former medisys ceo david rosen appeal

Case: 12-2249 Document: 10 Page: 1 06/05/2012 628906 117

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 12-2249-cr

___________________________________________________________

UNITED STATES OF AMERICA,

Appellee,

- against –

DAVID ROSEN,

Defendant-Appellant.

___________________________________________________________

DAVID ROSEN’S MOTION FOR RELEASE PENDING APPEAL

MORVILLO, ABRAMOWITZ, GRAND,

IASON, ANELLO & BOHRER, P.C.

Elkan Abramowitz

James R. Stovall

565 Fifth Avenue

New York, New York 10017

(212) 856-9600

MORVILLO LLP

E. Scott Morvillo

Ellen M. Murphy

Robert C. Morvillo

1 World Financial Center

New York, New York 10281

(212) 796-6330

Attorneys for Defendant David Rosen


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TABLE OF CONTENTS

INDEX FOR APPENDIX............................................................................................................... ii

TABLE OF AUTHORITIES .......................................................................................................... v

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT ................................................................................................................................. 5

I. Statutory Provisions ............................................................................................................. 5

II. Factual Background.......................................................................................................... 5

A. The MediSys Hospitals’ Relationships with New York State Legislators ................... 5

B. Proceedings Below ..................................................................................................... 11

ARGUMENT ................................................................................................................................ 11

I. Rosen is entitled to release pending appeal because he is not a danger or flight risk, and

his appeal will raise at least two substantial questions likely to result in reversal. .................. 11

A. The bribery and honest-services fraud statutes are unconstitutionally vague as applied

to the lawful payments and lobbying at issue. ...................................................................... 12

B. The government failed to prove beyond a reasonable doubt that Rosen intended an

unlawful quid pro quo. .......................................................................................................... 17

CONCLUSION ............................................................................................................................. 20


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INDEX FOR APPENDIX

Findings of Fact and Conclusions of Law, September 12, 2011 ...................................... A-1–A-40

Judgment in a Criminal Case, May 22, 2012 .................................................................. A-41–A-47

Notice of Appeal, May 29, 2012 ............................................................................................... A-48

Excerpt of Sentencing Transcript (page 55) ............................................................................. A-49

Excerpt of Trial Transcript (pages 1247-1248) .............................................................. A-50–A-51

Defense Exhibit 242 .................................................................................................................. A-52

Government Exhibit 1248 ............................................................................................... A-53–A-57

Excerpt of Trial Transcript (pages 500-501) .................................................................. A-58–A-59

Excerpt of Trial Transcript (pages 506-511) .................................................................. A-60–A-64

Excerpt of Sentencing Transcript (page 943) ........................................................................... A-65

Government Exhibit 2100B ...................................................................................................... A-66

Government Exhibit 3301 ......................................................................................................... A-67

Excerpt of Sentencing Transcript (pages 1580-1581) .................................................... A-68–A-69

Excerpt of Trial Transcript (page 1716) ................................................................................... A-70


Government Exhibit 1226 ............................................................................................... A-72–A-76


Excerpt of Sentencing Transcript (pages 1591-1592) .................................................... A-79–A-80








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Excerpt of Trial Transcript (page 1137) ................................................................................... A-89


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TABLE OF AUTHORITIES

Cases

United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004). ........................................................... 12

United States v. Bruno, 661 F.3d 733 (2d Cir. 2011) ............................................................... 3, 15

United States v. Coyne, 4 F.3d 100 (2d Cir. 1993) ............................................................. 3, 13, 14

United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) ............................................... 2, 3, 13, 14 15

United States v. Glenn, 312 F.3d 58 (2d Cir. 2002).................................................................. 4, 20

Grayned v. City of Rockford, 408 U.S. 104 (1972). ................................................................ 13, 17

Skilling v. United States, 130 S. Ct. 2896 (2010). .................................................................... 3, 13

United States v. Randell, 761 F.2d 122 (1985) ............................................................................. 12

United States v. Santiago, 695 F. Supp. 1490 (S.D.N.Y. 1988). .................................................. 12

Federal Statutes

18 U.S.C. § 3143(a)(1). ................................................................................................................. 12

18 U.S.C. § 3143(b). ..................................................................................................................... 11

State Statutes

N.Y. Pub. Off. Law §73 .................................................................................................................. 5

N.Y. Pub. Off. Law §73(7)(a) ......................................................................................................... 5

N.Y. Pub. Off. Law §73(7)(c) ......................................................................................................... 5

N.Y. Pub. Off. Law §73(7)(d)......................................................................................................... 5

N.Y. Pub. Off. Law §73-a(3) .................................................................................................... 5, 18

N.Y. Pub. Off. Law §74. ........................................................................................................... 5, 18

N.Y. Pub. Off. Law §77. ................................................................................................................. 5


PRELIMINARY STATEMENT

David Rosen’s appeal involves an unprecedented attempt to apply the

federal bribery and honest-services fraud statutes to conduct expressly permitted

by the New York Public Officers Law. Rosen was the CEO of MediSys, a not-for-

profit healthcare company, and its constituent safety-net hospitals in Queens and

Brooklyn. At Rosen’s direction, MediSys entered into agreements to pay certain

legislators for consulting on non-state matters. Rosen continued to lobby those

legislators on state matters affecting the MediSys hospitals. Both MediSys’s

consulting agreements with legislators and Rosen’s continued lobbying of those

legislators were expressly permitted by the New York Public Officers Law.

To apply the statutes at issue to Rosen’s conduct violates Due Process.

Those statutes have never been applied to the unique combination of circumstances

here: (i) the consulting arrangements with legislators were expressly permitted by

the New York Public Officers law; (ii) the official acts the legislators performed

were routine acts that were in the interests not only of MediSys but also of the

legislators’ constituents; (iii) those acts were not aimed at, and did not result in,

personal gain to Rosen; and (iv) there was no temporal connection between the

consulting arrangements and the legislative acts.

The bribery and honest-services fraud statutes each prohibit “a quid pro quo

agreement,” that is, “a government official’s receipt of a benefit in exchange for an


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act he has performed, or promised to perform, in the exercise of his official

authority.” United States v. Ganim, 510 F.3d 134, 141 (2d Cir. 2007). By contrast,

merely paying legislators with the intent “to buy favor or generalized goodwill”

from an official who is or may be “in a position to act favorably on the giver’s

interest” is “not bribery” but “legal lobbying.” Id. at 149 (emphasis in original).

To be guilty of paying a bribe, a defendant must have the specific intent to give

something of value in exchange for an official act. The acts constituting the quid

pro quo need not be identified when the agreement is formed. Rather, “the

requisite quid pro quo” may be established upon a showing that a government

official received a benefit “in exchange for his promise to perform official acts . . .

as the opportunities arise.” Id. at 142.

The government conceded here that: (1) there was no evidence of an explicit

quid pro quo and (2) no particular official acts had been identified when the

consulting arrangements began. Nevertheless, the government argued that the

facts reflected a promise to pay legislators in exchange for their promise to act in

the future “as specific opportunities arise.” But applying the “as opportunities

arise” theory here, where in one instance the consulting arrangement preceded the

official act by seven years, distorts it beyond recognition.

The three cases in which this Court has approved that theory all involved

non-routine efforts by a public official to award business or disburse funds to a


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private entity in exchange for payments or agreements to pay that occurred shortly

before or after an official act. See Ganim, 510 F.3d 134 (mayor expressly agreed

to award city business to his friends in exchange for kickbacks, and began

awarding business within two months of agreement); United States v. Bruno, 661

F.3d 733 (2d Cir. 2011) (Senate Majority Leader, on his own discretion, disbursed

funds, which had been withheld, “days” after agreement to pay him consulting

fees); United States v. Coyne, 4 F.3d 100 (2d Cir. 1993) (payment to county

executive made “shortly after” he helped architect win contract with county).

The gap between those cases and this one demonstrates that Rosen could not

have known that his conduct was criminal. If the “as opportunities arise” theory

applies here, anytime a legislator enters into a business arrangement permitted by

New York law, and then later (no matter how much later) performs an official act

that could benefit one of his clients, prosecutors could prosecute him for bribery.

And there would be no objective standards for distinguishing legitimate consulting

arrangements from bribery schemes. This case will allow the Court to provide

guidelines for applying the “as opportunities arise” theory that will prevent its

“‘arbitrary and discriminatory enforcement.’” Skilling v. United States, 130 S. Ct.

2896, 2904 (2010). Therefore, whether the bribery and honest-services statutes are

unconstitutionally vague as applied to Rosen’s conduct is a substantial legal

question for this Court.


