transcript william f. boyland, jr. jury trial nov. 1, 2011

8/2/2019 Transcript William F. Boyland, Jr. Jury Trial Nov. 1, 2011

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1 UNITED STATES DISTRICT COURT

1 SOUTHERN DISTRICT OF NEW YORK

2 ------------------------------x

2

3 UNITED STATES OF AMERICA,

3

4 v. 11 CR 300 (JSR)

4

5 WILLIAM BOYLAND,

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6 Defendant. JURY TRIAL

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7 ------------------------------x

7

8 New York, N.Y.

8 November 1, 2011

9 9:55 a.m.

9

1010 Before:

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11 HON. JED S. RAKOFF

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12 District Judge

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13

14 APPEARANCES

14

15

15 PREET BHARARA

16 United States Attorney for the

16 Southern District of New York

17 WILLIAM HARRINGTON

17 GLEN McGORTY

18 Assistant United States Attorneys

18

19 RICHARD ROSENBERG

19 MICHAEL BACHRACH

20 Attorneys for Defendant

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21

21

22 ALSO PRESENT:

22 Julie Brown, Special Agent, FBI

23 Daniel Nessim, Paralegal

23 Russ Bretan, Paralegal24

24

25

SOUTHERN DISTRICT REPORTERS, P.C.

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1 (Case called)

2 THE COURT: So, we have two preliminary matters. The

3 government has made a new motion in limine to preclude any

4 defense evidence that Mr. Boyland requested New York State

5 funding for entities other than for the MediSys Health Network

6 and its constituent hospitals. I think there are several

7 different prongs of this that we need to consider.

8 The first is the question of relevance. It seems to

9 me the evidence probably is relevant in the following limited

10 respects. The defendant is claiming it was no bribe, that he

11 received consulting payments for consulting work and he made

12 requests for funding for MediSys for independent reasons and

13 having nothing to do with his consulting arrangement. The

14 government as part of proving its case to the contrary, intends

15 to put in evidence that Mr. Boyland requested $5 million in

16 state funding for Brookdale in May 2003 and another $3 million

17 in state funding for Brookdale in February 2004, and finally

18 requested $3 million in state funding for Jamaica Hospital.

19 As I understand the defendant's proffer, he wants to20 negative the inference that the jury might draw from the mere

21 fact that those requests were made at a time when Mr. Boyland

22 was receiving consulting payments by showing that as part of

23 his legislative duties, Mr. Boyland made frequent requests for

24 funding for a wide variety of projects. And for that limited

25 purpose, it sounds to me like it's relevant, but let me hear


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1 the government if it disagrees with that portion of my

2 discussion so far.

3 MR. McGORTY: Your Honor, I don't know if my response

4 is going to direct it into another prong of yours. My

5 immediate response to yours --

6 THE COURT: I am only talking about relevance.

7 MR. McGORTY: -- as opposed to the other evidentiary

8 issues like the hearsay potential problem.

9 THE COURT: Yes.

10 MR. McGORTY: With respect to relevance, your Honor,

11 it's not probative, the government's position is that it's not

12 probative of anything of the fact Mr. Boyland did other acts as

13 an assemblyman.

14 THE COURT: How can that be. If all the jury hears is

15 that at a time when he was receiving payments from MediSys, he

16 made this request on behalf of MediSys, and they had no

17 knowledge that he ever made any requests on behalf of anyone

18 else in the world for any purpose whatsoever, it raises an

19 inference of quid pro quo that is not necessarily a fair20 reflection of the context because the context is that

21 assemblymen make requests for funding all the time for a wide

22 variety of things. You may know that from common knowledge, I

23 may know it from common knowledge, but the jury can't be

24 assumed to know it from common knowledge, so the defense has a

25 right to show that.


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1 MR. McGORTY: Your Honor, I think what the defense is

2 attempting to show is that on other occasions Mr. Boyland made

3 funding requests about which we know nothing about the source,

4 the relationship, what prompted it, and the inference that the

5 jury is asked to be drawn by the defense is that because in

6 these instances he made funding requests where there is no

7 evidence of a corrupt relationship or what the motive was, they

8 should infer there was no corrupt motive and therefore because

9 he acted in a way on particular occasions, specific instances

10 of the conduct, they should infer that the particular funding

11 requests that we believe are official acts in this case as part

12 of the bribery conspiracy, should be viewed as being not born

13 from the corrupt action.

14 THE COURT: If that were their proffer, they would

15 have problems since you phrased it in terms of what the rules

16 exclude, and I commend you for reading the rules. I don't

17 think that's what they are doing. I think they are trying to

18 place in legitimate context the requests that were made that

19 you are planning to introduce. They could not make the precise20 argument you are making but what they can say is, look, don't

21 infer from the mere fact that these requests were made that

22 there was something wrong, look at what an assemblyman does all

23 the time. That's I think slightly different but significantly

24 different from what you are saying the rule excludes.

25 Now let's hold that for a second, because I think they


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1 have huge hearsay problems in terms of vetting these letters.

2 Let's take a typical letter. Here is one, picking these at

3 random. This is March 17, 2008, which may not be the relevant

4 timeframe, so there is a problem.

5 MR. BACHRACH: Which exhibit is that marked as.

6 THE COURT: 150. Putting aside, we will get to

7 questions of timeframe, things like that, anyway. Dear Speaker

8 Silver, I am requesting an allocation for $30,000 to the

9 Concord Family Services. I think that is the single and only

10 sentence in this five-paragraph letter that is not hearsay. So

11 I don't think the rest of the letter will come in.

12 MR. BACHRACH: Your Honor, if the defense could

13 comment on that, obviously this is a letter that relates to

14 matters not as closely connected as some of the other letters.

15 THE COURT: I will get to some more.

16 MR. BACHRACH: As far as the substance is concerned

17 outside of that first sentence, our position, we would agree,

18 the rest of it would not come in for the truth. We would say,

19 however, that it could come in as non-hearsay simply for the20 fact that it was said, the rest of the letter.

21 THE COURT: What is the relevance that it was said?

22 That falls into the very trap that the government counsel is

23 correctly voicing his opposition to.

24 MR. BACHRACH: Only to the extent we think it would be

25 relevant to the extent that the government we believe will


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1 argue that because of the detail that's in the letters they

2 intend to reply upon, that he could have only been receiving

3 that detail from David Rosen, and they will ask the jury to

4 infer that the detail shows that there was a conspiracy.

5 THE COURT: I don't think the rest of this paragraph,

6 these paragraphs has anything to suggest to the contrary. I

7 think there is every reason to believe the rest of this letter

8 was probably crafted by someone at Concord Family Services.

9 MR. BACHRACH: That would be the only point we are

10 trying to draw which is simply that the information in these

11 letters he could get from other sources.

12 THE COURT: I disagree. Now you are really asking the

13 jury to infer all sorts of hearsay assumptions.

