Harvey Smith

Case 2:10-cr-00083-JLL Document 30 Filed 09/09/10 Page 1 of 4 PageID: 70
WILLIS & YOUNG, P.C.

921 Bergen Avenue, Suite 525
Jersey City, New Jersey 07306
(201)-659-2090
Attorney for the Defendant, L. HARVEY SMITH
______________________________________________________________________
::
UNITED STATES OF AMERICA, :: UNITED STATES DISTRICT COURT
:: DISTRICT OF NEW JERSEY
Plaintiff, ::
:: CR. NO: 10-83
::
vs. ::
:: CRIMINAL ACTION
::
L. HARVEY SMITH, :: NOTICE OF MOTION TO DISMISS
:: INDICTMENT
Defendant, ::
_________________________________
TO: CLERK
US District Court
50 Walnut Street
Newark, NJ 07102
SIR/MADAM:
PLEASE TAKE NOTICE that the undersigned Attorney for the
Defendant, L. Harvey Smith, hereby moves, before the United States
District Court of New Jersey, for an Order:
1) Dismissing all Hobbs Act extortion counts in the

Indictment;
2) Dismissing the Federal Program Bribery Charge under 18

U.S.C. § 666;
3) Granting an evidentiary hearing on his entrapment

defense or, alternatively, permit him to explore on
cross-examination at trial all areas related to his
entrapment defense;
4) Dismissing the indictment on Due Process grounds based

on the Government’s outrageous misconduct;
5) Granting discovery and an evidentiary hearing regarding

the grand jury’s investigation of this case;
6) Granting a bill of particulars;
7) Compelling the Government to produce at this time

discovery materials under Rule 16, 404(b) evidence,
trial exhibits, Brady/Giglio evidence, and all Jencks
materials;
8) Compelling the Government to provide a list of all co-

conspirator statements that will be introduced in their
case-in-chief and scheduling a James hearing, a
minimization hearing, and a hearing to determine the
authenticity and admissibility of the recorded
conversations;
9) Compelling the Government to provide additional

discovery, including but not limited to the most recent
and updated version of the Department of Justice’s
guidelines regarding the use of confidential informants
and/or any other official guidelines that governed the
responsibilities and/or obligations between the
Government and Solomon Dwek, in his capacity as
cooperating witness; and
10) Permitting L. Harvey Smith to file additional motions

as necessary.
__/s/ Peter R. Willis_

PETER R. WILLIS, ESQ.
Attorney for Defendant
DATED: September 8, 2010

(201)-659-2090
Attorney for the Defendant, L. HARVEY SMITH
________________________________________________________________________
::
UNITED STATES OF AMERICA, :: UNITED STATES DISTRICT COURT
Plaintiff, ::
::
:: CR. NO. 10-83
vs. ::
:: CRIMINAL ACTION
::
L. HARVEY SMITH, :: ATTORNEY CERTIFICATION
::
Defendant, ::
___________________________________
PETER R. WILLIS, ESQ., an attorney at law of the State of New
Jersey, with offices located at 921 Bergen Avenue, Suite 525, Jersey
City, New Jersey 07306, hereby certifies the following:
1. I am the attorney of record in the above-captioned matter and am

familiar with the facts of the case.
2. I have served this Motion, Certification, Proposed form of Order
and Brief upon Assistant United States Attorney Jenny Kramer.
3. I HEREBY CERTIFY that the foregoing statements made by me are true
to the best of my knowledge. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject
to punishment.
Respectfully submitted,
_/s/ Peter R. Willis______

PETER R. WILLIS, ESQ.
ATTORNEY FOR THE DEFENDANT
L. Harvey Smith
Dated: September 8, 2010

(201) 659-2090
Attorney for Defendant, L. HARVEY SMITH
________________________________________________________________________
::
UNITED STATES OF AMERICA, :: UNITED STATES DISTRICT COURT,
Plaintiff, ::
::
:: CRIM. NO. 10-83
vs. ::
::
L. HARVEY SMITH, :: PROPOSED ORDER
::
Defendant(s) ::
_________________________________
THIS matter having been opened to the Court by Peter R. Willis, Esq.,
of Willis & Young, P.C. attorney for defendant L. Harvey Smith
requesting an Order Dismissing the Indictment and the United States
Attorney, by Jenny Kramer, Assistant United States Attorney, appearing
and for good cause shown,

IT IS on this day of September, 2010;
ORDERED that for the reasons set forth, Defendant L. Harvey Smith’s
Motion is hereby Granted:
______________________________
HON. JOSE L. LINARES, USDJ
Case 2:10-cr-00083-JLL Document 30-1 Filed 09/09/10 Page 1 of 81 PageID: 74
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
INDICTMENT NO. 10-83
UNITED STATES OF AMERICA,: CRIMINAL ACTION

:
Plaintiff, :
:
:
:
L. HARVEY SMITH, :
:
Defendant :
:
BRIEF ON BEHALF OF DEFENDANT

L. HARVEY SMITH
Willis & Young

Peter R. Willis, Esq.
Jersey City, NJ 07306
201-659-2090 (telephone)
201-659-1964 (fax)
On the Brief:
AnnMarie Harrison, Esq.

TABLE OF CONTENTS
TABLE OF AUTHORITIES --------------------------------------- 1
PRELIMINARY STATEMENT -------------------------------------- 4
PROCEDURAL HISTORY AND STATEMENT OF FACTS ------------------ 7
LEGAL ARGUMENT --------------------------------------------- 30

POINT ONE --------------------------------------------- 30
THE HOBBS ACT EXTORTION COUNTS SHOULD BE
DISMISSED BASED ON THE STATUTE’S PLAIN LANGUAGE
AND ITS VAGUENESS AS APPLIED TO SMITH’S CASE.
POINT TWO --------------------------------------------- 41
THE SECTION 666 BRIBERY COUNT SHOULD BE

DISMISSED BECAUSE IT WAS NOT INTENDED TO APPLY
TO THE FACTS ALLEGED HERE AND REQUIRES PROOFS
THAT DO NOT EXIST IN THIS CASE.
POINT THREE ------------------------------------------- 45
ALTERNATIVELY, SMITH’S ENTRAPMENT DEFENSE MUST

BE FLESHED OUT AT A PRETRIAL EVIDENTIARY
HEARING OR, AT LEAST, RULED AN APPROPRIATE
TOPIC FOR BROAD CROSS-EXAMINATION
AT TRIAL.
POINT FOUR -------------------------------------------- 50
THE CONDUCT OF THE GOVERNMENT AND ITS AGENTS IS

SO OUTRAGEOUS THAT IT VIOLATES SMITH’S
CONSTITUTIONAL DUE PROCESS RIGHTS.
POINT FIVE -------------------------------------------- 56
DISCOVERY AND AN EVIDENTIARY HEARING RELEVANT

TO THE GRAND JURY INVESTIGATION OF THIS CASE IS
NECESSARY TO EXAMINE THE PROPRIETY OF THE LEGAL
STANDARDS GIVEN
i
TO THE JURORS
POINT SIX --------------------------------------------- 59
A BILL OF PARTICULARS IS NECESSARY TO ALLOW

SMITH TO DEFEND PROPERLY HIS CASE.
POINT SEVEN ------------------------------------------- 62
THE GOVERNMENT SHOULD RELEASE IMMEDIATELY TO

THE DEFENSE ALL DISCOVERY UNDER RULE 16.
POINT EIGHT ------------------------------------------- 64
THE GOVERNMENT SHOULD DESCRIBE IN ADVANCE THE

GENERAL NATURE OF ANY EVIDENCE OF OTHER CRIMES,
WRONGS, OR ACTS THAT IT INTENDS TO INTRODUCE AT
TRIAL UNDER RULE 404(B)
POINT NINE -------------------------------------------- 65
THE GOVERNMENT SHOULD PRODUCE IMMEDIATELY ALL

BRADY AND GIGLIO MATERIALS.
POINT TEN --------------------------------------------- 66
THE GOVERNMENT SHOULD PRODUCE IMMEDIATELY ALL

JENCKS MATERIALS
POINT ELEVEN ------------------------------------------ 67
THE GOVERNMENT SHOULD DESIGNATE ALL CO-

CONSPIRATOR STATEMENTS THAT WILL BE INTRODUCED
AT TRIAL AND THE COURT SHOULD HOLD THE
APPROPRIATE HEARINGS REGARDING USE
OF SUCH STATEMENTS.
ii
POINT TWELVE ------------------------------------------ 73
SMITH REQUESTS ADDITIONAL DISCOVERY TO AID IN

PREPARING HIS DEFENSE AND ENSURING HIS DUE
PROCESS AND FAIR TRIAL RIGHTS.
POINT THIRTEEN ---------------------------------------- 75
SMITH REQUESTS PERMISSION TO FILE ADDITIONAL

MOTIONS.
CONCLUSION ------------------------------------------------- 75
iii
Cases Page
Borden v. School Dist. of Tp. East Brunswick, 523

F.3d 153(3d Cir. 2008) ........................................... 40
Bouie v. City of Columbia, 378 U.S. 347 (1964) ...... 39
Bourjaily v. United States, 438 U.S. 171(1987) ...... 69
Brady v. Maryland, 373 U.S. 83 (1963) ................ 66
Butterworth v. Smith, 494 U.S. 624 (1990) .......... 58
Carter v. Rafferty, 826 F.2d 1299(3d Cir. 1987), cert.
denied, 484 U.S. 1011 (1988) ............................ 67
Douglas Oil Co. of California v. Petrol Stops
Northwest, 441 U.S. 211 (1979) ................................ 59
Evans v. United States, 504 U.S. 255 (1992) ........ 34
Giglio v. United States, 405 U.S. 150 (1972) ... 66,67
Greene v. United States, 454 F.2d 783 (9th Cir. 1971).. 53
Hampton v. United States, 425 U.S. 484 (1976) ... 47, 53
Kolender v. Lawson, 461 U.S. 352 (1983) .............. 40
Pittsburgh Plate Glass v. United States, 360 U.S. 395
(1959) .................................................. 58
Posters 'W ' Things, Ltd. v. United States, 511 U.S.
513(1994) ................................................................ 40
Scott v. United States, 436 U.S. 128(1978) .......... 72
United States v. Addonizio, 451 F.2d 49(3d Cir. 1972)
......................................................... 61
United States v. Ammar, 714 F.2d 238 (3d Cir. 1983)..... 70
United States v. Antico, 275 F.3d 245 (3rd Cir. 2001) .. 34
United States v. Armocida, 515 F.2d 29 (3d Cir. 1975) .. 72
United States v. Bagley, 473 U.S. 667 (1985) ......... 67
United States v. Besmajian, 910 F.2d 1153 (3d Cir. 1990) 32
United States v. Bortnick, 2004 WL 3029731, *6 (E.D. Pa.
Dec. 30, 2004) ....................................................59
United States v. Bryant, 556 F. Supp. 2d 378 (D.N.J. 2008)
...................................................... 37,32
United States v. Cicco, 938 F.2d 441 (3d Cir. 1991) ...44
United States v. Continental Group, Inc., 603 F.2d
444 (3d Cir. 1979)...............................................70
United States v. Delle Donna, 552 F. Supp. 475, 2008
WL 1961485, *5 (D.N.J. March 14, 2008) .........................32
United States v. Eufrasio, 935 F.2d 553 (3d Cir. 1991) ... 61
United States v. Evangelista, 813 F. Supp. 294 (D.N.J.
1993) ................................................... 66
United States v. Fedroff, 874 F.2d 178 (3d Cir. 1989)
................................................. 7, 48, 49
United States v. Higgs, 713 F.2d 39 (3d Cir. 1983) . 67
United States v. Hodge, 211 F.3d 74 (3d Cir. 2000) . 32
1
United States v. Hull, 456 F.3d 133 (3d Cir. 2006) . 72

United States v. James, 590 F.2d 575 (5th Cir. 1979)
........................................................ 69,70
United States v. Jannotti, 673 F.2d 578 (3d Cir.
1982),cert, denied, 457 U.S. 1106 (1982) .......... 48, 52
United States v. Kemp, 500 F.3d 257 (3d Cir. 2007) .. 32
United States v. Lanier, 520 U.S. 259 (1997) ........ 39
United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976) . 44
United States v. Mahoney, 495 F. Supp. 1270 (E.D. Pa.
1980)..................................................... 58
United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir.
1998) .................................................... 53
United States v. Pervez, 871 F.2d 310 (3d Cir. 1989)
......................................................... 47
United States v. Pitt, 193 F.3d 751 (3d Cir. 1999) . 52
United States v. Reynoso-Ulloa, 548 F.2d 1329(9th Cir.
1977), cert, denied, 436 U.S. 926 (1978) ................... 49
United States v. Rosa, 891 F.2d 1063 (3d Cir. 1989) 61
United States v. Russell, 411 U.S. 423 (1973) ...... 47
United States v. Starusko, 729 F.2d. 256 (3d Cir.
1984) .................................................... 67
United States v. Twersky, 1994 WL 319367, *4 (S.D.N.Y.
June 29, 1994).................................................... 59
United States v. Twigg, 588 F.2d 373 (3d Cir. 1978).
................................................... 52,53,55
United States v. Urban, 404 F.3d 754 (3d Cir. 2005),
cert. denied, 546 U.S. 1030 (2005) ..........................61
United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996) 52
United States v. Weaver, 267 F.3d 231 (3d Cir. 2001) ...... 68
United States v. Wecht, 2007 WL 3125096, *5 (W.D. Pa. Oct.
24, 2007)................................................ 33
United States v. West, 511 F.2d 1083 (3d Cir. 1975) 53
United States v. Whittaker, 999 F.2d 38 (2d Cir. 1993)
................................... .................... 41
Statutes
18 U.S.C. § 1951(a) ................................... 33, 40
18 U.S.C. § 1951(b)(2) .................................... 40
18 U.S.C. § 2518(5) ....................................... 71
18 U.S.C. § 2518(6) ....................................... 73
18 U.S.C. § 3500(a) ....................................... 68
18 U.S.C. § 666(a)(1)(B) .................................. 43
N.J.S.A. 52:13D-14 ........................................ 39
Other Authorities
Black's Law Dictionary 177 (8th ed. 2004) .................... 61
N.J. Legis. Code of Ethics 2:3a.(2) (a)-(c) .................. 36
N.J. Legis. Code of Ethics 2:2 ............................ 36
Ind. Ct. I ........................................... passim
2
Ind. Ct. II .......................................... passim