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The lack of objective standards for applying the “as opportunities arise”

theory also misled the district court (Honorable Jed S. Rakoff) into concluding,

after a bench trial, that the government proved that Rosen acted with corrupt intent.

Judge Rakoff’s peremptory conclusion rests on numerous factual findings that are

clearly erroneous. As the court recognized, the “key” issue at trial was whether

MediSys’s consulting agreement with Assemblyman Anthony Seminerio was a

sham. The court found that it was, and that Rosen knew it, on the ground that

Seminerio supposedly did no “material” work for MediSys on non-state matters.

But the government’s own evidence showed that Seminerio identified

opportunities for MediSys that generated millions of dollars in revenue and

savings. And all of the purported official acts that Seminerio allegedly performed

as a result of the consulting agreement occurred at least seven years after the

consulting agreement was signed. Under these circumstances, the inference of

guilt was, at most, equally as plausible as the inference of innocence. Accordingly,

whether there was reasonable doubt as a matter of law also presents a substantial

question for this Court. See United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002).

Because resolution of either of these questions in Rosen’s favor would require

reversal, he is entitled to release pending appeal.1

1 These are not the only issues that will be raised in Rosen’s appeal.


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STATEMENT

I. Statutory Provisions

The New York Public Officers Law permits legislators (and other elected

state officials) to earn income from outside business and professional activities,

such as law practices and consulting businesses. See N.Y. Pub. Off. Law §73, 73-

a, 74. That business may include appearing on a client’s behalf before local or

federal agencies. Legislators may not, however, receive compensation for

providing services in relation to matters before state agencies, when the services

relate to certain topics, including the obtaining of grants or loans. Id. §73(7)(a).

But legislators may be paid for appearing before a state agency in connection with

a “ministerial” matter. Id. §73(7)(c). And although legislators may not engage in

an official state act in exchange for payment (id. §77), the Public Officers Law

expressly permits officials who have entered into a consulting arrangement to

participate or advocate in any official capacity on issues affecting their consulting

clients. See id. §73(7)(d).

II. Factual Background

A. The MediSys Hospitals’ Relationships with New York State Legislators

For almost 40 years, David Rosen oversaw the operation of not-for-profit

safety-net hospitals in Queens and Brooklyn. He began his career as acting

executive director of Jamaica Hospital. Later, Rosen and others formed MediSys


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Health Network to serve as the corporate sponsor of Jamaica Hospital and its

affiliated hospitals, Flushing and Brookdale Hospitals. The MediSys hospitals

served largely indigent, uninsured, and underinsured patients. As a result,

Medicaid reimbursements, which are determined by the state budget, were a

significant portion of the hospitals’ revenues. Because of this reliance, MediSys

maintained relationships with state legislators who supported the hospitals in

various ways, including sponsoring legislation that benefitted the MediSys

hospitals and other similarly situated hospitals and opposing cuts to Medicaid

reimbursement rates. For legislators, assisting the MediSys hospitals also meant

benefitting their constituents who used or were employed by them. This case

involves MediSys’s relationships with three New York state legislators: Assembly

members Anthony Seminerio and William Boyland, Jr. and Senator Carl Kruger.

1. Jamaica Hospital’s Relationship with Anthony Seminerio

Anthony Seminerio was an Assemblyman from Queens for more than 30

years. Seminerio’s support of Jamaica Hospital began almost immediately upon

his election, in 1978, and continued throughout the 1980s and 1990s. His support

included testifying at a public hearing to decide whether to close Jamaica, and co-

sponsoring legislation that allowed Jamaica and other hospitals to raise money

through tax-exempt bonds. Throughout the 1980s and 90s, Seminerio also advised

Jamaica on its interactions with local and federal officials and intervened with


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those officials on MediSys’s behalf. By 1998, Seminerio had formed a consulting

company, Marc Consultants, so he could be compensated for the assistance on

local and federal matters he provided MediSys and other companies. In the late

1990s, Jamaica and an insurance company affiliated with Jamaica, NHP, entered

into consulting agreements with Marc. The agreements were drafted by the law

firm Kalkines Arky Zall & Bernstein, MediSys’s longtime outside general counsel.

The key issue at trial was whether the consulting agreements with Seminerio

were a sham. After trial, Judge Rakoff concluded that Rosen’s appeal would not

raise a substantial question, and thus that Rosen was not entitled to release pending

appeal, based on its finding that Rosen “understood at all times that these were

sham consulting agreements.” A-49. But this finding ignored the undisputed

evidence that Seminerio in fact provided significant consulting assistance to

Jamaica Hospital and NHP on local and federal matters, and his efforts led to

millions of dollars in revenues or savings. His consulting work included:

helping Jamaica Hospital acquire a strategically located building at 90-09

Van Wyck Expressway for a fraction of its value and earn up to $150,000 a

year by renting billboard space on the property (A-50–A-51);

identifying an opportunity to provide physicals to army personnel (A-52);

contacting the New York City Fire Department to request an increase in the

number of ambulance districts that Jamaica Hospital served (A-53–A-56);


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arranging a meeting for NHP’s CEO with the CEO of a municipal hospital in

Queens, which enabled NHP to continue marketing at the hospital and

prevented millions of dollars in losses for NHP (A-57–A-58; A-59–A-64);

introducing MediSys to a HUD official, who was instrumental in causing a

stalled application by Jamaica Hospital Nursing Home for a $47 million

mortgage guarantee to move forward (A-65).

None of this consulting work violated the Public Officers Law, and all of it

benefitted MediSys and its patients and 10,000 employees.

2. MediSys’s Relationship with William Boyland, Jr.

In 2000, MediSys was asked by state authorities to take over the failing

Brookdale Hospital in the Brownsville neighborhood of Brooklyn. The Boyland

family was a well-respected political family in Brownsville. William Boyland, Sr.

was an Assembly Member. When he retired, his son, William Boyland, Jr.

(“Boyland”), won his father’s seat in a special election in February 2003.

The Boyland family had long standing ties to both Brookdale and Jamaica

Hospitals. Since 1994, years before MediSys’s takeover of Brookdale, Boyland

had worked for Brookdale or one of its affiliated clinics as a marketer. Although

Boyland’s appearance at work was sporadic at best, Brookdale kept him on the

payroll. Brookdale valued its relationship with the Boyland family, in part because

of the Boylands’ influence in the minority community that surrounded the hospital.


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After MediSys became Brookdale’s corporate sponsor, it also recognized the value

of the Boyland “brand.” It was important that MediSys foster goodwill with the

Boylands who, in turn, could speak well about the hospital in the Brownsville

community. After Boyland was elected to the Assembly, he asked Rosen if he

could have a consulting title so he wouldn’t have to “punch in.” Rosen agreed, and

informed MediSys’s CFO and General Counsel. A-66.

3. Brookdale Hospital’s Contacts with Carl Kruger

The facts and legal theory relating to Senator Kruger do not show any quid

pro quo, illicit or otherwise. Instead, the facts show that Rosen tried to build

goodwill with Kruger by being willing to award business to a company that Kruger

recommended, after MediSys officers had independently approved hiring the

company. Rosen met Kruger in 2007 at a hearing on medical malpractice. Shortly

thereafter, Kruger met with Rosen to help pitch a certain medical malpractice

insurance product, which Rosen rejected. In November 2007, Kruger sent Rosen a

letter informing him that Kruger had secured funding for Brookdale and that he

had also sought funding for Jamaica Hospital. (No funding was ever received.)

Thereafter, Kruger sought Rosen’s views and assistance in connection with a plan

to consolidate hospitals in Queens and Brooklyn. There was no consulting

relationship with Kruger.


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Before Kruger’s funding letter, and without Rosen’s knowledge,

Compassionate Care Hospice (“CCH”), a Medicare-approved hospice company

operating in Brooklyn and a number of states, approached a nursing home

affiliated with Brookdale, the Schulman and Schachne Institute for Nursing and

Rehabilitation (“SSI”), about becoming one of SSI’s hospice providers. Also

unknown to Rosen, CCH had an agreed to pay a company in which Kruger had a

financial interest a fee for securing contracts for CCH.

Without Rosen’s involvement, SSI’s chief administrator recommended that

MediSys enter into a contract with CCH as a back-up hospice provider. The

proposed contract between SSI and CCH remained in the general counsel’s office

for months before Rosen heard about it. Approximately six months after the CCH

contract was sent to the general counsel’s office for review, Kruger visited

Brookdale to distribute toys to patients in the pediatric unit. After that visit, Rosen

asked MediSys’s general counsel about the status of the CCH contract, noting that

Kruger was “following” it and that Rosen had promised to get this done. A-67.