14 MR. BACHRACH: Not from --

15 THE COURT: Yes. I think so.

16 MR. BACHRACH: OK, your Honor, thank you.

17 THE COURT: To take another example, Exhibit 152, I

18 think the only part of that letter that's not hearsay is the

19 last sentence, quote: So on behalf of Brooklyn Children's20 Museum, I am requesting $1.5 million in funding. There are

21 also letters that are not signed, that are offered like DX701,

22 that are signed by other people. I don't see how these letters

23 come in for any purpose. DX701 is a letter to Speaker Silver

24 from Assemblyman Towns requesting on behalf of the Black,

25 Puerto Rican, Hispanic and Asian Caucus, a $3 million line item


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1 to begin the process of creating an independent public defense

2 commission.

3 MR. BACHRACH: Your Honor, may I respond. I don't

4 want to waste your time. Just to be clear, we are not going to

5 be offering into evidence all of these exhibits. I want to

6 make sure that's clear. We provided the full packet.

7 THE COURT: Are you offering this one or not?

8 MR. BACHRACH: Into evidence, this one, no.

9 THE COURT: Generically, you told me that; you didn't

10 tell me which ones you were offering, which ones you were not,

11 so I had to speculate.

12 MR. BACHRACH: I don't think we made a determination

13 on every single one.

14 THE COURT: You are going to have to make it pretty

15 soon because I am about to rule.

16 MR. BACHRACH: Then we will.

17 THE COURT: You asked for a ruling in advance of trial

18 on this very point, or the government did. Similarly,

19 Defendant Exhibit 491, this is signed by not only Boyland but20 all members of the Brooklyn delegation of the New York State

21 Assembly, and they are writing in support of a request by the

22 Brooklyn Arts Council for a grant of $300,000. So the mere

23 fact that Mr. Boyland along with a dozen other people affixed

24 his signature seems to me too remote from the very limited

25 purpose it seems the other evidence was relevant.


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1 MR. ROSENBERG: Perhaps I can offer a proposal. The

2 witness we were going to use for this William Collins who was

3 counsel to the majority of the New York State Assembly who

4 testified that these records are maintained in the normal

5 course of assembly business, these requests are kept and

6 maintained as they are received by individual assemblymen.

7 When we requested all the requests by Assemblyman Boyland, he

8 sent us all of these various categories, individual budget

9 requests made by him, what we call member items or legislative

10 initiatives, also the Black Puerto Rican Caucus which he was

11 part of.

12 But in the run-up to trial, Mr. Collins also had

13 prepared and extracted from those business records maintained

14 by the assembly a listing by date and subject matter or

15 recipient, if you will, of requests made by Assemblyman Boyland

16 year-by-year for funding. Maybe, I think if we cannot use the

17 subject matter of these letters, redacting would be a major

18 undertaking, you have the jury look at letters mostly

19 blacked-out or redacted, perhaps the simpler way would be to20 have simply Mr. Collins testify to that particular chart that

21 he developed.

22 THE COURT: That's a real possibility. Is his chart

23 restricted to requests that Mr. Boyland alone made.

24 MR. ROSENBERG: We have to adapt that because part of

25 that included the caucuses.


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1 THE COURT: I don't find that relevant for the limited

2 purpose.

3 MR. ROSENBERG: We can extract that. I can just

4 elicit testimony in addition to.

5 THE COURT: I think this would be a possibility.

6 MR. ROSENBERG: That way the jury only hears the

7 bottom line.

8 THE COURT: Here is what I think might be a

9 possibility, that Mr. Collins could testify that he reviewed

10 the business records of the assembly looking for requests for

11 funding by Mr. Boyland, that he found during the year X, Y

12 number of requests, during year Z, etc. and perhaps that they

13 range in amounts from X to Y. He would have to, however, be

14 prepared I think to answer questions about, for example, how

15 many of those requests related to matters outside Mr. Boyland's

16 district. That's one of the points made by the government,

17 that MediSys requests in part were not in his district,

18 Mr. Boyland's district, so why is he doing this.

19 Mr. Collins would have to have at least sufficient20 knowledge if he is being portrayed, in effect, as the person

21 giving a summary of business records to be able to answer that.

22 If he can't do that, of course he has time between now and then

23 to review the letters, if he can't do that, I think he is

24 probably not an appropriate summary witness. So all he could

25 do is authenticate letters and we would have to have them


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1 redacted, the whole business, which I agree with you would be

2 cumbersome at best.

3 MR. ROSENBERG: If I might suggest he could testify as

4 to the subject matter of those requests and it could come out

5 through perhaps other witnesses whether or not those subject

6 matter lay outside the district of the 55 AD.

7 THE COURT: He is saying he reviewed the requests. He

8 should be able to testify. We could put them all in front of

9 him, not admitting them in evidence and say go through them.

10 What's the overall number if we limit it to requests from

11 Mr. Boyland himself, ballpark, 10, 100, 1000?

12 MR. ROSENBERG: A couple of dozen.

13 THE COURT: He could, if worst came to worst, review

14 them on the stand and say which ones were for within the

15 district and which were outside; dates might also be relevant.

16 MR. ROSENBERG: That's a subset issue, whether it's

17 inside or outside his district. Again the government is saying

18 his letter for Brookdale which serves his district, it's not a

19 question that it was outside as Jamaica, for instance. So, we20 just want to simply bring out through Mr. Collins that the

21 legislative business involves making budget requests for a

22 variety of different recipients.

23 THE COURT: I am willing to have Mr. Collins testify,

24 subject to any other objections that will be heard at the time

25 the specific question is put, that he reviewed the business


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1 records of the assembly, whatever the relevant way to word that

2 is, that he located a total of you tell me a couple dozen

3 requests from Mr. Boyland for funding for various organizations

4 between period X and y. But he has to be prepared, even if

5 it's on the stand after looking at those requests, to be able

6 to answer more specific questions that the government might

7 have about them. That's my point.

8 MR. ROSENBERG: Well, I don't know from the face of

9 those letters whether it would be within his ability just to

10 tell from looking at a letter whether it's within his district

11 or without his district.

12 THE COURT: That's a fair answer. If he doesn't know,

13 he doesn't know. But if it's something that, if he is going to

14 testify that he extracted X number of letters, he's got to have

15 at least read them and be familiar with them to the point that

16 he can answer the government's questions, not your questions

17 because your questions would call for hearsay of the sort that

18 I am anticipating the government would oppose.

19 MR. ROSENBERG: There is also the issue whether the20 request related to a MediSys entity or a non-MediSys entity. I

21 think part of the government's argument certainly is that the

22 requests are corrupt in and of itself because of the subject

23 matter, that it's MediSys, that it's Brookdale, that it's

24 Jamaica. There may be scores of other requests that are not

25 non-MediSys. I think that's fair for the jury to hear.


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1 THE COURT: For present purposes I am tentatively of

2 the view that sufficient to allow you in your opening statement

3 to suggest that assemblymen make requests for funding all the

4 time, something like that, but not going into much more than

5 that.

6 MR. ROSENBERG: I wasn't even going to go that far.

7 THE COURT: That's good. That Mr. Collins can testify

8 that he reviewed the records and he located X number of funding

9 requests from Mr. Boyland individually during period X and Y.

