Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 1 of 36
`I36HPER1
`
`6649
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`------------------------------x
`UNITED STATES OF AMERICA,
`
` v. 16 CR 776 (VEC)
`
`JOSEPH PERCOCO, PETER
`GALBRAITH KELLY, JR.,
`STEVEN AIELLO, JOSEPH GERARDI,
`
` Defendants. JURY TRIAL
`
`------------------------------x
`
` New York, N.Y.
` March 6, 2018
` 8:45 a.m.
`
`
`Before:
`
`
`HON. VALERIE E. CAPRONI,
`
`
` District Judge
`
`
`APPEARANCES
`
`
`GEOFFREY S. BERMAN,
` Interim United States Attorney for the
` Southern District of New York
`JANIS ECHENBERG
`ROBERT L. BOONE
`DAVID ZHOU
`MATTHEW PODOLSKY
` Assistant United States Attorneys
`
`SCHULTE ROTH & ZABEL LLP
` Attorneys for Defendant Joseph Percoco
`BY: BARRY A. BOHRER
` MICHAEL L. YAEGER
` ANDREW D. GLADSTEIN
` NICOLE GEOGLIS
` ABIGAIL COSTER
`
`LANKLER SIFFERT & WOHL LLP
` Attorneys for Defendant Peter Galbraith Kelly, Jr.
`BY: DANIEL M. GITNER
` JUN XIANG
` SAMANTHA J. REITZ
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`I36HPER1
`
`6649
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`------------------------------x
`UNITED STATES OF AMERICA,
`
` v. 16 CR 776 (VEC)
`
`JOSEPH PERCOCO, PETER
`GALBRAITH KELLY, JR.,
`STEVEN AIELLO, JOSEPH GERARDI,
`
` Defendants. JURY TRIAL
`
`------------------------------x
`
` New York, N.Y.
` March 6, 2018
` 8:45 a.m.
`
`
`Before:
`
`
`HON. VALERIE E. CAPRONI,
`
`
` District Judge
`
`
`APPEARANCES
`
`
`GEOFFREY S. BERMAN,
` Interim United States Attorney for the
` Southern District of New York
`JANIS ECHENBERG
`ROBERT L. BOONE
`DAVID ZHOU
`MATTHEW PODOLSKY
` Assistant United States Attorneys
`
`SCHULTE ROTH & ZABEL LLP
` Attorneys for Defendant Joseph Percoco
`BY: BARRY A. BOHRER
` MICHAEL L. YAEGER
` ANDREW D. GLADSTEIN
` NICOLE GEOGLIS
` ABIGAIL COSTER
`
`LANKLER SIFFERT & WOHL LLP
` Attorneys for Defendant Peter Galbraith Kelly, Jr.
`BY: DANIEL M. GITNER
` JUN XIANG
` SAMANTHA J. REITZ
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 2 of 36
`I36HPER1
`
`6650
`
`APPEARANCES (cont'd)
`
`
`O'CONNELL & ARONOWITZ, P.C.
` Attorneys for Defendant Steven Aiello
`BY: STEPHEN R. COFFEY
` SCOTT W. ISEMAN
` PAMELA NICHOLS
`
`WALDEN MACHT & HARAN LLP
` Attorneys for Defendant Joseph Gerardi
`BY: MILTON L. WILLIAMS, JR.
` AVNI P. PATEL
`
`ALSO PRESENT: DeLEASSA PENLAND, Special Agent FBI
` AASHNA RAO, Paralegal Specialist, USAO
` SYLVIA LEE, Paralegal Specialist, USAO
`
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 3 of 36
`I36HPER1
`
`6651
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`(Case called)
`
`MS. ECHENBERG: Good morning, your Honor. Janis
`
`Echenberg for the government. With me at counsel table is
`
`Robert Boone, Matthew Podolsky, David Zhou, Aasha Rao, and
`
`Sylvia Lee.
`
`THE COURT: Good morning.
`
`MR. BOHRER: Good morning, your Honor. Barry Bohrer
`
`with Mr. Percoco, Mr. Gladstein, and Ms. Geoglis.
`
`THE COURT: Good morning.
`
`MR. GITNER: Good morning, Judge. Dan Gitner with
`
`Mr. Kelly, Rachel Berkowitz, Sam Reitz, and Jun Xiang.
`
`THE COURT: Good morning.