Ind. Ct. Ill ......................................... passim
Ind. Ct. IV ........................................... passim
Ind. Ct. V ............................................ passim
Ind. Ct. VI .......................................... passim
Matt Dowling, "Cooperating witness Solomon Dwek emerges as
cornerstone of N.J. corruption sting," The Star-Ledger
(July 23, 2009) .......................................... 54
Ted Sherman, "FBI informant Solomon Dwek has whirlwind N.J.
corruption tour," The Star-Ledger (Oct. 25, 2009) .... 54
Rules
Fed. R. Crim. P. 6{e)(3)(E)(ii) ........................... 59
Fed. R. Crim. P. 7(c)(1) .................................. 32
Fed. R. Crim. P. 7{f) ..................................... 60
Fed. R. Crim. P. 16 (a) (1) (A) & (B) ........................... 64
Fed. R. Evid. 404(b) ................................. 64,65
Fed. R. Evid. 801(d)(2)(E) ................................ 69
3
Preliminary Statement
Long-time public servant and now former State
Assemblyman L. Harvey Smith (“Harvey Smith”) is one of
forty-four individuals arrested on July 23, 2009, as part
of Operation Bid Rig, a joint effort by the Federal Bureau
of Investigation, the Internal Revenue Service, and the
United States Attorney for the District of New Jersey.
Like many other high-level New Jersey elected officials
arrested that day, Smith was indicted ultimately on
political corruption charges, namely, for allegedly
accepting bribes from a Government informant in exchange
for his political assistance. And, like all of the others
arrested, a group that includes public servants, political
operatives, elected officials, candidates for office and
even orthodox rabbis, Smith must discredit Solomon Dwek, an
unscrupulous Government witness who sits at the core of the
Government’s prosecution. Dwek is a disgraced member of
the Syrian Jewish community in Deal, New Jersey, who
relished an opportunity as a confidential witness as a way
to reduce his criminal exposure for orchestrating a $50
million bank fraud and laundering more than $22 million of
the fraudulent proceeds. Among other things, Dwek has
admitted to carrying out his criminal scheme by lying to,
4
stealing from, cheating, and swindling dozens of investors,
including his own uncle.
None of this information, however, is novel. A number
of the defendants have appeared already before this Court.
Some have pleaded guilty. Some have elected a jury trial.
Some have begun serving sentences this Court has imposed.
Others are awaiting sentencing. But any comparisons among
the various prosecutions or defendants must end here; put
simply, Smith cannot be lumped in with the rest.
Critically, when the relevant proofs are put forward, the
evidence in this case will show beyond a reasonable doubt
that Smith never accepted any bribes from Dwek and lacked
the intent to commit the crimes charged. Smith never
offered to do anything illegal for Dwek or boasted about
his ability or desire to afford him preferential treatment.
Even if the Government’s evidence demonstrates that Smith
offered to inquire about or support Dwek’s purported
development projects, this evidence establishes nothing
more than that Smith was performing his political duties.
Smith did not take any bribes.
Alternatively, even assuming that the evidence
supports a conclusion that, instead, Smith succumbed to
Dwek’s ruthless, take-no-prisoners tactics, the defense is
prepared to introduce compelling evidence that Smith was
5
entrapped. More specifically, voluminous evidence will
demonstrate that Dwek, posing as David Esenbach and acting
as the Government’s agent, preyed on Smith by initiating
the criminal activity he has been charged with and
ensnaring an inactive and unwilling participant. This
evidence will show further that, fueled by unabated greed,
Smith’s long-time colleagues and once-trusted friends,
Jersey City Housing Authority Commissioner Edward Cheatam
and Democratic political consultant Jack Shaw, struck a
lucrative side-deal with Dwek. They profited for
successfully introducing Dwek to and setting up meetings
with political officials. For all intents and purposes,
they were Dwek’s de facto agents and participated in luring
Smith, who they knew had a sterling reputation and was, to
put it colloquially, “straight as an arrow”.
Yet, even taking the Indictment as true, the defense
gleans the impression that the Government is grasping for a
wink and a nod that Smith and Dwek never exchanged. This
is not a case where the accused promised Dwek that they
would help each other or that he would treat him as a
friend. This is not a case where the accused crowed about
preferential treatment for supporters versus non-
supporters. And, this is not a case where the accused
promised that Dwek’s projects would “sit at the top of the
6
pile” or enjoy expedited handling. No, this is Harvey
Smith’s case, and the evidence will speak for itself.
Procedural History & Statement of Facts1
Harvey Smith, a former teacher, served three terms as
a Jersey City councilman, during which he spent four years
as City Council President. He also served in the State
Senate from November 2003 though January 2004, sworn in to
fill the remainder of a resigned senator’s term. After
leaving the State Senate, Smith was appointed as an
Undersheriff of Hudson County. He took a leave as
Undersheriff to serve as Acting Mayor of Jersey City from
May 25, 2004 through November 11, 2004. He then returned
to that position. After winning an uncontested election in
November 2007, Smith served one term as a New Jersey
General Assemblyman from January 8, 2008 to January 10,
2010, as a representative of the 31st legislative district.2
To state the obvious, Smith has been a fixture in local and
State politics for many years.
1
The recitation here is based largely on a compilation of court documents, government
press releases, wiretap affidavits, audiotapes and videotapes, newspaper articles, online
articles, and other discovery materials.
2
When his term expired in January 2010, Harvey Smith did not seek reelection.
7
On July 23, 2009, Smith was arrested as part of
Operation Bid Rig and charged with knowingly and willfully
conspiring to commit extortion under color of official
right by accepting bribes, which violates 18 U.S.C. §
1951(a)(2). Later, a grand jury indicted Smith on six
counts: (1) conspiracy to obstruct commerce by extortion
under color of official right (count one), which violates
18 U.S.C. § 1951(a); (2) attempted obstruction of commerce
by extortion under color of official right (counts two and
three), which violates 18 U.S.C. § 1951(a) and § 2; (3)
acceptance of corrupt payments (counts four and five),
which violates 18 U.S.C. § 666(a)(1)(B) and § 2; and (4)
money laundering (count six), which violates 18 U.S.C. §
1956(a)(1)(B)(i) and § 2.
The Indictment names or describes four other
individuals allegedly involved in the conduct at the heart
of the case. Edward Cheatam, the Affirmative Action,
elected member of the Jersey City Board of Education and an
Officer for Hudson County and Commissioner on the Jersey
City Housing Authority3, is specifically identified. The
others are presumably Richard Greene, who was Smith’s
acquaintance, Jack Shaw, a political consultant, and
3
Additionally, Cheatam was Deputy Mayor of Jersey City when Smith served as Acting
Mayor.
8
Solomon Dwek (described as the “CW”), a convicted fraudster
and the Government’s confidential witness. Working under
the alias David Esenbach, Dwek (for ease of reference, he
is hereinafter referred to throughout this brief as Dwek,
not Esenbach) held himself out to Smith and others as a
real estate developer interested in development in Jersey
City and surrounding areas.
Overall, the Indictment alleges that these individuals
conspired together to commit a number of offenses and Smith
reaped the benefits of this conspiracy. This is what the
Government says. What the Government does not say and has
not said in the context of any other related prosecution is
that, unbeknownst to Smith or any other similarly situated
individual, Dwek, Cheatam, and Shaw had formed their own
illicit agreement. Essentially, Cheatham and Shaw agreed
to act as snares in Dwek’s self-serving pursuit of
attempting to bribe politicians; every time Cheatam and
Shaw orchestrated a fruitful meeting between Dwek and a
local political figure, Dwek would pay them handsomely.
More specifically, if Dwek succeeded in getting an official
to accept a bribe, he would pay that same amount of money
to Shaw and Cheatam. So, controlled by their insatiable
appetites for cash, Cheatam and Shaw closed their eyes to
long-time personal and professional relationships and any
9
sense of right from wrong. With Dwek as their proverbial
cash cow, they rolled up their sleeves and got to work –
they hand-picked political figures to meet with Dwek,
established and maintained contact, and served as illicit
liaisons between Dwek and them.
The wiretap evidence reveals critical information
regarding the side-deal that Dwek struck with Cheatam and
Shaw. Significantly, too, ample evidence shows that
Cheatam and Shaw played, at times, fast and loose with
Dwek, lying that they gave money to targeted political
officials when, in fact, they hoarded it for themselves.
Crucial wiretap evidence includes, but is not limited to,
the following:
• January 7, 2009 – Cheatam agrees, per Dwek, to

rig the bidding process on a tile job for a school
development project. He agrees to rig the process
in Dwek’s favor by disclosing to him if another
bidder’s price was cheaper and instructing him as
to whether he had to submit a lower bid. Cheatam
explains to Dwek that he would introduce him to
“the right people” and agrees that such people had
to be people that Cheatam and Dwek could trust.
(March 12, 2009 Affidavit of FBI Special Agent
Donald Russ).
• January 7, 2009 – Cheatam explains to Dwek that

he could arrange a meeting with Joseph Doria
regarding DCA inspections of Dwek’s various
properties. Cheatam agrees with Dwek that all
payments to Doria should be made through Cheatam.
Cheatam also explains that he would introduce him
to Shaw, who would further facilitate his corrupt
dealings with Doria.
10

Donald Russ).
• February 12, 2009 – Shaw advises Dwek that Doria

and Shaw have been personal friends for thirty
years. Shaw agrees with Dwek to “come on board”
with him to “expedite” matters with the DCA,
including DCA “approvals” for Dwek’s real estate
development interests “through Doria”. In
exchange, Shaw agrees to accept from Dwek “$10,000
to start” and “more and more” as Dwek received
approvals. (March 12, 2009 Affidavit of FBI Special
Agent Donald Russ).
• February 16, 2009 – Cheatam agreed that Dwek

should provide Shaw with $10,000 for Doria and an
additional $10,000 each to Shaw and Cheatam for
their assistance with Doria. (March 12, 2009
Affidavit of FBI Special Agent Donald Russ).
• February 17, 2009 – Shaw and Dwek agree that

whatever sum of money Dwek gives him for Doria, he
will give him the same amount to keep. They agree
also that Shaw would accept from Dwek “10 and 10” –
two $10,000 cash payments: one for Shaw and one for
Doria.
Shaw thanked Dwek and stated that he hope that the
two had a long “relationship” that was “good for”
Dwek and “good for us”.
Donald Russ; Feb. 17, 2009 Videotape).
• March 20, 2009 – Cheatam and Shaw agree to accept

$10,000 each from Dwek at an upcoming meeting:
$5,000 each for the “Joe [Doria] thing” and $5,000
each to “convert” for Healy. (March 31, 2009
• March 20, 2009 - Shaw and Cheatam discuss how it

is “refreshing” to “deal with” someone like Dwek
and they wanted to keep the “ball rolling.” (April
2009 Affidavit of FBI Special Agent Donald Russ).
• March 21, 2009 - Shaw and Cheatam discuss their

efforts to assist Dwek with his real estate
11
development interests in Plainfield and Bayonne.

They confirm that meetings with two Jersey City
Council candidates have been set. They agree that
Dwek had been “planting a lot of seeds” with
various government officials in New Jersey. (April
• March 24, 2009 – Shaw and Jimmy King, candidate

for the Jersey City Council, discuss meeting with
Dwek. Shaw tells King, “Do me a favor and turn on
the Irish charm about me so this guy [Dwek] thinks
he’s getting what he’s paying for.” (April 2009
• March 24, 2009 – Shaw and Cheatam discuss their

plans for Dwek, agreeing: “Let’s get him to give
these three candidates [Lori Serrano, Lou Manzo,
and King] money, let’s get him to buy the spaghetti
factory and let’s get him to buy Orange.” (April
• March 25, 2009 – Cheatam explains to Shaw that he

would “tell each o of them [Serrano and Lavern
Washington] don’t take anything from [Dwek] at all
until, you know, I want to make sure they go
through us.” (April 2009 Affidavit of FBI Special
Agent Donald Russ).
• March 30, 2009 – Cheatam and Shaw discuss

scheduled meetings with Dwek, King, and Washington.
About King and Washington, Cheatam said, “Let’s
spread them out fifteen minutes difference, okay?”
Shaw agreed and asked Cheatam, “How are we
operating this? [King and Washington are coming
into the restaurant to see [Dwek]?” Cheatam
responded, “Yes they are coming in to see Dwek and
then whatever conversation you want and then
they’ll leave.” Shaw agreed and then asked Cheatam,
“And then how are we dealing with the money?”
Cheatam responded to Shaw that they would “talk to
[Dwek] about the money.” (April 2009 Affidavit of
FBI Special Agent Donald Russ).
• April 8, 2009 – Cheatam and Shaw discuss the

political officials they have hand-picked to
introduce to Dwek, including but not limited to:
William Gaughan, King, Peter Brennan, Serrano,
12
Washington, and Cammarano. They discuss the times

and meetings “booked”. (May 1, 2009 Affidavit of
FBI Special Agent Donald Russ).
• April 14, 2009 – Cheatam and Shaw discussed

Smith, who was then a candidate for Jersey City
Mayor. Cheatam noted that “definitely, [Dwek’s]
gonna sit down with Harvey, too.” (May 1, 2009
• April 21, 2009 – Cheatam and Shaw met with Dwek.