10 We will have to work out what further familiarity if any he

11 needs to have. We can talk about that between now and when he

12 takes the stand. I agree with you that's a much better way to

13 proceed than through redacted letters.

14 MR. ROSENBERG: I would also want to elicit from

15 Mr. Collins, the work of the assemblyman that includes as well

16 member items, I won't go into all his member items, just

17 generically speaking about the type of requests that

18 assemblymen make.

19 THE COURT: How does that relate to any issue in this20 case; this is only about requests for funding.

21 MR. ROSENBERG: All of them are requests for funding;

22 they are different forms. There are budget requests which were

23 the capital budget which were Brookdale and Jamaica requests.

24 There are also items called legislative or local initiatives,

25 also known as member items where each assemblyperson has a


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1 discretionary fund that they can recommend expenditures from

2 that fund for various interests that they may have.

3 THE COURT: I don't understand the government to be

4 claiming, maybe I misunderstand, that he used any member items.

5 MR. ROSENBERG: That's right; I think that's relevant,

6 that he has not used.

7 THE COURT: No. I am going to limit, because of the

8 narrow relevancy and potential for confusion, we have not even

9 talked about 403, I think there is potential for confusion, I

10 am going to limit it to requests that are comparable to the

11 requests the government is going to introduce. We have one

12 other issue to take up relating to the jury charge. I am not

13 going to make a final decision until the charging conference.

14 Defense counsel wanted a general ballpark.

15 The government has to show at least under some of the

16 charges that Mr. Boyland had an intent to receive something of

17 value in exchange for an official act, see United States v.

18 Ganim, it is no defense but I will give some charge as

19 requested by the government, that it is not a defense that had20 there been no bribery, the defendant might have done this

21 anyway; that's not a defense. It's also not a defense and I

22 really think should not figure anywhere in the evidence, even

23 in argument from counsel, that the particular funding of these

24 particular institutions was beneficial to the public or the

25 community or anything like that.


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1 MR. BACHRACH: Can you explain what you mean by that,

2 your Honor, I am sorry.

3 THE COURT: If Mother Teresa took a bribe to get

4 funding for the cure of children with leprosy, it would be

5 totally irrelevant if she were charged with bribery that that's

6 a wonderful thing to do. That's not a defense to bribery. So

7 think there are a few other points.

8 The quo of the quid pro quo can be implicit as well as

9 explicit. Conversely, the mere fact that Boyland was employed

10 by or received a consulting arrangement with MediSys is not a

11 bribe per se. These are all self-evident points. The quo can

12 be a commitment to perform official acts as the opportunity

13 arises. See my opinion in Rosen. But if the benefit is simply

14 an effort to buy, the bribery is simply an effort to get

15 generalized goodwill from a public official, that would not

16 satisfy the quo portion of quid pro quo. Those are as best I

17 can give you at this very preliminary stage. I want to stress

18 I am doing this at your request. The charging conference will

19 fine-tune all this.20 MR. ROSENBERG: We much appreciate your Honor's

21 comments. I want to clarify something. I think it would be

22 part of our case and our defense, not to say that certainly we

23 accept the proposition notwithstanding the good cause, a person

24 can be bribed. However, I think it is relevant to bring out to

25 the jury the particular needs of a community to explain why a


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1 legislator would take certain actions or write certain letters

2 and the needs of the hospital as it pertains to that community

3 whom he represents. The government is certainly free to argue

4 withstanding all that he was bribed and influenced and he had

5 this unlawful agreement. But I think --

6 THE COURT: You are saying that he had an independent

7 motive to take this act, so that's part of your evidence of

8 disproving their allegations of intent.

9 MR. ROSENBERG: Yes.

10 THE COURT: I think within limits that's right, but I

11 think that the potential for going over to the forbidden

12 argument that this was a wonderful thing is a line you have to

13 be very careful not to cross.

14 MR. ROSENBERG: Well, I don't know what that bright

15 line necessarily is.

16 THE COURT: I will let you know as we go along.

17 MR. HARRINGTON: May I add one thing. Based on some

18 defendant exhibits, we might see some proffers of evidence that

19 are sorts of general facts about the community. I think the20 government will be objecting to the extent that those facts are

21 not tied to this defendant's knowledge because they can't

22 demonstrate his intent if they are just sort of general

23 statistics about particular zip codes.

24 THE COURT: That's an independent ground. That's a

25 good example why I can't give you much more guidance at this


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1 point. We will have to do it as we go along.

2 MR. ROSENBERG: The government's own witnesses who are

3 hospital administrators and community outreach people testified

4 in the Rosen trial are in the position to testify about that

5 community and about the healthcare.

6 THE COURT: The government's point is the narrow but

7 legitimate relevance to what you want to argue in this regard

8 is that the jury can infer that Assemblyman Boyland, knowing of

9 this particular need or knowing of that particular problem, saw

10 all this as something he wanted to support independent of any

11 payment from MediSys. So that he stuck to that is proof that

12 he had knowledge of it. There are some very general facts

13 about his community which one might infer he knows just from

14 being a resident of that community and being an assemblyman for

15 that community.

16 If you get down to much more specific things, you have

17 to show in order to get into evidence that he knew it;

18 otherwise, it's irrelevant. If, for example, I am picking this

19 out of thin air, it's just a hypothetical, if, for example, he20 had made a request for a payment to a particular hospital

21 employee, I request that $10,000 be allocated to hire Mr. Jones

22 to help MediSys, and you want to introduce evidence from some

23 other witness saying the hospital desperately needed Mr. Jones,

24 he was the most qualified person, blah, blah, that would not be

25 admissible if there is no showing that your client knew any of


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1 that. So that's the kind of problem. All right.

2 MR. BACHRACH: Your Honor, there is one more legal

3 issue I want to flag for the court, you are not aware of yet.

4 I don't know when you want to take it up, now or later.

5 THE COURT: I want to pick the jury if the panel is

6 here.

7 MR. BACHRACH: I will be quick. Late yesterday

8 afternoon the government informed us, I think it was late, that

9 one of their witnesses, the fourth witness, Olga Cendroski,

10 would not be able to testify. Ms. Cendroski at the Rosen trial

11 is the witness they used to introduce various emails, a whole

12 slew of emails.

13 THE COURT: Any witness on the government's list that

14 they choose not to testify you can call.

15 MR. BACHRACH: The reason she is unavailable

16 apparently is she had surgery.

17 THE COURT: A pretty good reason.

18 MR. BACHRACH: I agree. Government proposes a

19 substitute witness. We have concerns regarding whether the20 substitute witness would be an appropriate witness to introduce

21 various testimony.

22 THE COURT: Let's take this up at the lunch break or

23 something.

24 MR. BACHRACH: OK. I wanted to flag it.

25 THE COURT: I want to flag for counsel we will not be


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1 sitting Monday afternoon. So just keep that in mind. Of

2 course, if we get to it, hopefully we won't, Friday a week,

3 that's a federal holiday.