`
`MR. COFFEY: Good morning, your Honor. Stephen
`
`Coffey, Pamela Nichols, Steve Aiello, and Scott Iseman.
`
`MR. BOHRER: Good morning, your Honor. Milt Williams
`
`with Mr. Gerardi and Ms. Patel.
`
`THE COURT: Good morning.
`
`Mr. Bohrer, you want to say anything further about
`
`your request?
`
`MR. BOHRER: I think we've laid it out in the letter,
`
`and I think we have said all we need to say.
`
`THE COURT: You have nothing to add?
`
`MR. BOHRER: No.
`
`THE COURT: All right. Who's arguing? Mr. Podolsky?
`
`MR. PODOLSKY: Yes, your Honor. We went over this
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 4 of 36
`I36HPER1
`
`6652
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`briefly yesterday.
`
`THE COURT: I thought we went over it at length
`
`yesterday.
`
`MR. PODOLSKY: I was being charitable.
`
`The bottom line is the jury's question was about --
`
`was seeking testimony relating to film hub payments going to
`
`Kennedy before Mr. Percoco. This question and answer is
`
`particularly misleading with respect to that question, and
`
`that's because the question posed by Mr. Bohrer was
`
`essentially, given the entire history -- well, let me step
`
`back.
`
`The cross-examination leading up to that point covered
`
`payments that had nothing to do with this, are not at issue in
`
`this case. In fact, I think 2014 or earlier. They also
`
`covered payments that happened after Mr. Percoco got involved.
`
`And then the question was, Given everything we've looked at
`
`over all time, did people ever listen to you? And the answer
`
`was, Yes, people have listened to me in the past. And --
`
`THE COURT: At least someone did.
`
`MR. PODOLSKY: At least someone did. And that's why
`
`it actually is quite misleading as to the question of what
`
`happened of the timing between Mr. Kennedy's involvement and
`
`Mr. Percoco's involvement. It simply is not responsive to the
`
`jury's request.
`
`Just one other kind of note on that is Government
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 5 of 36
`I36HPER1
`
`6653
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Exhibit 692 that Mr. Bohrer sort of wants to respond to, that
`
`was a specific instance. It went to a specific payment. It
`
`was at a specific time. It was the questions from Mr. Lara
`
`relating to these allocations, but the question in response
`
`that Mr. Bohrer is now seeking to add to what goes back to the
`
`jury has to do with many payments, many allocations. That's
`
`why it's simply not responsive, and it's quite misleading.
`
`THE COURT: Mr. Gladstein.
`
`MR. GLADSTEIN: Just to briefly respond, your Honor.
`
`The portion of the testimony that we're seeking to send back to
`
`the jury is responsive to JPX 742R.
`
`THE COURT: 742R?
`
`MR. GLADSTEIN: That's a document that had not --
`
`THE COURT: You're going to have to get closer to the
`
`microphone or Mr. Gitner's going to have to get over his
`
`coughing quickly.
`
`MR. GLADSTEIN: Mr. Kennedy testified on direct
`
`examination and --
`
`THE COURT: Is that mic turned on?
`
`MR. GLADSTEIN: I have never in my life been accused
`
`of not speaking loud enough.
`
`THE COURT: I feel your pain.
`
`MR. GLADSTEIN: Mr. Kennedy testified on direct
`
`examination regarding GX 692 and other emails that were sent
`
`after August 31. Those emails were sent after they found out
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 6 of 36
`I36HPER1
`
`6654
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`that Mr. Percoco had inquired about the status of the payments
`
`relating to COR Development. As we laid out in our letter and
`
`as we showed Mr. Kennedy, he had not been confronted with
`
`emails that preceded those days. And so when we showed him the
`
`email JPX 742R, that email confirmed that he had spoken with
`
`the director of the Division of Budget, he recalled on
`
`cross-examination that the director approved of the allocation,
`
`the email lays out that he communicated that approval to
`
`Mr. Lara on the 31st, and so Mr. Bohrer's question, after
`
`showing Mr. Kennedy this email, was, in fact, directly
`
`responsive to the specific allocation at issue here, which is
`
`the allocation for the remainder of the film hub funds. It's
`
`not covering the December 2014 allocations. It's not covering
`
`any other allocations that happened after the fact. In fact,
`
`these are the remaining $4.2 million of the entire $15 million
`
`grant. There were no allocations after these two that are at
`
`issue here.