However, Rosen never signed the contract. Despite that fact, Kruger continued to

seek Rosen’s views on consolidating hospitals in Queens and Brooklyn. In August

2008, Kruger was scheduled to meet with Governor Paterson. The day before the

meeting, a member of Kruger’s staff asked Rosen for “talking points” explaining

why a proposed hospital consolidation made sense, and Rosen provided them.


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Other than a calendar entry on Paterson’s calendar, there is no evidence that the

meeting between Kruger and Paterson ever occurred or, if it did, what they

discussed.

B. Proceedings Below

After a bench trial, Judge Rakoff found Rosen guilty of committing and

conspiring to commit honest services fraud, and conspiring to commit federal

programs bribery and Travel Act bribery. The district court issued its findings of

fact and conclusions of law on September 12, 2011. A-1–A-40. On May 7, 2012,

Judge Rakoff sentenced Rosen to 36 months of imprisonment, and denied Rosen’s

motion for release pending appeal. The court ordered Rosen to surrender to prison

by August 8, 2012. The court entered judgment on May 23, 2012, and Rosen filed

a notice of appeal on May 29, 2012. A-41–A-47; A-48.

ARGUMENT

I. Rosen is entitled to release pending appeal because he is not a danger or

flight risk, and his appeal will raise at least two substantial questions

likely to result in reversal.

If a defendant demonstrates that he is not a flight risk or a danger to the

community, and that his appeal is not for purposes of delay and raises a substantial

question of law or fact likely to result in reversal or a new trial, he “shall” be

released pending appeal. 18 U.S.C. § 3143(b). For defendants who satisfy the


12

statutory test, release pending appeal “is not simply discretionary but mandatory.”

United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004).

By granting Rosen release pending both the imposition and execution of his

sentence, the district court found by clear and convincing evidence that he is not

likely to flee or pose a danger to the community. See 18 U.S.C. § 3143(a)(1). The

Probation Office made the same determination and the government has never

contended otherwise. And because Rosen’s appeal raises substantial questions, it

is not for purposes of delay. See United States v. Santiago, 695 F. Supp. 1490,

1492 (S.D.N.Y. 1988).

To be entitled to release pending appeal, Rosen does not have to show that

his appeal is likely to succeed. He needs to show only that “if” the Court of

Appeals resolves a “substantial question” in his favor, “that decision” is likely to

result in reversal or a new trial. United States v. Randell, 761 F.2d 122, 125

(1985). A question is “substantial” if it has “‘more substance than would be

necessary to a finding that it was not frivolous,’” or if it “‘very well could be

decided the other way.’” Id. Rosen’s appeal will raise at least two substantial

questions, and resolution of either in his favor will result in reversal.

A. The bribery and honest-services fraud statutes are unconstitutionally

vague as applied to the lawful payments and lobbying at issue.

A penal statute violates Due Process unless it defines the criminal offense

“‘with sufficient definiteness that ordinary people can understand what conduct is


13

prohibited and in a manner that does not encourage arbitrary and discriminatory

enforcement.’” Skilling, 130 S. Ct. at 2904 (quoting Kolender v. Lawson, 461 U.S.

352, 357 (1983)) (brackets omitted). The Supreme Court has explained that the

second requirement is “more important” than the first. Kolender, 461 U.S. at 358.

A law that lacks “explicit standards” for its application “impermissibly delegates

basic policy matters to policemen, judges, and juries for resolution on an ad hoc

and subjective basis, with the attendant dangers of arbitrary and discriminatory

application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

As applied to Rosen’s conduct, the bribery and honest-services fraud statutes

at issue do not satisfy either Due Process requirement. The government sought to

apply those statutes to Rosen’s conduct under an “as opportunities arise” theory,

i.e., that Rosen offered legislators a benefit “in exchange for [their] promise to

perform official acts . . . as the opportunities arise.” Ganim, 510 F.3d at 142. That

theory has been approved by this Court in only three cases, each one categorically

different from this case: none of them involved routine legislative acts that were in

the interests of the government official’s own constituents; and in all of them, the

official acts were performed shortly before or after the charged quid pro quo

agreement was formed.

This Court first approved the as-opportunities-arise theory in Coyne, 4 F.3d

100. Coyne, the Albany County Executive, helped an architect, Crozier, obtain a


14

contract with the county in return for a payment of $30,000 for “financial

problems.” Coyne asked Crozier for the payment one or two months after he

facilitated the contract award. Coyne argued on appeal that the government failed

to prove he had expressly promised to help Crozier at the time the payment was

made. This Court explained that the jury could reasonably infer that Coyne

accepted the $30,000 knowing that it was intended to influence him to act on

Crozier’s behalf “as specific opportunities arose,” because Coyne had provided

material assistance to Crozier “shortly before” he asked for the payment, and after

he got it he “lobb[ied] legislators for changes [to the contract] that would increase

Crozier’s fees.” Id. at 111.

The theory was next addressed in Ganim, 510 F.3d 134. Ganim, as the

mayor of Bridgeport, Connecticut, had financial authority to award city contracts.

Two of his friends owned public relations and architecture businesses, and Ganim

told them he would steer city contracts their way in return for a share of the fees

they earned from the contracts. Within two months of their agreement to this

arrangement, Ganim began awarding contracts to his friends. On appeal, although

there was direct evidence Ganim had agreed to award contracts in exchange for

kickbacks, he argued that the government should have been required to prove that

specific contracts had been identified when the agreement was formed. This Court


15

held that the government needed to prove only that he had promised to perform

official acts (awarding city contracts) as the opportunities arose. Id. at 142.

The last decision applying the theory is Bruno, 661 F.3d 733. Bruno, the

former Majority Leader of the New York State Senate, had a friend named

Abbruzzese who had a financial interest in a technology company. The company

had obtained a state grant that was to be paid in three installments, and the timing

of the payments was controlled by Bruno. Only one installment payment had been

made. After Abbruzzese contacted Bruno about the remaining payments, Bruno

suggested that Abbruzzese arrange for Bruno to be paid as a consultant.

Abbruzzese agreed, and five days later Bruno authorized another installment

payment to the technology company. Six days after that, a formal consulting

agreement with Bruno was signed. A few months later, Bruno recommended that

Abbruzzese’s business partner be appointed to the Board of Trustees of the New

York Racing Association. On appeal, Bruno argued that the evidence was

insufficient to prove a quid pro quo. This Court disagreed, explaining that the

“[a]cts constituting the [quid pro quo] agreement need not be agreed to in advance.

A promise ‘to perform [official] acts as the opportunities arise’ is sufficient.” Id. at

744. Given the “timing of the payments in relation to the actions taken by Bruno,”

a rational jury could have concluded that “Bruno understood the consulting

payments were made in return for official action.” Id.


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The differences between the facts of those cases and the facts here are stark.

Rosen entered into consulting arrangements with Seminerio and Boyland that were

expressly permitted by the New York Public Officers law. He continued to lobby

those legislators on state matters, which the Public Officers law also expressly

permits. And the acts he discussed with them did not involve personally enriching

Rosen through contracts or business that could be doled out at the legislators’

discretion. Instead, Rosen discussed ways to fund or expand safety-net hospitals,

such as opposing cuts to the state’s Medicaid budget, that served the legislators’

own constituents. As Judge Rakoff recognized, those are routine acts that any

legislator would perform. Any legislator who merely wanted to be reelected would

“fight like hell to prevent Medicaid cuts.” Bribing a legislator to oppose Medicaid

cuts would be “wasting [your] time, because you can get that for free, guaranteed.”

A-68–A-69. For Seminerio, the official acts he performed were also consistent

with acts he had been performing for decades before the consulting arrangement

began. As Judge Rakoff noted, after MediSys and Seminerio entered into a

consulting arrangement, he did not do anything for MediSys “out of character” or

“beyond” what he had done before, but “continued to do the same kind of things.”

A-70. In addition, the timing of the relevant official acts by all of the legislators

was not temporally linked to a consulting arrangement, because the acts at issue all

occurred well after the arrangements began.


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Given these facts, Rosen could not have had fair notice that his conduct

could be a federal crime. And on the facts here, there are no objective standards

that would enable a prosecutor or judge to distinguish a consulting arrangement

followed by continued lobbying and legislative acts that is permitted by the New

York Public Officers law, on the one hand, from a corrupt agreement to pay a

legislator in exchange for a promise to act “as opportunities arise,” on the other.

Accordingly, whether the bribery and honest-services statutes are

unconstitutionally vague as applied to Rosen’s conduct is a “substantial question.”

B. The government failed to prove beyond a reasonable doubt that Rosen

intended an unlawful quid pro quo.

