UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X:UNITED STATES OF AMERICA::- v. -:S1 11 Cr. 300 (JSR):CARL KRUGER,:RICHARD LIPSKY,:AARON MALINSKY,:MICHAEL TURANO,:SOLOMON KALISH,:ROBERT AQUINO, and:WILLIAM BOYLAND, JR.,::Defendants.::- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
THE UNITED STATES OF AMERICA’S RESPONSE TOTHE DEFENDANTS’ PRETRIAL MOTIONS
PREET BHARARAUnited States AttorneySouthern District of New York Attorney for the United Statesof AmericaGLEN G. McGORTYWILLIAM J. HARRINGTONMICHAEL BOSWORTHAssistant United States Attorneys- Of Counsel -
Case 1:11-cr-00300-JSR Document 144 Filed 09/28/11 Page 1 of 53
PRELIMINARY STATEMENT
The Government respectfully submits this memorandum in opposition to the pretrialmotions filed by defendants Carl Kruger, Richard Lipsky, Aaron Malinsky, Michael Turano,Solomon Kalish, Robert Aquino, and William Boyland, Jr. Specifically, (1) Boyland moves tosuppress emails seized pursuant to search warrant from his America Online, Inc. account; (2)Boyland moves for the use of a jury questionnaire at his November 1, 2011 trial; (3) Lipskymoves to suppress computers and computer-related data seized from his residence pursuant to asearch warrant; (4) Lipsky moves to suppress emails seized from his Google account; (5)Mailinsky and other defendants move to dismiss Counts One, Two and Ten of the Indictment onthe grounds that they are multiplicitous; (6) Malinsky and other defendants move to dismissCounts 10 and 11 of the Indictment for failure to allege sufficient facts to support moneylaundering conspiracy charges; (7) Aquino and other defendants move to dismiss the Indictmentas insufficiently pled; (8) Aquino and other defendants move to dismiss the Indictment on thegrounds that the statutes charging them are unconstitutional; (9) Aquino and Turano move for Brady material; and (10) Lipsky and Malinsky move for severance. (The Government will file itsresponse to the defendants’ motion for severance under
United States v. Finkelstein
, 526 F.2d517 (2d Cir. 1975) on Wednesday, October 5, 2011
,
in accordance with the Court’s approval for a request for an adjournment.)For the reasons set forth below, the Government respectfully requests that the ten motions be denied in their entirety.1
Case 1:11-cr-00300-JSR Document 144 Filed 09/28/11 Page 2 of 53
RELEVANT BACKGROUND
On April 7, 2011, Superseding Indictment S1 11 Cr. 300 (JSR) (the "Indictment") wasfiled in this District charging eight defendants with a variety of overlapping counts related to the bribery of several New York State public officials.Counts One and Two charge defendants Carl Kruger, Richard Lipsky, Aaron Malinsky,and Michael Turano, with various crimes relating to bribes that Kruger “received...from Lipskyand Malinsky” and “which Kruger directed to bank accounts established by Turano for the benefit of Kruger, Turano, and others.” Indictment ¶ 1. The bank accounts included a bank account in the name of Olympian Strategic Development Corp. (“Olympian”). Indictment ¶ 4(d).Count One charges the defendants with conspiring to commit honest services fraud from at leastin or about 2006 through in or about March 2011, in violation of Title 18, United States Code,Section 1349, and Count Two charges the defendants with conspiring to commit bribery and toviolate the Travel Act from at least in or about 2006 through in or about March 2011, in violationof Title 18, United States Code, Section 371.Counts Three and Four charge defendants Kruger, Solomon Kalish, David Rosen, RobertAquino, and Turano with various crimes relating to bribes that Kruger “would and did receive”from Kalish, Rosen, and Aquino. Indictment ¶ 10. In this bribery scheme, according to theIndictment, the bribes were paid to Adex Management, Inc. (“Adex”), a company controlled byKalish. These corrupt payments were subsequently paid by Adex to bank accounts established by Turano for the benefit of Kruger, Turano, and others, including the Olympian account.
Id
.Count Three charges these defendants with conspiring to commit honest services fraud from atleast in or about 2006 through in or about March 2011, in violation of Title 18, United States2
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