4 The panel is coming up. I need to ask everybody in

5 the audience to move to the back of the courtroom so we can

6 seat the panel in the front. You can resume your seats later

7 after we pick the jury.

8 MR. BACHRACH: One last housekeeping matter, Batsons,

9 if we have them, how would you like us to indicate them.

10 THE COURT: Ask for a sidebar.

11 MR. BACHRACH: Thank you.

12 (Voir dire follows)

13 (Continued on next page)

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1 THE COURT: So, ladies and gentlemen, you are the jury

2 to try this case. We are going to swear you in in a minute,

3 then we are going to excuse you for about 15 minutes so you can

4 get used to the jury room. That's where you will come in each

5 day and where you leave at the end of the day. Then we will

6 call you back and we will hear opening statements from counsel.

7 Then we will excuse you for lunch. Let me give you a few

8 housekeeping rules just before we get going.

9 The first rule, really the most important rule is that

10 you need to decide this case solely and wholly on the evidence

11 you will hear from the witnesses and from the exhibits that

12 will be received in evidence. It follows from that that you

13 should not discuss this case with anyone outside. You can tell

14 a spouse or an employer I am going to be on jury service and

15 worst case it will go two weeks. When they inevitably say tell

16 us about the case, you have to say no, I can't do that, because

17 if you do they will start asking you questions, they will start

18 giving you their opinions, of course, they have not heard any

19 of the evidence, and we don't want you to focus on anything but20 the evidence right here in this courtroom. So don't discuss

21 the case.

22 Along the same lines, please don't try to Google

23 information about the case or look for anything outside of the

24 way of evidence. We are going to give you all the evidence you

25 need to decide this case. We are also going to give you the


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1 only evidence that meets the rules. You have to decide the

2 case based on that, again not on some rumor, gossip, hearsay,

3 or anything else, just the evidence in this courtroom.

4 One other thing along the same lines, I don't know if

5 there will be any media coverage of this case or not, but in

6 the event that there is, and you happen to be watching the

7 television or reading a newspaper or online or whatever, you

8 see something about this case, immediately turn it off. If

9 it's written material, turn to another page. Don't read it.

10 Because once again it's really vital to your job and to

11 fairness to both parties that you decide the case solely and

12 wholly on the evidence you hear right here in the courtroom.

13 The other housekeeping rule I want to mention to you i

14 is that all the witnesses and attorneys are under very strict

15 rules to have no contact with you whatsoever. If you are in an

16 elevator and one of the lawyers is there and they don't even

17 smile and say hello, it's not because they are being rude, it's

18 because they are under the strictest direction to have no

19 contact with you whatsoever.20 So, we will swear you in.

21 (Jury panel of 12 jurors and 2 alternates sworn)

22 THE COURT: Follow my courtroom deputy into the jury

23 room. We will see up in about 15 minutes.

24 (Jury leaves courtroom)

25 THE DEPUTY CLERK: Judge, Juror No. 3's cap just came


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1 off while she was sitting in the jury box; she is going to have

2 to go to the dentist, Juror No. 3.

3 THE COURT: Juror No. 3 just as she was walking out,

4 one of her caps came off her tooth and she is going to have to

5 go to the dentist. This is why we have alternates. It sounds

6 like we are going to need to excuse her because we need to move

7 forward. So, you can tell her she is excused. Alternate No. 1

8 is now Juror No. 3.

9 Let me mention to the other members of the jury panel,

10 normally at this point I congratulate you for dodging the

11 bullet. However, this is a relatively short case; you may get

12 stuck with a bigger case. But what you should do now is go

13 down to the jury room. We will send your card down in a few

14 minutes. Thank you so much for being available to serve.

15 (Pause)

16 THE COURT: The folks in the audience are now free to

17 take seats anywhere.

18 Anything counsel needs to raise with the court.

19 MR. HARRINGTON: No, your Honor.20 MR. ROSENBERG: No, your Honor.

21 THE COURT: You are excused.

22 We will see you in 15 minutes.

23 (Recess)


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1 (In open court, jury not present)

2 THE COURT: Ladies and gentlemen of the jury, first of

3 all, my congratulations to Alternate No. 1, you are now Juror

4 No. 3. This is so exciting. I forgot to mention as I was

5 talking about housekeeping rules, you should not even discuss

6 the case among yourselves until it's given to you at the end of

7 the case for your deliberations. The reason for that is the

8 evidence is going to come in one bit at a time and we don't

9 want you to start making conclusions until you have heard all

10 of the evidence.

11 I notice and it's perfectly acceptable if some jurors

12 have already their pen and paper out to take notes which is

13 fine, but I just want to remind them as well that you are not

14 going to see the whole picture until all the evidence is in.

15 So you are more than free to take notes as we go along, but you

16 really shouldn't form any opinions until all the evidence is

17 in.

18 We are about to hear opening statements of counsel.

19 The statements of counsel are not evidence. So you may ask why20 do we have opening statements. The reason is, again, because

21 the evidence is going to come in one little bit at a time, it

22 may be useful for you to have an overview of what each side

23 believes the evidence will show or will fail to show. So, this

24 is kind of a road map that counsel will give you. They are

25 making predictions as to what they think the evidence will show


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1B14BOY1B

1 or fail to show. Their predictions may be totally wrong. It

2 may be useful to hear what they have to say to kind follow

3 things as they begin to come in.

4 Lastly, I want to remind you that because this is a

5 criminal case, the burden of proof is always on the government.

6 They are required to prove any given charge beyond a reasonable

7 doubt. For that reason they go first. We will hear first from

8 government counsel.

9 MR. HARRINGTON: Thank you, your Honor.

10 Good morning, ladies and gentlemen. Money, power,

11 politics, bribery. In the winter of 2003, William Boyland Jr.

12 ran for political office. He was elected by the people of

13 Brooklyn to represent them in the New York State Assembly.

14 They entrusted him with the power to pass laws, the power to

15 use his position to influence the governor and members of the

16 governor's staff, the power, the privilege to be their voice.

17 William Boyland Jr., the defendant, took the people's

18 trust and sold them out. On top of the salary he earned from

19 New York State, Mr. Boyland pocketed $175,000 from a hospital.20 He didn't take this money because he was a doctor or a nurse.

21 He wasn't paid to manage the hospital's payroll or to take

22 x-rays. No. This was a no-show job. Boyland did no

23 meaningful hospital work. But the hospital got something for

24 its money. What the hospital got was a paid advocate in

25 Albany, a politician on the take.


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1B14BOY1B Opening - Mr. Harrington

1 William Boyland Jr. grabbed the money to advocate for

2 the hospital in his capacity as an assemblyman as opportunities

3 arose, to use his influence with the State Department of Health

4 to seek millions of dollars from New York State for the

5 hospitals. In short, he was being bribed, bribed to use his

6 influence as an assemblyman in Albany.

7 Every time Boyland was asked about why the hospital

8 paid him, he covered up the true nature of what he was doing.