Again, the primary danger of vague criminal laws is that, because they lack

sufficient standards for when and how they should be applied, they end up being

enforced by juries, or judges, “on an ad hoc and subjective basis.” Grayned v. City

of Rockford, 408 U.S. 104 (1972). That is exactly what happened here: the

vagueness of the bribery and honest-services fraud statutes meant the court had no

objective standards for evaluating Rosen’s intent. Judge Rakoff’s conclusion that

the government proved a quid pro quo is based on distortions of the record and on

findings contradicted by the very evidence the court relied on. For example:

Judge Rakoff found that “Rosen understood, even at the outset [in 1998 and

1999], that the ‘consulting arrangement’ [with Seminerio] was a disguised

bribe, necessary to assure Seminerio’s legislative support for MediSys.” A-


18

9. Yet the first official act that Seminerio allegedly took in connection with

the “sham” arrangement was in 2006, more than seven years after the

consulting agreements were signed. A-15–A-19; A-71–A-76. And as Judge

Rakoff recognized at trial, the support that Seminerio did (eventually)

provide was consistent with the support he had provided for years. A-70;

Judge Rakoff found that the consulting agreements were shams because

“Seminerio never rendered any material consulting services to MediSys at

any time here relevant, and Rosen well knew this.” A-12.2 Yet the

government’s own witnesses and exhibits showed that, during the relevant

period, Seminerio’s consulting work generated millions of dollars for

Jamaica Hospital and NHP, and that Rosen was kept apprised of his efforts;

Judge Rakoff also dismissed Seminerio’s consulting work because he did

not disclose that he was a consultant and he referred to himself as

“Assemblyman.” A-12. But the New York Public Officers law did not

require that Seminerio disclose his consultancy clients and did not prohibit

using his official title in these circumstances. See N.Y. Pub. Off. Law §§73-

a(3), ¶8(a), 74. Moreover, as Judge Rakoff recognized during the trial,

disclosing that he was a consultant would have been immaterial, because

regardless of how Seminerio identified himself, the people he dealt with

2 The court did not explain why it thought Seminerio’s services needed to be

“material” for the agreement to be legitimate.


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were “never going to distinguish” between his role as an Assemblyman and

his role as a consultant; the only reason they would give “[Seminerio] the

time of day is because he’s an [A]ssemblyman,” and “the law, for better or

worse, allows that.” A-77–A-78;

Judge Rakoff found that Boyland made “repeated” requests for state funding

for the MediSys hospitals. A-27. But as the court noted during argument on

Rosen’s Rule 29 motion, the government’s theory that the consulting

payments to Boyland were bribes was “a somewhat close call” because

“there appears to be not a great many instances in which . . . Boyland did

something that even in part can be reasonably attributed to this

arrangement.” A-79–A-80. In fact, over the six years Boyland was paid as a

consultant, he made only two requests for funding, and they were three years

apart. A-81; A-82;

Judge Rakoff found that “some” of Boyland’s requests “were even drafted in

part by Rosen himself.” A-27. But the email the court relied on for this

finding related to funding that Rosen sought not from Boyland but from his

sister Tracy Boyland, who was on the New York City Council. A-83; A-84;

in determining that Rosen’s intent in his dealings with Kruger was corrupt,

Judge Rakoff found that Rosen took steps to award a vendor contract to

Compassionate Care that was “lucrative.” A-37. But the only evidence


20

presented about the value of the Compassionate Care contract was that it

would have been a back-up contract that could have given Compassionate

Care only two to three hospice patients a year. A-85–A-86; A-87–A-88; and

Judge Rakoff found that Rosen demonstrated “consciousness of guilt” by

“severing” ties with Kruger after Seminerio was arrested in September 2008.

A-35. This is simply not true: Compassionate Care was invited to rebid for

hospice work in 2009. A-89.

Reasonably construed, the government’s evidence, all of which was

circumstantial, showed that Rosen wanted to build goodwill with legislators in a

position to help MediSys. At most, the inferences of guilt and innocence were

equal. Under those circumstances, a reasonable fact-finder “‘must necessarily

entertain a reasonable doubt.’” Glenn, 312 F.3d at 70. Whether a reasonable fact-

finder should have entertained a reasonable doubt here is a “substantial question.”

CONCLUSION

The Court of Appeals should grant Rosen release pending appeal.

Dated: June 5, 2012 Respectfully Submitted,

/s/ Elkan Abramowitz

Elkan Abramowitz

Morvillo, Abramowitz, Grand,

Iason, Anello & Bohrer, P.C.


CERTIFICATE OF SERVICE

I, Ellen M. Murphy, certify that on June 5, 2012, I caused a true and

correct copy of Defendant-Appellant David Rosen’s Motion for Release

Pending Appeal and the accompanying Appendix to be served by electronic

mail on the following counsel for Plaintiff-Appellee:

Michael Bosworth Assistant United States Attorney United States Attorney’s Office Southern District of New York One St. Andrew’s Plaza New York, NY 10007 [email protected] /s/Ellen M. Murphy________ Ellen M. Murphy


APPENDIX


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55 C57AROSSps 1 what it reaffirms for the purposes of this immediate decision 2 is that the defendant understood at all times that these were 3 sham consulting agreements. He was never operating under a 4 belief that these were real consulting agreements in any sense 5 of the word. And so it seems to me the abstract argument will 6 not be one that should detain an appellate court for any length 7 of time because it's inapplicable to the findings made in this 8 case. 9 So not without some regret, I find that the defendant 10 has not carried his burden and that therefore he must surrender 11 prior to appeal. 12 Now, of course, an application may be made to the 13 Court of Appeals for their own review of the bail issue. But 14 let's set a date for surrender at this time. 15 MR. ABRAMOWITZ: Your Honor, may we have 90 days to 16 surrender and attempt to? 17 THE COURT: Yes. So let's see. That would be August 18 8 at 2 p.m. at the designated institution. 19 All right. Thanks very much. 20 o0o 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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1241183YROS7 Flanz - cross

MR. BOSWORTH: Objection.THE COURT: Ground?MR. BOSWORTH: Foundation.THE COURT: Okay. Lay a foundation.

BY MR. R. MORVILLO:O. Do you know whether or not there was an attempt on the partof the hospital to get a federal grant for the miJ-itary heaÌthprogram?A. YeS.O. And did the Mil-itary Associates relationship assist insecuring that grant?À Vôê

Excuse me, do you need this back?a. No.

With respect to 9009, how many different. aspects ofthe development of that project did Mr. Seminerio work on, tothe best of your recoll-ection?A. Many aspects.O. Can you tel-I us what they were?A. Setting up meetings, participating in meetings, identifyingwho would be important in the approval process, identifyingwhen the property woul-d become avail-able.O. And was he responsible for attending many of thesemeetings ?

A. I remember him being at meetings, yes.SoUTHERN DïSTRICÎ REPORTERS, P.C.

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L2481-83YROS7 Flanz - crossO. And did he make introductions to the relevant personnef whohad to make the decisions with regard to the various aspects ofthis project?A. Yes.O. Did the building have a billboard on it?A. Two billboards.O. Were they revenue producing?A. YeS.O. Do you remember how much money the hospital made during theperiod of time that the billboards were operative?A. At the most, which was towards the end of when we wereallowed to have the billboard before the city changed theordi-nance, it was about $150,000 a year.O. What about Evenflo, were you involved in any way inEvenf l-o?A. Yes.O. What is Evenfl-o?A. Evenfl-o is an ambul-ette company.O. And tell the court how you were invol-ved in Evenffo.A. Minimally invol-ved.O. We1I, were you the person that directed Mr. Moore over inBrookdal-e to hire Evenflo?A. To give them an opportunity.a. Yes.A. Yes.

SOUTHERN D]STR]CT REPORTERS, P.C.(21,2) 805-0300

A-51


Tony Seminerio told me to.expect a cail this *"1k,Íof fhg_n¡my regarding doingarmy physicars. He noted that we re up to éos visits (totar?) tortri'i'ititaryhealth business' Let me know ir tn¡s rniolärect, and standby for thephone call re physicals.

David P Rosen,Presideni and CEOMedisys Heatth NetworkJamaica Hospital Medical CenterBrookdaie Hospital Medical CenterFlushing Hospital Medical Center

A-52


JAMAICA HOSPITALMEDTCAL CENTER8900 Van Wyck Expresswa¡ Jamaica, NY 11418. 718-206-6000

DÍal Direct: 71 8.206'6290 o Fax 71 8-657-0545

OFFICE OFTHE PRESIDENT April25,2000

Hon. Anthony S. SeminerioI l4-19 Jamaíca AvenueRichmond Hill, NY ll4l8

Re: Jamaica Avenue Construction

Dear

I had a meeting today with Pre-Hospital Care Deparfirent staff conceming the impact ofthe Jamaica Avenue construction work on our ambulance access

\ile determined that the following issues needed to be addressed in o¡der to resolve some

of the traffrc access problems:

l. The bus stop currently located at the southwest comer of Jamaica Avenue and

the southbound Van Wyck service Road needs to be moved east of the Jamaica Avenue

a¡rd Van Wyck intersection. Due to the construction there is only a single lane available

and if an ambulance is in that lane behind one or two stopped buses, the traffic light can

go through several cycles before the turn can be made.

