Gov Mil Admit Sprague Statements

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. VINCENT J. FUMO RUTH ARNAO

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CRIMINAL NO. 06-319

UNITED STATES OF AMERICA'S MOTION TO ADMIT STATEMENTS OF COUNSEL FOR DEFENDANT VINCENT J. FUMO

The United States of America hereby moves to admit certain statements of attorney Richard A. Sprague made during the time that Sprague represented defendant Vincent J. Fumo in this case. Specifically, Sprague repeatedly stated to the government on Fumo’s behalf that Fumo did not receive any personal benefits from Citizens Alliance at any time, and requested on that basis that Fumo not be charged with any wrongdoing. These statements are in direct contradiction to the defense currently set forth by Fumo and his co-defendant, Ruth Arnao. The statements are admissible to rebut the current defense, and to show Fumo’s consciousness of guilt.

I.

BACKGROUND. The government’s investigation regarding Citizens Alliance came to public

attention in a Philadelphia Inquirer article on January 25, 2004. Shortly thereafter, Sprague, on Fumo’s behalf, requested a meeting with the United States Attorney, several of his assistants, and federal investigators. Sprague then told the investigators that Fumo had

not received any compensation or other benefits from Citizens Alliance, that Citizens Alliance was and always had been independently operated, and that Fumo would be fully cooperative with the investigation. More than two years later, on August 8, 2006, as the investigation progressed, Sprague, at his request, met with the assigned prosecutors and agents. At this meeting, he endeavored to explain each of the matters under investigation and to ask that Fumo not be charged with any offense. He reiterated that Fumo did not receive anything from Citizens Alliance (“not one penny,” he said), and that the government’s suspicions otherwise were misplaced. This remained the defense position throughout the time prior to the return of the superseding indictment naming Fumo on February 6, 2007. Indeed, Fumo himself made identical statements throughout the same period. For example, government exhibit 920, entered into evidence on January 8, 2009, is a radio interview with Fumo on January 29, 2004, shortly after publicity regarding the investigation began, when Fumo stated regarding Citizens Alliance: “I don’t get any money from it. I don’t get any benefits from it. In fact, I, I think that they, once in a while picked up trash in my house, and I said oh God, I’m paying you a hundred dollars a month in case you do anything for me. I pay them.” The defense position at trial, however, has been completely different. In his opening statement, Fumo’s attorney addressed at great length Fumo’s litigation against PECO, suggesting that Fumo thereby procured $17 million for Citizens Alliance. Counsel then stated: “He got some consumer goods as compensation of time. That’s what the 2

government says, or he used or owned or got or received some tools.” Tr. 113. Subsequently, in cross-examination of government witnesses, Fumo’s attorney has endeavored to demonstrate that nonprofits are permitted to pay compensation to fundraisers such as Fumo. Counsel for Arnao, presenting a joint and consistent defense, took up the compensation theme at greater length in his opening statement, stating in part: We treated him to things. We bought him tools, we did that. We tell him use it as long as you want, give it back when you’re done. Or if you don’t give it back, that’s okay too. . . . We lent them the bulldozer. We treated him when he opened up his place at the shore. We treated him. And you heard Mr. Pease read these things, hotdog rolls and DVDs. Yeah, we did that. We treated him. We said this is on us. So we’re going to let you buy this stuff, we’re going to pay for it. Citizens going to pay for it, we owe you, we owe you. We did remove snow and trash. We removed snow and trash for everybody all over Philadelphia but we did go the extra mile or several miles and we did do it for him down at the shore too. We did these things as courtesies, we did them as perks, we did them as favors, we did them as whatever you want to call them. We did them because he deserved all that and more, and much more. . . . So we did those things for him and we let him use the van. We did all those things for him. And you can call them or we can call them anything that we want. We can call them gifts, favors, comps, perks, compensation, you could call about anything. We did it, we felt it was the right thing to do, we felt it was fair, we felt, if anything, he was entitled to a lot more. Tr. 152.1

1

The government was quite surprised by the defense opening statements, to put it mildly, having never before heard the critical admission that Fumo received goods and services from Citizens Alliance. Thus, there was no basis before the trial for seeking to admit the opposite statements of Fumo’s prior counsel. 3

Sprague’s earlier statements are now admissible, both to undermine the present defense, and to establish Fumo’s consciousness of guilt.

II.

LEGAL ANALYSIS. A.

The Evidence is Admissible to Undermine the Defense Theory. In this trial, the government is proving that Fumo received myriad goods and

services from Citizens Alliance, valued at well in excess of one million dollars, while the defense is arguing that he is entitled to all of those benefits as compensation for his fundraising efforts. The government expects to defeat that defense in numerous ways, including by showing that Fumo, while taking the benefits in surreptitious and fraudulent ways,2 never put forward the assertion that he offers now. The fact that his attorney, throughout the investigation, maintained the exact opposite of Fumo’s current position is part of the proof that the benefits to Fumo were never intended as legitimate compensation.

