Former MediSys CEO David Rosen Appeal

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Docket No. 12-2249-cr ___________________________________________________________
UNITED STATES OF AMERICA, Appellee, against
DAVID ROSEN, Defendant-Appellant. ___________________________________________________________
DAVID ROSENS MOTION FOR RELEASE PENDING APPEAL
MORVILLO, ABRAMOWITZ, GRAND, IASON, ANELLO & BOHRER, P.C. Elkan Abramowitz James R. Stovall 565 Fifth Avenue New York, New York 10017 (212) 856-9600
MORVILLO LLP E. Scott Morvillo Ellen M. Murphy Robert C. Morvillo 1 World Financial Center New York, New York 10281 (212) 796-6330
Attorneys for Defendant David Rosen
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TABLE OF CONTENTS
INDEX FOR APPENDIX............................................................................................................... ii TABLE OF AUTHORITIES .......................................................................................................... v PRELIMINARY STATEMENT .................................................................................................... 1 STATEMENT ................................................................................................................................. 5 I. II. A. B. Statutory Provisions ............................................................................................................. 5 Factual Background.......................................................................................................... 5 The MediSys Hospitals Relationships with New York State Legislators ................... 5 Proceedings Below ..................................................................................................... 11
ARGUMENT ................................................................................................................................ 11 I. Rosen is entitled to release pending appeal because he is not a danger or flight risk, and his appeal will raise at least two substantial questions likely to result in reversal. .................. 11 A. The bribery and honest-services fraud statutes are unconstitutionally vague as applied to the lawful payments and lobbying at issue. ...................................................................... 12 B. The government failed to prove beyond a reasonable doubt that Rosen intended an unlawful quid pro quo. .......................................................................................................... 17 CONCLUSION ............................................................................................................................. 20
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INDEX FOR APPENDIX Findings of Fact and Conclusions of Law, September 12, 2011 ...................................... A-1A-40 Judgment in a Criminal Case, May 22, 2012 .................................................................. A-41A-47 Notice of Appeal, May 29, 2012 ............................................................................................... A-48 Excerpt of Sentencing Transcript (page 55) ............................................................................. A-49 Excerpt of Trial Transcript (pages 1247-1248) .............................................................. A-50A-51 Defense Exhibit 242.................................................................................................................. A-52 Government Exhibit 1248 ............................................................................................... A-53A-57 Excerpt of Trial Transcript (pages 500-501) .................................................................. A-58A-59 Excerpt of Trial Transcript (pages 506-511) .................................................................. A-60A-64 Excerpt of Sentencing Transcript (page 943) ........................................................................... A-65 Government Exhibit 2100B ...................................................................................................... A-66 Government Exhibit 3301 ......................................................................................................... A-67 Excerpt of Sentencing Transcript (pages 1580-1581) .................................................... A-68A-69 Excerpt of Trial Transcript (page 1716) ................................................................................... A-70 Government Exhibit 1222 ......................................................................................................... A-71 Government Exhibit 1226 ............................................................................................... A-72A-76 Excerpt of Trial Transcript (pages 1878-1879) .............................................................. A-77A-78 Excerpt of Sentencing Transcript (pages 1591-1592) .................................................... A-79A-80 Government Exhibit 2303 ......................................................................................................... A-81 Government Exhibit 2305 ......................................................................................................... A-82 Government Exhibit 2315 ......................................................................................................... A-83 Government Exhibit 2400 ......................................................................................................... A-84 Excerpt of Trial Transcript (pages 1006-1007) .............................................................. A-85A-86 Excerpt of Trial Transcript (pages 1021-1022) .............................................................. A-87A-88 iii
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Excerpt of Trial Transcript (page 1137) ................................................................................... A-89
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TABLE OF AUTHORITIES
Cases United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004). ........................................................... 12 United States v. Bruno, 661 F.3d 733 (2d Cir. 2011) ............................................................... 3, 15 United States v. Coyne, 4 F.3d 100 (2d Cir. 1993) ............................................................. 3, 13, 14 United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) ............................................... 2, 3, 13, 14 15 United States v. Glenn, 312 F.3d 58 (2d Cir. 2002).................................................................. 4, 20 Grayned v. City of Rockford, 408 U.S. 104 (1972)................................................................. 13, 17 Skilling v. United States, 130 S. Ct. 2896 (2010). .................................................................... 3, 13 United States v. Randell, 761 F.2d 122 (1985) ............................................................................. 12 United States v. Santiago, 695 F. Supp. 1490 (S.D.N.Y. 1988). .................................................. 12 Federal Statutes 18 U.S.C. 3143(a)(1). ................................................................................................................. 12 18 U.S.C. 3143(b). ..................................................................................................................... 11 State Statutes N.Y. Pub. Off. Law 73 .................................................................................................................. 5 N.Y. Pub. Off. Law 73(7)(a) ......................................................................................................... 5 N.Y. Pub. Off. Law 73(7)(c) ......................................................................................................... 5 N.Y. Pub. Off. Law 73(7)(d)......................................................................................................... 5 N.Y. Pub. Off. Law 73-a(3) .................................................................................................... 5, 18 N.Y. Pub. Off. Law 74. ........................................................................................................... 5, 18 N.Y. Pub. Off. Law 77. ................................................................................................................. 5
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PRELIMINARY STATEMENT David Rosens appeal involves an unprecedented attempt to apply the federal bribery and honest-services fraud statutes to conduct expressly permitted by the New York Public Officers Law. Rosen was the CEO of MediSys, a not-forprofit healthcare company, and its constituent safety-net hospitals in Queens and Brooklyn. At Rosens direction, MediSys entered into agreements to pay certain legislators for consulting on non-state matters. Rosen continued to lobby those legislators on state matters affecting the MediSys hospitals. Both MediSyss consulting agreements with legislators and Rosens continued lobbying of those legislators were expressly permitted by the New York Public Officers Law. To apply the statutes at issue to Rosens conduct violates Due Process. Those statutes have never been applied to the unique combination of circumstances here: (i) the consulting arrangements with legislators were expressly permitted by the New York Public Officers law; (ii) the official acts the legislators performed were routine acts that were in the interests not only of MediSys but also of the legislators constituents; (iii) those acts were not aimed at, and did not result in, personal gain to Rosen; and (iv) there was no temporal connection between the consulting arrangements and the legislative acts. The bribery and honest-services fraud statutes each prohibit a quid pro quo agreement, that is, a government officials receipt of a benefit in exchange for an
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act he has performed, or promised to perform, in the exercise of his official authority. United States v. Ganim, 510 F.3d 134, 141 (2d Cir. 2007). By contrast, merely paying legislators with the intent to buy favor or generalized goodwill from an official who is or may be in a position to act favorably on the givers interest is not bribery but legal lobbying. Id. at 149 (emphasis in original). To be guilty of paying a bribe, a defendant must have the specific intent to give something of value in exchange for an official act. The acts constituting the quid pro quo need not be identified when the agreement is formed. Rather, the requisite quid pro quo may be established upon a showing that a government official received a benefit in exchange for his promise to perform official acts . . . as the opportunities arise. Id. at 142. The government conceded here that: (1) there was no evidence of an explicit quid pro quo and (2) no particular official acts had been identified when the consulting arrangements began. Nevertheless, the government argued that the facts reflected a promise to pay legislators in exchange for their promise to act in the future as specific opportunities arise. But applying the as opportunities arise theory here, where in one instance the consulting arrangement preceded the official act by seven years, distorts it beyond recognition. The three cases in which this Court has approved that theory all involved non-routine efforts by a public official to award business or disburse funds to a
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private entity in exchange for payments or agreements to pay that occurred shortly before or after an official act. See Ganim, 510 F.3d 134 (mayor expressly agreed to award city business to his friends in exchange for kickbacks, and began awarding business within two months of agreement); United States v. Bruno, 661 F.3d 733 (2d Cir. 2011) (Senate Majority Leader, on his own discretion, disbursed funds, which had been withheld, days after agreement to pay him consulting fees); United States v. Coyne, 4 F.3d 100 (2d Cir. 1993) (payment to county executive made shortly after he helped architect win contract with county). The gap between those cases and this one demonstrates that Rosen could not have known that his conduct was criminal. If the as opportunities arise theory applies here, anytime a legislator enters into a business arrangement permitted by New York law, and then later (no matter how much later) performs an official act that could benefit one of his clients, prosecutors could prosecute him for bribery. And there would be no objective standards for distinguishing legitimate consulting arrangements from bribery schemes. This case will allow the Court to provide guidelines for applying the as opportunities arise theory that will prevent its arbitrary and discriminatory enforcement. Skilling v. United States, 130 S. Ct. 2896, 2904 (2010). Therefore, whether the bribery and honest-services statutes are unconstitutionally vague as applied to Rosens conduct is a substantial legal question for this Court.
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The lack of objective standards for applying the as opportunities arise theory also misled the district court (Honorable Jed S. Rakoff) into concluding, after a bench trial, that the government proved that Rosen acted with corrupt intent. Judge Rakoffs peremptory conclusion rests on numerous factual findings that are clearly erroneous. As the court recognized, the key issue at trial was whether MediSyss consulting agreement with Assemblyman Anthony Seminerio was a sham. The court found that it was, and that Rosen knew it, on the ground that Seminerio supposedly did no material work for MediSys on non-state matters. But the governments own evidence showed that Seminerio identified opportunities for MediSys that generated millions of dollars in revenue and savings. And all of the purported official acts that Seminerio allegedly performed as a result of the consulting agreement occurred at least seven years after the consulting agreement was signed. Under these circumstances, the inference of guilt was, at most, equally as plausible as the inference of innocence. Accordingly, whether there was reasonable doubt as a matter of law also presents a substantial question for this Court. See United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002). Because resolution of either of these questions in Rosens favor would require reversal, he is entitled to release pending appeal.1
These are not the only issues that will be raised in Rosens appeal.
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STATEMENT I. Statutory Provisions The New York Public Officers Law permits legislators (and other elected state officials) to earn income from outside business and professional activities, such as law practices and consulting businesses. See N.Y. Pub. Off. Law 73, 73a, 74. That business may include appearing on a clients behalf before local or federal agencies. Legislators may not, however, receive compensation for providing services in relation to matters before state agencies, when the services relate to certain topics, including the obtaining of grants or loans. Id. 73(7)(a). But legislators may be paid for appearing before a state agency in connection with a ministerial matter. Id. 73(7)(c). And although legislators may not engage in an official state act in exchange for payment (id. 77), the Public Officers Law expressly permits officials who have entered into a consulting arrangement to participate or advocate in any official capacity on issues affecting their consulting clients. See id. 73(7)(d). II. A. Factual Background The MediSys Hospitals Relationships with New York State Legislators For almost 40 years, David Rosen oversaw the operation of not-for-profit safety-net hospitals in Queens and Brooklyn. He began his career as acting executive director of Jamaica Hospital. Later, Rosen and others formed MediSys
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Health Network to serve as the corporate sponsor of Jamaica Hospital and its affiliated hospitals, Flushing and Brookdale Hospitals. The MediSys hospitals served largely indigent, uninsured, and underinsured patients. As a result, Medicaid reimbursements, which are determined by the state budget, were a significant portion of the hospitals revenues. Because of this reliance, MediSys maintained relationships with state legislators who supported the hospitals in various ways, including sponsoring legislation that benefitted the MediSys hospitals and other similarly situated hospitals and opposing cuts to Medicaid reimbursement rates. For legislators, assisting the MediSys hospitals also meant benefitting their constituents who used or were employed by them. This case involves MediSyss relationships with three New York state legislators: Assembly members Anthony Seminerio and William Boyland, Jr. and Senator Carl Kruger. 1. Jamaica Hospitals Relationship with Anthony Seminerio
Anthony Seminerio was an Assemblyman from Queens for more than 30 years. Seminerios support of Jamaica Hospital began almost immediately upon his election, in 1978, and continued throughout the 1980s and 1990s. His support included testifying at a public hearing to decide whether to close Jamaica, and cosponsoring legislation that allowed Jamaica and other hospitals to raise money through tax-exempt bonds. Throughout the 1980s and 90s, Seminerio also advised Jamaica on its interactions with local and federal officials and intervened with
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those officials on MediSyss behalf. By 1998, Seminerio had formed a consulting company, Marc Consultants, so he could be compensated for the assistance on local and federal matters he provided MediSys and other companies. In the late 1990s, Jamaica and an insurance company affiliated with Jamaica, NHP, entered into consulting agreements with Marc. The agreements were drafted by the law firm Kalkines Arky Zall & Bernstein, MediSyss longtime outside general counsel. The key issue at trial was whether the consulting agreements with Seminerio were a sham. After trial, Judge Rakoff concluded that Rosens appeal would not raise a substantial question, and thus that Rosen was not entitled to release pending appeal, based on its finding that Rosen understood at all times that these were sham consulting agreements. A-49. But this finding ignored the undisputed evidence that Seminerio in fact provided significant consulting assistance to Jamaica Hospital and NHP on local and federal matters, and his efforts led to millions of dollars in revenues or savings. His consulting work included: helping Jamaica Hospital acquire a strategically located building at 90-09 Van Wyck Expressway for a fraction of its value and earn up to $150,000 a year by renting billboard space on the property (A-50A-51); identifying an opportunity to provide physicals to army personnel (A-52); contacting the New York City Fire Department to request an increase in the number of ambulance districts that Jamaica Hospital served (A-53A-56);
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arranging a meeting for NHPs CEO with the CEO of a municipal hospital in Queens, which enabled NHP to continue marketing at the hospital and prevented millions of dollars in losses for NHP (A-57A-58; A-59A-64);
introducing MediSys to a HUD official, who was instrumental in causing a stalled application by Jamaica Hospital Nursing Home for a $47 million mortgage guarantee to move forward (A-65).
None of this consulting work violated the Public Officers Law, and all of it benefitted MediSys and its patients and 10,000 employees. 2. MediSyss Relationship with William Boyland, Jr.
In 2000, MediSys was asked by state authorities to take over the failing Brookdale Hospital in the Brownsville neighborhood of Brooklyn. The Boyland family was a well-respected political family in Brownsville. William Boyland, Sr. was an Assembly Member. When he retired, his son, William Boyland, Jr. (Boyland), won his fathers seat in a special election in February 2003. The Boyland family had long standing ties to both Brookdale and Jamaica Hospitals. Since 1994, years before MediSyss takeover of Brookdale, Boyland had worked for Brookdale or one of its affiliated clinics as a marketer. Although Boylands appearance at work was sporadic at best, Brookdale kept him on the payroll. Brookdale valued its relationship with the Boyland family, in part because of the Boylands influence in the minority community that surrounded the hospital.
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After MediSys became Brookdales corporate sponsor, it also recognized the value of the Boyland brand. It was important that MediSys foster goodwill with the Boylands who, in turn, could speak well about the hospital in the Brownsville community. After Boyland was elected to the Assembly, he asked Rosen if he could have a consulting title so he wouldnt have to punch in. Rosen agreed, and informed MediSyss CFO and General Counsel. A-66. 3. Brookdale Hospitals Contacts with Carl Kruger
