United States Bryant, 655 F.3d
232, 245-46 (3d Cir. 2011) (noting that payment could still constitute corrupt payment for
official acts even where was partially intended pay for legitimate work); United States
Biaggi, 909 F.2d 662, 683 (2d Cir. 1990) (finding that payment may found constitute
bribe where sought and paid for both lawful and unlawful purposes the Third Circuit
has emphasized, any other outcome would untenable, because would allow individuals
bribe with impunity long they could show even the slightest part their intent arise
from lawful purpose. Bryant, 655 F.3d 246. Reflecting this well-established principle, courts
routinely instruct juries that defendant has committed bribery even where his intent was only
partially corrupt. See, e.g., id. (affirming instruction the jury that may find that any salary
and other financial benefits accepted [the defendant] was bribe even you also find was
paid, part, for legitimate work was also paid, part, return for [the defendant] official
action United States Coyne, F.3d 100, 113 (2d Cir. 1993) (approving instruction that
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defendant could found guilty bribery accepted solicited the thing value, least part, for because his conduct intending influenced (emphasis added)).
Accordingly, even should the defendants muster some credible evidence another motive
for their acts, not silver bullet the charges against them. With respect claims
friendship particular, not uncommon for defendants establish some evidence friendship bribery cases but still found guilty; indeed, just genuine friendship may underlie business
arrangement, should come surprise that friendship may very well form the foundation
corrupt endeavor. See, e.g., Wright, 665 F.3d 572 (noting that the parties involved are often
friends honest services fraud cases); United States Evans, 572 F.2d 455, 470 (5th Cir. 1978)
(noting that the defendant friendship with [the public officials] was vehicle for the corruption those officials cf. United States Woodward, 149 F.3d 46, (1st Cir. 1998) Relationships
among human beings, especially among lobbyists and elected officials, will frequently not follow bright-line pattern, falling one side the other some magical wall dividing friendship from
attempts undue influence.
Evidence the objective merits Menendez official acts irrelevant.
The Court should preclude the defendants from presenting evidence that goes only the
objective merits the official acts Melgen paid Menendez influence. Such evidence nothing
more than post-indictment explanation for the defendants conduct and post-indictment
explanations are not evidence pre-indictment intent.
Accordingly, before allowing the
defendants argue that the merits motivated Menendez acts instead bribes, the Court should
require the defendants demonstrate Menendez subjective knowledge the merits the time took agreed take those acts.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4319 the Government set forth its motion quash defendants subpoenas various
federal agencies, Dkt. No. 187, the objective merits official act are irrelevant resolving
bribery charges. See, e.g., City Columbia Omni Outdoor Advertising, Inc., 499 U.S. 365, 378
(1991) mayor guilty accepting bribe even would and should have taken, the
public interest, the same action for which the bribe was paid. (That frequently the defense
asserted criminal bribery charge and though never valid law, often plausible
fact.) (citing United States Jannotti, 673 F.2d 578, 601 (3d Cir. 1982) (en banc), cert. denied
457 U.S. 1106 (1982))); Jannotti, 673 601 [I]t neither material nor defense bribery
that had there been bribe, the (public official) might, the available data, lawfully and
properly have made the very recommendation that (the briber) wanted him make. (quoting
United States Labovitz, 251 F.2d 393, 394 (3d Cir. 1958))). The objective merits not matter
because the core problem posed bribery not the nature the official act undertaken
promised fact, the act may have been different without the bribe, see Jannotti, 673 F.2d
601. Rather, the problem posed bribery that substitute[s] the will interested person
for the judgment public official the controlling factor official decision. Labovitz, 251
F.2d 394.
The jury therefore will asked determine not whether Menendez official acts were
good bad, ultimately beneficial harmful New Jersey. Instead, must determine
Menendez intent when accepted demanded the things value from Melgen specifically,
whether intended, least part, influenced his official acts exchange for the lavish
gifts. And while Menendez subjective, contemporaneous understanding the merits the
official acts issue may relevant making that determination, evidence untethered from what
Menendez knew the time acted not.
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The defendants cannot use evidence prior good acts negate evidence
their corrupt intent.
The defendants cannot attempt rebut evidence their corrupt intent offering evidence official acts gifts falling outside the scope the charged scheme and occurring situations
distinct from those here for example, claiming that Menendez has history helping others
with their visa applications that Melgen has history allowing others fly free-of-charge
his private jet. Such prior good acts evidence nothing more than classic improper propensity
evidence, offered show that, because Menendez took official acts for, Melgen provided gifts
to, other people other times and other circumstances without corruptly intending obtain
something return, they did not engage bribery here. See Fed. Evid. 404(b)(1) Evidence crime, wrong, other act not admissible prove person character order show that particular occasion the person acted accordance with the character. Fed. Evid. 405(b)
(allowing the introduction specific instances conduct proving character character trait
only when that character character trait essential element charge, claim, defense axiomatic that defendant intent under distinct circumstances one day not
probative his intent under different circumstances another. Indeed, evidence good
conduct not admissible negate criminal intent. United States Ellisor, 522 F.3d 1255, 1270
(11th Cir. 2008) (affirming district court exclusion evidence that defendant had put prior
events case brought for fraudulently selling tickets event that did not occur); see also
United States Dimora, 750 F.3d 619, 630 (6th Cir. 2014) (affirming exclusion evidence that
defendant occasionally helped constituents without receiving bribes because the case was built
agreements between [the defendant] and closed circle bribers evidence about acts with connection these agreements tells nothing relevant about this case; United States
Marrero, 904 F.2d 251, 260 (5th Cir. 1990) The fact that [the defendant] did not overcharge
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4321
every instance which she had opportunity not relevant whether she, fact,
overcharged alleged the indictment.