9 He made false statements to the FBI and he made false

10 statements to the New York State Assembly. During the trial

11 you will learn that hospitals live and die on decisions made in

12 Albany. William Boyland Jr. knew it and that's why he demanded

13 a no-show job to enrich himself.

14 Because of this, Boyland stands charged of conspiring

15 to violate the federal laws that prohibit bribery. Over the

16 next 10 minutes, I am going to first give you a preview of what

17 the government expects the evidence to show. I will then talk

18 to you briefly about how the government expects to prove that,

19 the kind of evidence that you will see.20 First, what does the government expect the evidence to

21 show. We expect the evidence to show that Boyland was being

22 bribed by a hospital and that they disguised the bribes as a

23 no-show job. In the winter 2003, William Boyland Jr. was

24 elected to the New York State Assembly. What is the New York

25 State Assembly. The assembly is one of the two legislative


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1 bodies in the state. Boyland was one of the 150 members.

2 Every member is elected every two years. Along with the New

3 York State Senate, the assembly is responsible for passing all

4 of the laws of the state, and every dollar New York State

5 spends must be authorized by the legislature, including the

6 assembly.

7 You will also learn that assembly members like

8 Boyland, they also work a second job. There are restrictions

9 on the kinds of work they can do. The job can't conflict with

10 their duties as an assemblyman and of course they cannot take

11 bribes by disguising those bribes as consulting fees or as

12 employee income.

13 Before he was in the assembly Boyland began his

14 professional life working at Brookdale Hospital in Brooklyn.

15 Starting in 1999, he was assigned to Urban Strategies, a clinic

16 affiliated with Brookdale Hospital. His job was community

17 outreach. He attended the community fairs, church fairs, he

18 helped market the Urban Strategies clinic. It was a real job.

19 In those days he showed up for work and he reported his20 activities to his supervisors.

21 In 2002, Boyland's father Frank announced that he

22 wanted to retire from his seat in the assembly. William

23 Boyland Jr. decided to run for his father's seat. The governor

24 called for a special election. William Boyland Jr. won. He

25 was now a member of the New York State Assembly. He was going


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1 to earn approximately $75,000 a year as a member of the

2 assembly. But he didn't want to give up his salary at Urban

3 Strategies; he wanted to keep both salaries.

4 As I mentioned, an assemblyman is permitted to work a

5 second job. William Boyland Jr. could have worked a second job

6 if he wanted to do so. But Boyland had no intention of

7 actually earning this money by doing hospital work. He knew he

8 was valuable now. He was valuable because of how he could use

9 his job in government to get things done for the hospitals in

10 Albany. So what did Boyland do?

11 He didn't do what you would expect an employee who

12 legitimately wanted to change something about their job to do.

13 He didn't talk to any of the people he had been working for for

14 years. He didn't talk to his supervisors at Urban Strategies.

15 He didn't talk to his supervisors' supervisor. What did he do.

16 He went right to the CEO of the entire hospital chain, the man

17 chiefly responsible for dealing with the hospital's needs in

18 Albany, a man named David Rosen.

19 You will learn that Boyland raised an issue with David20 Rosen of how he could get paid by the hospital without showing

21 up for work. Unlike any other employee, Boyland did not want

22 to have to swipe in to show he was present. That's because he

23 had no intention of doing legitimate hospital work. You will

24 learn during the trial that Rosen jumped at the opportunity.

25 He agreed to call Boyland a consultant before talking to a


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1 single other employee at the hospital. Rosen didn't ask

2 Boyland's boss or any of Rosen's executive staff. He just

3 ordered them to start cutting checks for Boyland. Boyland

4 never had to show up for work again. He no longer had a

5 supervisor. He no longer had to file reports. He didn't even

6 have to swipe in anymore.

7 How did Rosen and Boyland think they could get away

8 with this. They kept the true nature of their relationship

9 secret. In fact, even the existence of the relationship was a

10 well-kept secret. Virtually no one at the hospital knew about

11 Boyland being a supposed consultant, not his old boss, not his

12 old boss's boss, not even David Rosen's right-hand man, his

13 chief operating officer. No one.

14 The only people who knew about the secret arrangement

15 Were the people that Rosen told to make sure that Boyland got

16 his regular check, the people in the hospital's financial

17 department. As you might expect, Boyland did no meaningful

18 consulting work for the hospital from the fall of 2003 through

19 2008. He handled no special projects. He wrote no reports.20 He simply did not consult.

21 But you will learn that Boyland did fill his end of

22 the illegal bargain with David Rosen. He was Rosen's ally in

23 Albany on all of the issues that mattered most to Rosen's

24 hospitals. In 2004, he petitioned the assembly for $3 million

25 for Brookdale Hospital. In 2007, he petitioned the assembly


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1 for another $3 million for Jamaica Hospital. Both of these

2 hospital were run by David Rosen. In 2006, he conferred with

3 David Rosen about the New York State budget. Again in 2006,

4 Boyland called Rosen when moneys were available in the state

5 budget for the New York State Office of Mental Health. Boyland

6 lobbied the State Department of Health on Rosen's behalf,

7 helping smoothe the way most importantly of all when Rosen was

8 seeking to acquire a competitor hospital in Queens.

9 You will also hear many of the things Boyland

10 advocated for didn't come through. Many of Boyland's efforts

11 did not bear fruit. As you will learn during the trial, Albany

12 is a place where you keep trying. Boyland did keep trying to

13 get these things done for the hospitals in Albany because he

14 was being bribed. All the while, William Boyland Jr. concealed

15 the fact that Rosen was bribing him. How did he do that. He

16 fabricated a story for why Rosen was paying him.

17 You will hear, for example, that Boyland had to tell

18 the New York State Assembly about outside income. Like all

19 members of the assembly, Boyland had to disclose who was paying20 him, how much he was being paid, what he was being paid for.

21 The purpose of these disclosures was to make sure the work he

22 did did not conflict with his duties as an assemblyman, that

23 the payments were legitimate, that they were not disguised

24 bribes. What did Boyland tell the assembly?

25 He said was hired by Brookdale Hospital to advise on


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1 community outreach. You will learn this is false. You will

2 hear the employees of Brookdale Hospital responsible for

3 community outreach. None of them had any idea that William

4 Boyland Jr. was responsible for this. You will see summaries

5 of the community outreach activities of the hospital in certain

6 years. William Boyland Jr. isn't on them working for the

7 hospital. In other words, in his statements to the assembly,

8 he did everything he could to make it sound like this was a

9 real consulting position, when in fact it was really a bribe.

10 Years later, in 2009, you will hear that the state

11 legislative ethics commission started looking into this. They

12 inquired why Boyland had never told them how much he had made,

13 something he was required to do. Boyland made false statements

14 again. He claimed he was making only 5 to $20,000 a year, when

15 in fact he was making twice that amount.

16 How else did Boyland conceal his criminal relationship

17 with David Rosen. You will hear that it 2010, as the scheme

18 unraveled, the FBI went to interview Boyland. They asked him

19 the common sense questions that any real consultant could20 answer; who do you work for, what do you do, how do you report

21 your work. But Boyland knew this interview was trouble. Why.