The facts and legal theory relating to Senator Kruger do not show any quid pro quo, illicit or otherwise. Instead, the facts show that Rosen tried to build goodwill with Kruger by being willing to award business to a company that Kruger recommended, after MediSys officers had independently approved hiring the company. Rosen met Kruger in 2007 at a hearing on medical malpractice. Shortly thereafter, Kruger met with Rosen to help pitch a certain medical malpractice insurance product, which Rosen rejected. In November 2007, Kruger sent Rosen a letter informing him that Kruger had secured funding for Brookdale and that he had also sought funding for Jamaica Hospital. (No funding was ever received.) Thereafter, Kruger sought Rosens views and assistance in connection with a plan to consolidate hospitals in Queens and Brooklyn. There was no consulting relationship with Kruger.
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Before Krugers funding letter, and without Rosens knowledge, Compassionate Care Hospice (CCH), a Medicare-approved hospice company operating in Brooklyn and a number of states, approached a nursing home affiliated with Brookdale, the Schulman and Schachne Institute for Nursing and Rehabilitation (SSI), about becoming one of SSIs hospice providers. Also unknown to Rosen, CCH had an agreed to pay a company in which Kruger had a financial interest a fee for securing contracts for CCH. Without Rosens involvement, SSIs chief administrator recommended that MediSys enter into a contract with CCH as a back-up hospice provider. The proposed contract between SSI and CCH remained in the general counsels office for months before Rosen heard about it. Approximately six months after the CCH contract was sent to the general counsels office for review, Kruger visited Brookdale to distribute toys to patients in the pediatric unit. After that visit, Rosen asked MediSyss general counsel about the status of the CCH contract, noting that Kruger was following it and that Rosen had promised to get this done. A-67. However, Rosen never signed the contract. Despite that fact, Kruger continued to seek Rosens views on consolidating hospitals in Queens and Brooklyn. In August 2008, Kruger was scheduled to meet with Governor Paterson. The day before the meeting, a member of Krugers staff asked Rosen for talking points explaining why a proposed hospital consolidation made sense, and Rosen provided them.
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Other than a calendar entry on Patersons calendar, there is no evidence that the meeting between Kruger and Paterson ever occurred or, if it did, what they discussed. B. Proceedings Below After a bench trial, Judge Rakoff found Rosen guilty of committing and conspiring to commit honest services fraud, and conspiring to commit federal programs bribery and Travel Act bribery. The district court issued its findings of fact and conclusions of law on September 12, 2011. A-1A-40. On May 7, 2012, Judge Rakoff sentenced Rosen to 36 months of imprisonment, and denied Rosens motion for release pending appeal. The court ordered Rosen to surrender to prison by August 8, 2012. The court entered judgment on May 23, 2012, and Rosen filed a notice of appeal on May 29, 2012. A-41A-47; A-48. ARGUMENT I. Rosen is entitled to release pending appeal because he is not a danger or flight risk, and his appeal will raise at least two substantial questions likely to result in reversal. If a defendant demonstrates that he is not a flight risk or a danger to the community, and that his appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or a new trial, he shall be released pending appeal. 18 U.S.C. 3143(b). For defendants who satisfy the
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statutory test, release pending appeal is not simply discretionary but mandatory. United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004). By granting Rosen release pending both the imposition and execution of his sentence, the district court found by clear and convincing evidence that he is not likely to flee or pose a danger to the community. See 18 U.S.C. 3143(a)(1). The Probation Office made the same determination and the government has never contended otherwise. And because Rosens appeal raises substantial questions, it is not for purposes of delay. See United States v. Santiago, 695 F. Supp. 1490, 1492 (S.D.N.Y. 1988). To be entitled to release pending appeal, Rosen does not have to show that his appeal is likely to succeed. He needs to show only that if the Court of Appeals resolves a substantial question in his favor, that decision is likely to result in reversal or a new trial. United States v. Randell, 761 F.2d 122, 125 (1985). A question is substantial if it has more substance than would be necessary to a finding that it was not frivolous, or if it very well could be decided the other way. Id. Rosens appeal will raise at least two substantial questions, and resolution of either in his favor will result in reversal. A. The bribery and honest-services fraud statutes are unconstitutionally vague as applied to the lawful payments and lobbying at issue. A penal statute violates Due Process unless it defines the criminal offense with sufficient definiteness that ordinary people can understand what conduct is
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prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Skilling, 130 S. Ct. at 2904 (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)) (brackets omitted). The Supreme Court has explained that the second requirement is more important than the first. Kolender, 461 U.S. at 358. A law that lacks explicit standards for its application impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). As applied to Rosens conduct, the bribery and honest-services fraud statutes at issue do not satisfy either Due Process requirement. The government sought to apply those statutes to Rosens conduct under an as opportunities arise theory, i.e., that Rosen offered legislators a benefit in exchange for [their] promise to perform official acts . . . as the opportunities arise. Ganim, 510 F.3d at 142. That theory has been approved by this Court in only three cases, each one categorically different from this case: none of them involved routine legislative acts that were in the interests of the government officials own constituents; and in all of them, the official acts were performed shortly before or after the charged quid pro quo agreement was formed. This Court first approved the as-opportunities-arise theory in Coyne, 4 F.3d 100. Coyne, the Albany County Executive, helped an architect, Crozier, obtain a
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contract with the county in return for a payment of $30,000 for financial problems. Coyne asked Crozier for the payment one or two months after he facilitated the contract award. Coyne argued on appeal that the government failed to prove he had expressly promised to help Crozier at the time the payment was made. This Court explained that the jury could reasonably infer that Coyne accepted the $30,000 knowing that it was intended to influence him to act on Croziers behalf as specific opportunities arose, because Coyne had provided material assistance to Crozier shortly before he asked for the payment, and after he got it he lobb[ied] legislators for changes [to the contract] that would increase Croziers fees. Id. at 111. The theory was next addressed in Ganim, 510 F.3d 134. Ganim, as the mayor of Bridgeport, Connecticut, had financial authority to award city contracts. Two of his friends owned public relations and architecture businesses, and Ganim told them he would steer city contracts their way in return for a share of the fees they earned from the contracts. Within two months of their agreement to this arrangement, Ganim began awarding contracts to his friends. On appeal, although there was direct evidence Ganim had agreed to award contracts in exchange for kickbacks, he argued that the government should have been required to prove that specific contracts had been identified when the agreement was formed. This Court
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held that the government needed to prove only that he had promised to perform official acts (awarding city contracts) as the opportunities arose. Id. at 142. The last decision applying the theory is Bruno, 661 F.3d 733. Bruno, the former Majority Leader of the New York State Senate, had a friend named Abbruzzese who had a financial interest in a technology company. The company had obtained a state grant that was to be paid in three installments, and the timing of the payments was controlled by Bruno. Only one installment payment had been made. After Abbruzzese contacted Bruno about the remaining payments, Bruno suggested that Abbruzzese arrange for Bruno to be paid as a consultant. Abbruzzese agreed, and five days later Bruno authorized another installment payment to the technology company. Six days after that, a formal consulting agreement with Bruno was signed. A few months later, Bruno recommended that Abbruzzeses business partner be appointed to the Board of Trustees of the New York Racing Association. On appeal, Bruno argued that the evidence was insufficient to prove a quid pro quo. This Court disagreed, explaining that the [a]cts constituting the [quid pro quo] agreement need not be agreed to in advance. A promise to perform [official] acts as the opportunities arise is sufficient. Id. at 744. Given the timing of the payments in relation to the actions taken by Bruno, a rational jury could have concluded that Bruno understood the consulting payments were made in return for official action. Id.
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The differences between the facts of those cases and the facts here are stark. Rosen entered into consulting arrangements with Seminerio and Boyland that were expressly permitted by the New York Public Officers law. He continued to lobby those legislators on state matters, which the Public Officers law also expressly permits. And the acts he discussed with them did not involve personally enriching Rosen through contracts or business that could be doled out at the legislators discretion. Instead, Rosen discussed ways to fund or expand safety-net hospitals, such as opposing cuts to the states Medicaid budget, that served the legislators own constituents. As Judge Rakoff recognized, those are routine acts that any legislator would perform. Any legislator who merely wanted to be reelected would fight like hell to prevent Medicaid cuts. Bribing a legislator to oppose Medicaid cuts would be wasting [your] time, because you can get that for free, guaranteed. A-68A-69. For Seminerio, the official acts he performed were also consistent with acts he had been performing for decades before the consulting arrangement began. As Judge Rakoff noted, after MediSys and Seminerio entered into a consulting arrangement, he did not do anything for MediSys out of character or beyond what he had done before, but continued to do the same kind of things. A-70. In addition, the timing of the relevant official acts by all of the legislators was not temporally linked to a consulting arrangement, because the acts at issue all occurred well after the arrangements began.
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Given these facts, Rosen could not have had fair notice that his conduct could be a federal crime. And on the facts here, there are no objective standards that would enable a prosecutor or judge to distinguish a consulting arrangement followed by continued lobbying and legislative acts that is permitted by the New York Public Officers law, on the one hand, from a corrupt agreement to pay a legislator in exchange for a promise to act as opportunities arise, on the other. Accordingly, whether the bribery and honest-services statutes are unconstitutionally vague as applied to Rosens conduct is a substantial question. B. The government failed to prove beyond a reasonable doubt that Rosen intended an unlawful quid pro quo. Again, the primary danger of vague criminal laws is that, because they lack sufficient standards for when and how they should be applied, they end up being enforced by juries, or judges, on an ad hoc and subjective basis. Grayned v. City of Rockford, 408 U.S. 104 (1972). That is exactly what happened here: the vagueness of the bribery and honest-services fraud statutes meant the court had no objective standards for evaluating Rosens intent. Judge Rakoffs conclusion that the government proved a quid pro quo is based on distortions of the record and on findings contradicted by the very evidence the court relied on. For example: Judge Rakoff found that Rosen understood, even at the outset [in 1998 and 1999], that the consulting arrangement [with Seminerio] was a disguised bribe, necessary to assure Seminerios legislative support for MediSys. A17
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9. Yet the first official act that Seminerio allegedly took in connection with the sham arrangement was in 2006, more than seven years after the consulting agreements were signed. A-15A-19; A-71A-76. And as Judge Rakoff recognized at trial, the support that Seminerio did (eventually) provide was consistent with the support he had provided for years. A-70; Judge Rakoff found that the consulting agreements were shams because Seminerio never rendered any material consulting services to MediSys at any time here relevant, and Rosen well knew this. A-12.2 Yet the governments own witnesses and exhibits showed that, during the relevant period, Seminerios consulting work generated millions of dollars for Jamaica Hospital and NHP, and that Rosen was kept apprised of his efforts; Judge Rakoff also dismissed Seminerios consulting work because he did not disclose that he was a consultant and he referred to himself as Assemblyman. A-12. But the New York Public Officers law did not require that Seminerio disclose his consultancy clients and did not prohibit using his official title in these circumstances. See N.Y. Pub. Off. Law 73a(3), 8(a), 74. Moreover, as Judge Rakoff recognized during the trial, disclosing that he was a consultant would have been immaterial, because regardless of how Seminerio identified himself, the people he dealt with The court did not explain why it thought Seminerios services needed to be material for the agreement to be legitimate.
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were never going to distinguish between his role as an Assemblyman and his role as a consultant; the only reason they would give [Seminerio] the time of day is because hes an [A]ssemblyman, and the law, for better or worse, allows that. A-77A-78; Judge Rakoff found that Boyland made repeated requests for state funding for the MediSys hospitals. A-27. But as the court noted during argument on Rosens Rule 29 motion, the governments theory that the consulting payments to Boyland were bribes was a somewhat close call because there appears to be not a great many instances in which . . . Boyland did something that even in part can be reasonably attributed to this arrangement. A-79A-80. In fact, over the six years Boyland was paid as a consultant, he made only two requests for funding, and they were three years apart. A-81; A-82; Judge Rakoff found that some of Boylands requests were even drafted in part by Rosen himself. A-27. But the email the court relied on for this finding related to funding that Rosen sought not from Boyland but from his sister Tracy Boyland, who was on the New York City Council. A-83; A-84; in determining that Rosens intent in his dealings with Kruger was corrupt, Judge Rakoff found that Rosen took steps to award a vendor contract to Compassionate Care that was lucrative. A-37. But the only evidence
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presented about the value of the Compassionate Care contract was that it would have been a back-up contract that could have given Compassionate Care only two to three hospice patients a year. A-85A-86; A-87A-88; and Judge Rakoff found that Rosen demonstrated consciousness of guilt by severing ties with Kruger after Seminerio was arrested in September 2008. A-35. This is simply not true: Compassionate Care was invited to rebid for hospice work in 2009. A-89. Reasonably construed, the governments evidence, all of which was circumstantial, showed that Rosen wanted to build goodwill with legislators in a position to help MediSys. At most, the inferences of guilt and innocence were equal. Under those circumstances, a reasonable fact-finder must necessarily entertain a reasonable doubt. Glenn, 312 F.3d at 70. Whether a reasonable factfinder should have entertained a reasonable doubt here is a substantial question. CONCLUSION The Court of Appeals should grant Rosen release pending appeal. Dated: June 5, 2012 Respectfully Submitted,
/s/ Elkan Abramowitz Elkan Abramowitz Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C.
20
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CERTIFICATE OF SERVICE
I, Ellen M. Murphy, certify that on June 5, 2012, I caused a true and correct copy of Defendant-Appellant David Rosens Motion for Release Pending Appeal and the accompanying Appendix to be served by electronic mail on the following counsel for Plaintiff-Appellee:
Michael Bosworth Assistant United States Attorney United States Attorneys Office Southern District of New York One St. Andrews Plaza New York, NY 10007 Michael.Bosworth@usdoj.gov
/s/Ellen M. Murphy________ Ellen M. Murphy
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APPENDIX
Case 1:11-cr-00300-JSR Document 138 Case: 12-2249 Document: 10 Page: 29 Filed 09/12/11 Page 1 of 40 117 06/05/2012 628906
A-1
A-2
A-3
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A-5
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A-8
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Case 1:11-cr-00300-JSR 10 Page: 38 Case: 12-2249 Document: Document 138 Filed 09/12/11 Page 10 of 40 117 06/05/2012 628906
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A-11
A-12
A-13
A-14
A-15
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A-17
A-18
A-19
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A-26
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Case 1:11-cr-00300-JSR Document 69 Case: 12-2249 Document: 10 Page:241
Filed 05/23/12 Page 1 of 7 117 06/05/2012 628906
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Filed 05/23/12 Page 7 of 7 117 06/05/2012 628906
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Filed 05/29/12 628906 of 1 06/05/2012 Page 1 117
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
55 C57AROSSps what it reaffirms for the purposes of this immediate decision is that the defendant understood at all times that these were sham consulting agreements. He was never operating under a belief that these were real consulting agreements in any sense of the word. And so it seems to me the abstract argument will not be one that should detain an appellate court for any length of time because it's inapplicable to the findings made in this case. So not without some regret, I find that the defendant has not carried his burden and that therefore he must surrender prior to appeal. Now, of course, an application may be made to the Court of Appeals for their own review of the bail issue. But let's set a date for surrender at this time. MR. ABRAMOWITZ: Your Honor, may we have 90 days to surrender and attempt to? THE COURT: Yes. So let's see. That would be August 8 at 2 p.m. at the designated institution. All right. Thanks very much. o0o
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183YROS7
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3
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8
BY MR. R. MORVILLO: O. Do you know whether program?
MR. BOSWORTH: THE COURT: Ground? MR. BOSWORTH: Foundation. THE COURT: Okay. Lay a foundation.
Flanz - cross Objection.
1241
or not there was an attempt on the part of the hospital to get a federal grant for the miJ-itary heath
10
11
1,2
A. YeS. O. And did the Mil-itary Associates relationship assist in securing that grant?
V
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meetings ? A. I remember him being at meetings, yes. SoUTHERN DSTRIC REPORTERS, P.C. (212) 8os-o3oo
With respect to 9009, how many different. aspects of the development of that project did Mr. Seminerio work on, to the best of your recoll-ection? A. Many aspects. O. Can you tel-I us what they were? A. Setting up meetings, participating in meetings, identifying who would be important in the approval process, identifying when the property woul-d become avail-able. O. And was he responsible for attending many of these
a.
Excuse me, do you need

