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`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 8, 2018
` 8:48 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
`
`
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`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 8, 2018
` 8:48 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
`
`
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 2 of 17
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`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 603 Filed 03/26/18 Page 3 of 17
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`(Trial resumed; jury not present)
`
`THE COURT: Good morning, everybody. Could you all
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`note your appearances, please.
`
`MR. BOONE: Good morning, your Honor. Robert Boone
`
`for the government. Here with me at counsel table is David
`
`Zhou, Matthew Podolsky, Janis Echenberg, Special Agent DeLeassa
`
`Penland, and Sylvia Lee.
`
`THE COURT: Good morning. Please be seated.
`
`MR. BOHRER: Morning, your Honor. Barry Bohrer with
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`Mr. Percoco, Mr. Yaeger at counsel table.
`
`MR. GITNER: Good morning, Judge. Dan Gitner with
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`Rachel Berkowitz and Jun Xiang. My client, I know, is in the
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`building. His parents are here. I assume he got stuck in the
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`long line. I apologize. I sent two people out to find him.
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`THE COURT: Do you waive the appearance for the
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`logistical stuff we're talking about this morning?
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`MR. GITNER: Yes, Judge.
`
`MR. COFFEY: Good morning. Stephen Coffey with Pamela
`
`Nichols, Steve Aiello, Scott Iseman.
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`MS. PATEL: Good morning. Avni Patel with Mr. Gerardi
`
`and Mr. Williams who should be here soon.
`
`THE COURT: Good morning. Good to see you. You all
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`look like you have clean hair, so I'm assuming you have
`
`electricity wherever you live or at least hot water.
`
`Here's where we are. I have not heard -- as of 20
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` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 4 of 17
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`till when I came upstairs, I had not heard from Juror No. 7, so
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`I am assuming that she is going to be here. That's the good
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`news. The bad news is I did hear from Juror No. 2. He will be
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`here, but he will be late. There was a tree down near his
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`house, and it delayed him getting to the train station. So
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`he's not going to be here until 10:00. So assuming that we've
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`got 12 jurors, we're back to the racetrack, at least as of
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`10 o'clock when Juror No. 2 will arrive.
`
`As I told you in my email -- good morning,
`
`Mr. Kelly -- I'm sitting by designation on the Second Circuit
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`today, so I will be out of pocket starting at 10:00. As I have
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`counted up the minutes allocated, that's about 80 minutes'
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`worth of argument. I'm not sure that all of them are going to
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`take up all that time, but you never know. Effectively, I
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`think I'm going to be out of pocket until at least 11:30.
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`So one question that I would like your input on is if
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`there is a note in the interim during that period of time,
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`should I authorize my law clerk to just send back a note
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`saying: The judge is out of pocket. We'll get back to you as
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`soon as she's back, continue deliberating, or just let it be
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`like every other note which has taken some period of time for
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`us to respond? Since Juror No. 2's not going to be here till
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`10:00, as a practical matter, that's not as big of a concern as
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`it was if we had the full jury here at 9:00. Any thoughts?
`
`Ms. Echenberg?
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
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`MS. ECHENBERG: Your Honor, I think your suggestion of
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`at least letting them know that there may be some delay makes
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`sense. To the extent it's a substantive note, can the parties
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`get it so we can start working on it?
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`THE COURT: Absolutely. If a note comes out, Dan is
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`going to make a copy for everybody, and I want you to start
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`working on it, reach as much of an agreement as you can so that
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`once I get back, you can respond as quickly as humanly
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`possible. OK.
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`MR. GITNER: Judge, I think --
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`THE COURT: I think the only time it would be
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`appropriate is if it's a note that reasonable people would
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`think should have a prompt response.
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`MR. GITNER: That's not unreasonable, Judge. But if
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`it's a note akin to the ones --
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`THE COURT: Like the other day? There's no reason to
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`give them anything in response. You all should start working
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`on it.
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`MR. GITNER: I agree with that. If it's logistical,
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`should take five minutes, should be quick, then I have no
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`objection to something going back like your Honor suggested.
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`Otherwise, I don't think there should be anything special.
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`THE COURT: So Dan is authorized to discuss it with
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`you. Assuming there's unanimity that it is appropriate to send
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`a note back just saying there's going to be a delay, he'll do
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` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
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`so. Otherwise, you'll start working on whatever it is so that
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`you're ready to talk about it as soon as I get here.
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`MR. COFFEY: Yes, Judge, that's agreeable to us.
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`THE COURT: Terrific. I assume if nobody pops up and
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`says, I disagree, that everybody's in agreement, because none
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`of you are shy.
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`I don't think there's really much more to discuss.
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`Let's discuss one other thing. Let's assume Juror No. 7 does
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`not show up, who was the only juror I've been concerned about.