Shaw and Cheatam set forth the schedule and
identities of individuals with whom they would be
meeting as well as the amounts of money to be paid
to certain public officials. (May 1, 2009
• April 22, 2009 – Shaw asked, “When are we doing

Harvey?” Cheatam informs Shaw that the meeting is
set. They also discuss setting up a meeting with
Mayor Healy. Cheatam says, “Whatever time he’s
available, we’ll, we’ll bring [Dwek] on in and
knock it out.” (April 2009 Affidavit of FBI Special
Agent Donald Russ).
• May 21, 2009- Cheatam and Shaw discuss

confrontation with Dwek regarding Shaw’s account of
what Shaw had done with the payoffs that Dwek had
provided to him for Joe Doria. Dwek had pointed out
to Cheatam that Shaw had initially told Dwek he
gave payoffs to Doria, but then later contradicted
himself when he said that he had given the money to
the President of St. Peter’s College at Doria’s
direction to do so to benefit Doria’s daughter.
Cheatam and Shaw then lie to each other as to the
stories they told Dwek in an effort to resolve
Shaw’s inconsistent statements.
(May 29, 2009 Affidavit of FBI Special Agent Sean
McCarthy)
• June 5, 2009 – Shaw and Cheatam discuss setting

up a meeting with the Mayor of Bayonne, Mark Smith.
Shaw said, “’I’m just trying to get Dwek to buy
something so we can get paid.’” Cheatam responded,
“’Right? Absolutely. That’s what I’m talking
about. (July 2009 Affidavit of FBI Special Agent
Sean McCarthy).
13
• June 7, 2009 – Though Shaw and Cheatam suspect

Dwek may be an FBI informant, they continue to
cement their relationship with them. They say
“everybody thinks” he is an informant and ridicule
his development plans as “amateurish” and
“bullshit”. (June 7, 2009 Audiotape).
• June 10, 2009 – Shaw and Cheatam discuss their

desire to reap more money from Dwek. “Likely
referring to compensation for Cheatam and himself,
Shaw then remarked that ‘we gotta, we gotta figure
out some way to get some checks out of [Dwek],’
prompting Cheatam to respond ‘[y]es, absolutely.’
Shaw added, “’[or] some money somewhere out of
[Dwek].” Cheatam then told Shaw that “’I’ll make a
suggestion to [Dwek], eh, you know, make it
official. I’m your consultant, you’re just
funneling to me.’” (Dwek has paid Shaw and Cheatam
on numerous occasions, with Cheatam most recently
receiving $5,000 on June 2, 2009, for their
assistance in facilitating corrupt payments to
public officials, but they have never been hired by
Dwek as consultants.) Shaw then clarified to
Cheatam that “’I mean, and, and, and I’m talking
about money for you and me.’” Both complained that
they were on a “’dry streak’” and that Dwek
“’spoiled’” them. Shaw added, “’yeah, and I’ve been
working my ass off now – more than I was before.’”
Cheatam told Shaw that “’I want [Dwek] to see us
working so that we can, you know, pull down some
more.’” (June 26, 2009 Affidavit of FBI Special
Agent Sean McCarthy; June 10, 2009 Audiotape).
• June 12, 2009 – Cheatam tells Shaw that “’[Dwek]

is nothing more than a broker.’” Shaw agreed and
said that Shaw and Cheatam also were “’brokers’”.
Shaw continued, “’All we need is some money now.’”
Cheatam agreed, “That’s all we need, that’s all we
need, absolutely.’” Shaw said, “’You and I need
some cash.’” (July Affidavit of Special Agent Sean
McCarthy; June 12, 2009 Audiotape).
• June 17, 2009 – Cheatam and Shaw discuss moving

ahead on a particular project with Dwek. Shaw
states, “’Well, one of the things I want to know
out of this before I move ahead on other projects
14
with [Dwek] is I want to know how much am I getting

paid for this project and when am I getting paid
for this project . . . .” (July Affidavit of FBI
Special Agent Sean McCarthy).
• June 17, 2009 – Cheatam and Shaw discuss the fact

that they had helped secure Dwek a potentially very
lucrative development deal. Cheatam says that they
need to sit down with Dwek and tell him, “’[C]ome
on now. Put us on now. Put us on.’” Shaw, realizing
that Cheatam was referring to a formal consulting
contract with Dwek, stated “’we need to have some
regular flow of income here.’” (June 26, 2009
Affidavit of FBI Special Agent Sean McCarthy).
• June 19, 2009 – Cheatam and Shaw meet with Dwek.

Cheatam suggests that Dwek put them on “some sort
of a retainer.” Dwek agrees to give Shaw and
Cheatam $5,000 per month and then make them his
partners on the purported development projects.
(July Affidavit of FBI Special Agent Sean McCarthy;
June 18, 2009 Audiotape).
• July 22, 2009 – Cheatam and Shaw discuss an

upcoming meeting with Dwek. They specifically
discuss a demand to increase their monthly payment
from Dwek. Shaw says Doria is getting nervous that
Dwek is an FBI Agent. At the meeting, when Dwek
offers to increase their monthly fee from $5,000 to
$10,000, Cheatam adds that he and Shaw had been
thinking “’they came in a little too cheap.’” (July
Affidavit of FBI Special Agent Sean McCarthy; July
22, 2009 Audiotape).
The Indictment
According to the Indictment, Smith, Cheatam, Shaw and
“others” conspired from April 2009 through July 2009 to
extort cash payments and “illegal[ly] structured” campaign
contributions from Dwek in exchange for Smith’s “official
assistance, action and influence” in State and local
15
government matters. Ind., Ct. I, ¶ 2. The object of the
conspiracy was allegedly to “accept and agree to accept”
from Dwek such payments and contributions “for the benefit
of defendant Smith in a concealed manner, through
intermediaries” in exchange for Smith’s “official
assistance, action and influence.” Ind., Ct. I, ¶ 3.
Indictment’s Allegations Regarding the

April 24, 2009 Meeting
The Government alleges that an April 24, 2009
restaurant meeting involving Smith, Cheatam, Shaw, and Dwek
is “part of the conspiracy.” Ind., Ct. I, ¶ 4(A). During
that meeting, Dwek discussed his interest in conducting a
development project on Garfield Avenue in Jersey City (the
“Garfield Avenue Project”). The Indictment reads:
“Defendant Smith was further informed by [Dwek] that [Dwek]
was seeking help expediting an anticipated zoning change
with respect to the Garfield Avenue Project, and that
[Dwek] wanted to make sure that he had [D]efendant Smith’s
support.” Ind., Ct. I, ¶ 4(A).
While Smith briefly left the table, Cheatam told Dwek
to hand him any money intended for Smith: “Give it to me
and I’ll have to give it to [Defendant Smith]. [Defendant
Smith] won’t take it himself . . .” Dwek stated, “oh so you
16
gotta give it to him, he won’t take it from me?” According
to the Indictment, Cheatam represented to Dwek that Smith
understood that Dwek wanted him to assist with the Garfield
Avenue Project. Ind., Ct. I, ¶ 4(B).
When Smith returned to the table, Cheatam said:
“[Dwek] . . . is a very generous person and he likes
working with people. He’s going to make a contribution to
your campaign [for Jersey City Mayor]. His only thing is
that his name is not connected to it, nor my name, nor
[Shaw’s] name. He’ll give you something now and you make
the run-off and he’ll keep contributing to you, to your
success.” Ind., Ct. I, ¶ 4(C). Dwek added that he would
give him $5,000 then, $5,000 after a run-off, and $5,000
post-election, provided that he did not use his name.
Smith told him, “I can only put the name on the check that
is, who the check’s coming from.” Ind., Ct. I, ¶ 4(C).
Cheatam told him that there is no check. Smith told him,
“I understand and that’s going to be difficult for me to
deal with.” Dwek responded, “Deal with [Cheatam] on it.”
Ind., Ct. 1, ¶ 4(C). According to the Indictment, “Cheatam
indicated to Defendant Smith that they would use Smith’s
associate, [Richard Greene], as an intermediary and that
Smith’s associate would give the corrupt payment to
Defendant Smith.” Ind., Ct. I, ¶ 4(C).
17
What The Tapes Reveal Regarding the

April 24, 2009 Meeting
“I don’t do quid pro quo. Ed [Cheatam] will tell you
how I operate,” Smith told Dwek in no uncertain terms.
(emphasis added). The tapes reveal that Smith had no
intent to take unlawfully anything from Dwek. In fact,
Smith never promised to do anything for Dwek that he would
not do for any other constituent. When Dwek asked for his
help in expediting his Garfield Avenue Project, Smith had
no comment. Though Cheatam and Dwek tried to scheme about
who owed Smith some favors, Smith disregarded this.
Instead, he explained to Dwek about some legislation that
might be useful.
Unbeknownst to Smith, Cheatam would not ever tell Dwek
how he only did honest business because Cheatam had turned
on him. Instead, Dwek and Cheatam continued scheming.
When Smith left the table that day, Dwek voiced his
concerns that Smith would not take any money from him.
Cheatam reassured him, stating he personally would accept
the money for Smith.
When Smith returned to the table, Cheatam tried to
convince him that Dwek was a “very generous person” who
would like to make a campaign contribution, provided that
18
it was not linked to him personally. Smith was
disinterested: “I can only put the name on the check that
is of who it is coming from.” Responding to Dwek’s comment
“You understand my French I don’t want any conflicts,”
Smith said: “I understand but that’s going to be difficult
for me to deal with.”
Before leaving the meeting, Smith’s parting words to
Dwek were: “I don’t do quid pro quo. Ed [Cheatam] will
tell you how I operate. When Smith left, Dwek, Cheatam,
and Shaw continued plotting:
Dwek: Is this guy going to help me out or what?
Cheatam: He’ll help you.
Dwek: He’s tough.
Shaw: When he was the mayor he was the best

mayor we had in 30 years.
Dwek: The thing is he doesn’t want no cash –

How are we going to operate with this
guy.
Dwek: Maybe you can talk to him and straighten

him out.
Cheatam: If not I have people I can give the cash

to and they give him the checks.
Dwek: I don’t do quid pro quo. What’s that

suppose[d] to mean?

April 30, 2009 Meeting & $5,000 Payment
19
Next, the Government alleges that an April 30, 2009
restaurant meeting involving Smith, Smith’s associate
[Greene], Cheatam, Shaw, and Dwek is also “part of the
conspiracy.” Ind., Ct. I, ¶ 4(D). The Indictment alleges
that before Smith arrived, Dwek and others discussed taking
care of business with Greene after they finished their
breakfast. Ind., Ct. I, ¶ 4(D). When Smith arrived, Dwek
said, “I didn’t know you were still on the Assembly.” When
Smith responded affirmatively, Dwek said, “I was telling
[Greene and Cheatam] that I might need something [from
you].” Smith interrupted Dwek, telling him: “You gotta
stop talking like that, and I’ll tell you why. Because we
are forging a relationship and whatever I can do to help
you, I will, and when you talk like that, it puts me . . .
“. Ind., Ct. I, ¶ 4(F).
Dwek mentioned the Garfield Avenue Project and
indicated he needed information on the status of an
application in the New Jersey Department of Environmental
Protection (“DEP”) seeking a No Further Action Letter.
Ind., Ct. I, ¶ 4(F). In response, Smith told Dwek that he
would inquire as to the status of that Letter, stating: “So
write down all the stuff you want.” Ind., Ct. I, ¶ 4(F).
As everyone began to leave the table, Dwek said, “So I’ll
20
get that DEP information, we’ll get you a zone
application.” Smith replied, “All I need to know is what
the project is, if you give me the name of the project and
I’ll find out the site so I can question . . . what the
status of the . . . clean up.” Ind., Ct. I, ¶ 4(G).
In the parking lot outside of the restaurant, Dwek
questioned Smith as to whether he could “do business” that
day with Greene. Smith did not turn around or respond to
him, telling him moments later to “stop talking”. Ind.,
Ct. I, ¶ 4(H). Smith entered his car and prepared to
leave. Greene then accepted from Dwek an envelope
containing $5,000 cash. Ind., Ct. I, ¶ 4(I). Dwek said
that he told Smith that he was giving him $5,000 cash and
reminded Greene that he did not want his name listed
anywhere. He asked Greene, “When he [Smith] says he will
help me expedite my [Garfield Avenue] application . . . I
can trust him?” Greene and Cheatam acknowledged that Smith
would not forget Dwek. Ind., Ct. I, ¶ 4(I).
According to the Indictment, Greene entered the front
passenger side of Smith’s car, holding the sealed envelope
from Dwek and giving it to Smith. Ind., Ct. I, ¶ 4(J).
The Government alleges that later that same day, on or
about April 30, 2009, Smith provided the $5,000 in cash to
Cheatam, who converted the cash into money orders and
21
checks, which were deposited as campaign contributions for
Smith’s candidacy for Jersey City Mayor. Ind., Ct. I, ¶
4(K)-(N).
What The Tapes Reveal Regarding

the April 30, 2009 Meeting
Smith indicated that he would “find out what the
status is” regarding the Garfield Avenue Project. Because
the DEP was very busy, Smith told him, “write down all the
stuff” you need in resolving issues related to the Garfield
Avenue Project. Before leaving the meeting, Smith
reiterated: “All I need is what the project is. Ed
[Cheatam] will give me the name of the project and I’ll
find out the site so I can . . . find out what the status
is of the . . . clean up.” When Dwek said, “I might be on
the bottom of the pile I am told so if you can [do]
anything to expedite that I would appreciate it,” Smith
walked away and ignored him.
After Smith left, Dwek approached Greene and handed
him an envelope. Lying to Greene to get him to
participate, Dwek says: “I told Harvey this is $5,000.”
But he never told Smith that there was any money in the
envelope. And Smith never told Dwek that he would expedite
anything. Feigning ignorance, however, Dwek asked, “When
22
he says he’ll help me with expediting my applications I can
trust him right? He won’t forget my name and number will
he? Cheatam stated, “No,” adding “I’ll make sure of that.
I’m about the closest thing to him.”
When Smith learned that the envelope contained cash,
Smith immediately telephoned Cheatam and told him he was
returning the cash-filled envelope to him. Smith reiterated
to Cheatam that he would not accept a cash donation from
anyone, and Cheatam relayed this information to Shaw.