No.
this
back?
A-50
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Flanz - cross 1-83YROS7 And did he make introductions to the relevant personnef who O. had to make the decisions with regard to the various aspects of this project? A. Yes. O. Did the building have a billboard on it? A. Two billboards. O. Were they revenue producing? A. YeS. O. Do you remember how much money the hospital made during the period of time that the billboards were operative? A. At the most, which was towards the end of when we were allowed to have the billboard before the city changed the ordi-nance, it was about $150,000 a year. O. What about Evenflo, were you involved in any way in
L248
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A. O. A. O. A. O. A.
Evenf l-o?
We1I, were you the person that directed Mr. Moore over in to hire Evenflo? A. To give them an opportunity.
Brookdal-e
Yes. What is Evenfl-o? Evenfl-o is an ambul-ette company. And tell the court how you were invol-ved Minimally invol-ved.
in Evenffo.
25
a.
Yes. Yes.
SOUTHERN
D]STR]CT REPORTERS, P.C. (21,2) 805-0300
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Tony Seminerio told me to.expect a cail this *"1k,of army physicars. He noted that we re fhg_nmy regarding doing up to os visits (totar?) tortri'i'ititary health business' Let me know ir tns rniolrect, and standby for the phone call re physicals. David P Rosen, Presideni and CEO Brookdaie Hospital Medical Center Flushing Hospital Medical Center
Medisys Heatth Network Jamaica Hospital Medical Center
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JAMAICA HOSPITAL MEDTCAL CENTER