22 He knew he was under investigation for this relationship. What

23 did Boyland do. He tried to cover his tracks again.

24 You will hear that Boyland made false statements

25 demonstrating he knew this relationship was criminal. You will


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1 hear, for example, that Boyland denied ever speaking directly

2 to David Rosen about his job after being elected to the

3 assembly. He also claimed that he was never a consultant for

4 the hospital. Boyland designed these false statements to

5 conceal the simple truth. David Rosen was bribing William

6 Boyland Jr. and Boyland in exchange became Rosen's ally in

7 Albany.

8 Briefly, how will the government prove this case.

9 Ladies and gentlemen, this is case where actions speak louder

10 than words. Because this was a secret, illegal relationship,

11 you will not hear what Boyland and Rosen said to one another.

12 Instead you will see the evidence of what they did. That

13 evidence will prove that their relationship was corrupt. What

14 am I talking about here.

15 First, you are going to see the checks, roughly

16 $175,000 in payment to Boyland from Rosen's hospitals.

17 Second, you are going to see the emails about how this

18 all got started. You will see phone messages in which David

19 Rosen's secretary records Boyland's complaints about having to20 swipe in. You will see emails in which David Rosen directs his

21 finance department to pay Boyland the same exact salary that

22 Boyland was making as a full-time employee without having to

23 show up anymore.

24 Third, you will see documents proving what Boyland

25 really did for Rosen's hospitals. For example, you will see


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1 letters that Boyland sent to the leader of the assembly asking

2 that millions of dollars be given to Rosen's hospitals.

3 Finally, you will hear from witnesses. You will hear

4 from Boyland's old supervisors and from the employees

5 responsible for community outreach and patient recruitment, the

6 assignments that Boyland claimed to have been hired for. They

7 will say that they had no idea that Boyland became a consultant

8 for the hospital in the fall of 2003. They had no idea he was

9 still being paid by the hospital. They had no knowledge that

10 he was doing anything for the hospital at all.

11 Ladies and gentlemen, this is a straightforward case.

12 We do not expect this to be a long trial. Over the coming

13 days, you will hear from the witnesses who will prove that the

14 secret relationship between Boyland and Rosen was corrupt. You

15 will see the documents that prove what was really going on,

16 documents that prove that David Rosen paid William Boyland Jr.

17 to be his ally in Albany. The witnesses and the documents will

18 prove what Rosen and Boyland tried so hard to conceal. They

19 prove what common sense will tell you, that Boyland is guilty20 of taking bribes.

21 THE COURT: Thank you very much.

22 Now we will hear from defense counsel.

23 MR. ROSENBERG: Thank you, your Honor. Judge Rakoff,

24 counsel, Mr. Boyland, ladies and gentlemen of the jury. Once

25 again, my name is a Richard Rosenberg. I along with Michael


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1B14BOY1B Opening - Mr. Rosenberg

1 Bachrach, it's our privilege and great responsibility to

2 represent William Boyland Jr.

3 This case is a simple accusation. It boils town to

4 one thing. Was William Boyland Jr. as an assemblyman between

5 years 2003 and 2008 on the take from David Rosen, CEO of

6 MediSys, on the take in that he used his official position and

7 took official actions as an assemblyman in exchange for money

8 that the government says for work he never provided, services

9 that he never provided.

10 This case is not about whether or not William Boyland

11 Jr. was paid. There is no dispute about that. You will see

12 the checks, approximately $35,000 a year from 2003 to 2008.

13 What this case is about is whether or not Mr. Boyland accepted

14 that money with the understanding that it was a bribe. What

15 this case is about is whether he used his official action as a

16 result of a corrupt relationship and agreement with David

17 Rosen.

18 If the government fails to prove beyond a reasonable

19 doubt that Mr. Boyland had that intention when he accepted20 those moneys, they have failed to prove their case and

21 Mr. Boyland is not guilty. If they fail to prove that he took

22 his official action because he was being paid a bribe, they

23 have failed and you must acquit.

24 This case, the government's case rests then really on

25 one thing and that is Mr. Boyland's state of mind and their


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1 ability, it rests on the ability of the government to prove to

2 your satisfaction that Mr. Boyland had that corrupt intent to

3 utilize his official position as a result of a corrupt

4 agreement with David Rosen.

5 As this case unfolds you are going to find that the

6 government's case rests really on cynicism, speculation, and

7 suspicion because you are not going to find evidence of that

8 unlawful agreement or that scenario, if you will, that

9 Mr. Harrington opened up with, the scenario where Mr. Boyland

10 approached David Rosen and insisted or wanted a way to collect

11 his salary without showing up. There will be no evidence of

12 that. There will be and be reduced to a theory, a suspicion

13 and speculation, and that the judge will instruct you at the

14 proper time is not evidence.

15 There are not going to be any smoking gun

16 conversations where you can point to and say there it is. That

17 is not going to be happening in this trial. There is not going

18 to be not one document, not one email that's going to evidence

19 a corrupt relationship and arrangement between Mr. Boyland and20 David Rosen.

21 What the government ignores and what you will find is

22 that there was a universe of circumstances, realities that made

23 the relationship and the arrangement between David Rosen and

24 William Boyland not only human, logical, totally lawful, and

25 one that made total business sense.


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1 You are going to hear during the course of this trial

2 something about the Boyland name. You are going to find out it

3 was and is a brand name in Ocean Hill, Brownsville, Brooklyn.

4 That is the assembly district that Mr. Boyland represented and

5 which he is a part of a legacy of more than 30 years of people

6 in his family who have represented Ocean Hill, Brownsville.

7 You will hear and learn that Mr. Boyland's uncle

8 Thomas back in the 70s a was New York State assemblyman for

9 Ocean Hill, Brownsville, that he Thomas was succeeded in office

10 by my client's father, William F. Also you will hear him

11 referred to as Frank Boyland. That Frank Boyland held that

12 seat for 20 years, until 2002 when he retired. That William

13 Boyland Jr., the defendant, my client, was elected as a special

14 election to his father's seat and his uncle's seat before that

15 in 2003. Since that election, he's been reelected and

16 reelected and reelected.

17 It doesn't stop there. You will hear that Frank's

18 daughter, my client's sister Tracy Boyland, was a New York City

19 councilwoman from 1998 to 2005. The Boyland family you will20 hear was a preeminent, important name in the Brownsville

21 community. You will hear testimony that if you are driving to

22 Mr. Boyland's office in Brownsville, you will be driving down a

23 street called Thomas Boyland Street. If you live in

24 Brownsville and your kid goes to school, a public school, that

25 kid might be going to Thomas Boyland Elementary School. If you


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1 are going to a park on a Saturday, it might be one of two parks

2 named after Thomas Boyland, a brand name in Brownsville.