2. Metropolitan Avenue needs to be made two-way to allow our ambulances

access to the Service Road when Jamaica Avenue is backed-up. We had originally

requested that DOT providc a single east bound lane "for emergency vehicles only" but

this request hæ never been implcmentcd.

3. Additional and better qualified traflic control agents need to be provided by the

city and the Jamaica Contractor. They have to understand the urgency of ambulance

access and react accordingly. This issue was raised in a letter to the Depafment ofDesign and Construction and at a recent meeting with them. Their response wa¡¡ that theynhave met our needs" in this regard have made no changes 1o the number or quality of the

flagmen provided.

As always, thank you for your concem for the bette¡ interests of Jamaica Hospital

GOVERNMENTEXHIBIT

1248300Sl ll Cr.

/^Cu Cwth llcfo,'/,þ

MHN10049A-53


).,ATüATCÀ HOSPNALHED,CAL CEHÌER

Hon. Anthony S. SerninerioPage2April25, 2000

Medical Center and our patients, and for your help in this matter. tf you require any furtherinformation or documentation please do not hesitate to contact me at 718 206-6290 or Hans W.Kuenstler, Di¡ector of Construction at 718 206-6298,

Very truly yor¡rs,

Bruce J. FlanzExecutive Vice President

MHN10050A-54


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50017S6ROS1 Bory - crossA. Yes.O. And one of the things you talked about on directexamination was Elmhurst, right?À Vac

O. Now, Elmhurst had what reLationship to NHP?A. It was a contracted hospital.O. What did the contract enable NHP to do?A. It enabled the members enrolled in NHP to receíve hospitaÌservices at Elmhurst Hospital.O. Did you have a booth of some kind at Elmhurst?A. Yes. We did marketing at Elmhurst, yes.O. You did marketing at Elmhurst. What was the booth designedto do, to sign up people for NHP?A. Correct. Yes.O. Did you al-so have one at Queens Hospital Center?A. At some point we did, yes. I dontt remember the exact timeframes.O. The ownership of Queens Hospital- Center or management andEl-mhurst was the same, was it not?A. At some point, yes. It merged. I donrt remember thespecific dates.O. There came a time when El-mhurst was l-ooking to oust NHP,right ?

A. With an expJ-anation El-mhurst had many Medicaid managed carecontractor vendors and my understanding is Efmhurst Hospítal

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50117S6ROS1 Bory - crosswanted to reduce that number. Yes.O. And you didn't want to be reduced out of Elmhurst, díd you?A. No, sir.O. You thought it was a pretty significant issue, did you not?A. Elmhurst vÍas an important hospital for NHP.O. Do you have any recol-lection as to how many enrol-l-ees therewere as a resuLt of your Elmhurst and your Queens HospitalCenter contacts?A. Not exactly. I can estimate a few thousand. Severalthousand.O. VrÏould it be cl-oser to 5500?A. lt is possible. Again, depending on the point in time,membership fluctuates up and down, yes.O. Now, Iook at Exhibits 133 and 134, pJ-ease.

Can you tell- me what in general l-33 is?A. Yes. These appear to be NHP board minutes.0. What is the date?A. The date on the 133 is December 13th, 2007.

MR. MORVILLO: Offer them into evidence, your Honor.MR. HARRINGTON: Objection, your Honor, as to

relevance and as to the fact that these documents containhearsay within hearsay.

THE COURT: Let me see it, pJ-ease.THE WITNESS: Yes, siT.MR. MORVILLO: Your Honor, the refevance woul-d appear

SoUTHERN DTSTRTCT REPORTERS, P.C.(2r2) 80s-0300

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50617 S 6ROS l- Bory - cross

MR. HARRINGTON: Thank you, .Iudge.(Defendant's Exhibit 133 received in evidence)

MR. MORVTLLO:Mr. Bory, do you have a coPy of 133?f do.

D 133?O. Yes. Turn to the third page and read into the record,please, the l-ast paragraph on that page.A. "Ms. Morris discussed the issue surrounding termination ofon-site marketing in the Health and Hospital Corporation heafthcare facilities.O. Now pause for a moment.

What is the Heafth and Hospital heal-th carefacilities, what are they?A. They are a group of hosPital-s.O. Is Efmhurst one of them?A. Yes, sir.a. Was Queens Center another?A. It was, but I don't again remember the time if Queens waspart of the Elmhurst at the time or not.

(Continued on next page)

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50717SYROS2 Bory - crossO. Continue reading, pl-ease.A. Sure.

Ms. Morris explained that HHC has decided to terminatemarketing for plans other than Metro Pl-us in the HHC healthfaciÌitles effective ,January 1, 2002. NHP currently conductsmarketing activities in aÌl- HHC hospitals, exempt Coney IsLandHospital- in addition to marketing in the other NHP off-sitelocations. Ms. Morris will expJ-ain that this will cause adecrease of enroÌl-ment in HHC facilities and affect ability toconduct on-site recertificatíons as we have in the past.O. .lust hol-d on a second there.

What is an on-site recerti-fication?A. Those are fofks that are on Medicaid need to recertify fortheir benefits each year, I believe itrs an annual-recerti ficat ion .

O. And so the recertification would take place physicalJ-y atEl-mhurst for a number of your enrol-Iees, correct?A. Thatts correct.0. And that's what Ms. Morris is talking about here in terms67 losing an opportunity?A. Correct.O. Continue, just finish it up, pl-ease.A. Okay.

I think the l-ast words you have, sir, in the past.Ms. Morris al-so explained that the marketing department is

SOUTHERN DISTR]CT REPORTERS, P.C.(212) 805-0300

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17SYROS2 Bory - crossdiligently searchíng for alternate marketing locations in theareas surrounding the HHC hospital-s and heal-th centers andexploring alternative marketing strategies.O. Thank you.

Now woul-d you turn to Exhibit 134 for identificationand tel1 me what that is.A. These are Neighborhood Health Provider board of managerminutes dated March 4, 2002.O. And if I ask you the same questions about those beingrecords kept in the ordlnary course of business, would youranswers be the same with regard to this document?A. Yes.O. Now would you turn to page --

MR. R. MORVILLO: Let me offer it into evidence.If there is an objection, let me point to the part

that I wouLd l-ike into evidence, which is the l-ast halfparagraph on page 4 starting with the words, "Some of theissues. tt

A. I'm sorry, sir, can you tel-] me where that is again.O. Page 4, go down to the last paragraph and halfway down itjust says some of the issues.

I don't have a question pendj-ng, f'm doing this forthe benefit of the government and the court.

MR. HARRINGTON: Based on the court's prior ruling,there is no objection.

SoUTHERN DTSTRTCT REPORTERS, P.C.(2L2) 80s-0300

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THE COURT: AIl rlght, Received.(Defendant's Exhibit 134 received in evidence)

BY MR. R. MORVTLLO:O. Okay, it is now in evidence. lrlouId you read that portionof the mi-nutes.A. Some of the issues refate to the termination of on-sitemarketing in the Heal-th and Hospital Corporation healthcarefacil-ities. Ms. Morris explained that this has affected theabiJ-ity to conduct on-site recertifications as we have in thepast. Individual-s from other boroughs are unwil-ling to comeinto NHP Manhattan office to recertify and want to go back tothe facility where they initially enroLl-ed. Ms. Morrisexplained --0. Thatrs enough.

So what Ms. Morris is saying here you are losingpeople on the recertification because they donrt want tophysically move to where you are rather than beíng at EJ-mhurst,ri ght ?

A. That's correct, y€s.O. And it was in that context that you wanted to meet withMr. VeIez, right?A. Correct.O. And to effectuate that meeting you called on Mr. Seminerio,right ?

A. Correct.SOUTHERN DISTRICT REPORTERS, P.C.

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510I-7SYROS2 Bory - crossO. And you asked him -- did you tell him what the problem was?A. I donrt recal-l- .

