Free Docket Annotation - District Court of Connecticut - Connecticut

p»\ J UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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UNITED STATES OF AMERICA, - `
V. Criminal No. 3:00 CR 217 (EEB)L/{X {
TRIUMPH CAPITAL GROUP, INC. ,
FREDERICK W. McCARTHY,
CHARLES B. SPADONI, LISA A. June 13, 2005
THIESFIELD and BEN F. ANDREWS,
Defendants.
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Declaration of Russell M. Gioiella, Esg.
This Declaration is written in further support of Charles
E. Spadoni’s pending motion for a new trial and provides the Court
with conclusive evidence —— not previously available to the defense
—- that the Government failed to produce material exculpatory
evidence as it was obligated to do under Erady and Giglio.
Specifically, Paul Silvester, the Government’s chief
witness at trial, has advised me that both he and, to his knowledge,
his attorney Hubert Santos, Esq., prior to the Indictment in this
case, provided the Government with oral proffers which completely and
unreservedly exonerate Mr. Spadoni from any wrongdoing.
Mr. Silvester told me that in connection with his plea
negotiation, he prepared handwritten notes of his recollection of
several transactions (including Triumph) in which the Government was
interested. Mr. Silvester delivered the notes to Mr. Santos, who had

them transcribed verbatim into typewritten form. Mr. Santos told Mr.
Silvester that he made a pre—cooperation agreement proffer in which
he repeated the substance of those notes to the Government. Mr-
Silvester further advised me that he too, when debriefed by the
Government, told the Government the same information contained in his
handwritten notes.
According to Mr. Silvester, and as corroborated by
l` contemporaneous handwritten and typewritten notes, Mr. Silvester and,
on information and belief, Mr. Santos, told prosecutors that in
November 1999, Mr. Spadoni rejected Mr. Silvester's request that
Triumph pay money to Mr. Stack and Ms. Thiesfield. According to Mr.
Silvester's notes reflecting the substance of the proffer, Mr.
“ Spadoni told Silvester that Triumph:
...would not pay any finder (sic) or
offer employment to anyone connected
to me in exchange for the deal
[investment in'Iriumph]...Charlie said
it would be guid pro quo, and he could
not advise his boss to agree to it.
~ Charlie said that Fred was sympathetic
to the situation of certain staffers
and they would be as helpful a
possible after I left office but that
it would have to be arm’s length and
make sense for Triumph. I said
fine... [Emphasis supplied].
_ To this day, the Government has never advised us of this
exculpatory statement by its lead trial witness. After Mr. Silvester
advised me of his and Mr. Santos' proffer to the Government, I
prepared an affidavit for Paul Silvester’s signature. This affidavit
was forwarded to Mr. Silvester and indeed was edited by him. He has
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affirmed to me that the contents of the proposed affidavit (annexed
U hereto as Exhibit A) are true and that he would testify to those
facts if subpoenaed to testify at any hearing or proceeding.
However, he advised me that he did not want to execute the affidavit
because he was concerned that there could be some adverse
consequences to his community confinement status should the prison
authorities learn that lm; had voluntarily executed ami affidavit
relating to a defendant in his case. Therefore, Mr. Silvester, and
` his counsel, Richard_Reeve, Esq., advised me to file this affirmation
` in lieu of an affidavit from Mr. Silvester.
The contents of the affidavit and the attachments thereto,
constitute clear and indeed overwhelming evidence of material Brady
and Giglio violations in this action. One can hardly imagine more
completely exculpatory information. Both before the cooperation
agreement was signed, via an attorney proffer, and after Mr.
Silvester became a cooperating witness, the Government was advised
that in response to Mr. Silvester’s request that Triumph. pay‘ a
finder’s fee, Mr. Spadoni told Mr. Silvester that there would be no
“guiQ pro quo" —— indeed, that Triumph would make no promises in
connection with the investment. Without an illicit agreement entered
into before the investment was made, there could. be no bribe.
y Obviously, this is precisely what the Government originally concluded
when it decided, based. on this information, ng;_ to charge Mr.
Silvester with bribery. According to Mr. Silvester, he simply had
not been. bribedi Had the jury been aware that Mr. Silvester
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expressly told the Government that he had not been bribed by Triumph,
and had it credited Silvester's statement to the prosecutor as to
` what Mr. Spadoni told him, an acquittal was mandated.
l The Government has not, on this motion, confirmed or denied
that a pre—pleading proffer was made by Silvester’s attorneys.
Indeed, the Government stated only that the cooperation agreement was
l drafted without any information “from Silvester himself." When we
pointed. out in our papers that we thought that statement was
carefully drafted to avoid stating whether they had gotten
information about what Silvester would say from his attorney, via an
‘ attorney proffer, the Government simply never responded. We now know
that the attorney proffer was made. This new evidence ——
particularly in the absence of a denial by the Government —— is clear
and convincing evidence that the proffer occurred. Nor can there be
- room for doubt as to the substance of the proffer. Mr. Silvester’s
handwritten notes were given to Mr. Santos for the express purpose of
preparing him for the proffer. Mr. Santos had the notes transcribed
into typewritten form for that purpose. The notes have been in the
_ custody of Mr. Santos since before the proffer. The originals are
still with Mr. Santos. No one can claim that Mr. Silvester is making
up a story after his sentencing to help a co—defendant or hurt the
Government.
y Mr. Silvester will testify that in fact Mr. Santos told him
that he recounted this information to the Government in an attorney
. proffer. Since Mr. Silvester prepared this information for his
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attorney prior to his cooperation agreement, it only makes sense that
his attorney and later he, himself, would convey that information to
the Government on a proffer.
l Most importantly, Mr. Silvester told this exculpatory
information to the government when he was debriefed after his
cooperation agreement was signed. Thus, there can be no doubt that
the Government was advised of this exculpatory information, both from
‘ Mr. Santos and from Mr. Silvester. Yet, we were never provided with
this crucial information.
` The accuracy· of Mr. Silvester's proposed affidavit is
confirmed by Mr. Silvester's criminal Information, filed in
· September, two mwnths after he began cooperating. This charging
document conspicuously fails to charge him with bribery as to Triumph
and Keystone, the two deals Silvester's handwritten notes reveal to
be non—bribes because no promises were made to Mr. Silvester prior to
_ the investment. In his notes as to both Triumph and Keystone, he
essentially states there was no bribe because both attorneys (Glen
Carberry for Keystone and Charles Spadoni for Triumph) advised him
that they would not enter into a quid pgp gpg or make any agreements
_ _ prior to the investment having been made. Sure enough, both Keystone
and Triumph are described as mail frauds in this Information(relating
to Silvester’s motive to make the deal) but not bribes.
Mr. Silvester's affidavit and attached notes finally
explain why it was that the Triumph deal was not charged as a bribe
A and why Silvester never pled to bribery involving Triumph. The
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explanation could not be more exculpatory —— because —— according to
the Government’s star witness —— Mr. Spadoni made clear that Triumph
would not make any promises prior to the investment having been made.
Without a promise in advance of the investment, there can be no
bribe.
The Court therefore must, in our view, grant Mr. Spadoni a
new trial, as it is undisputed that we were never given these crucial
exculpatory statements of Mr. Silvester, and it is likewise beyond
peradventure that this information would certainly have resulted in
a different verdict.
WHEREFORE, we respectfully request that the Court grant Mr.
Spadoni’s motion for a new trial.
Dated: New York, New York
June 13, 2005
Respectfully submitted,
LITMAN, ASCHE & GIOIELLA, LLP
By :
Russell M. Gioiella
Bar No. CT12688
Attorneys for Defendant
Charles E. Spadoni
45 Broadway Atrium
New York, New York 10006
(212) 809-4500
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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing
Declaration of Russell M. Gioiella was served by Federal Express
for overnight delivery on this 13m day of June, 2005, to the
following counsel of record:
Nora R. Dannehy, Esq.
Assistant United States Attorney
United States Attorney’s Office
450 Main Street
A Hartford, Connecticut 06103 .
»""
Todd B. Terr