July 16, 2009 Meeting
On or about July 16, 2009, Smith, Cheatam, Shaw, and
Dwek met at a diner in Jersey City. Before Shaw arrived,
Smith, Cheatam, and Dwek discussed Dwek’s business
interests in Jersey City and Bayonne, including the
Garfield Avenue project and a proposed development on Route
440 in Bayonne (the “Bayonne Project”), and related issues
involving the DEP and the State of New Jersey Department of
Transportation (“DOT”). Ind., Ct. I, ¶ 4(O). When Shaw
arrived, Cheatam updated him on the group’s conversation.
Smith then allegedly told Dwek, “I need to just get a
little list of what you’re trying to do, so that before I
go on vacation I can get the ball rolling. First of all, I
23
can put in some calls to see where the DEP situation is.”
Dwek said he would provide the information to Cheatam.
Smith said that he would also talk to the Chairman of the
DOT regarding the Bayonne Project. Ind., Ct. I, ¶ 4(O).
Regarding the Garfield Avenue Project, Smith asked
Dwek for the name listed on the DEP application. Dwek told
him that it was registered under “Garfield Avenue
Associates LLC”. When Smith asked for other information
regarding the Garfield Avenue Project, Dwek tried to change
the subject. Dwek said he was “looking for a guy that can
help [him] out,” told Smith he “trust[ed]” [him], and that
he was “a generous guy.” Smith commented jokingly,
“According to your standards you’re generous.” Getting back
to what he believed was a legitimate topic of discussion,
Smith commented about the Garfield Avenue and Bayonne
Projects, stating: “I’m going to find out what he deal is
with this. I’m gonna get on it as soon as we finish here.”
Smith also indicated that he would inquire from a
particular State Assemblyman as to whether he was
interesting in handling Dwek’s DOT application for the
Bayonne Project and would try to “put this in motion”
immediately because Smith was preparing to leave for
vacation. Smith also confirmed that he would make inquiries
about the Garfield Avenue Project. Ind., Ct. I, ¶ 4(P).
24
Later in the meeting, Smith offered advice to Dwek and
Cheatam regarding how to deal with a particular Jersey City
Councilwoman as to Dwek’s purported need for a zoning
change in Jersey City, stating: “See, not only do you have
my connections, . . . you got my . . . knowledge.” Shortly
after, Smith proceeded to leave the diner. According to the
Government, when Cheatam stood up to leave, Dwek told
Cheatam to inform Smith that he would give him $10,000
since Smith was not happy with his previous payment of
$5,000. It is alleged that Cheatam stepped away to
purportedly speak with Smith in private. It is alleged
further that, when he returned, Cheatam told Dwek that
Smith would take $10,000. Ind., Ct. I, ¶ 4(Q).

At the July 16 meeting, Smith sat down with Cheatam
and Dwek to talk about what he believed were legitimate
development projects, including the Garfield Avenue Project
and Bayonne Project. When Smith asked them what kind of
help they were looking for, Cheatam said that they needed
his “support.” In an effort to convince Smith, Dwek and
Cheatham discussed how Jersey City residents would benefit
from these Projects. They also represented that they had
25
met with and had garnered support from the Mayor and the
Council President. When Dwek said that he needed help with
the DEP and on a related zoning issue, Smith had no
response.
As to the Bayonne Project, Smith told Dwek that he
needed to deal with the DOT if he needed “assistance” with
transportation matters. Smith told him that he wanted “a
little list of what you are trying to do so that before I
go on vacation I can start the ball rolling.” When Smith
gave him some advice as to how to deal with a particular
councilwoman on a zoning issue, he told Dwek: “[N]ot only
do you have my connections but you also have my knowledge.”
Smith left the meeting. Cheatam followed after Smith.
When Cheatam returned, he told Dwek that Smith would take
$10,000. The tape does not show Cheatam speaking privately
with Smith, let alone Smith telling Cheatam that he will
accept a $10,000 bribe.

July 17, 2009 Meeting & $10,000 Payment
On or about July 17, 2009, Smith, Cheatam, Shaw, and
Dwek met at a Hoboken diner. During this meeting, Smith
told Dwek that he had placed two phone calls the day
before. When Dwek commented “you’re a man of your word,”
26
Smith replied, “I only do business one way.” Smith began
to read over his notes with Dwek and talked to him about
his phone calls. As to the Garfield Avenue Project, Smith
said that someone agreed to update him on the status of the
DEP application by the end of the day. As to the Bayonne
Project, Smith had contacted the DOT Commissioner. Dwek
told Smith, “I appreciate your support.” Ind., Ct. I, ¶
4(R). Additionally, Smith told Dwek that his fellow
Assemblyman, if needed, would contact the DOT to advise
them that he supported the project.
Smith met with Dwek that day to specifically update
him on the progress he had made regarding his Project
issues. Ind., Ct. I, ¶ 4(S).
All four individuals then left the diner. In the
parking lot, Dwek handed an envelope to Cheatam, who
followed Smith to his car, leaned in the open window, and
threw the envelope inside the car. The envelope contained
$10,000 cash. Dwek then approached Smith’s car and said,
“Harvey, I don’t want you to call me a cheap skunk
anymore,” then leaning inside the open window. Smith told
him, “Hey, it’s not about that, it’s just about, -- it’s
just about the fact that I’m a straight guy.” Ind., Ct. I,
¶ 4(T).
27

Smith told Dwek that he made two calls the day before
to follow-up on his inquiries. He told Dwek that he spoke
with the DOT Commissioner. When Smith left the table,
Cheatam commented, “He’s a pain in the ass to deal with[,]
but he’s a man of his word.” When Smith returned, he told
Dwek that the Assemblyman would voice his support for the
Project, if his [Smith’s] clout was not enough.
Shortly after, Smith got up from the table to leave
and Dwek followed him. Smith proceeded to his car. Dwek
and Cheatam proceeded to Dwek’s car. Dwek retrieved an
envelope from the trunk, handing it to Cheatam. Smith had
started his car and was backing up in the parking lot.
When Cheatam appeared next to his car, Smith stopped.
Cheatam tossed the envelope into Smith’s front passenger
seat. Dwek then walked over to Smith’s car, commenting:
“Hey Harvey[,] I don’t want you to call me a cheap skunk
anymore.” Smith replied, “It’s not about that. It’s just
about that I’m a straight guy.”
When Harvey pulled out of the parking lot, Shaw, Dwek,
and Cheatam began talking about Joseph Doria, Commissioner
of the Department of Community Affairs, and how they should
not do “the exchange in front of Joe.” Celebrating their
28
“success,” Dwek commended Cheatam and Shaw for their role.
Dwek told them that they had worked very hard, promising to
pay them another $10,000 when they finished with Doria.
Smith has pled not guilty and is exercising his
constitutional right to a jury trial. In these pretrial
motions, he moves for an Order:
1) Dismissing all Hobbs Act extortion counts in the
Indictment;
2) Dismissing the Federal Program Bribery Charge under
18 U.S.C. § 666;
3) Granting an evidentiary hearing on his entrapment
defense or, alternatively, permitting him to explore
on cross-examination at trial all areas related to
his entrapment defense;
4) Dismissing the indictment on due process grounds
based on the Government’s outrageous misconduct;
5) Granting discovery and an evidentiary hearing
regarding the grand jury’s investigation of this
case;
6) Granting a bill of particulars;
7) Compelling the Government to produce at this time
discovery materials under Rule 16, 404(b) evidence,
trial exhibits, Brady/Giglio evidence, and all
Jencks materials;
29
8) Compelling the Government to provide a list of all
co-conspirator statements that will be introduced in
their case-in-chief and scheduling a James hearing,
a minimization hearing, and a hearing to determine
the authenticity and admissibility of the recorded
conversations;
9) Compelling the Government to provide additional
discovery, including but not limited to the most
recent and updated version of the Department of
Justice’s guidelines regarding the use of
confidential informants and/or any other official
guidelines that governed the terms of the informant
relationship between the Government and Solomon
Dwek, in his capacity as cooperating witness; and
10) Permitting Smith to file additional motions as
necessary.
Legal Argument
POINT I.
THE HOBBS ACT EXTORTION COUNTS SHOULD BE DISMISSED BASED ON

THE STATUTE’S PLAIN LANGUAGE AND ITS VAGUENESS AS APPLIED
TO SMITH’S CASE.
A dismissal of all Hobbs Act extortion counts of the
Indictment (Counts One, Two and Three) is proper under Rule
12(b)(3) of the Federal Rules of Criminal Procedure. To
30
withstand scrutiny on a dismissal motion, an indictment
must contain a ‘plain, concise, and written statement of
the essential facts constituting the offense charged’ and
include the statute(s) that the defendant(s) are alleged to
have violated.” United States v. Delle Donna, 552 F. Supp.
475, 482, 2008 WL 1961485, *5 (D.N.J. March 14, 2008); see
Fed. R. Crim. P. 7(c)(1). It shall be considered
insufficient if it fails to:
(1) contain [] the elements of the offense

intended to be charged, (2) sufficiently apprise[] the
defendant of what he must be prepared to meet, and (3)
allow[] the defendant to show with accuracy to what extent
he may plead a former acquittal or conviction in the event
of a subsequent prosecution.
United States v. Kemp, 500 F.3d 257, 280 (3d Cir.
2007)(citations omitted); see also Bryant, 556 F. Supp. 2d
at 383-84 (quoting Kemp’s recitation of the standard for
determining the sufficiency of an indictment). Taking as
true the allegations pleaded, United States v. Besmajian,
910 F.2d 1153, 1154 (3d Cir. 1990), and employing a “common
sense construction,” United States v. Hodge, 211 F.3d 74,
76 (3d Cir. 2000), a court shall “determine whether [a]
[d]efendant[‘s] conduct, as charged, ‘reflect[s] a proper
interpretation of criminal activity under the relevant
criminal statute[s].’” Delle Donna, 2008 WL 1961485 at *5
31
(quoting United States v. Wecht, No. 06-0026, 2007 WL
3125096, *5 (W.D. Pa. Oct. 24, 2007)).
Applying this same approach, this Court should find
that, as a matter of law, all counts of the Indictment
should be dismissed for two reasons: (1) The charged
offenses for Hobbs Act extortion (Counts 1-3), do not and
can not reach the conduct pleaded in the Indictment without
violating Smith’s fundamental due process rights; and (2)
The Hobbs Act is impermissibly vague as applied to Smith’s
alleged conduct pleaded in the Indictment.
A. Official “influence” is not “official action” and thus