8900 Van Wyck Expresswa Jamaica, NY Dal Direct: 71 8.206'6290 o Fax
11418. 718-206-6000
8-657-0545
71
OFFICE OFTHE PRESIDENT
April25,2000
Hon. Anthony S. Seminerio I l4-19 Jamaca Avenue
Richmond Hill, NY
ll4l8
Re: Jamaica Avenue Construction Dear
I had a meeting today with Pre-Hospital Care Deparfirent staff conceming the impact the Jamaica Avenue construction work on our ambulance access
of the traffrc access problems:
of
\ile determined that the following issues needed to be addressed in oder to resolve some
l. The bus stop currently located at the southwest comer of Jamaica Avenue and the southbound Van Wyck service Road needs to be moved east of the Jamaica Avenue ard Van Wyck intersection. Due to the construction there is only a single lane available and if an ambulance is in that lane behind one or two stopped buses, the traffic light can go through several cycles before the turn can be made.
2. Metropolitan Avenue needs to be made two-way to allow our ambulances access to the Service Road when Jamaica Avenue is backed-up. We had originally requested that DOT providc a single east bound lane "for emergency vehicles only" but this request h never been implcmentcd. city and the Jamaica Contractor. They have to understand the urgency of ambulance access and react accordingly. This issue was raised in a letter to the Depafment of
Design and Construction and at a recent meeting with them. Their response wa that they nhave met our needs" in this regard have made no changes 1o the number or quality of the flagmen provided. As always, thank you for your concem for the bette interests of Jamaica Hospital
3. Additional and better qualified traflic control agents need to be provided by the
/^Cu Cwth llcfo,'/,
GOVERNMENT EXHIBIT
1248
Sl
ll
Cr. 300
MHN10049
A-53
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.,ATATC HOSPNAL
HED,CAL CEHER
Hon. Anthony S. Serninerio
Page2
April25, 2000
Medical Center and our patients, and for your help in this matter. tf you require any further information or documentation please do not hesitate to contact me at 718 206-6290 or Hans W. Kuenstler, Diector of Construction at 718 206-6298,
Very truly yorrs,
Bruce J. Flanz
Executive Vice President
MHN10050
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MHN10046
A-55
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AUc-16- 72.22 FFou.Jl{MC CHS &
PHC
ID.171A2EEt3<r
PACE
2/3
THE ASSEMBLY STATE OF NEW YORK ALElANY