3 More than that, it's also a family that has been

4 associated with healthcare for years and years and years. You

5 will hear testimony that Frank Boyland as an assemblyman was

6 regarded as a strong ally and champion of healthcare for

7 underserved communities and his community in particular. You

8 will hear testimony from the government's witnesses that he was

9 regarded as a friend, a friend of Brookdale, and friend of

10 Jamaica Hospital. Frank's wife, Ruby my client's mother, she

11 worked for over 10 years at Jamaica Hospital as a supervisor.

12 You will hear that my client started his work career

13 at Brookdale Hospital in 1994, working, heading up volunteer

14 services. You will learn that he himself was politically

15 active at that time as a district leader before he became an

16 assemblyman. You will learn that these dynamics existed with

17 that family and who that family was in a community where

18 Brookdale Hospital lies just at the outskirts and who is a

19 major health provider for that community and a major employer20 as well.

21 You will hear testimony that before Rosen came on the

22 scene, his company MediSys didn't take over Brookdale Hospital

23 until year 2000. Before that a person by the name of Frank

24 Maddalena was CEO of Brookdale Hospital. You will hear how

25 Brookdale Hospital was in financial trouble as many


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1 not-for-profit hospitals whose service Medicare and Medicaid

2 patients primarily are in trouble.

3 You will hear how under Maddalena in the late 90s,

4 that Brookdale was interested and needed to market themselves

5 to the community and the other surrounding communities, so they

6 opened up six satellite clinics.


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1B1VBOY2 Opening - Mr. Rosenberg

1 MR. ROSENBERG: One of those clinics was located in

2 Brownsville. And that one was particularly unique of all the

3 clinics that they opened, because for that one, they partnered

4 with a not-for-profit organization called Urban Strategies,

5 Inc., which was a Brownsville charity that was concerned with

6 runaway teens, teen pregnancies.

7 But they had a big name. They were a service charity

8 for years and years. And Brookdale partnered with them. Why?

9 Because Urban Strategies had a name as a provider of services

10 to the community. The deal was that Brookdale would staff the

11 clinic, would provide the services, the Urban Strategies name

12 would appear on the clinic's title. So it was known as Urban

13 Strategies Brookdale Family Center. This is before David

14 Rosen.

15 And so it was a natural, if you will, in order to

16 market this particular satellite clinic and to bring patients

17 into that clinic, to create income, if you will, for Brookdale

18 hospital, to shift William Boyland from the Brookdale campus,

19 where he had worked with the volunteers, over to Urban20 Strategists.

21 And you'll hear testimony that he was brought there to

22 be an outreach person; he was brought there because of his

23 contacts and his influence in the community with community

24 leaders. His home turf, if you will, bringing in the brand

25 name.


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1 Now, the government is going to parade witness after

2 witness that is going to say, Well -- as Mr. Harrington said in

3 his opening -- he didn't do any job; he didn't do anything for

4 Brookdale.

5 The evidence is going to show that Mr. Boyland's

6 duties, if you will, or his job, or the market outreach, all

7 occurred outside the office. He didn't work from the clinic.

8 There's no dispute that he didn't punch in after his election,

9 and he became a consultant in 2003. And there were problems

10 with him not punching in according to his supervisors before

11 his election. So this suggestion of a no-show job is really a

12 distraction from what was basically a good-will arrangement,

13 bringing on a Boyland to be the name and the face of an

14 outreach to a community and to build trust.

15 So when David Rosen came along with MediSys in

16 2000/2001, him being a veteran of the hospital industry, head

17 of Jamaica Hospital who knew his father, who knew that young

18 William Boyland was a district leader himself, had these ties

19 to the community, that he continued on in that position with20 Urban Strategies. And after he was elected, it made perfect

21 sense, perfect business sense. As every businessperson knows

22 that intangible called good will, good will to the community,

23 good will to the market that you are trying to capture and

24 growing to keep William Boyland on, gain the trust and

25 confidence of the community, as well as get the feedback from


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1 the community that no other source could rely.

2 And the evidence is going to show that unlike what

3 Mr. Harrington says, there was no secret about this

4 arrangement. You might think that a bribe would be paid under

5 the table, but there were no payments under a table.

6 Management -- and by "management," I mean the CFO of

7 this corporation, top people in payroll, people associated with

8 the executive staff -- all knew that William Boyland, Jr.,

9 after 2003, was being paid as a consultant. They all knew that

10 his line or he was shifted from a W-2 worker to a 1099. The

11 budget reports prepared for Brookdale showed him as a 1099

12 consultant. And everybody knew he did not have to punch, he

13 did not have to clock in, just like any other consultant.

14 You'll learn, too, that MediSys, in their required

15 filings with the state, revealed the relationship between them

16 and William Boyland. And you'll learn that William Boyland,

17 for his part, each year that it was required to at the

18 assembly, reported his consulting arrangement with Brookdale

19 Hospital.20 Now, every bribe has got to have its payoff. Why else

21 do you bribe someone?

22 This government would have you believe that for this

23 $35,000 a year for five, six years, they got three letters that

24 William Boyland wrote seeking funding for Brookdale Hospital

25 and Jamaica Hospital.


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1 What you're going to learn is that these letters are

2 really just an initial step and a process, a legislative

3 process, that is complex, that is involved, that involves

4 committee study, that is not an automatic by any means. But

5 what you're going to find out through testimony in this trial

6 is that William Boyland made other requests for funding, not

7 just for Jamaica Hospital, not just for Brookdale. But his

8 responsibilities as an assemblyman were to make such requests,

9 and he did so for other entities, even around the exact times

10 that he wrote these letters for Brookdale and for Jamaica. Of

11 course, you'll find out, as the government concedes, that none

12 of these requests even went anywhere, because, as I say, it is

13 a long, involved process. And the letters are absolutely no

14 guarantee of funding.

15 But, more importantly, you'll learn that David Rosen

16 and MediSys did not need a freshman assemblyman to be on the

17 take. They had their own lobby machine in place. They had

18 staff that prepared detailed presentations for budget proposals

19 to state agencies; they were people who were known and20 respected by the Department of Health and other agencies and

21 Dormitory Authority of the State of New York, for instance.

22 They had their own track record; they were respected. They had

23 their own lobby machine. They themselves -- and when I say

24 "they," I mean Rosen, his CFO, his COO -- would make their

25 regular trips to Albany and around to legislator after


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1 legislator presenting their budget meetings. They belonged to

2 hospital associations which traveled as a group and made

3 proposals.

4 They didn't need a freshman assemblyman on the take

5 year, after year, after year, after year, after year, after

6 year to write three letters. This is what you're going to hear

7 that makes this kind of case so distasteful, with these

8 allegations so distasteful. Bill Boyland's official acts and

9 any official act that is shown in this courtroom during this

10 trial were all totally consistent with his responsibility to

11 his community, to his district.

12 MR. HARRINGTON: Objection, your Honor.

13 THE COURT: Well, ladies and gentlemen, I'm going to

14 instruct you later at some length on the law, and it may be

15 that it will be a little bit different from what one counsel or

16 another may be arguing.

17 Remember that what counsel says is not only not

18 evidence, but they are not the persons from whom you take your

19 legal instructions. I will give you the precise relevant legal20 instructions in due course.