cannot establish the requisite quid pro quo bribery
for convictions under the Hobbs Act extortion statute,
18 U.S.C. § 1951(a).
The charges in the Indictment must be dismissed
because the Government seeks to prosecute Smith not for
taking “official action,” as required to prove quid pro quo
bribery, but instead for his official “influence,” which by
any stretch can not support a bribery conviction. This
attempted expansion of the scope of the Hobbs Act, 18
U.S.C. § 1951(a), violates Smith’s due process rights and
must be rejected.
To secure a conviction for bribery or, more precisely,
“extortion under color of official right” under the Hobbs
Act, the government must also prove that the payment or
32
benefit “was made in return for official acts.” Evans v.
United States, 504 U.S. 255, 268 (1992); Antico, 275 F.3d
at 258 (emphasis added). In Antico, relying on the Supreme
Court’s decision in Evans, the Third Circuit held that in a
prosecution for Hobbs Act bribery in a context other than
the receipt of campaign contributions, the government need
not prove a direct quid pro quo. Antico, 275 F.3d at 257.
However, while proof of a specific official act is not
required, the Antico court squarely held that the
government must prove nevertheless “that a public official
has obtained a payment to which he was not entitled,
knowing that the payment was made in return for official
acts.” Id. (emphasis added) (citing Evans, 504 U.S. at
268). The Third Circuit explained: “In other words, no
‘official act’ (i.e., no ‘quo’) need by proved to convict
under the Hobbs Act. Nonetheless, the official must know
that the payment – the ‘quid’ – was made in return for
official acts.” Antico, 275 F.3d at 257.
Necessarily fatal to its position, the Government
attempts to prosecute Smith for bribery based on something
much less than a quid pro quo arrangement – “influence”
that falls short of taking any official action. The
Indictment alleges that Smith, among others, conspired from
April 2009 through July 2009 to extort cash payments and
33
“illegal[ly] structured” campaign contributions from Dwek
in exchange for Smith’s “official assistance, action and
influence” in State and local government matters. Ind., Ct.
I, ¶ 2. Stretching the bounds of the statute charged
beyond any reasonable interpretation, the Government
suggests that Smith is guilty of extortion because he
inquired as to the “status of” Dwek’s DEP application
regarding what he represented to be his Garfield Avenue
Project, Ind., Ct. I, ¶ 4(F)-(G), and offered to talk to a
State Assemblyman on a Department of Transportation matter
relevant to Dwek’s purported Bayonne Project, Ind., Ct. I,
¶ 4(O)-(P). Additionally, the Government suggests that
Smith committed extortion when he allegedly told Dwek he
would “make inquiries” about the Garfield Avenue Project.
Ind., Ct. I, ¶ 4(P). In noting that Smith “provided advice
to [Dwek] and Cheatam regarding how to handle any issues
that might arise with a particular Jersey City
Councilwoman, the Government attempts to put a nefarious
spin on Smith’s comment: “See, not only do you have my
connections, . . . you got my . . . knowledge.” Ind., Ct.
I, ¶ 4(Q). And, the Government suggests further that
Smith’s “clout” as a local official makes his actions in
this case criminal. Ind., Ct. I, ¶ 4(S).
34
But the Government entirely misses the mark in seeking
to treat “influence” as criminal conduct under the Hobbs
Act. Discussing development projects and making inquiries
regarding the status of such projects was part and parcel
of Smith’s political responsibilities as a State
Assemblyman and as a mayoral candidate. To be sure, New
Jersey’s Legislative Code of Ethics substantiates this.
That Code provides that, while a member of the Legislature
may not negotiate on behalf of any party in connection with
a matter before a State agency, a member is not prohibited
or restricted from
(a) Making an inquiry for information on behalf of a

constituent, which may include ascertaining the
status of a matter, identifying the statutes or
regulations involved in a matter or inquiring how
to expedite a matter;
(b) assisting the constituent in bringing the merits
of the constituent’s position to the attention of
a State agency; or
(c) making a recommendation on a matter or indicating
support for the constituent’s position to a State
agency; if no fee, reward, employment, offer of
employment or other thing of value is promised
to, given to or accepted by the member, whether
directly or indirectly, and the member does not
endeavor to use his official position to
improperly influence any determination.
N.J. Legis. Code of Ethics 2:2, 2:3a.(2)(a)-(c).
Even the Government concedes in the Indictment that
Smith’s official duties as a State Assemblyman included:
“providing constituent services for New Jersey citizens and
35
organizations, which services included . . . bringing the
merits of a constituent’s position to the attention of a
State department or agency, and making a recommendation on
a matter in support of a constituent’s position before a
State department or agency.” Ind. Ct. 1, 1(B). Thus, the
Indictment’s allegations that Smith made inquiries for
Dwek, inquired as to status updates on his projects, and
offered his support on Dwek’s Bayonne Project to his fellow
Assemblyman are, put simply, much ado about nothing.
Moreover, this type of conduct does not rise to the level
of “official action,” and thus can not support a quid pro
quo bribery theory under the Hobbs Act.4
4
The allegations of “official action and influence” against Smith here pale in comparison
to the allegations against former New Jersey State Senator Wayne Bryant in his case. See
United States v. Bryant, 556 F. Supp. 2d at 391. In Bryant, Judge Wolfson set forth “an
assortment of official actions” that Bryant allegedly took to favor the School of
Osteopathic Medicine [“SOM”]:
In December 9, 2002, at a meeting of the Senate Education Committee, Bryant

strongly criticized the findings of the Vagelos Commission to protect the interests
of SOM. Id. at ¶ 19c. In or about 2003, Bryant ‘used his State Senate staff to
arrange meetings for defendant R. Michael Gallagher with members of the Senate
Budget and Appropriations Committee, at which defendant Gallagher presented a
‘white paper’ regarding capital projects at SOM that needed funding.’ Id. at ¶ 20a.
From in or about March 2003 through June 2006, Bryant directed changes in the
budget of the State of New Jersey that allocated large sums of money to SOM. Id.
at ¶ 19b. For fiscal year 2004, Bryant inserted ‘specific language provided by
defendant Gallagher into the state budget which described the merits of SOM’s
Center for Children’s Support, and supported an $800,000 allocation for SOM,’
which he ensured was included in the state budget in fiscal years 2004, 2005 and
2006. Id. at ¶ 20bii-iii (emphasis added).
Further, from in or about August 2003 through late 2005, Bryant

‘represented, appeared for, and negotiated on behalf of SOM with state agencies,
36
If Smith accepted anything at all from Dwek, he
accepted campaign contributions. Though a State officer,
employee, or member of the Legislature may not accept any
“thing of value which he knows or has reason to believe is
offered to him with intent to influence him in the
performance of his public duties and responsibilities,”
[t]his . . . shall not apply to the acceptance of
contributions to the campaign of an announced candidate for
elective public office.” N.J.S.A. 52:13D-14.
Indeed, any ruling treating Smith’s conduct as
criminal where it has not been so defined by statute would
compromise Smith’s due process rights. See, e.g., United
States v. Lanier, 520 U.S. 259, 266 (1997) (“[D]ue process
bars courts from applying a novel construction of a
criminal statute to conduct that neither the statute nor
and used his official position to influence those agencies to take action favorable
to SOM.’ Id. at ¶ 21. These included setting up a meeting between himself,
Gallagher, and the Commissioner of the New Jersey Department of Health and
Senior Services where Bryant and Gallagher sought to influence the
Commissioner to allocate to SOM a portion of funds appropriated to the Cancer
Institute of South Jersey, Id. at 21.a; setting up a meeting between himself,
Gallagher, and the Treasurer of the State of New Jersey at Bryant’s legislative
office in Camden, New Jersey, ‘in an effort to influence the Treasurer to disburse
‘special’ targeted tax relief payments to the Borough of Stratford, New Jersey to
compensate the borough for the land that SOM was planning to acquire, Id. at ¶
21.c; and two other instances where Bryant persuaded state agencies to provide
funding to SOM. Id. at ¶ 21.b., d.
Id. at 391.
Nothing even vaguely familiar to these “official actions” is alleged against Smith
in the Indictment.
37
any prior judicial decision has fairly disclosed to be
within its scope.”) (citations omitted); id. (explaining
that, consistent with fair warning principles, “the
touchstone is whether the statute, either standing alone or
as construed, made it reasonably clear at the relevant time
that the defendant’s conduct was criminal.”); see also
Bouie v. City of Columbia, 378 U.S. 347, 350 (1964)
(suggesting that due process clause guarantees “that a
criminal statute give “fair warning.”). Thus, because the
law is clear that bribery can not be proven without the
requisite evidence of an official act performed or
contemplated, the Government cannot prosecute Smith under
the Hobbs Act for using “influence” and all Hobbs Act
charges must be dismissed.
B. The Hobbs Act extortion statute, 18 U.S.C. § 1951a, is

unconstitutionally vague as applied to the conduct charged
in the Indictment.
The Hobbs Act extortion statute should be deemed void
for vagueness as applied to the conduct charged against
Smith in the Indictment. The Hobbs Act prohibits one from
“obstruct[ing], delay[ing], or affect[ing] commerce . . .
by . . . extortion . . . .,” which is the act of “obtaining
of property from another, with his consent . . . under
color of official right.” 18 U.S.C. § 1951(a),(b)(2). As
38
applied to the facts alleged in the Indictment, this
statute does not give adequate warning that Smith or
someone in his position could be prosecuted.
A statute is unconstitutionally vague if it fails to
“define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Posters ‘N ‘
Things, Ltd. v. United States, 511 U.S. 513 (1994);
Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also
Borden v. School Dist. of Tp. East Brunswick, 523 F.3d 153,
166-67 (3d Cir. 2008) (citations omitted). In considering
a vagueness challenge, a court must evaluate the statute
“in light of the facts of the case and on an as-applied
basis.” United States v. Whittaker, 999 F.2d 38, 42 (2d
Cir. 1993); see also Borden, 523 F.3d at 166-67 (citations
omitted). Section 1951 is void for vagueness as applied
here because Smith could not have known that the alleged
conduct in the Indictment could constitute a violation of
the Hobbs Act.
According to the Government, the alleged conduct that
gives rise to the criminal charges against Smith includes
making inquiries on behalf of a constituent, reaching out
to a fellow Assemblyman, offering his support on Dwek’s
39
development projects, and offering information relevant to
dealing with a local Councilwoman. In seeking to
criminalize these types of actions, the Government attempts
inappropriately to expand the reach of § 1951 so as to
sweep up conduct that, when performed by Smith in his
capacity as an Assemblyman and mayoral candidate was not
only lawful, but would not put a reasonable public official
in Smith’s position on notice that he was exposed to
criminal prosecution for bribery. More specifically, no
reasonable public official would think that he had criminal
exposure because he offered support for and made inquiries
about the “status” of a constituent’s local development
projects. Yet, that is precisely what the Government seeks
to prosecute Smith for, as set forth in Counts One through
Three of the Indictment.
Mindful then of the statute and the Government’s
intended use of it in this case, this Court should strike
down § 1951 because, as applied here, it is
unconstitutionally vague. Indeed, an ordinary person would
not read this statute to mean that a public official who
engages in the conduct charged here – conduct that falls
far short of taking “official actions” – is criminally
liable. Moreover, nothing in the statute puts a public
official on notice that inquiring as to the status of a
40
constituent’s project or meeting to discuss a supporter’s
requests would expose him to a federal felony prosecution.
Therefore, based on what the Indictment claims Smith
did and the “ordinary person” standard for considering
vagueness attacks, the Hobbs Act extortion statute, § 1951,
is void as applied here and requires a dismissal of all
Hobbs Act counts.
POINT II.
THE SECTION 666 BRIBERY COUNT SHOULD BE DISMISSED BECAUSE

IT WAS NOT INTENDED TO APPLY TO THE FACTS ALLEGED HERE AND
REQUIRES PROOFS THAT DO NOT EXIST IN THIS CASE.
Additionally, this Court should dismiss Counts Four
and Five of the Indictment, which charge Smith with bribery
concerning programs receiving federal funds. 18 U.S.C. §
666(a)(1)(B). Counts Four and Five allege that, on April
30, 2009 and July 17, 2009, Smith accepted cash “to be
influenced and rewarded in connection with a business,
transaction, and series of transactions of the State of New
Jersey, the DEP, and the DOT, involving . . . $5,000 and
more.” Ind., Ct. IV & V, ¶ 3. Section 666 provides in
pertinent part:
(a) Whoever, if the circumstance described in

subsection (b) of this section exists –
41
(1) being an agent of an organization, or of a State,

local . . . government, or any agency thereof –
. . . .
(2) corruptly solicits or demands for the benefit of

any person, or accepts or agrees to accept, anything
of value from any person, intending to be influenced
or rewarded in connection with any business,
transaction, or series of transactions of such
organization, government, or agency involving any
thing of value of $5,000 or more.
shall be fined under this title, imprisoned not more

than 10 years, or both.
(b) The circumstance referred to in subsection (a) of

this section is that the organization, government, or
agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance,
or other form of Federal assistance.
To prove a violation of § 666(a)(1)(B), the Government
must prove: (1) corrupt solicitation; (2) of anything of
value; (3) with the intention of being influenced in
connection with any transaction of a local government or
organization receiving at least $10,000 in federal funds
annually; and (4) where the transaction involves anything
of value of $5,000 or more. United States v. Cicco, 938
F.2d 441, 444 (3d Cir. 1991). The Government cannot
succeed for two reasons. First, § 666 does not apply to
this case. Second, even assuming the statute reaches the
conduct here, the Government lacks the evidence to prove
42
beyond a reasonable doubt that Smith committed bribery
under § 666.
Preliminarily, § 666 was not intended to apply to this
case or Smith’s conduct. Based on its legislative history,
§ 666 was enacted to “enlarge and clarify the class of
persons subject to the federal bribery laws.” Cicco, 938
F.2d at 445 (citing and discussing legislative history).
More specifically, the statute was designed to target a
particular group: non-public officials. The intent of the
statute was to ensure that federal bribery laws applied to
persons other than public officials because other
legislation did not encompass such persons. See id.
(citing and discussing Congress’s specific reference to
United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976), a
decision that pre-dated § 666 in which the Court of Appeals
for the Second Circuit vacated a conviction of a non-public
official for bribing a public official under 18 U.S.C. §
201 because statute applied only to those with an
employment relationship to the federal government). Thus,
§ 666 filled a gap in the law “to remedy specific
deficiencies in existing federal theft and bribery
statutes.” Id. at 446.
Because § 666 was not intended to target the crimes or
the individual charged here, Smith should not be prosecuted
43
for that statutory violation. The Government has charged
him with three counts of Hobbs Act extortion for allegedly
taking bribes, pleading violations of 18 U.S.C. § 1951. In
other words, they have charged him with an offense that, on
its face, applies to public officials and reaches the type
of bribery alleged. Charging Smith as well under § 666 is
prosecutorial overreaching and, no doubt, inconsistent with
the express purposes and intent underlying the statute.
Thus, this Court should dismiss the § 666 counts of the
Indictment.
Alternatively, even if this Court determines that §
666 applies to this case, it should conclude nevertheless
that the Government cannot demonstrate sufficiently the
elements of the offense. Smith did not corruptly solicit
anything from Dwek and lacked any criminal intent. To
reiterate, if he accepted anything at all, he accepted what
he believed were legitimate campaign contributions. See
Legal Argument, Point I, supra. Additionally, the
Government cannot prove that the DEP and DOT, as State
agencies, received more than $10,000 in federal funds
during 2009. In fact, these agencies did not receive any
federal funds. Thus, because the requisite proofs do not
exist here, the Government’s theory under § 666 is fatally
44
flawed. The § 666 counts should be dismissed at this
juncture.
POINT III
ALTERNATIVELY, SMITH’S ENTRAPMENT DEFENSE MUST BE FLESHED