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`I think 13 and 2 wrote their notes, I may be putting too much
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`emphasis on body language, but the body language seemed to be
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`I'm disappointed; I'm unhappy; I understand. Juror No. 7 is
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`the only one I have some concern about. The question is have
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`the parties thought about what is the better response? Is it
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`to proceed with 11 jurors or is it to bring the next alternate
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`in and instruct the jury to begin deliberations again?
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`Ms. Echenberg, has the government formed a view on
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`that issue?
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`MS. ECHENBERG: I mean, look, I think the 11 jurors,
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`the defense would need to consent to that since we do have --
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`THE COURT: They don't have to consent.
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`MS. ECHENBERG: Even though we have alternates who are
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`available?
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`THE COURT: I didn't see any -- have you found case
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`law that says if there are available alternates?
`
` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
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`MS. ECHENBERG: Honestly, we haven't had a chance to
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`look as closely at it as we would like. We have discussed it
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`internally in our office, and I think typically when that
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`happens, there are no alternates left. So I think those are
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`the examples that we found readily, but we can go back and look
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`at that.
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`THE COURT: I agree with that. Normally, the short
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`answer would be if you have an available alternate, sub in the
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`alternate and have them start again. The risk in this case and
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`this fact pattern is that creates other problems that are not
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`solved by substituting the juror in. So I think the case law
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`would suggest that it's a discretionary call what's the best,
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`whether we can proceed with 11 or not. But you will have time
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`to do a little more research on that, whether the availability
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`of an alternate affects that.
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`Mr. Bohrer, does the defense have a view on this?
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`MR. BOHRER: I think we are similarly situated, and it
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`is a work in progress still from the standpoint of analyzing
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`the issue and running down the case law, but we'll be in a
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`better position by 10 o'clock, I would imagine.
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`THE COURT: You don't have to be in a better position
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`by 10:00. You have to have a position so that, should it
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`become necessary when I come back down, if there are only 11
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`jurors back there, you have a position. I'm not saying your
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`position is going to carry the day. Rest assured, I want to
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` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
`
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`hear your views because I don't think there's a perfect
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`solution here. Normally, the perfect solution is substitute in
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`the alternate, have them start again, you have 12 jurors, and
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`you're off to the races. I think everybody has to be mindful
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`that this jury has been here two weeks longer and going on
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`three weeks longer than they expected, and we already have two
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`jurors expressing real concerns about hardship so that
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`substituting in a new juror and telling them to re-begin may
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`cause more harm than good.
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`So that's why I really want -- I mean, look, I think
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`we are all, except for Mr. Coffey, on the same page that we
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`would prefer not to mistry the case. So, realistically,
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`assuming that we end up with 11 jurors today, we've got to make
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`a call, and we need to make it as quickly as possible.
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`Recognize, also, I don't know where alternate No. 2 is. We
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`confirmed that she's still in town and is available if we call
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`her, but I don't know if that means she's an hour away, two
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`hours. I don't know how long it would take from the point we
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`make that call until we have a new juror in a chair
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`deliberating. Assuming that it wasn't until 1:00 or 1:30, then
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`you're talking they're only going to get like three hours of
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`deliberations or four hours deliberations today. All of this,
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`it seems to me, you all need to think about, again, just so you
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`have a position to tell me if this becomes an issue.
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`Mr. Gitner.
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` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
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`MR. GITNER: Judge, we'll certainly have a position.
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`I just want to, just so the record's very clear, I think we're
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`in the seventh week. So that would put them one week beyond
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`what they may have expected given what they were told in the
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`voir dire.
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`THE COURT: Is that right?
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`MR. GITNER: They were told four to six weeks.
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`THE COURT: The questionnaire said not more than six
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`weeks. So when did we start?
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`MR. GITNER: January 21, I think, 22nd.
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`THE COURT: January 22 was when we began jury
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`selection.
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`MR. GITNER: I think that puts us in the seventh week
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`now.
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`THE COURT: We're in the seventh week, right. We're
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`at the end of the seventh week.
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`MR. GITNER: I understand, Judge. We'll certainly
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`have a position by 10 a.m.
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`THE COURT: You know when I said four to six weeks,
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`they all heard four weeks.
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`MR. GITNER: Well, I heard your Honor say four to six
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`weeks, so --
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`THE COURT: I'm sure that's what I said. I'm just
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`saying human nature being what it is. And, look, this isn't
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`being critical of anybody. The fact is we lost a day and a
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` SOUTHERN DISTRICT REPORTERS, P.C.
` (212) 805-0300
`
`
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`half because you were ill, we've lost time here and there, lost
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`a day because the defense had people that weren't available
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`until Monday, so there have been reasons why it's taken this
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`long. That doesn't mitigate the hardship on the jury.