`
`So, in fact, the response is very specific, it's very
`
`narrow, and the question related to a specific email that
`
`Mr. Podolsky just cited. And after being confronted with the
`
`full picture, Mr. Kennedy admitted that it was not, in fact,
`
`the case.
`
`MR. PODOLSKY: Your Honor --
`
`THE COURT: All of that is in the material that's
`
`being provided.
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 7 of 36
`I36HPER1
`
`6655
`
`MR. PODOLSKY: Also, the transcript is pretty clear.
`
`The exhibit that preceded this question was Defendant's
`
`Exhibit 654 and 654A, not JPX 742R.
`
`THE COURT: Denied.
`
`Mr. Coffey -- Mr. Iseman, sorry.
`
`MR. ISEMAN: Nothing more than what was in our letter,
`
`your Honor.
`
`THE COURT: Would the government like to be heard on
`
`that?
`
`MR. PODOLSKY: Just very briefly, your Honor. The
`
`jury has asked actually a somewhat clear question in terms of
`
`what they're looking for. Actually, at the request of
`
`Mr. Aiello, already given them, I think, far beyond what
`
`they're really looking for. The bottom line is the jury is
`
`asking for evidence so that they can reach a verdict in this
`
`case, and it's a pretty straightforward question. There's no
`
`reason to tell them essentially that they have to pound sand
`
`and can't reach a decision in this case.
`
`THE COURT: I did not view Mr. Iseman's question
`
`encouraging a hung jury. However, I'm going to deny your
`
`request. I think the request cannot be read in any sort of a
`
`reasonable way the way you're proposing because the evidence in
`
`this case is absolutely clear that any money that ended up with
`
`Lisa Percoco from COR flowed through Howe. That doesn't mean
`
`that Mr. Aiello and Mr. Gerardi knew that was happening, but
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 8 of 36
`I36HPER1
`
`6656
`
`there is no evidence of any direct payments from COR to
`
`Percoco. So the reading that we should read it that way makes
`
`no sense. I think the reading and the documents that are being
`
`provided is a fair reading of the request, and so I am adhering
`
`to the list that was sent to you before.
`
`Anything further?
`
`MR. PODOLSKY: Not from the government, your Honor.
`
`THE COURT: From the defense?
`
`OK. Make sure Mike knows where he can find you. I'm
`
`going to give the materials -- you've all signed off on the
`
`transcript pages? Sit down, please.
`
`You've all signed off? There was no objection to what
`
`the government provided you, correct?
`
`MR. GITNER: No objection, but I think they're going
`
`to -- so we have copies ourselves, I think they're going to
`
`provide us copies. No objections.
`
`THE COURT: That's very kind of them.
`
`MR. GITNER: It is.
`
`THE COURT: OK.
`
`(Recess pending verdict)
`
`(At 11:41 a.m., a note was received from the jury)
`
`THE COURT: Please be seated, everybody. Do I have
`
`everybody?
`
`We have three notes from the jury. First one is from
`
`Juror No. 2. It indicates: "I need to check in on time frame
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 9 of 36
`I36HPER1
`
`6657
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`again. We are beyond the original four- to six-week time frame
`
`I provided to my firm. I believe at this point a full
`
`discussion will be more time than I can personally and
`
`professionally afford. We have some very fundamental
`
`differences, and nobody wants to compromise on our own beliefs
`
`and/or process. I don't want to impose my sense of urgency, as
`
`a decision would go beyond a reasonable amount of time. We are
`
`all very invested in this case, and nobody wants to let each
`
`other down or show any disrespect to the system/process. With
`
`the impending snowstorm, continued loss of electricity at home,
`
`and quarterly meetings I need to focus on all day every day
`
`until Monday, I regret to say I can no longer continue after
`
`today. Regards, No. 2." That's marked as Court Exhibit 16 and
`
`17.
`
`Exhibit 18 reads: "Dear Judge Caproni, I believe I
`
`cannot do this anymore. Both my kids are sick, and I am not
`
`able to find an afternoon appointment for them. I really need
`
`to be excused at this point. I feel there's nothing else I can
`
`offer to this process. I really apologize, and please know
`
`that I tried to do the best thing right to the end and see this
`
`case to the end. Thanks a lot, Juror No. 7."
`
`Court Exhibit 19 from the foreperson reads: "We
`
`cannot come to a unanimous consent. We are largely divided in
`
`opposing views. The only thing we seem to agree on is that we
`
`cannot agree."