OUT AT A PRETRIAL EVIDENTIARY HEARING OR, AT LEAST, RULED
AN APPROPRIATE TOPIC FOR BROAD CROSS-EXAMINATION
AT TRIAL.
Alternatively, if this Court denies Smith’s motions
for dismissal of the charges, Smith shall pursue at trial
an entrapment defense. To present effectively his defense,
Smith seeks a hearing at which he may proffer critical
entrapment evidence. However, if the Court declines to
grant a hearing, Smith seeks a ruling that he will be
allowed to liberally explore this subject during cross-
examination of the Government’s trial witnesses.
An entrapment defense may defeat a prosecution only
“’when the Government’s deception actually implants the
criminal design in the mind of the defendant.’” United
States v. Fedroff, 874 F.2d 178, 181 (3d Cir. 1989)
(quotations omitted). It has two related elements: 1)
government inducement of the crime and 2) lack of
predisposition on the defendant’s part to engage in the
criminal conduct. Id. (citing Mathews v. United States,
45
108 S. Ct. 883, 886 (1988)); accord Hampton v. United
States, 425 U.S. 484 (1976); United States v. Russell, 411
U.S. 423 (1973). A defendant has been entrapped when he was
not predisposed to commit the crime charged, but was
induced to do so only by the government’s trickery,
persuasion, or fraud. Id. (citations and quotations
omitted). Significantly, a defendant does not have to
admit the elements of the crime charged to be entitled to
an entrapment defense. See Mathews, 108 S. Ct. at 886
(“[E]ven if the defendant denie[s] one or more elements of
the crime, he is entitled to an entrapment instruction
whenever there is sufficient evidence from which a
reasonable jury could find entrapment.”).
This Court should hold a hearing to allow Smith an
opportunity to introduce critical evidence of non-
predisposition and inducement. Cf. United States v. Pervez,
871 F.2d 310, 318-19 (3d Cir. 1989) (remanding post-trial
for a proffer hearing to allow defendant to present any
evidence of entrapment outside of the record and to permit
court to determine if sufficient evidence warranted jury
consideration of entrapment defense). Relevant to the issue
of non-predisposition, Smith can demonstrate evidence of
his prior lawful conduct and well-respected character. Id.
at 183 (citation omitted). See Fedroff, 874 F.2d at 181
46
(“element of non-predisposition to commit the offense is
the primary focus of an entrapment defense”) (citations
omitted). His evidence relates to his solid reputation and
lack of prior involvement in this or any kind of criminal
activity. As to his reputation, Harvey Smith is prepared
to offer character witnesses to testify on his behalf.
And, as to his lack of prior criminal involvement, Smith
has a clean record and has never been involved in any
criminal conduct. Smith is prepared to introduce proof as
well that he never requested any money or gifts from
anyone. This evidence should establish that he had no
propensity to accept bribes and, moreover, was highly
reluctant to accept any bribes. See United States v.
Jannotti, 673 F.2d 578, 604 (3d Cir.) (Jannotti I), cert.
denied, 457 U.S. 1106 (1982) (noting that a defendant’s
reluctance to commit an offense is the most important
factor in deciding predisposition prong of the defense);
United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 n.11
(9th Cir. 1977) (observing that entrapment defense was
universally rejected where proof failed to show defendant’s
reluctance to commit criminal activity), cert. denied, 436
U.S. 926 (1978). Overall, the evidence will show that
Smith lacked an independent criminal disposition to accept
bribes.
47
As to the inducement prong of the defense, evidence is
sufficient if it shows that law enforcement officials
resorted to “’persuasion, fraudulent representation,
threats, coercive tactics, harassment, promises of reward
or pleas based on need, sympathy or friendship.’” Fedroff,
874 F.2d at 184 (quoting United States v. El-Gawli, 837
F.2d 142, 149 (3d Cir.), cert. denied, 488 U.S. 817
(1988)). Quite simply, the evidence of governmental
misrepresentation, persuasion, and coercion tips the
scales. A plethora of evidence will demonstrate that Dwek,
as a Government agent, was a tenacious player with an
unrivalled talent for lying and cheating that he used to
service the Government and, of course, himself. He
secretly taped possibly thousands of conversations with New
Jersey politicians in countless venues. When his target
refused to give him the calculated response he so
desperately sought, Dwek bulldozed over him. Specifically,
when Dwek struggled to elicit from his target an
incriminating remark, Dwek offered one on his own. Shaw
and Cheatham, acting as Dwek’s unofficial yet de facto
agents, lured Smith into meeting with Dwek, representing
falsely to their long-time friend and colleague that it was
acceptable to do business with Dwek and that he was a
legitimate businessman. Smith never sought out Dwek or
48
asked Shaw and/or Cheatam to link him to someone like Dwek.
Smith wanted no part of Dwek or anything he had to offer:
“I don’t do quid pro quo. Ed [Cheatam] will tell you how I
operate.” But undaunted by Smith’s disinterest, the
evidence shows unequivocally that Dwek, Shaw, and Cheatam
were, quite simply, out to get him:
Dwek: Is this guy going to help me out or what?
Cheatam: He’ll help you.
Dwek: He’s tough.
Shaw: When he was the mayor he was the best

mayor we had in 30 years.
Dwek: The thing is he doesn’t want no cash –

How are we going to operate with this
guy.
Dwek: Maybe you can talk to him and straighten

him out.
Cheatam: If not I have people I can give the cash

to and they give him the checks.
Dwek: I don’t do quid pro quo. What’s that

suppose[d] to mean?
See Procedural History and Statement of Facts, supra. If
their plotting and scheming are not obvious enough,
Cheatam’s act of tossing Dwek’s cash-filled envelope into
Smith’s departing car is. See Procedural History and
Statement of Facts, supra.
49
And, even if a scintilla of doubt existed as to
whether Dwek’s actions induced Smith into committing any
offense, the wiretapped communications between Cheatam and
Shaw destroy that swiftly and permanently. See Procedural
History and Statement of Facts, supra (detailing critical
conversations between Cheatam and Shaw regarding their
financial stake in Dwek’s ability to pass bribes to
political figures whom they recruit and meet with). In
short, the wiretaps shed an illuminating light on this case
and, particularly, how Dwek and the Government, aided
perhaps unofficially by “Team Cheatam-Shaw,” wove a tight
web that trapped, among others, Smith.
Because the evidence suggests a well-grounded factual
basis for an entrapment defense in this case, Smith
requests a hearing to flesh out further his defense.
Alternatively, if a hearing is denied, Smith requests this
Court to rule that he will be permitted considerable
latitude to explore his entrapment defense while cross-
examining the Government’s witnesses at trial.
POINT IV.
THE CONDUCT OF THE GOVERNMENT AND ITS AGENTS IS

SO OUTRAGEOUS THAT IT VIOLATES SMITH’S CONSTITUTIONAL
DUE PROCESS RIGHTS.
The Government’s investigative tactics in this case
50
are sufficiently outrageous to raise a valid due process
defense to the charged offenses. This Court should hold an
independent evidentiary hearing based on a prima facie
showing of outrageousness. On due process grounds, a
defendant may challenge an indictment based on the
government’s outrageous law enforcement investigative
techniques. See United States v. Voigt, 89 F.3d 1050, 1064
(3d Cir. 1996); United States v. Twigg, 588 F.2d 373 (3d
Cir. 1978). The defense of outrageous government conduct
focuses on whether a defendant’s due process rights have
been violated because the government created the crime for
the sole purpose of obtaining a conviction. United States
v. Pitt, 193 F.3d 751, 760 (3d Cir. 1999). A government
misconduct defense “must be predicated on intolerable
government conduct which goes beyond that necessary to
sustain an entrapment defense.” United States v. Jannotti,
673 F.2d 578, 607 (3d Cir. 1982). Put another way, this
defense may apply if the government's conduct rendered the
prosecution of the defendant fundamentally unfair, see
Hampton v. United States, 425 U.S. 484, 494 n.6 (Powell,
J., concurring), because it is shocking, outrageous, and
clearly intolerable. United States v. Nolan-Cooper, 155
F.3d 221, 230 (3d Cir. 1998).
Though concededly courts have concluded rarely that
51
government misconduct violated a defendant’s due process
rights, indeed this is a rare case. See, e.g., United
States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (holding that
“fundamental fairness” barred prosecution of defendant who
“was lawfully and peacefully minding his own affairs” when
government suggested he join in establishing a
methamphetamine laboratory and furnished all his essential
materials); United States v. West, 511 F.2d 1083, 1086,
1085 (3d Cir. 1975) (finding that government’s conduct in
having its agent suggest to a defendant a narcotics sale
and then facilitate that sale had “passed the point of
toleration,” especially where defendant had no “prior
inclination to engage in this evil business.”); Greene v.
United States, 454 F.2d 783 (9th Cir. 1971) (finding that
defendant had valid due process defense where government
agent helped establish bootlegging operation, supplied
ingredients and was its only customer). After all, the
star witness, Dwek undertook vigorously and aggressively
his role as Government cooperator by pursuing almost anyone
and everyone in the State’s political arena, hopeful that
someone, anyone would “bite,” to put it colloquially. When
the Government struck an agreement with disgraced
businessman and developer Dwek to be a confidential
witness, it struck gold. Dwek, whose criminal history
52
precedes him, has been dubbed “the star of one of the
largest and most complex corruption stings in New Jersey
history. . . With nothing but a wire and a talent for
getting close to power, Dwek was allegedly able to ensnare
44 public officials and religious leaders in a massive web
of money laundering, corruption and fraud.” Matt Dowling,
“Cooperating witness Solomon Dwek emerges as cornerstone of
N.J. corruption sting,” The Star-Ledger (July 23, 2009).
To say Dwek relished his opportunity to lead others
down a criminal path is a gross understatement. In fact,
his role as government informant was nothing short of all-
consuming: “[He] met with his targets at least 26 times. .
. .He covered hundreds of miles, shuttling from one secret
meeting to another, as the FBI taped every word.” Ted
Sherman, “FBI informant Solomon Dwek has whirlwind N.J.
corruption tour,” The Star-Ledger (Oct. 25, 2009). Dwek, a
ready, willing, and able cooperator, operated without
bounds. In a tireless campaign targeting public officials
throughout the State, Dwek “worked at a maddening pace,
moving in a web of false identities and fake stories; with
meetings lined up like a string of beads – three, sometimes
four the same day; cash-filled envelopes, and targets who,
it seemed, never suspected or second-guessed the outrageous
entrepreneur or the easy money.” Id. “[I]n setting up the
53
sting, Dwek ‘bulldozed over people, almost like he was
naming the terms.” Id. “Dwek worked at a frenetic pace,
zeroing in on many potential targets at the same time.
Making the workload even heavier, agents kept sending Dwek
back – again and again- to individual targets, evidently to
elicit additional incriminating statements.” Id.
Unquestionably, Dwek’s conduct, performed at the
Government’s request and upon its approval, is more
outrageous than in United States v. Twigg, where the Third
Circuit upheld a defendant’s due process attack on the
government’s pervasive misconduct. In Twigg, the
informant, Kubica, a pled-out defendant currying favor with
prosecutors, agreed to aid the DEA in apprehending two
illegal drug traffickers, Neville and Twigg. The informant
spoke with Neville regarding setting up a methamphetamine
operation. Twigg, 588 F.2d at 375. After Neville expressed
an interest, arrangements were made. Twigg became involved
later. While Neville assumed primary responsibility for
raising capital and arranging for distribution of the
drugs, the informant secured all necessary equipment, raw
materials, and a production site. Id. As to the
informant’s participation, the Government assisted him
greatly with his end of the bargain. The informant was in
charge of the entire laboratory, making Neville and Twigg
54
minor participants who acted at the informant’s specific
direction. Id. at 376. Twigg and Neville were arrested
after the lab operated for one week and produced six pounds
of methamphetamine.
The informant’s role in Twigg pales in comparison to
Dwek’s involvement here. Based on his deal with the
Government, Dwek spent most days and nights acting under
aliases and assumed identities. He did not just pursue a
couple of individuals whose activities had raised the
Government’s eyebrows. Instead, he targeted relentlessly a
variety of public officials throughout the State, working
aggressively to coerce someone, anyone to play his game.
And, he accomplished all of this at the Government’s
request and with their wholehearted approval, ultimately
becoming the single individual responsible for the federal
prosecution of at least forty-four individuals and the
largest corruption sting ever in this State. As a result,
the Government, working through Dwek, engaged deliberately
in shocking and outrageous conduct.
Additionally, there is evidence that suggests that the
Government may have or should have known that Dwek had
enlisted Cheatam’s and Shaw’s services as “de facto
agents”. Specifically, the wiretapped evidence reveals
that Dwek was giving Cheatham and Shaw large amounts of
55
money, doing so every time their assistance enabled him to
pass money to another public official. They received money
from Dwek so often that when they failed to receive it they
lamented about their “dry spell”. Since the Government was
supplying Dwek with money, they knew or should have known
that Cheatam and Shaw were essentially earning commissions
for Government work. These circumstances raise questions
regarding the impropriety of the Government’s conduct and
the loose reins they held on Dwek.
Therefore, based on the Government’s investigative
tactics and procedures in this case, this Court should hold
an independent evidentiary hearing based on a prima facie
showing of outrageousness. Alternatively, if this Court
declines to hold a pretrial hearing, Smith requests that
the Court reserve on the issue and allow him to revisit it
in a post-trial proceeding. Regardless of when this issue
is resolved, Smith submits that the evidence will show that
the Government’s misconduct blatantly violated his
fundamental due process rights.
POINT V.
DISCOVERY AND AN EVIDENTIARY HEARING RELEVANT TO THE GRAND