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`MR. GITNER: I understand.
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`THE COURT: Anything further before I leave you --
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`MS. ECHENBERG: Nothing from the government.
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`THE COURT: -- for the morning?
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`Nothing from the defendant. Make sure Dan knows where
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`you can be found, and I will check back in after I get down
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`from the 17th floor.
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`(Recess pending verdict)
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`(At 10:47 a.m., a note was received from the jury)
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`THE COURT: Everybody's back.
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`All right. We got another note from the jury which
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`you've seen. It's marked Court Exhibit 22: "Good morning,
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`your Honor. Is it possible to see the transcript
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`electronically or otherwise? Thank you."
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`Ms. Echenberg.
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`MS. ECHENBERG: Yes, your Honor. Unfortunately, we
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`don't have any great suggestions here. I think it would,
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`obviously, take a lot of time and a lot of effort to redact the
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`entire trial transcript. I don't know, I'm not aware of it,
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`whether the court reporters have some way to do it more
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`expeditiously. If we were going to do it, or we were to divide
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`it up with defense counsel, we'd have to do it manually,
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`meaning we'd have to manually box everything, and then we'd
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`have to have some way to sort of check it. So it's certainly
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`not something we could get to the jury before 2 p.m.
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`THE COURT: The short answer is, effectively, no.
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`MS. ECHENBERG: Right. If they want to see it, we can
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`certainly get it to them at some point. You know, maybe if a
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`large number of us contributed to the effort and we worked
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`until very late tonight we could get it to them for tomorrow,
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`but we're talking about thousands of pages of transcript and
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`having to manually -- to search for the word "objection" and
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`the word "sidebar," and every time we find it, figure out what
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`needs to be redacted, box it, and then apply the redaction.
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`THE COURT: Is there a way -- can I ask the court
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`reporter, is there a way that can be done electronically?
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`(Discussion off the record)
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`THE COURT: The short answer is no. Does the defense
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`have any other view on this?
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`MS. ECHENBERG: One thing would be to, at least in the
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`first instance, explain to them the time and ask them if there
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`are certain things they would like to prioritize. Obviously,
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`we could get right to that. As you know, it took us -- I think
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`we only sent back four or five sections of transcript and that
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`took us all day. We are talking about maybe 50 pages.
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`THE COURT: Right, but a lot of that was arguing about
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 12 of 17
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`what was going to go back. If you were just pulling out
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`sidebars and answers that have been stricken --
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`MS. ECHENBERG: Right.
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`THE COURT: -- it would probably not take as long.
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`Defense?
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`MR. COFFEY: Judge, my position is that you should
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`answer no, very simply. There's nothing to read into it. I
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`would not ask the jury what they think, what other things they
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`want to read. It's a very simple question, can they have it?
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`Our position is, Mr. Aiello's position is, no. I'm sorry. I'm
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`sorry the answer is no. I would not start asking them what
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`they'd like to look at. They haven't asked for it.
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`MS. ECHENBERG: I think this is obvious, your Honor,
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`but the truthful answer to their question is it is possible.
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`THE COURT: Yes.
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`MS. ECHENBERG: It's just extremely time-consuming.
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`And when they understand that, they may rethink whether they
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`want it or whether they'll get it in time for it to be useful
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`for them.
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`MR. COFFEY: Judge, I don't believe that you should be
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`getting in dialogues with the jury. They asked a simple
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`question. It's a simple answer, yes or no. And if it's no,
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`that's all it is.
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`THE COURT: Anybody else want to be heard on this?
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`OK. My plan is to say, logistically, it would be very
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 13 of 17
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`time-consuming, although it could be done, and ask -- but not
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`for today and maybe not for tomorrow. Certainly, we could not
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`give them the entire transcript by tomorrow. Is that a fair
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`statement?
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`MS. ECHENBERG: I think that's a fair statement, your
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`Honor.
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`THE COURT: Given the fact it's almost --
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`MS. ECHENBERG: It's certainly not for today, and
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`unless there were a dozen or more people dedicated from now
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`until when it's done to this project, I mean, if it was just
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`our two paralegals or even all of us, it still will take days.
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`MR. GITNER: Judge, my worry is that even if
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`logistically it could go back, let's say, by tomorrow
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`morning --
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`THE COURT: Which it can't.
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`MR. GITNER: -- which I recognize is perhaps an
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`impossibility, the jury looking at it could be looking, let's
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`say, day one or day two and see something, but the way trials
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`come in, as the government told us --
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`THE COURT: I know.