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 10 of 36
`I36HPER1
`
`6658
`
`Last but not least, I guess this will be Court
`
`Exhibit 20.
`
`THE DEPUTY CLERK: 21.
`
`THE COURT: 21?
`
`THE DEPUTY CLERK: Yes.
`
`THE COURT: "Dear Judge Caproni, it is with great
`
`respect that I ask to be dismissed from this case. We are
`
`almost eight weeks in. My children need their mother back. I
`
`can't afford to continue to pay $20 an hour for a babysitter.
`
`I see a cardiologist regularly and have had to cancel my last
`
`two visits. I've had to come home early from my family
`
`vacation. In addition, my salary heavily relies on commission.
`
`I leave this court every day and go home to spend hours
`
`working. I'm up until 12 a.m. every night working. I
`
`physically and emotionally cannot do this anymore. I
`
`completely respect this process and this Court, but need to
`
`have my life back. Thank you, No. 13."
`
`We'll get copies of that last note for the parties as
`
`well as for the press after we break here.
`
`All right. So would anybody like to be heard? Start
`
`with the government.
`
`MS. ECHENBERG: Your Honor, especially because we just
`
`got the fourth note, I think we would like a little time to
`
`confirm amongst ourselves and some other folks in our office.
`
`THE COURT: I'm not sure that the fourth note really
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 11 of 36
`I36HPER1
`
`6659
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`necessarily changes anything, so why don't you --
`
`MS. ECHENBERG: We just didn't have much time between
`
`when we saw the various notes. We didn't know what the
`
`substance was going to be before we got here.
`
`THE COURT: OK.
`
`MS. ECHENBERG: So we would just appreciate a little
`
`bit of time, if you would indulge us.
`
`THE COURT: Let me hear from the defense. Maybe;
`
`maybe not.
`
`MR. BOHRER: Was the fourth note No. 21?
`
`THE COURT: It was Court Exhibit No. 21.
`
`MR. BOHRER: Is there a 20 that I missed?
`
`THE DEPUTY CLERK: The one that I brought in this
`
`morning.
`
`THE COURT: It was the one that went in, the exhibit
`
`that we sent in with the list of exhibits we numbered No. 20.
`
`It was out of order, but OK.
`
`Mr. Bohrer, who wants to be heard on the notes?
`
`MR. BOHRER: I think we need a little time to think
`
`about them and give our -- we've only had them a few minutes.
`
`THE COURT: OK.
`
`MR. BOHRER: And give you the benefit of our thinking.
`
`THE COURT: How long do you want to think about it?
`
`MR. BOHRER: Not long. Five, ten minutes.
`
`THE COURT: All right. You have five minutes.
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 12 of 36
`I36HPER1
`
`6660
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`MS. ECHENBERG: Thank you, your Honor.
`
`(Recess)
`
`THE COURT: OK. Ms. Echenberg.
`
`MS. ECHENBERG: Yes, your Honor. So to begin,
`
`although it has been a number of days, the jury actually hasn't
`
`deliberated for that long.
`
`THE COURT: No, they have not.
`
`MS. ECHENBERG: So that's just a framing for all of
`
`this. So we think in some way there needs to be some charge
`
`for them to continue to deliberate, and we'd like the
`
`opportunity to propose language and talk to defense counsel
`
`about that.
`
`THE COURT: I have language for you.
`
`MS. ECHENBERG: OK. But to deal specifically with the
`
`three requests, we believe that one request is unique, and
`
`that's No. 7. First --
`
`THE COURT: The sick child.
`
`MS. ECHENBERG: The sick child, right. So, first,
`
`there's a time-sensitive medical issue that No. 7 has
`
`addressed. Number two, it is in part because of a prior
`
`request by No. 7 --
`
`THE COURT: That we're sitting half days.
`
`MS. ECHENBERG: -- yes, that we're sitting half days.
`
`So the jury is restricted to make full deliberations which may
`
`be causing the jurors extra stress. The other two requests
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 13 of 36
`I36HPER1
`
`6661
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`from No. 2 and No. 13 appear to be more in the vein of this is
`
`extremely inconvenient, but there isn't a pressing medical or
`
`financial issue that's been addressed.
`
`So what we would propose is that No. 7 be excused,
`
`that an alternate be brought on, and depending on when your
`
`Honor wants to address it and when the alternate could get
`
`here, either some sort of beginning of an Allen charge be given
`
`to the remainder to explain that the process needs to continue
`
`but that more occur when a full jury is back together.