Nevertheless, pre-trial litigation, public statements, and discovery, the defendants have
indicated that they will seek use improper evidence prior good acts rebut the evidence that
they intended quid pro quo. their pre-trial motions dismiss, the defendants argued, The
alleged official acts were simply actions that Senator Menendez took consistent with longstanding policy positions that have characterized his entire career. Dkt. No. 53-1 Just days
before jury selection, Menendez attorney repeated the theme statement the media about
the Senator readiness for trial, claiming that Menendez has constantly stood for the most
vulnerable our society and lent his voice the voiceless. Thomas Moriarty and MaryAnn
Spoto, Menendez good spirits jury selection for trial begins next week, NJ.COM, Aug. 19,
2017. And the reciprocal Rule discovery the defendants provided the Government
August 14, 2017, they included hundreds pages communications and records related
Menendez staffers efforts regarding visa applications and matters front HHS, CMS, and
the FDA behalf individuals other than Melgen and VRC and circumstances and issues
completely dissimilar those surrounding his advocacy here. These matters are factually and
legally irrelevant the question whether Menendez and Melgen partook years-long corrupt
exchange. Just the fact that someone did not rob bank one day irrelevant determining
whether robbed bank another, whether Menendez did not act corruptly one day
irrelevant determining whether deprived the citizens New Jersey his honest services
another.
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4322
Menendez may open the door proof otherwise-protected Speech
Debate evidence.
Menendez claims that the Superseding Indictment improperly charges him for conduct
protected the Speech Debate Clause, U.S. CONST., Art. cl. have been litigated
thoroughly and resolved, with this Court and the Third Circuit finding that the Superseding
Indictment does not allege any legislative acts. Accordingly, the Government does not intend
offer any evidence legislative acts taken Menendez. The Government notes, however, that
Menendez may offer such evidence. United States McDade, F.3d 283, 294 (3d Cir. 1994) The Clause protects member Congress from being questioned, and member not
questioned when she chooses offer rebuttal evidence legislative acts. Should
so, thus putting his legislative acts issue, the Government entitled counter with evidence otherwise-protected legislative acts. McDade, F.3d 295 (finding that the Speech Debate
Clause does not prevent legislator] from offering such acts his own defense, even though
thereby subjects himself cross-examination (internal quotation marks and citation omitted));
United States Renzi, 769 F.3d 731, 747 (9th Cir. 2014) [I]f member Congress offers
evidence his own legislative acts trial, the government entitled introduce rebuttal
evidence narrowly confined the same legislative acts, and such rebuttal evidence does not
constitute questioning the member Congress violation the Clause.
The United States Senate internal code conduct irrelevant resolving
whether the defendants have committed federal crimes.
This Court has already recognized the irrelevance the Senate internal code
conduct the Senate Ethics Rules determining whether Menendez engaged scheme
conceal material facts violating his financial disclosure obligations for the many reportable gifts accepted from Melgen. Dkt. No. 131 [T]he indictment does not charge Senator
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4323
Menendez with violating Senate Rule, nor are the material facts charged with concealing
defined Senate Rule. doing so, the Court found that, despite the defendants claims
the contrary, Menendez reporting obligations arose from federal statute, the Ethics
Government Act (EIGA), U.S.C. App. 101, seq., not the Senate Ethics Rules. Id. 2021; see also United States Menendez, 831 F.3d 155, 174 (3d Cir. 2016) (finding that EIGA, not
the Senate Rules, the source Senator obligation make financial disclosures And
trial, the jury will see that was EIGA definition reportable gifts that intentionally ignored
when refused disclose flights Melgen private jet, luxury hotel stays, and other gifts
Melgen gave him.
But not just the scheme conceal charge for which the defendants have suggested the
Senate Ethics Rules are relevant. They have also suggested that the legality Menendez
acceptance the gifts the first place turns the internal rules. See, e.g., Dkt. No. 60-1
(claiming that, under Senate Rule 34, gifts any kind based personal friendship may
accepted (even not personal hospitality) id. (claiming that, under the Senate Rules,
Senator Menendez was not prohibited from accepting AmEx points from Dr. Melgen based
the personal friendship exception does not.