ANTg{Yg.SEilNERO
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ccTmmtltj-eE and place oncen to ry consbituercy ealh o''d welfae of
r an confld.ent tbat 9orr{' wbat is b'est for these coununitles all parties isrrohed- I Lmplore Ircnr Co reconsides tese changes aad _encotEage lgrl r!Da team o "rolli rrit ,lamaica Eospicar lttedial cener so tbatr togeher we ca. come to a sassfact oy eolutoD E bqk ]rou for cougl-de:=io with ris Uratter a!.d look you on tsI'ie siuation_ fo:rrd to
ro,irraces
Bae.
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Leader
MHNl0047
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3
4
17S6ROS1 Bory - cross A. Yes. O. And one of the things you talked about on direct examination was Elmhurst, right?
Vac
500
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11
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O. Now, Elmhurst had what reLationship to NHP? A. It was a contracted hospital. O. What did the contract enable NHP to do? A. It enabled the members enrolled in NHP to receve hospita services at Elmhurst Hospital. O. Did you have a booth of some kind at Elmhurst? A. Yes. We did marketing at Elmhurst, yes. O. You did marketing at Elmhurst. What was the booth designed to do, to sign up people for NHP? A. Correct. Yes. O. Did you al-so have one at Queens Hospital Center? A. At some point we did, yes. I dontt remember the exact time O. The ownership of Queens Hospital- Center or management and El-mhurst was the same, was it not? A. At some point, yes. It merged. I donrt remember the specific dates. O. There came a time when El-mhurst was l-ooking to oust NHP, right ? A. With an expJ-anation El-mhurst had many Medicaid managed care contractor vendors and my understanding is Efmhurst Hosptal
SOUTHERN
frames.
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DISTRICT REPORTERS, P.C. (2L2) 80s-0300
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17S6ROS1 Bory - cross wanted to reduce that number. Yes. O. And you didn't want to be reduced out of Elmhurst, dd you? A. No, sir. O. You thought it was a pretty significant issue, did you not? A. Elmhurst vas an important hospital for NHP. O. Do you have any recol-lection as to how many enrol-l-ees there were as a resuLt of your Elmhurst and your Queens Hospital A. Not exactly. I can estimate a few thousand. Several O. Vrould it be cl-oser to 5500? A. lt is possible. Again, depending on the point in time, membership fluctuates up and down, yes. O. Now, Iook at Exhibits 133 and 134, pJ-ease. Can you tell- me what in general l-33 is? A. Yes. These appear to be NHP board minutes. 0. What is the date? A. The date on the 133 is December 13th, 2007. MR. MORVILLO: Offer them into evidence, your Honor. MR. HARRINGTON: Objection, your Honor, as to relevance and as to the fact that these documents contain hearsay within hearsay. THE COURT: Let me see it, pJ-ease.
THE WITNESS: Yes, siT. MR. MORVILLO: Your Honor,
501
Center contacts?
thousand.
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the refevance
woul-d appear
SoUTHERN DTSTRTCT REPORTERS, P.C.
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506
17
1
S
6ROS l-
Bory - cross MR. HARRINGTON: Thank you, .Iudge. (Defendant's Exhibit 133 received in evidence)
133?
3
4
BY
MR. MORVTLLO:
O.
A.
Mr. Bory, do you have a coPy of f do.

D 133?
6
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O. Yes. Turn to the third page and read into the record, please, the l-ast paragraph on that page. A. "Ms. Morris discussed the issue surrounding termination of on-site marketing in the Health and Hospital Corporation heafth care facilities. O. Now pause for a moment. What is the Heafth and Hospital heal-th care facilities, what are they? A. They are a group of hosPital-s. O. Is Efmhurst one of them? A. Yes, sir. a. Was Queens Center another? A. It was, but I don't again remember the time if Queens was part of the Elmhurst at the time or not. (Continued on next page)
SOUTHERN
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17SYROS2 Bory - cross O. Continue reading, pl-ease. A. Sure. Ms. Morris explained that HHC has decided to terminate marketing for plans other than Metro Pl-us in the HHC health faciitles effective ,January 1, 2002. NHP currently conducts marketing activities in al- HHC hospitals, exempt Coney IsLand Hospital- in addition to marketing in the other NHP off-site locations. Ms. Morris will expJ-ain that this will cause a decrease of enrol-ment in HHC facilities and affect ability to conduct on-site recertificatons as we have in the past. O. .lust hol-d on a second there. What is an on-site recerti-fication? A. Those are fofks that are on Medicaid need to recertify for their benefits each year, I believe itrs an annualrecerti ficat ion . O. And so the recertification would take place physicalJ-y at El-mhurst for a number of your enrol-Iees, correct? A. Thatts correct. 0. And that's what Ms. Morris is talking about here in terms 67 losing an opportunity? A. Correct. O. Continue, just finish it up, pl-ease. A. Okay. I think the l-ast words you have, sir, in the past. Ms. Morris al-so explained that the marketing department is
SOUTHERN
507
DISTR]CT REPORTERS, P.C. (212) 805-0300
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Bory - cross 17SYROS2 diligently searchng for alternate marketing locations in the areas surrounding the HHC hospital-s and heal-th centers and exploring alternative marketing strategies. O. Thank you. Now woul-d you turn to Exhibit 134 for identification and tel1 me what that is. A. These are Neighborhood Health Provider board of manager minutes dated March 4, 2002. O. And if I ask you the same questions about those being records kept in the ordlnary course of business, would your answers be the same with regard to this document? A. Yes. O. Now would you turn to page -MR. R. MORVILLO: Let me offer it into evidence. If there is an objection, let me point to the part that I wouLd l-ike into evidence, which is the l-ast half paragraph on page 4 starting with the words, "Some of the
508
18 19 20
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25
A. I'm sorry, sir, can you tel-] me where that is again. O. Page 4, go down to the last paragraph and halfway down it just says some of the issues. I don't have a question pendj-ng, f'm doing this for the benefit of the government and the court. MR. HARRINGTON: Based on the court's prior ruling, there is no objection.
issues.
tt
(2L2) 80s-0300
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I-7SYROS2
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THE COURT:
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R. MORVTLLO: O. Okay, it is now in evidence. lrlouId you read that portion of the mi-nutes. A. Some of the issues refate to the termination of on-site marketing in the Heal-th and Hospital Corporation healthcare facil-ities. Ms. Morris explained that this has affected the abiJ-ity to conduct on-site recertifications as we have in the past. Individual-s from other boroughs are unwil-ling to come into NHP Manhattan office to recertify and want to go back to the facility where they initially enroLl-ed. Ms. Morris explained -0. Thatrs enough. So what Ms. Morris is saying here you are losing people on the recertification because they donrt want to physically move to where you are rather than beng at EJ-mhurst, ri ght ? A. That's correct, ys. O. And it was in that context that you wanted to meet with Mr. VeIez, right? A. Correct. O. And to effectuate that meeting you called on Mr. Seminerio, right ? A. Correct.
BY MR.
SOUTHERN
(Defendant's Exhibit 134 received in evidence)
AIl rlght,
Bory - cross
Received.
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I-7SYROS2 Bory - cross O. And you asked him -- did you tell him what the problem was? A. I donrt recal-l- . O. And you asked him to help set up a meeting between yourself and Mr. Veez? A. Correct. O. And he caLLed you back to tell- you that he had arranged A. I don't believe the call pack, but I know we dd have a meeting so I assume he did. a. WeIf, did you just go to a meeting without knowing that, in fact, it was to take place? A. No, sir. I'm just saying that I don't recaI it. O. Somebody told you that the meeting was going to take p1ace, ri ght ? A. Yes. O. And that somebody must have been Mr. Seminerio, right? A. PossibJ-y or someone on his staff . O. Now, you don't know what transpired in the teJ-ephone caJ-Jbetween Mr. Seminerio and Mr. VeIez, right? A. Correct. O. But you know that when you got to the meeting and met with Mr. Velezr yo had -- you made a pitch to keep Elmhurst in, to keep NHP at EJ-mhurst, correct? A. Yes. O. And at the end of that meeting or shortly thereafter, you
SoUTHERN D]STR]CT REPORTERS, P.C.
510
I
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such a meeting?
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A. Thatts correct. 0. And they did for a considerably period of time, did they A. Thatrs correct. O. The issue, again, arose in the year 2006, did it not? A. Somewhat different, but it did arise, yes. O. Okay. But, again, in 2006 there was a problem with you being expeJ-led from El-mhurst? A. No, sir, just slighty different than that. A decision was made by HHC corporate that they wouJ-d terminate al-L Medicaid managed care contracts in favor of the heath pJ-an that they owned, that HHC had owned. 0. But that would have the impact, would it not, of the same impact that we were taLking about in 200L-2002 your enrol-l-ees would be in danger as a result of that, right? A. Yes. A. And that was an important issue, again, in 2006, am I
not?
Bory - cross were informed that Elmhurst was gong to permit in there?
17SYROS2
5l_ L
NHP
to continue
5
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correct ? Yes, correct. Look at exhibit 135, please. o A Yes. I have it. And go to the -- these are board minutes, are they not? O A Yes, sir.
A
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A. Yes. o. what do you recal] an accept repty of brng man seminerio doing? A. We were looking to get federal financing through HUD and the application was stalLed and we asked Tony seminerio if he knew anybody at HUD that he could cafl- and see if there was a way to advance the application, and he' he said he did and he followed through and that caused the application to move did Assemblyman Seminerio make the phone cal-l- to at HUD? A. It I think it must have been around the mid-2000 period, around 2005, but Itm not sure of the exact date. O. Are you familiar with the Brady House? A. Yes. O. What's that? A. Thatts a residence for traumatic brain injured patients, a long-term Iiving residence located behnd the hospital ' O. And do you recalt whether Assembtyman Semnerio did anything to heIP BradY House? A. Yes. O. What in a nutshell did he do? A. He assisted with some zoning issues. It was kind of a mambie issue, not in my backyard. I^le were concerned that some O.
lrhen
someone
SOUTHERN
Jamaica Hospital?
182YROS1
Flanz - direct
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Cc: Margo Johnson[mjohnson@rookdale.edu] To: DAVIDRoSENIDROSEN@jhmc.orgl Subject; Re:\Mlliam Boyland Jr. Sent: Tue 9/16/2003 12:13:01 AM MOUNIR DOSS From:
Not a problem >>> DAVID ROSEN 09111103 04:04PM >>> Frank's son William, the current Assemblyman, has been on the Urban Stralegies payroll. He needs to come off the payroll and we will pay him the same money as a consultant. I will develop a consulling agreement. Please get him off the payroll so he doesn't have to punch in, and create vendor check. Let me know if this is a problem. David P. Rosen, President and CEO MediSys Health Network Jamaica Hospital Medical Center Brookdale Hospital Medical Center Flushing Hospital Medical Center
a
GOVERNMENT EXHIBIT
21008
Sl t t Cr.
300 (JSR)
MHNE0005716
A-66
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To: Margo Johnson[ Subject: Sent: From:
rookdale'edu] omPassionate Care I 4:16:01 PM