2

In part, the government has already offered (and will continue to offer) substantial proof that Citizens Alliance did not account in its books and records for the distributions to Fumo, and did not disclose them in its tax filings. Likewise, the trial evidence clearly establishes that Fumo did not disclose the receipts in his personal tax returns, nor in financial disclosure forms filed with the State Ethics Commission as required by law. While Fumo used his Senate office and state employees to deliver state grant money and private donations to Citizens Alliance, the benefits he took from Citizens were never publicly disclosed by Fumo. The government is also demonstrating that the method in which the benefits were delivered is entirely consistent with fraudulent conduct and not legitimate compensation. 4

The defense, of course, has no burden to make any argument or present any evidence. However, it is a hornbook rule that where, as in this case, the defense does advance a theory of innocence (i.e., that distributions from Citizens Alliance were proceeds of lawful compensation instead of theft), the government is allowed to address and comment on the invalidity of that theory. See, e.g., United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996) (where the defense presents a theory of the case, the government may “focus the jury’s attention on holes in the defense’s theory,” and comment on the failure of the defense to provide evidence in support of its theory). See also United States v. Brennan, 326 F.3d 176, 188 (3d Cir. 2003); United States v. Keller, 512 F.2d 182, 186 (3d Cir. 1975); United States v. McClain, 469 F.2d 68, 70 (3d Cir. 1972); United States v. Pike, 2008 WL 4163242, *2 (2d Cir. Sept. 5, 2008) (the district court properly admitted evidence that the defendant, who was charged with leadership of a drug organization, participated in two uncharged murders, to rebut his defense that he was but a small-time drug dealer); United States v. Robles-Vertiz, 155 F.3d 725, 731 (5th Cir. 1998) (it is appropriate “to comment on the defendant’s failure to produce evidence on a phase of the defense upon which he seeks to rely.”); United States v. Gotchis, 803 F.2d 74, 81 (2d Cir. 1986). We thus offer the evidence at this time for the proper purpose of showing that all available evidence contradicts the arguments made by defense counsel in this trial, that is, that in contrast to the attorneys’ arguments, Fumo himself consistently insisted that 5

he never received anything from Citizens Alliance. It is certainly probative that, while under investigation for three years, Fumo never offered the current explanation offered by the defense (that the distributions were legitimate compensation), but rather denied entirely that he received anything. The earlier statements are relevant to show the absence of evidence supporting the current defense theory.3 Further, it is appropriate to attribute Sprague’s statements to Fumo. It has already been established that Sprague was Fumo’s attorney throughout the period of the investigation, and there is no dispute that Sprague was authorized to speak to the government on Fumo’s behalf. Further, Sprague could not logically have any source other than Fumo for the information that Fumo received nothing from Citizens Alliance, and indeed Sprague’s statements were identical to those being made by Fumo himself in other fora at the same time. See, e.g., United States v. McKeon, 738 F.2d 26, 33 (2d Cir. 1984) (noting that client’s participatory role in an attorney’s statement is evident inferentially

3

Of course, if either defendant elects to testify in his or her own defense, and sets forth the compensation claim, the government will cross-examine the defendant about why he or she did not come forward earlier to assert what each now claims is a benign and true fact. Such cross-examination presents no constitutional issue regarding the defendant’s right to remain silent, in that the defendant will have testified voluntarily, and was not earlier arrested or advised of a right to remain silent. See Fletcher v. Weir, 455 U.S. 603, 607 (1982) (“In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe it violates due process of law for a State to permit crossexamination as to postarrest silence when a defendant chooses to take the stand.”). 6

when the statement “is a direct assertion of fact which in all probability had to have been confirmed by the defendant.”). The Federal Rules of Evidence recognize that statements of an agent are, under the law, those of the defendant himself, and thus do not fall within the hearsay rules. Rule 801(d)(2)(C) provides that “a statement by a person authorized by the party to make a statement concerning the subject” is not hearsay, while Rule 801(d)(2)(D) similarly excepts “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” 4 As the Advisory Committee stated, “No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party.”5

4

When a statement is introduced as the admission of the agent of a partyopponent, a Rule 613(b) foundation is not required. Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364, 1369 (11th Cir. 1988). 5