O. And you asked him to help set up a meeting between yourselfand Mr. VeÌez?A. Correct.O. And he caLLed you back to tell- you that he had arrangedsuch a meeting?A. I don't believe the call pack, but I know we díd have ameeting so I assume he did.a. WeIf, did you just go to a meeting without knowing that, infact, it was to take place?A. No, sir. I'm just saying that I don't recaÌI it.O. Somebody told you that the meeting was going to take p1ace,ri ght ?

A. Yes.O. And that somebody must have been Mr. Seminerio, right?A. PossibJ-y or someone on his staff .

O. Now, you don't know what transpired in the teJ-ephone caJ-J-between Mr. Seminerio and Mr. VeIez, right?A. Correct.O. But you know that when you got to the meeting and met withMr. Velezr yoü had -- you made a pitch to keep Elmhurst in, tokeep NHP at EJ-mhurst, correct?A. Yes.O. And at the end of that meeting or shortly thereafter, you

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5l_ L17SYROS2 Bory - crosswere informed that Elmhurst was goíng to permit NHP to continuein there?A. Thatts correct.0. And they did for a considerably period of time, did theynot?A. Thatrs correct.O. The issue, again, arose in the year 2006, did it not?A. Somewhat different, but it did arise, yes.O. Okay. But, again, in 2006 there was a problem with youbeing expeJ-led from El-mhurst?A. No, sir, just slightÌy different than that. A decision wasmade by HHC corporate that they wouJ-d terminate al-L Medicaidmanaged care contracts in favor of the heaÌth pJ-an that theyowned, that HHC had owned.0. But that would have the impact, would it not, of the sameimpact that we were taLking about in 200L-2002¡ your enrol-l-eeswould be in danger as a result of that, right?A. Yes.A. And that was an important issue, again, in 2006, am Icorrect ?

Yes, correct.Look at exhibit 135, please.Yes. I have it.And go to the -- these are board minutes, are they not?Yes, sir.

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943182YROS1 Flanz - directJamaica Hospital?A. Yes.o. what do you recal] an accept repty of bríng man semineriodoing?A. We were looking to get federal financing through HUD andthe application was stalLed and we asked Tony seminerio if he

knew anybody at HUD that he could cafl- and see if there was a

way to advance the application, and he' he said he did and he

followed through and that caused the application to move

forward.O. lrÏhen did Assemblyman Seminerio make the phone cal-l- tosomeone at HUD?A. It I think it must have been around the mid-2000 period,around 2005, but Itm not sure of the exact date.O. Are you familiar with the Brady House?A. Yes.O. What's that?A. Thatts a residence for traumatic brain injured patients, a

long-term Iiving residence located behínd the hospital 'O. And do you recalt whether Assembtyman Semínerio didanything to heIP BradY House?A. Yes.O. What in a nutshell did he do?A. He assisted with some zoning issues. It was kind of a

mambie issue, not in my backyard. I^le were concerned that some

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Cc: Margo Johnson[mjohnson@Þrookdale.edu]To: [email protected]; Re:\Mlliam Boyland Jr.

Sent: Tue 9/16/2003 12:13:01 AMFrom: MOUNIR DOSS

Not a problem

>>> DAVID ROSEN 09111103 04:04PM >>>Frank's son William, the current Assemblyman, has been on the Urban Stralegiespayroll. He needs to come off the payroll and we will pay him the same moneyas a consultant. I will develop a consulling agreement.

Please get him off the payroll so he doesn't have to punch in, and create a

vendor check. Let me know if this is a problem.

David P. Rosen,President and CEOMediSys Health NetworkJamaica Hospital Medical CenterBrookdale Hospital Medical CenterFlushing Hospital Medical Center

GOVERNMENTEXHIBIT21008

Sl t t Cr. 300 (JSR)

MHNE0005716

A-66


To: Margo Johnson[ rookdale'edu]

Subject: omPassionate Care

Sent: I 4:16:01 PM

From: N

Looking for this contract. Sen' Carl Kruger is following and I promised to get

this done

David P. Rosen'President and CEO

Medisvs Heatth NetworkJamaióa HosPital Medical Center

Brookdale Hospital Medical Genter

Flushing HosPital Medical Center

GOVERNMENÏEXHIBIT

3301Sl ll Cr.300 (JSR)

MHNE0015989

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otherwise totally legal- act --THE COURT: ÍrIhat is the basis for bel-ieving with

respect to Medicaid that he was influenced by the agreement?In other words, this is probably a poor analogy, but the onlyone that comes to my mind, the .Iapanese attacking Pearl Harbor,the President asked for a decÌaration of war. A senator whohas some financial rel-ations with the munitions industry votes,l-ike every other senator, in favor of the resolution for war.

You are saying, âh, the only reason he voted to go towar with rlapan is because he was influenced, at Least in part,by his reLationship with the munitions industry.

MR. HARRINGTON: lt doesnrt have to be the onJ-yreason.

THE COURT: I understand.But when it comes to Medicaid, where itrs so

sel-f-evident that a poor community is going to be vital-J-y anddetrimentally affected by Medicai-d cuts, what assemblyman whoeither had any sense of hls own constituent's welfare or, evenshort of that, wanted to be reel-ected, wouJ-d do anything otherthan fight l-ike hel-I to prevent the Medicaid cuts?

MR. HARRINGTON: That is a politicaÌ question. That'sbeyond what I can say is in the record. lfhat I can say is thath¡e --

THE COURT: f don't think the Court is precluded fromexercising conunon sense,

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MR. HARRINGTON: I agree, your Honor. But I thinkwhat common sense dictates here is when a guy is paid $175,000to do nothing and meets, discusses repeatedly with the personpaying him the details of the budget and notifies him thatthere may be a surpJ-us of funds in certain areas --

THE COURT: I think we have to make distinctions, butit seems to me that if Mr. Rosen was paying $175,000 to getMr. BoyJ-and or any other assembJ-yman from that district to voteagainst Medicaid cuts, he was wasting the hospital's money,because you can get that for free, guaranteed.

MR. HARRINGTON: He's paying to --THE COURT: So I hope you have some other instances

where it's not so self-evident.MR. HARRINGTON: He's paying to influence the process.

Thatrs why, after being abÌe to sit down with Boyland and TonySeminerio in the beginning of January to talk to them about thebudget, being in touch with them throughout that time períodmatters. It's rare that one assemblyman can al-ter the outcomeof a vote.

THE COURT: No one is requiring that.MR. HARRINGTON: I will al-so note that he did make

specific requests that arenrt of generally --THE COURT: That's what I wish you would get to.MR. HARRINGTON: There's a $3 mil-lion request for

Brookdale.SOUTHERN DISTRICT REPORTERS, P.C.

(2r2) 80s-0300

A-69


1

2

345

6'7

I9

1011L213L415L6I't1819202L22232425

L'7161 Scnrosl

Because, even assuming the contract was legitimate,which the government suggests it was not, even assuming thatthe contract permitted David Rosen to continue reJ-ying onAnthony Seminerio for official assistance, what the contractdid not permit and what happened over and over and over againis that when Seminerio was helplng .Tamaica on local issues, hewas doing even that in his capacity as an assembllrman.

THE COURT: OK. Thatrs part of what I meant. You aresaying that even if the contract was in some sense potentiallyIegitimate, if it was breached in a manner you are talkingabout, thatrs a cl-ue to what was realfy going on.

MR. BOSWORTH: Right.THE COURT: What I'm getting at is that if there were

evidence that, after receiving the consuJ-ting agreement,Assemblyman Seminerio did something that was helpful to MediSysthat was so beyond anything he had done before, so out ofcharacter, that by itself would be very tellj-ng evidence. ButI don't think that's -- if T understand the government, thatrsnot what we have here.

MR. BOSWORTH: Correct .

THE COURT: He continued to do the same kind ofthings, but he was now doing them j-l-l-egalJ-y or iJ-licit1ybecause of the arrangement is your theory.

MR. BOSWORTH: Yes.THE COURT: Go ahead.

SOUTHERN DTSTR]CT REPORTERS, P.C.(2r2) 80s-0300

A-70


To: DAVID [email protected]; oLGA cENDROSKIIOCENDROS@jhmc,org]

subject: TONY SEMINERIOSent: Thur3l23l2o}6 5:53:01 PM

From: OLGA GENDROSKI

John cahill called Tony and told him he will meet with you and will get back

with a date and tíme.

Oiga CendroskiAssistant to the PresidentExecutive OfficeJamaica HosPital Medical CenterTel: (718) 206-6290Fax (/18) [email protected]

GOVERNMENTEXHIBIT

1222sl I I cr. 300 (JSR)

MHNE000778l

A-71


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1878LScnros9 Rebuttal Summation - Mr. Harringtonmeeting, didn't even know that Anthony Seminerio a consultant.