JURY INVESTIGATION OF THIS CASE IS NECESSARY TO EXAMINE THE
PROPRIETY OF THE LEGAL STANDARDS GIVEN
TO THE JURORS
56
Smith is entitled to discovery and an evidentiary
hearing regarding the grand jury’s investigation of this
case. Because the Indictment alleges facts that do not fit
comfortably within the Hobbs Act, the grand jury may have
returned the Indictment based on improper legal
instructions from the Government.
Though grand jury proceedings are traditionally
secret, this is not an absolute rule. See, e.g., United
States v. Mahoney, 495 F. Supp. 1270, 1272 (E.D. Pa. 1980)
(“The decision to permit disclosure is within the
discretion of the trial court judge who must assess whether
the need for disclosure overbalances the requirements for
secrecy.”) (citing Pittsburgh Plate Glass v. United States,
360 U.S. 395, 399 (1959)). Indeed, the need for secrecy
erodes after the grand jury completes an investigation. See
Butterworth, 494 U.S. 624, 632-33 (1990).
Concerns regarding a grand jury investigation arise
where the defense believes the prosecution instructed
incorrectly the jurors on the law. If an instruction is
“so misleading” because of “mistakes or omissions,” then
the indictment “will not be permitted to stand even though
it is supported by legally sufficient evidence.” United
States v. Twersky, 1994 WL 319367, *4 (S.D.N.Y. June 29,
1994). And, a court may order disclosure of a grand jury
57
matter “at the request of a defendant who shows that a
ground may exist to dismiss the indictment because of a
matter that occurred before the grand jury.” Fed. R. Crim.
P. 6(e)(3)(E)(ii); see United States v. Bortnick, 2004 WL
3029731, *6 (E.D. Pa. Dec. 30, 2004). Moreover, discovery
of grand jury materials is permitted if a “particularized
need” for disclosure exists. Douglas Oil Co. of California
v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979).
Such need exists where the “defense would be greatly
prejudiced or that without reference to it an injustice
would be done.” Id. at 221.
Here, the particularized need for disclosure of the
grand jury materials is both real and substantial: the
grand jurors likely indicted based on an incorrect
understanding of the law. Because the Indictment, read as
a whole, omits essential allegations of “official action,”
it fails to allege criminal activity under the Hobbs Act.
Without these allegations, the defense is left reasonably
with the impression that the grand jury misunderstood the
standard for indicting on these charges and returned an
Indictment based on insufficient evidence. Indeed, if
discovery and a later evidentiary hearing reveal this
impression is true, the prejudice here is clear and obvious
– Smith should have never been indicted.
58
Therefore, to resolve critical questions regarding the
integrity of this prosecution, this Court should order the
Government to produce discovery on the grand jury
investigation and, further, should order a later
evidentiary hearing on the matter. Alternatively, this
Court should order the Government to produce the grand jury
materials for the Court’s in camera inspection.
POINT VI.
A BILL OF PARTICULARS IS NECESSARY TO ALLOW

SMITH TO DEFEND PROPERLY HIS CASE.
Alternatively, if the Court does not dismiss the
Indictment, it should grant nevertheless a bill of
particulars to enable Smith to defend effectively the
charges against him. See Fed. R. Crim. P. 7(f) (“The
court may direct the government to file a bill of
particulars. The defendant may move for a bill of
particulars before or within 10 days after arraignment
or at a later time if the court permits . . . .”) As
defined, a bill of particulars is a “’formal, detailed
statement of the claims or charges brought by a
plaintiff or a prosecutor’.” United States v. Urban,
404 F.3d 754, 771 (3d Cir.) (quoting Black’s Law
Dictionary 177 (8th ed. 2004)), cert. denied, 546 U.S.
1030 (2005). Its design is “’to inform the defendant
59
of the nature of the charges brought . . ., to
adequately prepare . . . [a] defense, to avoid
surprise during the trial and to protect . . . [the
defendant] against a second prosecution for an
inadequately described offense.’” Id. (quoting United
States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir.
1972)). If an indictment does not serve these
purposes, “and thereby ‘significantly impairs the
defendant’s ability to prepare his defense or is
likely to lead to prejudicial surprise at trial,’”
then a trial court should order a bill of particulars.
Id. at 771-72 (quoting United States v. Rosa, 891 F.2d
1063, 1066 (3d Cir. 1989) (citing Addonizio, 451 F.2d
at 62-63)). Absent an abuse of discretion, a grant of
a bill of particulars will be sustained on appeal. See
id. at 771 (citing United States v. Eufrasio, 935 F.2d
553, 575 (3d Cir. 1991) (citation omitted)).
A number of words and/or phrases within the
Indictment trigger the need for a bill of particulars:
(i) “A close associate of Defendant Smith” or
“Smith’s Associate” – Ct. I, ¶ ¶1(C),
4(B)&(H)&(I)&(J)&(K) - Though Smith believes he knows
60
this individual’s identity, the Government must
provide this name to the defense.
(ii) “elsewhere” – Ct. I, ¶¶ 2; Ct. II, ¶ 2; Cts.
IV & V, ¶ 3; Ct. VI, ¶ 2 – The Government alleges that
Smith participated in the crimes charged in Hudson
County, New Jersey and “elsewhere.” The Government
must disclose this unknown location.
(iii) “and others” – Ct. I, ¶¶ 2, 3 – The
Government alleges that Smith conspired with Cheatam,
Shaw, “and others.” Smith needs to know who these
“others” are.
(iv) “intermediaries” – Ct. I, ¶ 3 – According to
the Government, “intermediaries” facilitated allegedly
unlawful transactions. The Government must list the
names of all intermediaries.
(v) “Individual No. 1” – Ct. I, ¶¶ 4(L)-(M) – The
Government must reveal the name of person described
only as Individual No. 1, who allegedly converted some
of Dwek’s cash into money orders.
(vi) “Individual No. 2” – Ct. I, ¶ 4(N) – The
Government must disclose the name of the person
61
described only as Individual No. 2, who allegedly drew
a check on a personal bank account and made it out to
“Smith Team.”
(vii) “straw donors” – Ct. VI, ¶ 2 – The
Government alleges that straw donors were used to
illegally structure campaign contributions. The
Government must identify all alleged “straw donors.”
Overall, the deficiencies within the Indictment put
Smith in a position where he is not fully informed of the
nature of the charges and, thus, is unable to prepare a
meaningful defense. The Indictment simply does not offer
enough information. Absent additional information, Smith
is prevented from preparing adequately for trial.
Accordingly, this Court should order a bill of particulars
to make all necessary clarifications.
POINT VII.
THE GOVERNMENT SHOULD RELEASE

IMMEDIATELY TO THE DEFENSE ALL
DISCOVERY UNDER RULE 16.
In addition to the material expressly covered by Rule
16 of the Federal Rules of Criminal Procedure and the
Court's Standing Order for Discovery and Inspection, Smith
seeks an order requiring the Government to produce the
following:
62
1. Rule 16/Standing Order
Specifically as to Rule 16(a)(1)(A) & (B) material
relating to Smith’s statements, Coniglio is entitled to any
reports and/or notes taken by prosecutors, agents, or
others at any of his proffer sessions. Notwithstanding his
attorney’s presence, such material constitutes the
"substance" of statements made by a defendant to the
Government and, therefore, is discoverable under Rule 16
(a)(1)(A) & (B).
2. F.R.E. 404(b)
Consistent with the notice provision of Rule 404(b) of
the Federal Rules of Evidence and this Court’s standing
Order for Discovery and Inspection (as noted above), Smith
is entitled to pretrial notice of any such evidence.
3. Trial Exhibits
A trial is presently scheduled for November 22, 2010.
Consistent with the Court’s standing Order for Inspection
and Discovery, the Government must make available all
marked trial exhibits thirty (30) days before the scheduled
trial date, i.e., by October 22, 2010.
Thus, the Court should compel the Government to
produce the above-described discovery materials well before
trial to ensure Smith receives his Sixth Amendment right to
63
a fair trial. If these materials are disclosed untimely,
this Court should bar the Government from using or relying
on any of them at trial.
POINT VIII.
THE GOVERNMENT SHOULD DESCRIBE IN ADVANCE

THE GENERAL NATURE OF ANY EVIDENCE OF OTHER
CRIMES, WRONGS, OR ACTS THAT IT INTENDS TO
INTRODUCE AT TRIAL UNDER RULE 404(B)
The Government should disclose at this time all
uncharged misconduct evidence it intends to offer at trial
under Rule 404(b) of the Federal Rules of Evidence. Rule
404(b) requires the government to provide reasonable notice
before trial of its intent to use evidence of other crimes,
wrongs, or acts for the purposes listed in the Rule. It
provides “that upon request by the accused, the prosecution
in a criminal case shall provide reasonable notice in
advance of trial . . . of the general nature of any such
evidence it intends to introduce at trial.” Fed. R. Evid.
404(b).
To reiterate, Smith’s case requires significant
preparation and effort so as to defend effectively against
the highly sensitive charges in the Indictment. Given all
of the circumstances surrounding this trial and Smith’s
right to a fair trial, the Court should, in the best
interests of the defense, direct the prosecution to
64
disclose immediately all 404(b) materials. See United
States v. Evangelista, 813 F. Supp. 294, 302 (D.N.J. 1993)
(ordering disclosure of 404(b) materials ten days before
trial because the alleged misconduct was old and thus
reasonably required “more effort” on the defense’s part in
preparing its case).
POINT IX.
THE GOVERNMENT SHOULD PRODUCE

IMMEDIATELY ALL BRADY AND GIGLIO
MATERIALS.
The Government should produce in advance of trial all
exculpatory evidence within the purview of Brady v.
Maryland, 373 U.S. 83 (1963), and impeachment evidence
within the purview of Giglio v. United States, 405 U.S. 150
(1972). In Brady, the United States Supreme Court held
that defendant’s due process right to a fair trial is
violated when the prosecution withholds evidence that is
both favorable to the accused and material to either guilt
or punishment. Brady, 373 U.S. at 87. Later, the Supreme
Court in Giglio extended Brady’s rule to include evidence
that might be used for impeachment purposes. Giglio, 405
U.S. at 154; see United States v. Bagley, 473 U.S. 667, 678
(1985) (considering both impeachment evidence and
exculpatory evidence within the parameters of the Brady
65
rule); Carter v. Rafferty, 826 F.2d 1299, 1305 (3d Cir.
1987), cert. denied, 484 U.S. 1011 (1988).
Effective use of exculpatory and impeachment materials
at trial necessitates production of these materials at this
time. Indeed, the Third Circuit has favored a “longstanding
policy of encouraging early production” of Giglio
materials, United States v. Starusko, 729 F.2d., 256, 261
(3d Cir. 1984), to protect a defendant's constitutional
right to receive such materials “in time for [their]
effective use at trial,” United States v. Higgs, 713 F.2d
39, 44 (3d Cir. 1983). Given the nature of the charges as
well as the public attention and scrutiny that this trial,
no doubt, will generate, the Court should direct the
Government to produce immediately all Brady and Giglio
materials so as to afford the defense ample and meaningful
opportunity to review them.
POINT X.
THE GOVERNMENT SHOULD PRODUCE

IMMEDIATELY ALL JENCKS MATERIALS
Additionally, the Government should produce well
before trial all Jencks materials. The Jencks Act, 18
U.S.C. § 3500(a), requires the government to disclose prior
recorded statements of its witnesses, when related to the
subject matter of their testimony, after each witness
66
testifies on direct examination. United States v. Weaver,
267 F.3d 231, 245 (3d Cir. 2001). However, recognizing
again that this case involves complex and sensitive issues
and will be the subject of considerable media attention,
this Court should, at a minimum, enter an order encouraging
strongly the Government to produce early all evidence
within the scope of the Jencks Act.
POINT XI.
THE GOVERNMENT SHOULD DESIGNATE ALL CO-CONSPIRATOR