`
`THE COURT: They have to restart their deliberations
`
`if they bring on a alternate.
`
`MS. ECHENBERG: Understood, your Honor. But given the
`
`storm and the medical issues that No. 7 has addressed, we think
`
`that the jurors might get some relief, the other jurors, to
`
`their personal issues. If there is a storm tomorrow and
`
`they're not able to deliberate, they could begin again with a
`
`full jury who has a full day or more to contribute to
`
`deliberations either at some point tomorrow, maybe even later
`
`today. I don't know how available the next alternate is, but
`
`certainly by Thursday they could be back at it and with a
`
`larger time frame to work with.
`
`THE COURT: So the government's proposal is to excuse
`
`No. 7.
`
`Mr. Bohrer, Mr. Gitner, who wants to talk?
`
`MR. BOHRER: Well, I'll start. That was not an
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 14 of 36
`I36HPER1
`
`6662
`
`alternative that we had caucused about, so I can't address it
`
`directly.
`
`I didn't realize from Juror No. 7's note, and I'm not
`
`unsympathetic to it for any number of reasons, that she was
`
`seeking immediate relief, and I thought it might apply to not
`
`serving beyond 2 o'clock today, which might obviate the need
`
`for her to be excused immediately. It's now --
`
`THE COURT: Yes, in the long --
`
`MR. BOHRER: It's now 12:15, so we have the
`
`possibility, in any event, of an hour and three quarters
`
`deliberations today, which I think represents the consensus of
`
`the defense, and your Honor mentioned that you had language
`
`that you might --
`
`THE COURT: I do.
`
`MR. BOHRER: Can we hear it?
`
`THE COURT: You can even see it.
`
`MR. BOHRER: OK.
`
`THE COURT: But before I do that, look, as
`
`Ms. Echenberg said and as you guys are all experienced lawyers,
`
`they have not deliberated long enough to declare that they're
`
`at impasse and it's not beyond a charge that says you got to
`
`keep talking. The real problem is the three jurors. I tend to
`
`agree that two of them, their objection is one that can be
`
`dealt with by jury service is inconvenient. Actually, the
`
`schedule we're working on right now with 2 o'clock stop is
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 15 of 36
`I36HPER1
`
`6663
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`wildly convenient. That allows them to actually get at least a
`
`half a day, if not three-quarters of a day, of work in if they
`
`need to do that. So I think there's a way of saying that to
`
`them that would encourage them to continue notwithstanding
`
`their request to be relieved.
`
`Juror No. 7, which the government is prepared to throw
`
`the towel in on, I think my inclination would be to see if
`
`there's not an alternative, like can her husband take care of
`
`the children tomorrow? Her problem seems to be she can't get a
`
`doctor's appointment this afternoon for the children who are
`
`ill. So I'm sympathetic with that, but the real question is,
`
`is there some alternative that would allow her to stay on the
`
`jury?
`
`My concern about substituting in one of the alternate
`
`jurors is that requires everybody to restart, and you've got
`
`two jurors who are already stressing about how much time this
`
`is taking. So that just seems like not a recipe for a verdict
`
`at the end of the day. I think that's a recipe for frustrating
`
`the existing jurors even more.
`
`So can I hear from you on the option of calling -- I
`
`think my inclination would be to give the modified Allen
`
`charge, which I will hand out in just a second, tell them that
`
`they need to deliberate, continue deliberations. They can
`
`check their phones, but they need -- or like a five-minute
`
`break to check the phones because I want to get the maximum
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 16 of 36
`I36HPER1
`
`6664
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`amount of time that I can, and that we will address their other
`
`request at the end of the day. That way we can talk to Juror
`
`No. 7, see if there's an alternative that would satisfy her.
`
`And as to two and 13, kind of make a judgment then, because at
`
`some level they depend on if we keep seven, then I've got the
`
`pitch of, look, you're only working half a day anyway, for me.
`
`And if not, we can revisit the issue. OK.
`
`MR. COFFEY: Judge, there's always this idea that the
`
`defense is monolithically united.
`
`THE COURT: I'm sorry. I did assume that. I assumed
`
`that Mr. Bohrer was speaking for everybody.