Real-ly, that's why he was valuable. Ann Corrigan saldhe didn't participate in a substantive meeting. His value wasas an assemblyman. When you are going to glft this property tothe hospital, New York City, know that the l_ocal_representatives thinks this is good for the constj-tuents, andthatrs why hers there.

THE COURT: Al-l- right.MR. HARRINGTON: The last was the parking garage, and

that also predated the Seminerio contract.THE COURT: Thank you for reminding me about the

parking garage. OK.MR. HARRINGTON: The other thing is that the contract

wasnrt followed. It just wasnrt the case, even if you take itas a given that that sentence that says consulting wíl_I notinclude anything with the city just means that when Semineriois doing that is he somehow is not, he's transformed intosomething other than the consul-tant and can do it, he --

THE COURT: But let me just pause on that. ï knowwhat you are saying is that is an absurd state of the law. ButI am not sure it's not the state of the Law. Because it isimplicit in having part-time J-egislators that sometimes theyare going to be wearing one hat and sometimes they are going tobe wearing another hat. But the person they are dealing withis never going to distinguish.

SOUTHERN DISTRICT REPORTERS, P.C.(212) 805-0300

A-77


1

2

34EJ

6'7

U

9

10117213I41516]-'7

18L9202722232425

187 918cnros9 RebuttaL Summation - Mr. Harrì-ngton

There is no evidence of this, but even if Semineriohad said or written, Mr. Jones, who I'm deal_ing with on theparking garage or something like that, Itm onJ_y acting in mycapacity as a consultant, I want you to understand f am notacting as an assemblyman, the person on the other slde is goingto say, hey, the only reason I'm giving this guy the time ofday is because hers an assemblyman. I think that's the realityof the situation. And the taw, for better or worse, all_owsthat.

MR. HARRINGTON: .Tudge, there may be situations wherepeople can abuse the fact that they are a pubJ_ic official andgain benefit from it in a way that remains so hidden that it'shard to detect or hard to stop or Ìimit.

But that is not what happened here. Seminerio onlywore one hat. The only time MARC Consultants showed up waswhen an invoice was being sent in. There was never anySeminerio as the consultant for the hospital. ft was al_waysSeminerio the local- assembllrman looking out for hisconstituents and an important entity.

THE COURT: That is a fair point. Thatrs that exhibitthat we looked at before, where he says the reason youshoul-d -- I think it was in connection with the parking garage,the reason you shoul-d do thls is, he says on his assemblyJ-etterhead, is because it's good for my constituents. you aresaying there he cl-earty is not acting a consultant.

SoUTHERN DISTRTCT REPORTERS, P.C.(21.2) 80s-0300

A-78


1

2

4

5

6'7

I9

1011T2t_3

L415L6I'71819202L

22¿52425

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Now, it didnrt make any difference because Boylanddidnrt have any infl-uence and he never got a penny. Not apenny. We were as your Honor pointed out wasting our moneybecause we were gíving hlm $35,000 a year from 2003 to 2009 andnever got a nickel-.

THE COURT: It doesn't matter that you never got anickef if there were a corrupt agreement, but your argument isit 1s not reasonable to infer there was such an agreementbecause this guy didnrt have that kind of infJ-uence, the kindof infl-uence he had was the type you described earlier bridgingthe gap.

MR. R. MORVILLO: Nor did he produce anything. Thisis a rol-ling contract. It goes on for an indefinite period oftime. Tt coul-d have stopped any time they wanted. If it was acorrupt deal by the time it got Èo the 2006 to 200'7 | they wouldhave known that they weren't going to get a penny from Boyland.They kept it up because that had nothing to do with what theywere hiring him for and that is the problem wlth thegovernment's case here.

THE COURT: So I think the government escapes the Rule29 motion on this prong, but I have to frankly confess that Ithink it is a somewhat cfose cal-l- and the Court may reassess itat the close of al-l- the evidence, of course I will have toreassess everything at the cl-ose of al-l- the evidence so that Iwil-l- review the motion at that time. It seems to me that there

SOUTHERN D]STRICT REPORTERS, P.C.(2L2) 80s-0300

A-79


1

2

34

561

I9

t_0

11L213T415I67'7

1819202I22232425

15921 8 5nros5appears to be not a great many instances in which Mr. Boylanddid somethlng that even in part can be reasonabJ_y attributed tothis arrangement.

On the other hand, I don't think on a RuIe 29 motionthat I have to accept the inference that Mr. Morvil_l_o isarguing for example as to the .Tamaica contract. Those arecompeting inferences. I think a reasonabl_e fact finder candraw either inference in that situation and that is for thedetermination on the merits. So the motion is denied subjectto my rethinking J-ater at the close of all the evidence.

So where we have arrived at the end of the day ísCount -- l-et me make sute I get this right this time -- Threeis dismissed as to Mr. Rosen. Of course al_l_ we're dealing withhere is Mr. Rosen on the Rule 29 motion. Count Eour isdismissed as to Mr. Rosen on consent. None of the other countsare dismissed either in whole or in part.

Now l-etts talk about next week. I want to sit threehours every day or if the other trial ends or something li-kethat, but I think you can reasonabl-y rely on three hours whichwill- normally be 2:00 to 5:00. There may be a day of 2:30 to5:30 because f have to take some matter at 2:00. That wil-l bethe basic schedul-e.

Mr. Morvillo, is Mr. Rosen going to take the stand?MR. R. MORVILLO: That is a great question, your

Honor. The present intention is if werre going to put in aSOUTHERN DTSTRTCT REPORTERS, P.C.

(272) 80s-o3oo

A-80


WILLIAM F. BOYLAND, JF.Assemblyman SSü Djslrict

Boom AZ4Legislalive Off ice Br:ildingAlbany, New Yotk 1ZZ4B

(51 8) 4s5-4466

ÏHE ASSEMBLYSTATE OF NEW YORK

ALBANY

February 6,2004

Sincerely,

William F. BoyMembe¡ of Assembly

U

CO[4MITTEESAgingCilies

E congn'ríc Deve lopme n I

Llócal GovernmenbFe-al Propedy

I atalion

Honorable Sheldon Silve¡SpeakerNew York State AssemblyLegisl ative Offi ce B ui ldingAlbany, New York 1224g

Dear Speaker Silve¡:

Brookdale Hospital is the only medical institution i¡ the Eastem areá of Brooklyn and

HHJ hearrh care faciritv servicing rhe areas of Br;;;i[e, East New yoik a¡¿

The hospital is also the largest employer in most of Brooklyn, which makes it a vitalpart of the economic engíne in New york. However, ";;; *h;;^t years it has had somefi s c at prob t ems that hav e resurted from chang", ; o;i*; J"loriri"r.

number of programs implemented to keep this

H,iä1i:iïdr10"¡t in qtabilizing the onJy iearth

t'.J#:'f,ïTi;"irË Ëiï'iï:î,,fiJ:1"""ton or tb¡ee muüon donars to herp this

Your support in this matter would be greatly appreciated.

GOVERNMENTEXI.IIBIT

2303SI I I Cr. 300 (JSR)

A-81


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WILLIAM E BOYTAND' JR.

Asse mblyman 558 District

467Thomas S. BoYland StreelBrooklyn, Nev/Yórk 1 f212

71H98-8681FAX: 7 1 8-498:1796

Roorn 54O

Leglslative Offi ce Bullding

Albany, NewYork 122¿18

5l 8-455-+466FAX 51 8-455-3894

THE ASSEMBLY

STATE OF NEWYORK

ALBANY

February 28,2.007

RECE,YFD

COMMTTTEES

Aging

Bcnks

Economic DÊv€loÞmenlJob Crestion,

Comrn6rcs & lndustry

Housing

LoslGqæmmenls

CHAIR

Subqommittes onOúreaó and Oversight ofSoniorCltizsn Prognms

':'l

"j

'¡

Ë

.);i

J

Houorable Sheldon SilverSpeaker of the AssemblY932 LegßlëÊwe OfEce BuildingAlbany, New York 12248

Dear Speaker Silver:

I write'tb you as a follow-up to cirnversation conoerning the irnproVement and.expansion ofJe'' aircaHospital hoping to receive yorir fiiancial consideration and assishuce.

Healthca¡e in the Queens bomnunity is e:<üemely vital and in need of this est¿blished facility.Holever, this facility is laoking sorious repain and improvements; as well as establishing adjunctfaoilities 1o -us1¡fisimmediate needs for community. This would includethe buildhg of anew.NursingIlome Facility. Funds from New York State are Decessary so that Jamaica Hospital oau meet the needs ofthe people while maintainíng a clean and efficient frcility.