STATE OF CONNECTICUT )
SS.:
COUNTY OF NEW HAVEN }
Paul Silvester, being duly sworn, deposes and says:
I make this affidavit at the request of counsel for
Charles Spadoni. I understand. that this affidavit is to be-
submitted to the Court in connection with a motion for a new trial
which has been filed by Mr. Spadoni. If called as a witness at any
hearing, I would testify as follows:
Prior to entering into any kind of plea or cooperation
agreement with the Government in the summer of 1999, I provided my
counsel, Hubie Santos, Esq. and Hope Seeley, Esq., with handwritten
notes setting forth what had occurred with reference to nine (9)
deals that I was involved in as Treasurer, including the Triumph
deal which I did after the election. I gave these handwritten
notes to my counsel to help them understand what had happened and,
so that they could use them in attempting to arrange a cooperation
and/or plea agreement with the Government.
Hubie Santos advised me that he was going to give an
“attorney proffer” to the Government in an attempt to work out a
deal. After he met with the Government, he advised me that he had
conveyed to the Government the information I provided concerning
U these various deals. He told me details of the Government's
response to the proffer. Mr. Santos and II discussed. the¤1 at
length.

After my attorney's proffer to the Government, I was
offered a cooperation and plea agreement. I accepted the terms and
was debriefed by the Government on numerous occasions. When asked
about Triumph, I told the Government the same information that was
included in my handwritten notes and which my attorney had advised
them of previously, together with additional information.
Therefore, I can state with certainty that the Government was aware
of this information in the summer of 1999.
Annexed hereto as Exhibit A is a copy of my handwritten
notes which I recently received photocopied from Hubie Santos and
Hope Seeley. "
Annexed hereto as Exhibit B is a typed version of my
notes, produced by Santos and Seeley at the time they received my
handwritten notes to further assist them in their meetings with the
Government. I also recently received copies of these typed notes
from Santos and Seeley.
Annexed hereto as Exhibit C is a photocopy of handwritten
notes concerning the subjects of an offer of proof which I also
recently received from Santos and Seeley.
I
Sworn to before me this
day of May, 2005
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