The defendants are charged with violating federal corruption statutes. Under those statutes, Melgen offering and Menendez acceptance gifts intending influence the latter his
official acts that determines their culpability. See, e.g., United States Sun-Diamond Growers
Cal., 526 U.S. 398, 404 (1999) Bribery requires intent influence official act
influenced official act. How the Senate decides police its own members has nothing with whether the defendants committed the charged offenses. Indeed, the Senate guidance the rules recognizes much, explicitly warning that [w]here the solicitation acceptance [of
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4324 gift] tied official act the U.S. Criminal Code comes into play. SENATE ETHICS
MANUAL Pub. 108-1, 108th Cong, 1st Sess., (2003); see also id. Violation the[ federal
bribery and illegal gratuity] laws may also lead disciplinary action the Senate. id. 127
(informing Senators the section financial disclosure reports that anyone who knowingly and
willfully falsifies conceals any material fact statement the Government subject
criminal prosecution, and citing U.S.C. 1001 the very statute that Menendez charged
with having violated here). Moreover, the Senate has authority overwrite change the
application federal statutes promulgating its own internal, administrative rules. See U.S.
CONST. art. cls.
When faced with similar claims that organization internal rules state local laws
sanctioned defendant conduct, courts have rejected such evidence likely sow confusion
and mislead the jury, especially where, here, the defendant offers proof his knowledge reliance such policies laws the time the relevant conduct was undertaken. See United
States Gaw, 817 F.3d 10-11 (1st Cir. 2016) (affirming the district court exclusion
internal code conduct and state law irrelevant determining the defendant intent engage mail fraud and Hobbs Act extortion absent evidence that the defendant knew and relied
the code when engaging the charged conduct); United States Lupton, 620 F.3d 790, 800 (7th
Cir. 2010) (holding that the trial court properly excluded testimony regarding Wisconsin state law federal funds bribery and honest services fraud case, evidence regarding state standards had
limited value best and [was] unduly confusing worst
The risk confusion and misdirection should the defendants present evidence argument
about what the Senate Ethics Rules allowed especially great here. The defendants have made
clear their intention use the rules claim that Melgen gifts and Menendez acceptance
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4325
those gifts and later refusal disclose them was somehow sanctioned the United States Senate. was not. The rules not condone bribery period. They even expressly emphasize that gifts
provided because senator office are prohibited. See SENATE RULE 35.1(c)(4)(A), SENATE
MANUAL, Doc. No. 112-1, 112th Cong., 1st Sess. (2011) [hereinafter SENATE RULE]. Moreover,
even accepting for moment the defendants claims that Melgen did not offer and Menendez did
not accept things value influence official acts, Menendez acceptance the gifts still
constituted violation the Senate Ethics Rules. For example, despite the requirement that
senator obtain written permission from the Senate Select Committee Ethics prior acceptance any gift friendship worth more than $250, SENATE RULE 35.1(e), Menendez never once did
so. Further, the Senate manual its rules makes clear that, regardless what the Senate gift
rules may may not allow, gifts must reported senator annual financial disclosure forms required EIGA guidance Menendez chose ignore. See SENATE ETHICS MANUAL,
(noting that waivers from disclosure are separate from waivers the gift rules).
Any effort the defendants introduce the Senate internal code conduct trial can
only deemed effort suggest exoneration compliance with those standards. But their
criminal culpability does not turn whether the Senate Ethics Committee had approve the
acceptance gift because was worth $250 more. Just the defendants should not
allowed use their false claims political retaliation interfere with the jury deliberation
the charges, they should not allowed improperly suggest that the Senate has sanctioned their
bribery. Any evidence argument regarding the Senate ethics rules should excluded.
III.
CONCLUSION
For years, both before and after grand jury found probable cause that they had engaged bribery, Robert Menendez and Salomon Melgen have endeavored conceal their
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4326
corruption. September they will face trial before jury New Jersey citizens charges
that they corrupted one the most powerful government positions the country. that trial,
where outlandish conspiracy theories, irrelevant excuses, and cover-up stories must yield sober
evidence the form contemporaneous emails, objective documents, and firsthand witness
accounts, the Government will prove the defendants bribery scheme beyond reasonable doubt.
Respectfully submitted,
ANNALOU TIROL
Acting Chief
Public Integrity Section
By: Peter Koski
Peter Koski
Deputy Chief
J.P. Cooney
Deputy Chief
Monique Abrishami
Trial Attorney
Amanda Vaughn
Trial Attorney
Public Integrity Section
1400 New York Ave.
Washington, D.C. 20005
Telephone: (202) 514-1412
Facsimile: (202) 514-3003
Case 2:15-cr-00155-WHW Document 204 Filed 08/30/17 Page PageID: 4327
CERTIFICATE SERVICE HEREBY CERTIFY that this date, electronically filed the foregoing pleading with
the Clerk the Court using the CM/ECF system, which will send notification such filing the
attorneys record for the defendants.
Dated: August 30, 2017 Peter Koski
Peter Koski
Deputy Chief
Public Integrity Section
Criminal Division
U.S. Department Justice