N
is following and I promised to get Looking for this contract. Sen' Carl Kruger this done
David P. Rosen' President and CEO Medisvs Heatth Network Jamaia HosPital Medical Center Brookdale Hospital Medical Genter Flushing HosPital Medical Center
GOVERNMEN EXHIBIT 3301

Sl ll
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158 0
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THE COURT: rIhat is the basis for bel-ieving with respect to Medicaid that he was influenced by the agreement? In other words, this is probably a poor analogy, but the only one that comes to my mind, the .Iapanese attacking Pearl Harbor, the President asked for a decaration of war. A senator who has some financial rel-ations with the munitions industry votes, l-ike every other senator, in favor of the resolution for war. You are saying, h, the only reason he voted to go to war with rlapan is because he was influenced, at Least in part, by his reLationship with the munitions industry. MR. HARRINGTON: lt doesnrt have to be the onJ-y THE COURT: I understand. But when it comes to Medicaid, where itrs so sel-f-evident that a poor community is going to be vital-J-y and detrimentally affected by Medicai-d cuts, what assemblyman who either had any sense of hls own constituent's welfare or, even short of that, wanted to be reel-ected, wouJ-d do anything other than fight l-ike hel-I to prevent the Medicaid cuts? MR. HARRINGTON: That is a politica question. That's beyond what I can say is in the record. lfhat I can say is that he --
otherwise totally legal- act --
5nros
reason.
15 L6 r'7 18
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exercising
THE COURT: f don't conunon sense,

SOUTHERN
think the Court is precluded from
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MR. HARRINGTON: I agree, your Honor. But I think what common sense dictates here is when a guy is paid $175,000 to do nothing and meets, discusses repeatedly with the person paying him the details of the budget and notifies him that there may be a surpJ-us of funds in certain areas -THE COURT: I think we have to make distinctions, but it seems to me that if Mr. Rosen was paying $175,000 to get Mr. BoyJ-and or any other assembJ-yman from that district to vote against Medicaid cuts, he was wasting the hospital's money, because you can get that for free, guaranteed. MR. HARRINGTON: He's paying to -THE COURT: So I hope you have some other instances where it's not so self-evident. MR. HARRINGTON: He's paying to influence the process. Thatrs why, after being abe to sit down with Boyland and Tony Seminerio in the beginning of January to talk to them about the budget, being in touch with them throughout that time perod matters. It's rare that one assemblyman can al-ter the outcome of a vote. THE COURT: No one is requiring that. MR. HARRINGTON: I will al-so note that he did make specific requests that arenrt of generally -THE COURT: That's what I wish you would get to. MR. HARRINGTON: There's a $3 mil-lion request for Brookdale.
SOUTHERN
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Because, even assuming the contract was legitimate, which the government suggests it was not, even assuming that the contract permitted David Rosen to continue reJ-ying on Anthony Seminerio for official assistance, what the contract did not permit and what happened over and over and over again is that when Seminerio was helplng .Tamaica on local issues, he was doing even that in his capacity as an assembllrman. THE COURT: OK. Thatrs part of what I meant. You are saying that even if the contract was in some sense potentially Iegitimate, if it was breached in a manner you are talking about, thatrs a cl-ue to what was realfy going on. MR. BOSWORTH: Right.
THE COURT: What I'm getting at is that if there were that, after receiving the consuJ-ting agreement, evidence Assemblyman Seminerio did something that was helpful to MediSys that was so beyond anything he had done before, so out of character, that by itself would be very tellj-ng evidence. But I don't think that's -- if T understand the government, thatrs not what we have here.
Scnrosl
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MR. BOSWORTH: Correct . THE COURT: He continued to do the same kind of things, but he was now doing them j-l-l-egalJ-y or iJ-licit1y because of the arrangement is your theory. MR. BOSWORTH: Yes. THE COURT: Go ahead.
SOUTHERN DTSTR]CT REPORTERS, P.C.
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To: DAVID ROSENIDROSEN@hmc.orgl; oLGA cENDROSKIIOCENDROS@jhmc,org] TONY SEMINERIO subject: Thur3l23l2o}6 5:53:01 PM Sent: OLGA GENDROSKI From:
John cahill called Tony and told him he will meet with you and will get back
with a date and tme.

Oiga Cendroski Assistant to the President Executive Office Jamaica HosPital Medical Center Tel: (718) 206-6290 Fax (/18) 6s7-0545 ocendros@jhmc.org
GOVERNMENT EXHIBIT 1222