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`MR. GITNER: -- bits in pieces, they don't then look
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`at page 2500 where the defense or the government completes the
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`story of what happened on page 10. So rather than the typical
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`question, can you get us all testimony on X issue and we work
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`very hard to complete those pieces, I don't know that the jury
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 14 of 17
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`would necessarily be able to do that or understand that that
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`was a task that should be done. It's a very difficult task,
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`even for those of us who are experienced at it, let alone for
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`12 people not having the experience at understanding the
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`concept, let alone completing the concept.
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`THE COURT: That's true, although there are judges who
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`send the entire transcript back. They just knock out the
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`sidebars and send them back. That's obviously much easier to
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`do if you're working on a three-day trial than a 30-day trial.
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`MR. GITNER: I'm not arguing whether or not your Honor
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`has the discretion. Perhaps your Honor does. I'm just saying,
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`in using your Honor's discretion, I'm not sure it's the best
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`idea due to that reason that I just articulated.
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`THE COURT: I'm planning to tell them logistically it
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`would be very time-consuming, measured in days, to get the
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`entire transcript to you. Mr. Coffey does not want me to
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`suggest that if there are specific things we can send them
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`back. Does anyone else share that objection?
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`MR. GITNER: I personally tend to agree with
`
`Mr. Coffey. I think the jury knows that if they have a
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`specific question, they can ask it. The way Mr. Coffey put it,
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`getting into a dialogue with them, may not be to anybody's
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`benefit. So I think I share that view.
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`MR. BOHRER: As do I, your Honor. I think this is the
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`most direct response to the question.
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`
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 15 of 17
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`THE COURT: Does the government have any different
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`answer?
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`MS. ECHENBERG: That's fine.
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`THE COURT: Can we see if they're all back. Some of
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`them went to check their phone.
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`Let's bring them out.
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`(Jury present)
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`THE COURT: Good afternoon, everybody.
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`I received your note from this morning, and let me
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`apologize for it taking a while for me to get back to you. I
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`was in a different courtroom, and I couldn't leave immediately.
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`We've marked it as Court Exhibit 22. It says: Good
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`morning. Is it possible to see the transcript electronically
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`or otherwise? Thank you.
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`Logistically, it would be very time-consuming,
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`measured in days, to get you the entire transcript. So thank
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`you for your note. Let me ask you to continue deliberations.
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`(Jury deliberations continued at 12:39 p.m.)
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`(Jury not present)
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`THE COURT: Their lunch is coming at 1:00. See if
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`they come back with something else.
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`MR. COFFEY: Judge, is Juror No. 7 now going past
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`2 o'clock or is it still the 2 o'clock?
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`THE COURT: No, it's still 2 o'clock.
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`MR. COFFEY: Still 2 o'clock. OK. Thank you.
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 16 of 17
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`THE COURT: Does anybody want to make a motion to
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`relieve her as she requested because of her shortened day and
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`proceed with 11?
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`OK. I'm seeing blank stares. That leads me to
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`believe the answer to that is no. OK.
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`(Recess pending verdict)
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`(Jury not present)
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`THE COURT: Please be seated, everyone.
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`Before I bring the jury out, we got another note,
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`Court Exhibit 25, saying: "Your Honor, I am very popular with
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`the justice system. I have received another jury summons with
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`a report date of today." That's what it says. "Is it possible
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`to get a note to explain my absence? Best, Juror No. 10."
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`So I'm giving Juror No. 10 a letter on my letterhead
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`saying she's on jury duty here.
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`Anything before I bring out the jury?
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`MS. ECHENBERG: Nothing.
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`THE COURT: Any further thoughts on Juror No. 7's
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`schedule?
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`MS. ECHENBERG: Your Honor, not at this time. We may
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`have more to say tomorrow, but not at this time.
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`THE COURT: There comes a point where it sort of is
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`too little, too late, I guess, but let's bring them out.
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`(Jury present)
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`THE COURT: Ladies and gentlemen, I received Juror
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`Case 1:16-cr-00776-VEC Document 603 Filed 03/26/18 Page 17 of 17
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`No. 10's note about another jury duty. I've got a letter for
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`you. I hope you weren't supposed to be there at 9:00 this
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`morning.
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`JUROR: I was. I tried to delay it, but they -- your
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`Honor, but they denied my delay.
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`THE COURT: OK. I have a letter.
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`Ladies and gentlemen, I'm sending you home for the
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`day. As you know, don't discuss the case, don't listen to TV,
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`don't read about the case, don't listen to the radio about the
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`case. Have a wonderful evening. I'll see you tomorrow
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`morning.
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`For those of you who live up in Westchester, I hope
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`you have electricity and that the roads are clear by the time
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`you go home tonight, and I will see you all tomorrow,
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`9 o'clock.
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`(Jury excused)
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`THE COURT: OK, folks. Have a good evening.
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`(Adjourned to March 9, 2018, at 9 a.m.)
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