STATEMENTS THAT WILL BE INTRODUCED AT TRIAL AND THE COURT
SHOULD HOLD THE APPROPRIATE HEARINGS REGARDING USE
OF SUCH STATEMENTS.
The defense must know what co-conspirator statements
the Government intends to use at trial. To be certain, the
Government’s case-in-chief will rely extensively on alleged
co-conspirator statements. Most of these statements were
recorded either by Dwek on video or from a wiretap that was
placed on Shaw’s telephone. Other co-conspirator
statements may exist as well, and the Government may intend
to introduce them at trial. While the Government has
produced thousands of recordings, they have not designated
which recorded conversations or other statements they
intend to use at trial. And, once the Government makes
these designations, this Court should hold: (1) a James
67
hearing; 2) a minimization hearing, and 3) a hearing
addressing the admissibility and authenticity of the tape
recordings.
A) James Hearing
Because the Government’s case relies primarily on
alleged co-conspirator statements, Smith moves under United
States v. James, 590 F.2d 575 (5th Cir. 1979) for a pre-
trial hearing to determine the admissibility of alleged co-
conspirators’ statements under the exception to the hearsay
rule under Federal Rule of Evidence 801(d)(2)(E). Under
this Rule, “[a] statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a
statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy.” Before admitting a
co-conspirator’s statement under Rule 801(d)(2)(E), a party
must establish by a preponderance of the evidence: 1)
independent evidence of the existence of the conspiracy
that connects the declarant and defendant to it; 2) the
statement was made in furtherance of the conspiracy; and 3)
the statement was made during the course of the conspiracy.
E.g., Bourjaily v. United States, 438 U.S. 171, 175 (1987);
see also United States v. Continental Group, Inc., 603 F.2d
444, 457 (3d Cir. 1979) (holding that as a prerequisite for
the submission of coconspirator statements to the jury, a
68
court must determine “the existence of the alleged
conspiracy and the connection of each defendant with it by
a clear preponderance of the evidence independent of the
hearsay declarations.”) The court must make this
determination before the coconspirator statements are
submitted to the jury. United States v. James, 590 F.2d
575, 581 (5th Cir. 1979). Though not mandatory, a pretrial
hearing to resolve these issues is preferable. See United
States v. Ammar, 714 F.2d 238, 246 (3d Cir. 1983).
Here, the Government must establish the existence of
the conspiracy before it allows admission of any co-
conspirator statements against Smith. In this case, it
makes practical sense to require the Government to identify
pre-trial all of the statements it intends to introduce at
trial and to prove independent evidence linking Smith to
the declarants.
B. Minimization Hearing
After the Government produces a list of the recorded
conversations it intends to introduce at trial, Smith will
seek a ruling as to whether proper procedures were followed
regarding minimization of the wiretap conversations. Since
the target of the wiretap, now deceased Jack Shaw, was a
major Hudson County political consultant and the tap was
conducted during a heated election season, great care
69
should have been taken to ensure that the Government was
not haphazardly listening in on legitimate political
consulting of candidates. A fair electoral process is
essential in a democratic society. Akin to a situation
where an attorney is captured on a wiretap advising a
client, a political consultant’s conversations regarding
advice and strategy to candidates in legitimate political
campaigns should be handled with great care and caution.
This is particularly true where the person listening in
ends up running for office for the opposing party. In
short, failing to minimize properly non-criminal political
conversations could have chilling and far-reaching
ramifications on future elections. Overall, the costs of
the Government failing to properly limit its eavesdropping
in this context could have a devastating impact on the
election process in New Jersey.
All intercepts must be “conducted in such a way as to
minimize the interception of communications not otherwise
subject to interception . . . .” 18 U.S.C. § 2518(5). To
determine whether the Government complied with the statute,
the court must evaluate the reasonableness of the actual
interceptions in light of the wiretap’s purpose and the
totality of the circumstances. Scott v. United States, 436
U.S. 128, 131 (1978); see also United States v. Hull, 456
70
F.3d 133, 142 (3d Cir. 2006) (the relevant inquiry is on
the ‘reasonableness’ of minimization efforts, under the
totality of the circumstances.) Three specific factors
must be considered when determining whether the government
violated the minimization requirement. United States v.
Armocida, 515 F.2d 29, 38 (3d Cir. 1975). First, courts
must consider the nature and the scope of the criminal
enterprise under investigation. Id. In this regard, “where
the criminal enterprise under investigation is a large-
scale conspiracy, it may be necessary for the government to
intercept more conversations than where the investigation
is a more limited undertaking.” Id. Second, the court must
consider the “government’s reasonable expectation as to the
character of, and the parties to, the conversations.” Id.
Where the government knows the identities of the persons
whose conversations are to be targeted or has knowledge
regarding the time that criminal activity is expected to be
discussed, investigators should tailor their intercepts
accordingly. Id. Finally, courts must consider the degree
of supervision the authorizing judge exercised: the
authorizing judge may require the government to make
regular reports so that the judge can supervise the
interception process. Id.; 18 U.S.C. § 2518(6).
71
Here, improper monitoring triggers risks that not only
harm Smith, but also other state citizens. The target of
the wiretap was Shaw, a prolific political consultant to
the Democratic Party and its candidates for local office.
During the course of the wiretap, Shaw was likely providing
legitimate consultation with political candidates who were
not targets of the investigation, who never met with Dwek,
and who have not been charged with any crimes. The
Government should not have unfettered access to all of
these private conversations. Instead, the Government
should have taken great care in minimizing their listening
because unfettered eavesdropping could constitute nothing
more than a large-scale government fishing expedition. A
fair electoral process is crucial in a democratic society.
Given the risks to Smith and to New Jersey’s electoral
process, the Government should, at the very least, be
compelled to produce call logs or ten day reports to this
Court for an in camera inspection. That way, the Court can
review the Government’s conduct to ensure that the agents
undertook proper efforts to minimize non-pertinent
communications.5
C. Authenticity and Admissibility
5
Smith reserves his right to move to suppress intercepted communications once the
minimization issue has been addressed and resolved.
72
After the Government has disclosed which recordings
will be introduced and assuming the Court determines that
the Government has met its obligations under James and the
wiretap statutes, Smith will seek a pre-trial hearing
regarding the authenticity and admissibility of these
tapes. Smith reserves the right to seek a determination as
to the admissibility and authenticity as to each tape that
the Government intends to introduce.
POINT XII.
SMITH REQUESTS ADDITIONAL DISCOVERY TO AID IN

PREPARING HIS DEFENSE AND ENSURING HIS DUE PROCESS
AND FAIR TRIAL RIGHTS.
In addition to Brady, Giglio, and Jencks materials,
Smith requests this Court to order the Government to
produce immediately:
1) All FBI reports relating to Solomon Dwek and, in
particular, all report relating to contact with
Shaw, Cheatam, and Harvey Smith.
2) Dwek’s text messages during the time of the
conspiracy alleged in the Indictment;
3) Copies of text messages made during the time of
the conspiracy alleged in the Indictment to
and/or from law enforcement, Shaw, Cheatam, or
any other witness the Government intends to
call;
73
4) An accounting of all Government funds given to
or received from Dwek throughout his
cooperation;
5) Copies of Dwek’s tax returns and financial
statements for 2006, 2007, 2008 and 2009, the
years when Dwek worked for the United States
Government.
6) All records pertaining to Dwek’s bankruptcy
proceeding.
7) Grand jury transcripts for the grand jury
presentations for the Indictment of Harvey
Smith.
8) The most recent and updated version of the
Department of Justice’s guidelines regarding
the use of confidential informants and/or any
other official guidelines that governed the
responsibilities and/or obligations between the
Government and Solomon Dwek, in his capacity as
cooperating witness. After these materials are
disclosed to the defense, Smith reserves the
right to move for a hearing regarding the
Government’s non-compliance with official
guidelines and in using and/or monitoring Dwek’s
conduct as a confidential witness.
74
POINT XIII.
SMITH REQUESTS PERMISSION TO FILE

ADDITIONAL MOTIONS.
Discovery in this case is far from complete.
Moreover, until these motions are resolved, Smith is not in
a position to complete his evaluation of the discovery or
determine what additional motions may be necessary. The
motions that Smith anticipates filing will depend
significantly upon the theory the Government has adopted
for the Indictment and the Court’s ruling on the instant
motions.
Therefore, Smith requests this Court allow him an
opportunity following its ruling on these motions to file
any additional motions deemed necessary and/or appropriate
to his defense.
CONCLUSION
For the reasons explained above, Defendant L. Harvey
Smith requests this Court to grant his motions and, more
specifically, grant the following relief:
1) Dismiss all Hobbs Act extortion counts in
the Indictment;
75
2) Dismiss the Federal Program Bribery Charge
under 18 U.S.C. § 666;
3) Grant an evidentiary hearing on his
entrapment defense or, alternatively,
permit him to explore on cross-examination
at trial all areas related to his
entrapment defense;
4) Dismiss the indictment on Due Process
grounds based on the Government’s
outrageous misconduct;
5) Grant discovery and an evidentiary hearing
regarding the grand jury’s investigation of
this case;
6) Grant a bill of particulars;
7) Compel the Government to produce at this
time discovery materials under Rule 16,
404(b) evidence, trial exhibits,
Brady/Giglio evidence, and all Jencks
materials;
8) Compel the Government to provide a list of
all co-conspirator statements that will be
introduced in their case-in-chief and
scheduling a James hearing, a minimization
hearing, and a hearing to determine the
76
authenticity and admissibility of the
recorded conversations;
9) Compel the Government to provide additional
discovery, including but not limited to the
most recent and updated version of the
Department of Justice’s guidelines
regarding the use of confidential
informants and/or any other official
guidelines that governed the
responsibilities and/or obligations between
the Government and Solomon Dwek, in his
capacity as cooperating witness; and
10) Permit Smith to file additional motions as
necessary.
Respectfully submitted,
/s/ Peter R. Willis
____________________________
Counsel for Defendant L.
Harvey Smith
Dated: September 7, 2010
77

Harvey Smith

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Case 2:10-cr-00083-JLL Document 30 Filed 09/09/10 Page 1 of 4 PageID: 70

WILLIS & YOUNG, P.C.

PLEASE TAKE NOTICE that the undersigned Attorney for the

Defendant, L. Harvey Smith, hereby moves, before the United States

District Court of New Jersey, for an Order:

1) Dismissing all Hobbs Act extortion counts in the

2) Dismissing the Federal Program Bribery Charge under 18

3) Granting an evidentiary hearing on his entrapment

4) Dismissing the indictment on Due Process grounds based

5) Granting discovery and an evidentiary hearing regarding

6) Granting a bill of particulars;

7) Compelling the Government to produce at this time

8) Compelling the Government to provide a list of all co-

9) Compelling the Government to provide additional

10) Permitting L. Harvey Smith to file additional motions

__/s/ Peter R. Willis_

WILLIS & YOUNG, P.C.

City, New Jersey 07306, hereby certifies the following:

1. I am the attorney of record in the above-captioned matter and am

_/s/ Peter R. Willis______

WILLIS & YOUNG, P.C.

of Willis & Young, P.C. attorney for defendant L. Harvey Smith

requesting an Order Dismissing the Indictment and the United States

Attorney, by Jenny Kramer, Assistant United States Attorney, appearing

and for good cause shown,

Motion is hereby Granted:

UNITED STATES DISTRICT COURT

INDICTMENT NO. 10-83

UNITED STATES OF AMERICA,: CRIMINAL ACTION

BRIEF ON BEHALF OF DEFENDANT

Willis & Young

AnnMarie Harrison, Esq.

TABLE OF AUTHORITIES --------------------------------------- 1

PRELIMINARY STATEMENT -------------------------------------- 4

PROCEDURAL HISTORY AND STATEMENT OF FACTS ------------------ 7

LEGAL ARGUMENT --------------------------------------------- 30

POINT TWO --------------------------------------------- 41

THE SECTION 666 BRIBERY COUNT SHOULD BE

POINT THREE ------------------------------------------- 45

ALTERNATIVELY, SMITH’S ENTRAPMENT DEFENSE MUST

POINT FOUR -------------------------------------------- 50

THE CONDUCT OF THE GOVERNMENT AND ITS AGENTS IS

POINT FIVE -------------------------------------------- 56

DISCOVERY AND AN EVIDENTIARY HEARING RELEVANT

POINT SIX --------------------------------------------- 59

A BILL OF PARTICULARS IS NECESSARY TO ALLOW

POINT SEVEN ------------------------------------------- 62

THE GOVERNMENT SHOULD RELEASE IMMEDIATELY TO

POINT EIGHT ------------------------------------------- 64

THE GOVERNMENT SHOULD DESCRIBE IN ADVANCE THE

POINT NINE -------------------------------------------- 65

THE GOVERNMENT SHOULD PRODUCE IMMEDIATELY ALL

POINT TEN --------------------------------------------- 66

THE GOVERNMENT SHOULD PRODUCE IMMEDIATELY ALL

POINT ELEVEN ------------------------------------------ 67

THE GOVERNMENT SHOULD DESIGNATE ALL CO-

POINT TWELVE ------------------------------------------ 73

SMITH REQUESTS ADDITIONAL DISCOVERY TO AID IN

POINT THIRTEEN ---------------------------------------- 75

SMITH REQUESTS PERMISSION TO FILE ADDITIONAL

Borden v. School Dist. of Tp. East Brunswick, 523

United States v. Hull, 456 F.3d 133 (3d Cir. 2006) . 72

Ind. Ct. II .......................................... passim