`
`MR. COFFEY: Well, to a certain extent he is. I
`
`believe the analysis is a little different. To me the question
`
`is not whether the jury's deliberated for an extensive period
`
`of time. From my perspective, the real issue is this jury is
`
`basically desperate, and there are people in that jury room who
`
`are crying out to you that we can't take any more of this.
`
`Whether you put them in for another hour, another ten minutes,
`
`whatever, there are people on this jury who are telling you
`
`that they are at the end of their rope.
`
`THE COURT: Are you moving for a mistrial?
`
`MR. COFFEY: Yes.
`
`THE COURT: OK. Denied.
`
`MR. COFFEY: But I'm doing it for the reason because I
`
`know if there were an appeal, I have to make a record because I
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 17 of 36
`I36HPER1
`
`6665
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`know that the Allen charge, the courts look with favor upon
`
`that. I believe the analysis is this jury, if they reach a
`
`verdict now based upon the statements given by these jurors,
`
`not that they can't agree, you've got jurors in that room
`
`saying, I want out. I want to get away from here. I can't
`
`take anymore. My family situation is deteriorating. I've got
`
`huge personal problems, a verdict that was rendered now, in the
`
`light of those statements from the jurors, I believe would be a
`
`coerced verdict at this point.
`
`THE COURT: OK. Thank you for that. Denied.
`
`Have you had a chance to read the one page that I sent
`
`out?
`
`MS. ECHENBERG: If we could just have a moment. It
`
`was a little hard to read while there was talking.
`
`MR. GITNER: Does your Honor intend to bring the jury
`
`out and read it to them?
`
`THE COURT: Yes.
`
`MR. GITNER: Does your Honor also intend to send it
`
`back as your Honor sent the rest of the charge back?
`
`THE COURT: I wasn't intending to. I could if the
`
`parties want me to.
`
`MR. GITNER: Thank you. Your Honor, may I ask if the
`
`Court -- I'm looking at Sand. I notice it's different from the
`
`Sand charge. Has your Honor given this before?
`
`THE COURT: I did. I think this is what I gave in
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 18 of 36
`I36HPER1
`
`6666
`
`Silver. There were added paragraphs because they indicated
`
`they had reached agreement on certain charges.
`
`MR. GITNER: So this is based on whatever your Honor
`
`did in a prior case?
`
`THE COURT: Correct.
`
`MR. GITNER: Thank you.
`
`THE COURT: OK. Ms. Echenberg, Mr. Podolsky?
`
`MS. ECHENBERG: Your Honor, we have no objection to
`
`this charge.
`
`THE COURT: Mr. Bohrer?
`
`MR. BOHRER: We have negotiation to the charge.
`
`THE COURT: Mr. Gitner?
`
`MR. GITNER: Same.
`
`THE COURT: Mr. Williams?
`
`MR. WILLIAMS: None, your Honor.
`
`THE COURT: Mr. Coffey?
`
`MR. COFFEY: I stand by my objection that you should
`
`discharge this jury.
`
`THE COURT: Recognizing that, do you have any
`
`objection to what I'm going to say?
`
`MR. COFFEY: No.
`
`THE COURT: Just to be clear, at the very end of what
`
`you've all got, I will say I will address your other notes
`
`regarding hardship at 2 o'clock. And if they want to check
`
`their phones, they have five minutes, but I would prefer for
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 19 of 36
`I36HPER1
`
`6667
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`them not to.
`
`(Jury present)
`
`THE COURT: Ladies and gentlemen, we've received your
`
`notes. I think there was three or four -- four notes.
`
`First, let me tell you that I am very grateful and all
`
`the attorneys in this case are incredibly grateful to you for
`
`all the work that you have and you are putting into the case,
`
`including during trial and the deliberation. It's obvious from
`
`your questions and your requests for evidence that you are
`
`giving the case the attention that it deserves. I know that it
`
`is hard work to deliberate, and I understand that deliberating
`
`for this long puts a strain on the jurors.
`
`Disagreements are natural, but each of you has taken a
`
`solemn oath to decide this case in good faith based on the
`
`evidence admitted at trial and on the instructions that I've
`
`given you. It is normal and even common for jurors to have
`
`differences of opinion. Frequently, however, after extended
`
`discussions, jurors may find that a point of view which
`
`originally represented a fair and considered judgment might
`
`well yield upon the basis of arguments and upon further review
`
`of the evidence. Further consideration may indicate that a
`
`change in original view is justified on the law and the facts.