21 But against that background, I'll allow counsel to

22 continue.

23 MR. ROSENBERG: This is serious business. Don't let

24 suspicion, speculation, substitute for facts substitute for

25 evidence. Hold the government to its burden of proof in this


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1 case, proof beyond a reasonable doubt.

2 I submit that if you evaluate the evidence, and I

3 submit further if you evaluate the significant lack of evidence

4 in this case, pay close attention, follow Judge Rakoff's

5 instructions at the end of the case, and if you do that, you

6 will do your job as jurors in an American court of justice

7 when, after you have deliberated, you come back to this

8 courtroom and you say, William Boyland, you are not guilty.

9 Thank you.

10 THE COURT: All right.

11 Ladies and gentlemen, we are going to give you your

12 lunch break now. And you should be back in the jury room say

13 about two or three minutes before 2 o'clock so that we can

14 start promptly at 2 o'clock.

15 But you are excused till then.

16 You can just go back to the jury room and then

17 straight onto lunch.

18 (Jury excused)

19 THE COURT: Please be seated.20 So there were a number of statements that defense

21 counsel made in his opening statement that seemed to me legally

22 problematic.

23 For example, that defense counsel said something about

24 that the letters are just the first stage in the process. I

25 don't understand why that matters. If a bribe was paid to


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1B1VBOY2

1 obtain the writing of a letter, and that was just the first

2 step in the process, so what? It would still meet all the

3 requirements of the statutes that we're concerned with. In an

4 otherwise highly professional opening, I just think counsel

5 needs to be a little more punctilious.

6 MR. ROSENBERG: I'll just say this, Judge: I'm just

7 trying to convey to the jury that the briber has to have a

8 motive and a good reason to bribe. And it just throws some

9 question as to the reasonableness of such a bribe to write a

10 letter.

11 THE COURT: Well, if your argument was -- I mean this

12 is why I didn't sua sponte interrupt. If the argument was that

13 it's improbable that the parties would enter into this

14 agreement because this is trivial, or something like that, I

15 could see that might be an admissible argument. But the way it

16 came out, it could have been construed by the jury as, in

17 effect, no harm, no foul, which would not be a proper defense.

18 MR. ROSENBERG: Well, if it came out that way, it

19 wasn't meant that way.20 THE COURT: That's why I'm just saying we need to be

21 very careful here.

22 MR. ROSENBERG: OK.

23 THE COURT: I just wanted to flag that issue.

24 Yes.

25 MR. HARRINGTON: We are not asking the Court to


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1 revisit the decision that the Court made last week now, but I

2 do want to flag the issue now.

3 During his argument, Mr. Rosenberg made a very strong

4 case to the jury that there's no reason for David Rosen to

5 bribe; he has a lobbying machine, he has professional people

6 who can make charts; he has no motive to do this.

7 And we, in fact, have evidence that Mr. Rosen bribed

8 not just this defendant, but two others. And the response to

9 this argument the defense is making is really David Rosen had

10 many levels of power, and he would avail himself of the illegal

11 ones, as well.

12 THE COURT: Well, it's not a question of revisiting.

13 What you're saying is what I said at the time I made my ruling,

14 which is if anyone opens the door, they do so at their peril.

15 So if and when you think the door has been opened, we'll hear

16 argument on that issue at that time. But I guess, at a very

17 minimum, what you've done is flag the issue for all concerns.

18 MR. HARRINGTON: Yes.

19 THE COURT: All right.20 Anything else?

21 Very good.

22 We'll see you at 2 o'clock.

23 (Luncheon recess)

24 A F T E R N O O N S E S S I O N

25 2:09 P.M.


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1 (In open court; jury not present)

2 THE COURT: All right.

3 We are missing Juror No. 3, who -- please be seated --

4 who is Alternate No. 1 originally and, because of that

5 unfortunate tooth problem that the original Juror No. 3 had,

6 had to be substituted.

7 MR. BACHRACH: Your Honor, can I finish a housekeeping

8 matter?

9 THE COURT: Yes.

10 MR. BACHRACH: We provided your Honor this morning

11 with some new exhibits, new defense exhibits. One of them,

12 DX12, may have been the wrong -- we may have marked the wrong

13 exhibit. It's not something that we're going to bring in for a

14 couple more days, I don't think. So I haven't turned that one

15 over to the government yet because I don't think it's the right

16 exhibit. We hope to have that resolved by tomorrow morning. I

17 just wanted to alert you.

18 THE COURT: Oh, OK.

19 So since my father was a physician, I know that it is20 in the genes of physicians to keep everyone waiting; but, on

21 the other hand, I'm a little concerned, because that juror was

22 also the one who had expressed some disappointment with her --

23 sounded like a state court matter -- contract action that she

24 had.

25 But let's wait a few more minutes. I would say if


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1 she's not here by 20 after, I would be inclined maybe to

2 replace her. Let's wait and see.

3 All right. So we'll take a ten-minute break.

4 Now, this is very strange; very strange, indeed.

5 All the jurors are asked, of course, to fill out a

6 form with their name, address, phone number, and so forth, so

7 that we can reach them. And she did not fill out the form.

8 That really gives me pause.

9 MR. BACHRACH: Same juror, your Honor?

10 THE COURT: Same originally Alternate 1, now No. 3.

11 What happens is my courtroom deputy gives them a form,

12 just leaves it to them to fill it out and give it back. So we

13 didn't realize till now that every other juror had filled out

14 the form, of course, but not her.

15 Now, on the other hand, she seemed to be right from

16 the beginning attentively taking notes. So maybe I'm reading

17 too much into this.

18 My courtroom deputy points out, of course, we do

19 have -- down in the jury room we have independently her contact20 information; but that will only be if we feel we were going to

21 have to take some action.

22 All right.

23 Well, let's do this: Let's take a five-minute break.

24 And if she's not back, we'll reconvene and see where we are.

25 (Recess)


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1 THE COURT: So our fears are all unfounded.

2 Juror No. 3 had been a little late, but she was then

3 stuck in security. And she had actually called downstairs. So

4 we just found that out in chambers.

5 So she is now here, she has filled out the contact

6 information, and we are ready to proceed.

7 So let's get the witness on the stand, and let's bring

8 in the jury.

9 (Jury present)

10 THE COURT: So, ladies and gentlemen, we are about to

11 begin the taking of the evidence in this case.

12 The little delay that we just had makes me feel the

13 need to mention that the security line downstairs is

14 temperamental. Sometimes it takes two minutes to get through

15 security, and sometimes it takes 15 minutes. So bear that in

16 mind when you're planning ahead, because that can sometimes be

17 a problem.

18 So please call your first witness.

19 MR. MCGORTY: Thank you, your Honor.20 The government calls Phoebe Layne to the stand.

21 PHOEBE LAYNE,

22 called as a witness by the Government,

23 having been duly sworn, testified as follows:

24 THE DEPUTY CLERK: Please be seated.

25 State your name and spell it slowly for the record.


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transcript william f. boyland, jr. jury trial nov. 1, 2011

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