sl I I cr. 300
(JSR)
MHNE000778l
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A-72
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LScnros9 Rebuttal Summation - Mr. Harrington meeting, didn't even know that Anthony Seminerio a consultant. Real-ly, that's why he was valuable. Ann Corrigan sald he didn't participate in a substantive meeting. His value was as an assemblyman. When you are going to glft this property to the hospital, New York City, know that the l_ocal_ representatives thinks this is good for the constj-tuents, and thatrs why hers there. THE COURT: Al-l- right. MR. HARRINGTON: The last was the parking garage, and that also predated the Seminerio contract. THE COURT: Thank you for reminding me about the parking garage. OK. MR. HARRINGTON: The other thing is that the contract wasnrt followed. It just wasnrt the case, even if you take it as a given that that sentence that says consulting wl_I not include anything with the city just means that when Seminerio is doing that is he somehow is not, he's transformed into something other than the consul-tant and can do it, he -THE COURT: But let me just pause on that. know what you are saying is that is an absurd state of the law. But I am not sure it's not the state of the Law. Because it is implicit in having part-time J-egislators that sometimes they are going to be wearing one hat and sometimes they are going to be wearing another hat. But the person they are dealing with is never going to distinguish.
SOUTHERN
1878
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MR. HARRINGTON: .Tudge, there may be situations where people can abuse the fact that they are a pubJ_ic official and gain benefit from it in a way that remains so hidden that it's hard to detect or hard to stop or imit. But that is not what happened here. Seminerio only wore one hat. The only time MARC Consultants showed up was when an invoice was being sent in. There was never any Seminerio as the consultant for the hospital. ft was al_ways Seminerio the local- assembllrman looking out for his constituents and an important entity. THE COURT: That is a fair point. Thatrs that exhibit that we looked at before, where he says the reason you shoul-d -- I think it was in connection with the parking garage, the reason you shoul-d do thls is, he says on his assembly J-etterhead, is because it's good for my constituents. you are saying there he cl-earty is not acting a consultant.
SoUTHERN DISTRTCT REPORTERS, P.C.
that.
RebuttaL Summation - Mr. Harr-ngton There is no evidence of this, but even if Seminerio had said or written, Mr. Jones, who I'm deal_ing with on the parking garage or something like that, Itm onJ_y acting in my capacity as a consultant, I want you to understand f am not acting as an assemblyman, the person on the other slde is going to say, hey, the only reason I'm giving this guy the time of day is because hers an assemblyman. I think that's the reality of the situation. And the taw, for better or worse, all_ows
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government's case here. THE COURT: So I think the government escapes the Rule 29 motion on this prong, but I have to frankly confess that I think it is a somewhat cfose cal-l- and the Court may reassess it at the close of al-l- the evidence, of course I will have to reassess everything at the cl-ose of al-l- the evidence so that I wil-l- review the motion at that time. It seems to me that there
SOUTHERN
Now, it didnrt make any difference because Boyland didnrt have any infl-uence and he never got a penny. Not a penny. We were as your Honor pointed out wasting our money because we were gving hlm $35,000 a year from 2003 to 2009 and never got a nickel-. THE COURT: It doesn't matter that you never got a nickef if there were a corrupt agreement, but your argument is it 1s not reasonable to infer there was such an agreement because this guy didnrt have that kind of infJ-uence, the kind of infl-uence he had was the type you described earlier bridging the gap. MR. R. MORVILLO: Nor did he produce anything. This is a rol-ling contract. It goes on for an indefinite period of time. Tt coul-d have stopped any time they wanted. If it was a corrupt deal by the time it got o the 2006 to 200'7 | they would have known that they weren't going to get a penny from Boyland. They kept it up because that had nothing to do with what they were hiring him for and that is the problem wlth the
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appears to be not a great many instances in which Mr. Boyland did somethlng that even in part can be reasonabJ_y attributed to this arrangement. On the other hand, I don't think on a RuIe 29 motion that I have to accept the inference that Mr. Morvil_l_o is arguing for example as to the .Tamaica contract. Those are competing inferences. I think a reasonabl_e fact finder can draw either inference in that situation and that is for the determination on the merits. So the motion is denied subject to my rethinking J-ater at the close of all the evidence. So where we have arrived at the end of the day s Count -- l-et me make sute I get this right this time -- Three is dismissed as to Mr. Rosen. Of course al_l_ we're dealing with here is Mr. Rosen on the Rule 29 motion. Count Eour is dismissed as to Mr. Rosen on consent. None of the other counts are dismissed either in whole or in part. Now l-etts talk about next week. I want to sit three hours every day or if the other trial ends or something li-ke that, but I think you can reasonabl-y rely on three hours which will- normally be 2:00 to 5:00. There may be a day of 2:30 to 5:30 because f have to take some matter at 2:00. That wil-l be the basic schedul-e. Mr. Morvillo, is Mr. Rosen going to take the stand? MR. R. MORVILLO: That is a great question, your Honor. The present intention is if werre going to put in a
SOUTHERN DTSTRTCT REPORTERS, P.C.
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HE ASSEMBLY
STATE OF NEW YORK ALBANY
WILLIAM F. BOYLAND, JF. Assemblyman SS Djslrict Boom AZ4 Legislalive Off ice Br:ilding Albany, New Yotk 1ZZ4B
(51
U
CO[4MITTEES
Aging Cilies congn'rc Deve lopme
8) 4s5-4466
Llcal February 6,2004
nI
Governmenb
I
Fe-al Propedy
atalion
Honorable Sheldon Silve

Speaker
New York State Assembly

Legisl ative Offi ce B ui lding Albany, New York 1224g
Dear Speaker Silve: Brookdale Hospital is the only medical institution hearrh care faciritv servicing rhe areas of
HHJ
fi
s
i the Eastem are of Brooklyn and Br;;;i[e, East New yoik a

it a vital
The hospital is also the largest employer in most of Brooklyn, which makes part of the economic engne in New york. However,
c
at prob t ems that hav e resurted
from chang",
";;; *h;;^t years it has had some o;i*; J"loriri"r.
H,i1i:idr10"t
number of programs implemented to keep this in qtabilizing the onJy iearth
t'.J#:'f,Ti;"ir i'i:,,fiJ:1"""ton
or tbee muon donars to herp this
Your support in this matter would be greatly appreciated.

Sincerely,
William F. Boy
Membe of Assembly
GOVERNMENT EXI.IIBIT 2303

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$
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1.
THE ASSEMBLY STATE OF NEWYORK ALBANY

RECE,YFD
5 lDuo'^)
COMMTTTEES
Aging
WILLIAM E BOYTAND' JR. Asse mblyman 558 District

ll
Bcnks Economic Dvlomenl Job Crestion, Comrn6rcs & lndustry Housing
467Thomas
FAX:
7
1
S. BoYland
1
Streel
Brooklyn, Nev/Yrk
f212
71H98-8681
8-498:1796 Roorn 54O
LoslGqmmenls
February 28,2.007
Leglslative Offi ce Bullding Albany, NewYork 12218
CHAIR Subqommittes on Orea and Oversight of
5l 8-455-+466 FAX 51 8-455-3894
SoniorCltizsn Prognms
Houorable Sheldon Silver Speaker of the AssemblY 932 Leglwe OfEce Building
Albany, New York 12248 Dear Speaker Silver:
I write'tb you as a follow-up to cirnversation conoerning the irnproVement and.expansion Je'' aircaHospital hoping to receive yorir fiiancial consideration and assishuce.
of
Healthcae in the Queens bomnunity is e:<emely vital and in need of this estblished facility. Holever, this facility is laoking sorious repain and improvements; as well as establishing adjunct faoilities 1o -us1fisimmediate needs for community. This would includethe buildhg of anew.Nursing Ilome Facility. Funds from New York State are Decessary so that Jamaica Hospital oau meet the needs of the people while maintainng a clean and efficient frcility.
':'l
"j
'
I am requesting your assishno-e in.secrring $3 milliou to he allocated as follows:

Clean Roms - To begin a new process for the prevention of infections; $500,000 Aea Renovafion to ensue sterilization and clegnliess of the faciltty.
.) ;i
. . .
$200,000 for $300,000 for safEng and training,
equiprnent-.
Medical Billing ad Records improvements -To provide patients with accuate billing inforrration and maintaining orderly, confidentially records efficiently; . ' New electical wiring and tle replacement of curentwies. . Medical record softivar-e and storage. Building of a new Nusing Home
:
. .
- to provide qt"Iity cae for the senior populafion; to clea and prepare land for a new building.. $500,000 $500,000 for pre-development
Funding is key for the progress.of the above projects to botter Janaica Ilospital. Providing a better hedlth care facility is part of providing a healthier New York-
![rilliam'FMember
'WI'TI/ane
GOVERNMENT
of
EXH!BIT
2305
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(JsR)
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fo' DAVID RosENlDRosEN@ihmc.orgl; oLGA cENDRosKtlocENDRos@jhmc.orgl From: OLGA CENDROSKT Sent on behalf of: OLGA CENDROSKT Sent: Ihur 5/5/2005 5:29:01 pM lmportance: Low subjed; LETTERS FOR BOYLAND
nthony Alexis (718-345-9110), called and requested that essary lefler for JH and BUHMC. JH - $750,000 for patient m. for equipmenl and ED renovation. He said you but he didn't have any numers for lt.
Olga Cendroski Assistant to the President Execulive Offlce Jamaica Hospilal Medical Center Tel: (718) 206-62e0 Fax: (718) 657-0545 ocendros@jhmc.org
GOVERNMENT EXHIBIT
23ts
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MHNE0093t65
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TRACY L. BOYLAND
@(gL
O
CHAIR
yEMBE( {t'r
DTSTNCT
\roME|fs tssuEs
@TIO,OTIEES
DlsTnlCI OFFICE
.2I'}IA FLLTON REET
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o 2JO
or) ,tt]lro
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CULTITL :FAIS. UIR.\NFJ & lNlERGltO(f REL,\not\6 'NTER}.IA]IOiIAL
RMIT
RRE
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DRO,\DV^Y, ROO| t7r7 IC@ NEW YORK, '{Y
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Clw or NewYonx
e CMN^L 5TICE
SERVICEs
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Iune25,2004
23
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David P, Rosen Presidsnt & Chief Executivc Officer The Brookdale University Hosital and Medical.Center One BrookdalePlaza Bro'oklyn, New York 11212
Dear Mr. Rosen:
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ol
Q,
In light ofour cfforts during the recent budget negotiations, I arn pleased to inform you tftat I was able to secure $2 million dollars in FY05 for Bmokdale Hospital, It is my hope that this allocation will allow you to continue the cxcellent work on behallof ou commnity. Negotiating the allocation of rnds in the annual budget is alwa i difEcult process. Nevertheless, I am proud to havc becn ablc to work on your behalf 1o decure these resorrces. With our combined efforts, I hope that we will be able to take significant ste,ps to address the needs of
ourcommunities.
As alwars, if my offico can be of firther assistance, please do not hesitate to contact my ofce at 718-345-3110. Sincerely,
ofCity
GOVERNMENT EXHIBIT
2400
SI ll,Cr.300(JSR)
MHN03796
A-84
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Document: 10
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1826ROS4 Sorensen - direct O. Are you famil-iar with hospice care that is provided by
Schulman Schachne?
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A. Yes. O. What is hospice care to start? A. What is hospice care in general-? O. Yes. A. Hospice care is services that are provided for terminally ilI patients that are not expected to l-ive past six months. It mainly includes pain management, comfort care, care of the family as well as patent, and al-l-owing the patient to die a peaceful- death of their choice. O. In 2007 what sorts of interactj-on, if any, did you typically have with David Rosen? A. David Rosen is the -- was the president and CEO and I had many occasions of working with him on various dlfferent
proj ects
.
O. Were there certain matters that he typcal1y consulted with