`
`Your verdict must, however, reflect the conscientious
`
`judgment of each juror. No juror should, however -- and I want
`
`to emphasize this -- no juror should vote for any verdict
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 20 of 36
`I36HPER1
`
`6668
`
`unless, after full discussion and consideration and exchange of
`
`views, it represents his or her considered judgment. As I said
`
`in my original instructions, you are entitled to your own
`
`opinion, but you should exchange views with the other jurors
`
`and listen carefully and respectfully to each other. Do not
`
`hesitate to change your opinion if you're convinced that the
`
`other opinion is correct, but each of you must make your own
`
`decision.
`
`I remind you to consider all of my instructions as a
`
`whole, and the government bears the burden of proving each
`
`element of the crime beyond a reasonable doubt.
`
`I'm going to send you back to the jury room to
`
`continue to deliberate. I will address your other notes, your
`
`individual notes regarding specific hardships, at 2 o'clock.
`
`I've been giving you a break to check your phones. If you
`
`absolutely have to check your phones, please keep it to five
`
`minutes, and if you don't absolutely have to check your phones,
`
`please continue to deliberate rather than taking a break to
`
`check the phone. So please retire and continue to deliberate.
`
`(Jury deliberations resumed at 12:25 p.m.)
`
`(Jury not present)
`
`THE COURT: Assuming we don't get anything else from
`
`them, please be back in the courtroom about ten till 2:00.
`
`MR. COFFEY: Judge, I would ask you to send a hard
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 21 of 36
`I36HPER1
`
`6669
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`copy of that instruction to the jury room.
`
`THE COURT: Why?
`
`MR. COFFEY: Because it's part of your charge and all
`
`the other parts of your charge have gone to the jury room, so I
`
`don't know why that would not be sent in.
`
`THE COURT: I did not send in the short piece I did, I
`
`realize this seemed like an eternity ago, but I think it was on
`
`Wednesday -- I'm sorry, Thursday or Friday they asked -- oh, on
`
`the elements, how long does Mr. Percoco have to be a public
`
`official. I did not send that back. Traditionally, I have not
`
`sent back these sorts of short re-charges.
`
`MR. COFFEY: Perhaps you can break tradition. Anyway,
`
`that's our request.
`
`THE COURT: OK. Anybody else?
`
`MS. ECHENBERG: Nothing from the government.
`
`THE COURT: Again, please be back in the courtroom by
`
`ten till 2:00 unless you hear from us.
`
`(Recess pending verdict)
`
`(Jury not present)
`
`THE COURT: Please be seated, everybody.
`
`So I asked you to come a few minutes early because I
`
`got some new information on weather, which is according to the
`
`court's resident disaster coordinators. The weather forecasts
`
`are deteriorating by the hour. The most recent predictions
`
`call for six to 12 inches of snow in the city and 12 to
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Case 1:16-cr-00776-VEC Document 601 Filed 03/26/18 Page 22 of 36
`I36HPER1
`
`6670
`
`15 inches in the Hudson Valley, together with high winds. It
`
`may end up being an icy mix, but who knows. The court has
`
`decided to close the White Plains courthouse for tomorrow, and
`
`they're encouraging those of you at Foley, even though it's not
`
`closed yet, to think hard about suspending jury trials.
`
`So that's a new factoid that I'm putting in the mix.
`
`Further thoughts?
`
`MR. BOHRER: Change of venue.
`
`THE COURT: Miami.
`
`MR. BOHRER: You got it.
`
`THE COURT: We could make up for the juror who missed
`
`out on some of her vacation that way.
`
`So here are my current thoughts, since nobody's
`
`popping up with ideas. That we bring out Juror No. 7, the
`
`woman with childcare issues. She had raised childcare issues
`
`during voir dire. Her mother, children's grandmother, I guess,
`
`was taking care of them. She has a toddler and a school-aged
`
`child. Inquire whether, in light of the fact -- well, my
`
`initial inclination, particularly since we've got three jurors
`
`who are from Westchester, is that we should just kind of fall
`
`on the grenade and just say we're not sitting tomorrow, inquire
`
`as to Juror No. 7 whether, given the fact that we're not going
`
`to be sitting tomorrow, she can deal with childcare problems
`
`tomorrow, take the children to the doctor, etc., and be back
`
`then on Thursday. My inclination is to say I'm not granting
`
` SOUT
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
