Sunday, September 28, 2008

Mea Exculpa

United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)

Here, the defendant successfully argued that the government’s suppression of exculpatory and impeachment material warranted a new trial.


Spadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut. He was a friend of Paul Silvester, who was, for a time, Connecticut State Treasurer. One of Silvester’s duties was to make investment decisions for state pension funds.

In 1998, Silvester asked Spadoni for a campaign donation. By law it could not go to his own campaign, so instead Spadoni donated $100,000 to the state Republican Party. Silvester lost the election, but before he left office decided to invest $150 million in state pension funds with Triumph.

In connection with this investment, Silvester asked Spadoni to pay a one percent finders fee to two of his associates, even though they had not acted as finders. As their discussions on this arrangement progressed, Silvester decided to increase the investment from $150 million to $200 million, to increase the amount of the fee.

Silvester executed the investment contract with Triumph on November 12, 1998. At some point, Silvester’s associates entered into “consulting contracts” with Triumph that would pay each of them $1,000,000 over three years. These were sham contracts that required neither duties nor results.

In connection with these “consulting contracts,” Spadoni was convicted of bribery and mail fraud, as well as racketeering and racketeering conspiracy.

After trial, Spadoni’s attorney obtained from Silvester a set of notes that Silvester had handwritten for his own attorneys, to assist them in negotiating a plea. The notes had also been typewritten verbatim by the attorney’s office. Silvester’s attorney met with the government in an attorney proffer and gave the government the substance of Silvester’s notes. In addition, Silvester gave the same information to the government when he began cooperating. Silvester's notes detailed additional public corruption by Silvester, but also contained an account of his interaction with Spadoni over the “consulting contracts” that was at odds with his own trial testimony.

In response to Spadoni’s post-trial Brady motion, the government, for the first time, produced notes that an FBI agent had taken at the time of the attorney proffer.

The Appeal

On appeal, the circuit ordered a new trial on all counts relating to the “consulting contracts” based on the government’s Brady/Giglio violation. While the government never had Silvester’s own notes, it had the agent’s proffer notes, and did not turn them over until after trial. The circuit, unlike the district court, found those notes to be “materially inconsistent” with Silvester’s trial testimony.

Those notes supported an alternative version of the Silvester-Spadoni conversation about the consulting contracts that was “entirely at odds” with the government’s theory of the case. Indeed those notes indicated that, contrary Silvester’s trial testimony, when he and Spadoni first discussed the finder’s fee proposal, Spadoni had declined to make payments that would amount to a bribe. The notes thus would have been quite useful to Spadoni, who could have used them both to impeach Silvester and to support Spadoni’s own version of their conversation.

The notes were thus “directly relevant” to the intent element of the consulting contract bribery charges. And, apart from Silvester’s testimony, the evidence regarding Spadoni’s intent was “far from overwhelming.” The court concluded that “there is a reasonable probability that if the government had not inexplicably withheld ... the proffer notes, the jury would have harbored a reasonable doubt about Spadoni’s guilt.”

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