you regarding?
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A. Yes. O. What matters generaly did he consul-t with you regarding? A. Anything that had to do with Long Term Care. O. And by Long Term Care does that include hospice care or is that different? A. It incl-udes hospice care. O. In the year 2007 did any of the patients at Schul_man
SoUTHERN DISTRICT REPORTERS, P.C.
(272) 805-0300
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1826ROS4 Sorensen - drect Schachne receive hospice care? A. Yes. O. Approximately how many? A. I believe in 2007 it was two or three. O. In 2007 who, either staff or entities, provided the hospice care to patients at Schulman Schachne? A. Hospice of New York. O. To your knowledge did Schulman Schachne have a contract with Hospice of New York? A. Yes, they did. O. What role did they play in adminlstering hospice care to the patients at Schul-man Schachne? A. They don't provide the direct care. They oversee th care that is given. The resident or the patient is assigned a case management from hospice. They oversee the care to make sure that they are receiving the proper nursing care, that there 1s a medical- director that oversees the medicaL care of the patient, and they also interact wth the family to make sure that the famiJ-y has everything that they need. O. Did Hospce of New York provide hospice care, oversee hospice care at Schulman Schachne prior lo 200'7? A. Yes. O. For how J-ong if you remember? A. The contract that I have in my possession was from 1998, but it was there years before that.
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A. Yes, I did. O. Did anyone direct you to write in those words? A. No. O. Did you wrte in those words because you beleved it I^as a good idea to have a backup to Hospice of New York? A. Yes. O. What happened after you sent it to legal between the tme you send it to 1ega1 and the time you withdrew it from consideration by legal in the spring of 2008, do you know? A. You wait. O. You just wait? A. You wait. O. Did you make any efforts to check on the status of the contract? A. I don't believe so. The -- I don't believe so. O. I think you said that SSI put two or three patients into hospice care in 2OO7? A. About that. O. So if Compassionate Care got this contract and they were only to supplement Hospice of New York, how many patients would they have goEten ln 2007? A. Probably one. a. What about 2008, do you remember how many hospice care
SOUTHERN DISTRTCT REPORTERS,
hospice service?
Sorensen - cross I-826ROS4 would be beneficial to have more than one contract with
t02t
a
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P.C.
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1826ROS4 Sorensen - cross patients r^rent out in 2008? A. There r^rere a few more in 2008 but not that many. O. Again, if Compassionate Care had gotten a contract in 2008, how many patients woul-d they have done? A. Probably haLf of that smalI amount. I think there might have been maybe four in 2008. O. Now, as a result of your working with Mr. Rosen, did you come to form an opinion of his capacity for truth? A. I find him to be completely honest. O. That was honesty. 9rlhat about truth? A. Iihat is the difference? O. WeJ-J-, you are right, there is a very thin line. What about A. I don't believe in my career, which has spaned 35 years, that I have ever met a more upstanding man. MR. R. MORVILLO: Thank you. No further questions,
your Honor.
THE COURT: Redirect. MR. BOSWORTH: No further questions. THE COURT: Thank you very much. You may step down. (Witness excused) THE COURT: Pl-ease cal_I your next witness. MR. HARRINGTON: Your Honor, we woul_d l_ike to enter evidence more documents. THE COURT: This s an exciting morning. SoUTHERN DISTRICT REPORTERS, P.C. (2r2) 80s-0300
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A1J. right, answer. A. NoLhing happened between Compassionate Care and Brookdal-e, but then either somewhere in the beginning o. 2009 Brookdale pu out a RFP for in-patient services with hospices and all of the hospices in the city were asked to respond to this RFP. O. And Compassionate Care was one of them? A, Yes, a. And Compassionate Care, again, competed and they still didn't get the contract, right? A. I was -- I had left the company prior to anything -- any decisions being made on that. a. Now, nothing happened after your meeting wit.h Mr. Rosen? As I understand your meeting with Mr, Rosen, you made a presentation, you had a discusson, he was cordial, is that right? A. Yes. A. He listened to you attentvely? A. Yes. a. Okay. And at the end of the meeting he thanked you very much for coming in and making the presentaton? A. Yes. O. Okay. He ddn't say during the course of thats meeting, oh, I will give you this contract? A. No, he never said that during the course of the meeting.
SOUTHERN DISTRJCT REPORTERS,
183YROS3
Schwartz - cross
113 7
Qt2)
P.C.
B0s-0300
A-89

Former MediSys CEO David Rosen Appeal

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Former MediSys CEO David Rosen Appeal

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Case: 12-2249

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Docket No. 12-2249-cr ___________________________________________________________

UNITED STATES OF AMERICA, Appellee, against

DAVID ROSEN, Defendant-Appellant. ___________________________________________________________

DAVID ROSENS MOTION FOR RELEASE PENDING APPEAL

Attorneys for Defendant David Rosen

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

/s/Ellen M. Murphy________ Ellen M. Murphy

Case 1:11-cr-00300-JSR Document 69 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 1 of 7 117 06/05/2012 628906

Case 1:11-cr-00300-JSR Document 70 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 2 of 7 117 06/05/2012 628906

Case 1:11-cr-00300-JSR Document 71 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 3 of 7 117 06/05/2012 628906

Case 1:11-cr-00300-JSR Document 72 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 4 of 7 117 06/05/2012 628906

Case 1:11-cr-00300-JSR Document 73 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 5 of 7 117 06/05/2012 628906

Case 1:11-cr-00300-JSR Document 74 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 6 of 7 117 06/05/2012 628906

Case 1:11-cr-00300-JSR Document 75 Case: 12-2249 Document: 10 Page:241

Filed 05/23/12 Page 7 of 7 117 06/05/2012 628906

Case: 12-2249 Document: 10 Page:247 Case 1:11-cr-00300-JSR Document 76

Filed 05/29/12 628906 of 1 06/05/2012 Page 1 117

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

BY MR. R. MORVILLO: O. Do you know whether program?

Flanz - cross Objection.

Excuse me, do you need

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

Medisys Heatth Network Jamaica Hospital Medical Center

JAMAICA HOSPITAL MEDTCAL CENTER

OFFICE OFTHE PRESIDENT

Hon. Anthony S. Seminerio I l4-19 Jamaca Avenue

Re: Jamaica Avenue Construction Dear

/^Cu Cwth llcfo,'/,

Executive Vice President

I.l_4.8 _DEpARTtuTBNT 9xrnotfcaEa 8-4r*J_--"i*,

EISnDrftr l*rqr pO-*

,Tfu=Z1g ZtD ttx?

AUc-16- 72.22 FFou.Jl{MC CHS &

THE ASSEMBLY STATE OF NEW YORK ALElANY

s$ErAfI trAtotrftt .toH

Pl'e @ri.sgicrner New York Cy Fi.Fe Depatfpent. 9 MetroTec.h Center

ccTmmtltj-eE and place oncen to ry consbituercy ealh o''d welfae of

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

SoUTHERN DTSTRTCT REPORTERS, P.C.

Mr. Bory, do you have a coPy of f do.

DISTRICT REPORTERS, P.C (2L2) 805-0300

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

(Defendant's Exhibit 134 received in evidence)

DISTRICT REPORTERS, P.C. (2t2) 805-0300

DSTRICT REPORTERS, P. (2r2) 80s-o3oo

D]STRICT REPORTERS, P.C. (212) 80s-0300

To: Margo Johnson[ Subject: Sent: From:

rookdale'edu] omPassionate Care I 4:16:01 PM

GOVERNMEN EXHIBIT 3301

otherwise totally legal- act --

THE COURT: f don't conunon sense,

think the Court is precluded from

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

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

with a date and tme.

GOVERNMENT EXHIBIT 1222

I.l_4.8 _DEpARTtuTBNT 9xrnotfcaEa 8-4rJ_--"i,

EISnDrftr lrqr pO-

";;; h;;^t years it has had some o;i; J"loriri"r.