I am requesting your assishno-e in.secr¡ring $3 milliou to he allocated as follows:

Clean Ròoms - To begin a new process for the prevention of infections;. $500,000 A¡ea Renovafion to ensu¡e sterilization and clegnli¡ess of the faciltty.. $200,000 for equiprnent-. \

. $300,000 for süafEng and training,

Medical Billing a¡d Records improvements -To provide patients with accu¡ate billinginforrration and maintaining orderly, confidentially records efficiently;

. ' New electical wiring and tle replacement of cu¡rentwi¡es.

. Medical record softivar-e and storage.

Building of a new Nu¡sing Home - to provide qt"Iity ca¡e for the senior populafion;: . $500,000 to clea¡ and prepare land for a new building... $500,000 for pre-development

Funding is key for the progress.of the above projects to botter Janaica Ilospital. Providing abetter hedlth care facility is part of providing a healthier New York-

![rilliam'F-

'WI'TI/ane

GOVERNMENTEXH!BIT

2305sl I I Cr. 300 (JsR)

Member of

A-82


fo' DAVID [email protected]; oLGA [email protected]: OLGA CENDROSKTSent on behalf of: OLGA CENDROSKTSent: Ihur 5/5/2005 5:29:01 pMlmportance: Lowsubjed; LETTERS FOR BOYLAND

nthony Alexis (718-345-9110), called and requested thatessary lefler for JH and BUHMC. JH - $750,000 for patientm. for equipmenl and ED renovation. He said youbut he didn't have any numÞers for lt.

Olga CendroskiAssistant to the PresidentExeculive OfflceJamaica Hospilal Medical CenterTel: (718) 206-62e0Fax: (718) [email protected]

GOVERNMENTEXHIBIT

23tsSl I I Cr. 300 (JsR)

MHNE0093t65

A-83


TRACY L. BOYLAND@(¡gL yEMBE( {t'r DTSTNCT

O DlsTnlCI OFFICE.2I'}IA FLLTON ÍREETBrær(IYN ìü llÐ¡

o¡r) ,tt]lroF^)É ø¡4 l1'lr2o

CHAIR

\roME|fs tssuEs

o oTY H LI OfFrG2JO DRO,\DV^Y, ROOù| t7r7

NEW YORK, '{Y

IC@

T¡¡e Cour.¡clr-

OF

THe Clw or NewYonx

@TIO,OTIEES

CULTI¡TL Æ:FAI¡S. UIR.\NFJ & 'NTER}.IA]IOiIALlNlERGltO(f REL,\not\6

RMITRRE e CñMN^L ¡5TICE SERVICEs

øvE ¡src HT d ¡ tJvEsTrc^Tl Or.tS

Iune25,2004

David P, RosenPresidsnt & Chief Executivc OfficerThe Brookdale University Hosþital and Medical.CenterOne BrookdalePlazaBro'oklyn, New York 11212

Dear Mr. Rosen:

In light ofour cfforts during the recent budget negotiations, I arn pleased to inform you tftatI was able to secure $2 million dollars in FY05 for Bmokdale Hospital, It is my hope that thisallocation will allow you to continue the cxcellent work on behallof ou¡ comm¡nity.

Negotiating the allocation of ñrnds in the annual budget is alwa¡æ i difEcult process.Nevertheless, I am proud to havc becn ablc to work on your behalf 1o decure these resor¡rces. Withour combined efforts, I hope that we will be able to take significant ste,ps to address the needs ofourcommunities.

As alwa¡rs, if my offico can be of fi¡rther assistance, please do not hesitate to contact myofñce at 718-345-3110.

Sincerely,

ofCity

A,üil ü

23

È(,1

(\ol

Q, þL

GOVERNMENTEXHIBIT

2400SI ll,Cr.300(JSR)

MHN03796

A-84


1

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10061826ROS4 Sorensen - directO. Are you famil-iar with hospice care that is provided bySchulman Schachne?A. Yes.O. What is hospice care to start?A. What is hospice care in general-?O. Yes.A. Hospice care is services that are provided for terminallyilI patients that are not expected to l-ive past six months. Itmainly includes pain management, comfort care, care of thefamily as well as patíent, and al-l-owing the patient to die apeaceful- death of their choice.O. In 2007 what sorts of interactj-on, if any, did youtypically have with David Rosen?A. David Rosen is the -- was the president and CEO and I hadmany occasions of working with him on various dlfferentproj ects .

O. Were there certain matters that he typícal1y consulted withyou regarding?A. Yes.O. What matters generaÌly did he consul-t with you regarding?A. Anything that had to do with Long Term Care.O. And by Long Term Care does that include hospice care or isthat different?A. It incl-udes hospice care.O. In the year 2007 did any of the patients at Schul_man

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10071826ROS4 Sorensen - dírectSchachne receive hospice care?A. Yes.O. Approximately how many?A. I believe in 2007 it was two or three.O. In 2007 who, either staff or entities, provided the hospicecare to patients at Schulman Schachne?A. Hospice of New York.O. To your knowledge did Schulman Schachne have a contractwith Hospice of New York?A. Yes, they did.O. What role did they play in adminlstering hospice care tothe patients at Schul-man Schachne?A. They don't provide the direct care. They oversee th carethat is given. The resident or the patient is assigned a casemanagement from hospice. They oversee the care to make surethat they are receiving the proper nursing care, that there 1sa medical- director that oversees the medicaL care of thepatient, and they also interact wíth the family to make surethat the famiJ-y has everything that they need.O. Did Hospíce of New York provide hospice care, overseehospice care at Schulman Schachne prior lo 200'7?A. Yes.O. For how J-ong if you remember?A. The contract that I have in my possession was from 1998,but it was there years before that.

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t02tI-826ROS4 Sorensen - crosswould be beneficial to have more than one contract with ahospice service?A. Yes, I did.O. Did anyone direct you to write in those words?A. No.O. Did you wríte in those words because you belíeved it I^¡as agood idea to have a backup to Hospice of New York?A. Yes.O. What happened after you sent it to legal between the tímeyou send it to 1ega1 and the time you withdrew it fromconsideration by legal in the spring of 2008, do you know?A. You wait.O. You just wait?A. You wait.O. Did you make any efforts to check on the status of thecontract?A. I don't believe so. The -- I don't believe so.O. I think you said that SSI put two or three patients intohospice care in 2OO7?A. About that.O. So if Compassionate Care got this contract and they wereonly to supplement Hospice of New York, how many patients wouldthey have goEten ln 2007?A. Probably one.a. What about 2008, do you remember how many hospice care

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70221826ROS4 Sorensen - crosspatients r^rent out in 2008?A. There r^rere a few more in 2008 but not that many.O. Again, if Compassionate Care had gotten a contract in 2008,how many patients woul-d they have done?A. Probably haLf of that smalI amount. I think there mighthave been maybe four in 2008.O. Now, as a result of your working with Mr. Rosen, did youcome to form an opinion of his capacity for truth?A. I find him to be completely honest.O. That was honesty. 9rlhat about truth?A. I¡ihat is the difference?O. WeJ-J-, you are right, there is a very thin line. What aboutJ-aw-abiding?A. I don't believe in my career, which has spaned 35 years,that I have ever met a more upstanding man.

MR. R. MORVILLO: Thank you. No further questions,your Honor.

THE COURT: Redirect.MR. BOSWORTH: No further questions.THE COURT: Thank you very much. You may step down.(Witness excused)THE COURT: Pl-ease cal_I your next witness.MR. HARRINGTON: Your Honor, we woul_d l_ike to enter

into evidence more documents.THE COURT: This ís an exciting morning.

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183YROS3 Schwartz - crossA1J. right, answer.

A. NoLhing happened between Compassionate Care and Brookdal-e,but then either somewhere in the beginning oÍ. 2009 BrookdalepuÈ out a RFP for in-patient services with hospices and all ofthe hospices in the city were asked to respond to this RFP.O. And Compassionate Care was one of them?A, Yes,a. And Compassionate Care, again, competed and they stilldidn't get the contract, right?A. I was -- I had left the company prior to anything -- anydecisions being made on that.a. Now, nothing happened after your meeting wit.h Mr. Rosen?As I understand your meeting with Mr, Rosen, you made apresentation, you had a discussíon, he was cordial, is thatright?A. Yes.A. He listened to you attentívely?A. Yes.a. Okay. And at the end of the meeting he thanked you verymuch for coming in and making the presentatíon?A. Yes.O. Okay.

He dídn't say during the course of thats meeting, oh, Iwill give you this contract?A. No, he never said that during the course of the meeting.

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former medisys ceo david rosen appeal

Documents

quid pro quo

general counsels

judge rakoff

release pending

judge rakoff

services fraud

opportunities

medisys hospitals