Rule 801(d)(2)(D) is broader than Rule 801(d)(2)(C). “Rule 801(d)(2)(C) specifically excludes from the definition of hearsay any statements used against a party which were made by another person authorized by the party to make a statement concerning the subject.” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1198 (3d Cir. 1993). In contrast, Rule 801(d)(2)(D) requires no showing that the principal knew of or authorized the particular statement; the rule is met simply if the statement was regarding a subject within the scope of the agent’s authority. See, e.g., Marra v. Philadelphia Housing Authority, 497 F.3d 286, 298-99 & n.9 (3d Cir. 2007). The difference is immaterial here, where Fumo plainly authorized and endorsed Sprague’s particular representations, and thus Sprague’s statements are subject to both provisions. 7

These precepts were clear even before the adoption of the federal rules. For example, in United States v. Catena, 500 F.2d 1319 (3d Cir. 1974), the government sought to admit a false exculpatory statement made by the defendant’s attorney. In that case, agents met with the defendant and his attorney during an investigation of alleged health care fraud, and offered the defendant a form to complete entitled “Voluntary Statement to Explain Irregularity.” The Court recounted: “His lawyer, however, took the form from him and wrote on it, ‘There is no irregularity,’ signed his own name, and handed the form back to the investigators.” Id. at 1327. The Third Circuit affirmed the admission of this statement, saying: “In this case it is clear that the attorney was acting within his authority in making the statement. The attorney took the form from the hands of the defendant and wrote on the form his statement denying irregularities. The defendant stood by and said nothing, implying that the attorney acted with his approval and consent.” Id. In numerous cases under the federal rules, the same result holds, whether a statement was made in the defendant’s presence or not, so long as the statement was authorized by the defendant or fell within the scope of the attorney’s authority. For example, in United States v. Vito, 1988 WL 78031 (E.D. Pa. 1988), Judge Shapiro addressed a situation identical to that at issue here. There, the court admitted as false exculpatory statements comments which were made by the defendant’s accountant and two former attorneys to IRS agents outside the presence of the defendant. See also United States v. Amato, 356 F.3d 216, 219-20 (2d Cir. 2004) (former attorney’s factual 8

representations in pretrial letter admissible against defendant as statements of agent in course of representation after defense witness testified contrary to those representations); United States v. Harris, 914 F.2d 927, 931-32 (7th Cir. 1990) (statements by former defense counsel to a witness during pretrial investigation admissible under Rule 801(d)(2)(D)); United States v. Martin, 773 F.2d 579, 583-84 (4th Cir. 1985) (attorney’s statement to IRS auditor about source of defendant’s income); United States v. Mercado, 2003 WL 21756084, at *7-8 (S.D.N.Y. 2003) (statements made by defendant’s former counsel to representatives of allegedly defrauded bank); United States v. Pappas, 806 F. Supp. 1 (D.N.H. 1992) (statements by defense lawyer to IRS pursuant to power of attorney); United States v. Parenti, 326 F. Supp. 717, 727 (E.D. Pa. 1971) (statements by defendant’s attorney to IRS agent).6 United States v. Ahmed, 2006 WL 3210037 (D. Mass. 2006), is particularly analogous. There, a pretrial meeting was held among the prosecuting AUSA, two federal agents, and two of the defendant’s attorneys. The court, as if addressing this very case, admitted statements of defense counsel at this meeting, stating:

6

Some courts have observed that care must be exercised in admitting statements of counsel, in order not to impair effective representation or the privilege against selfincrimination. However, these courts acknowledge that where, as here, counsel willingly made the statement to the government in a formal setting, and the counsel whose statements are offered has withdrawn from the case for unrelated reasons, these concerns are absent. See, e.g., Harris, 914 F.2d at 931-32; Amato, 356 F.2d at 220. 9

[T]here was a specific meeting set up where the defendant, through his counsel, elected to make a formal presentation of facts which had been gathered specifically by the defense for the purpose of presenting evidence to the government. In light of the formality of the meeting, the admission of statements made at the meeting . . . would not be inconsistent with the goal of this court to honor scrupulously defendants’ rights against self-incrimination, their right to counsel of their choice, and their right to effective assistance of counsel. . . . This court sees no reason to exclude the evidence of the meeting either as a matter of law or policy. While the court shares . . . concerns about not using defense counsel’s statements lightly, this court finds no benefit in creating a rule where the defense can affirmatively and voluntarily lead the government astray with impunity. Id. at *5 (citations omitted). For the same reasons, Sprague’s statements on Fumo’s behalf are clearly admissible to undermine the current defense. B.

The Evidence is Admissible to Prove Consciousness of Guilt. The evidence is also proper, pursuant to Rule 404(b), to show Fumo’s

consciousness of guilt. He authorized his attorney to make false exculpatory statements to the government, i.e., that Fumo did not receive any benefits from Citizens Alliance. As with his public pronouncements on the same subject matter, those statements, as the government is abundantly proving, were false (no doubt unbeknownst to Mr. Sprague).7

7

In its most recent discussion of this topic, the Third Circuit acknowledged that most courts treat false exculpatory statements as intrinsic proof of the charged offenses, while the Third Circuit has instead addressed such statements as proper evidence under Rule 404(b). The Court added, however: “Given that we have concluded that consciousness of guilt is a proper purpose under Rule 404, however, our analysis converges with that used by the cases that hold Rule 404 inapplicable.” United States v. Kemp, 500 F.3d 257, 298 n.23 (3d Cir. 2007). 10

The claim that Fumo received nothing from Citizens Alliance was false (as the government is proving with copious evidence, and as defense counsel have now admitted in their opening statements and through their cross-examinations of various witnesses). The statements therefore stand as evidence of consciousness of guilt. The Supreme Court confirmed long ago: Nor can there be any question that, if the jury were satisfied, from the evidence, that false statements in the case were made by defendant, or on his behalf, at his instigation, they had the right, not only to take such statements into consideration, in connection with all the other circumstances of the case, in determining whether or not defendant’s conduct had been satisfactorily explained by him upon the theory of his innocence, but also to regard false statements in explanation or defense, made or procured to be made, as in themselves tending to show guilt. Wilson v. United States, 162 U.S. 613, 620-21 (1896). The Third Circuit restated this logical axiom in United States v. Urban, 404 F.3d 754 (3d Cir. 2005), stating that “there is no question ‘that the factfinder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.”’” Id. at 782 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000)). See also United States v. Gatto, 995 F.2d 449, 455 (3d Cir. 1993); Government of Virgin Islands v. Lovell, 378 F.2d 799, 806-07 (3d Cir. 1967); Pappas, 806 F. Supp. at 5-6 (statements by defense counsel are admissible under Rule 404(b) as proving defendant’s consciousness of guilt); Vito, 1988 WL 78031 (same). The Third Circuit most recently addressed this topic in United States v. Kemp, 500 F.3d 257 (3d Cir. 2007). There, a defendant, who did not testify at trial, had appeared before the grand jury, and there denied culpability in various acts of local corruption by 11

setting forth detailed and grandiose claims of personal wealth, asserting that he was too affluent to get involved in the matters alleged in the indictment. The Third Circuit held that the government was entitled to prove that the claims of wealth were false, in order to show that the grand jury testimony consisted of false exculpatory statements showing consciousness of guilt. Id. at 296-98. Identically in this case, the false statements by Fumo and his attorney regarding benefits from Citizens Alliance are admissible to show Fumo’s consciousness of guilt. Finally, Rule 403 balancing favors admission. As the Kemp Court explained: “Because evidence of [the defendant’s] consciousness of guilt was of high probative value to the government’s case, [the defendant] faces a high hurdle in showing that the danger of unfair prejudice substantially outweighed the probative value.” Id. at 297 (emphasis in original). The hurdle was too high for the defendant in Kemp, and the same holds true here.

12

III.

CONCLUSION For the reasons explained above, the government respectfully requests that

statements made on behalf of defendant Fumo by his counsel, as described above, be admitted during the government’s case-in-chief. Respectfully submitted, LAURIE MAGID Acting United States Attorney

/s/ John J. Pease JOHN J. PEASE Assistant United States Attorney

/s/ Robert A. Zauzmer ROBERT A. ZAUZMER Assistant United States Attorney

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CERTIFICATE OF SERVICE I hereby certify that I have caused to be delivered by electronic filing to the Clerk of Court (resulting in an e-mail copy sent to counsel by the Clerk of Court), and by direct e-mail, a true and correct copy of the foregoing pleading, to the following: Dennis J. Cogan, Esq. 2000 Market Street, Suite 2925 Philadelphia, PA 19103 Stephen R. LaCheen, Esq. LaCheen Dixon Wittels & Greenberg, LLP 1429 Walnut Street, 13th Floor Philadelphia, PA 19102 Peter Goldberger, Esq. 50 Rittenhouse Place Ardmore, PA 19003 David E. Shapiro, Esq. 1429 Walnut Street Suite 1301 Philadelphia, PA 19102 Nialena Caravasos, Esq. Fitzpatrick & Caravasos 926 Public Ledger Building 620 Chestnut Street Philadelphia, PA 19106 Counsel for Defendant Vincent J. Fumo

Edwin J. Jacobs, Jr., Esq. Stephen F. Funk, Esq. Jacobs and Barbone, P.A. 1125 Pacific Avenue Atlantic City, NJ 08401 Counsel for Defendant Ruth Arnao

/s John J. Pease JOHN J. PEASE Assistant United States Attorney Dated: January 9, 2009.

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