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20 Corporate Woods Boulevard Albany. New York 12211 Telephone: (518) 436-8000 Facsimile: (SIS) 436-0659
Youle C. Smith, III, Esq.
Rensselaer Technology Park 105 Jordan Road Troy, New York 12180-8376 Re:
(518) 283.7649 and Mail
People v. McDonough and Lol'orio, Index No. 235598 Further Request for Resignation of SDA and Federal Investigation Massive Voter Fraud and Wrongful Prosecution of
Dear Mr. Smith: It is with great dismay that I must discuss the truly appalling August 3, 201.1 e-mail you sent (at 5:06 a.m.) to the two NYSP investigators assisting your investigation of the subject voter fraud, a copy of which is attached. I am, however, duty bound to disclose it to the Court, counsel for Mr. LoPorta and Mr. McDonough. Obviously, Mr. McDonough will move for dismissal of all charges or, in the alternative, that a hearing be conducted on this and the other matters recently discussed, as well as an order directing the immediate disclosure of any other Brady material, as soon as practicable. E-Mail Sent after SDA Learn the NYSP and FBI Met with McDonough in Relation to Probe of Wrongful Prosecution It is truly shocking that you published this e-mail with such baseless conspiracy theories and allegations of criminal and/or unethical conduct against a FBI Special Agent, my client and me. Nonetheless, it is believed that you did so the same day you learned that a supervisory NYSP investigator and FBI Special Agent met with Mr. McDonough, without your knowledge, in relation to their investigation of, among other things, this alleged wrongful prosecution. 1. Erroneous Assumption Mr. McDonough Made False Allegations
In the first paragraph of that communication, you erroneously speculate: "Based on SA McDonald's [sic} comments yesterday and thinking back 011 comments made by Vandenberg on the radio, and by Capt. James to me, I would assume that Mclionough was debriefed by SA McDonald and implicated McNally in a conspiracy with Mclnerney to. win the DA's race in 2007. All
McDonough would have to do is say that he overheard Mclnerney and McNally discussing the same, and that would be sufficient for the Feds to bring a conspiracy allegation againstMclvally, I also assume that presently McDonald has nothing to corroborate McDonough's allegation." Facts: Mr. McDonough never made any such allegation against the District Attorney. Therefore, you could not have had any basis to make that erroneous assumption and implied conspiracy theory. Most importantly, your second assumption (i.e. "that presently Maclronald has nothing to corroborate Mcironough 's allegation") is patently contradictory and irreconcilable with the implication of your first one (i.e. - "Mr. McDonough falsely implicated the District Attorney in a conspiracy). Simply put, if you truly thought that Mr. McDonough made such a false allegation, you would have expected, not assumed, that it could not be corroborated at any time, and not only then. Perspective: These comments are very telling because no allegation was ever made in this case that the District Attorney was involved in a conspiracy to win election in 2007. Thus, it seems you must have had some reason to make that random comment, i.e, either a factual basis to believe that the District Attorney was involved in the 2007 election or a motivation for claiming that Mr. McDonough would have made that allegation. Many relevant questions must now be asked and answered. For example: "What did Capt. James and the FBI Special Agent say that led you to make the erroneous assumption that Mr. McDonough falsely alleged that the District Attorney conspired with "Mr. McInerney to win election in 2007? Did you have another reason to make that statement? Did you make it to divert attention to the District Attorney and away from the investigation of the wrongful prosecution of Mr. McDonough alleged? In any event; your comments clearly reflect that you were concerned over the prospect that the NYSP supervisory investigator and FBI Special Agent met with Mr. McDonough to conduct a probe into the investigation and prosecution the 2009 WFp voter fraud and perhaps the alleged 2007 voter fraud. They also show your characteristic behavior of attacking the integrity of any person who challenges your conduct and deflecting attention to the conduct of others at the same time. In short, upon learning that your investigation and prosecution of the subject 2009 voter fraud was being scrutinized by law enforcement, you reacted by alleging that the FBI Special Agent, Mr. McDonough. and I were in a conspiracy to present a false defense and smear you and the District Attorney to further that defense and personal ambition. At the same time, you essentially sought to divert attention away from yourself by raising the possibility "however slight" that the District Attorney had engaged in criminal conduct with Mr. Mclnemey in relation to the 2007 election.
If you had nothing to be concerned about, wby did you not simply request a meeting with the FBI and supervisory NYSP investigators to coordinate law enforcement efforts, rather than send this e-mail to essentially "rally" the support of the two investigators who assisted in your investigation and prosecution? More importantly, why did you not then ask the FBI and federal prosecutors to take over the investigation and prosecution of the
alleged 25 year scheme to defraud public housing voters? Once again, your otherwise inexplicable conduct that makes sense only if viewed as indicative of the wrongful prosecution alleged. II. Defense Counsel Conspired with McDonough to Fashion False Conspiracy Defense, Smear SDA and Damage DA; Further Ad Hominem Attacks and Per Se Defamatory Statements against Defense Counsel
In the next paragraphs, you attack me to lay the groundwork for an outrageous conspiracy theory to smear you and the District Attorney, as follows: "I also assume that McDonough's allegations are a lie and that Premo tailored this. It is so like him. Premo wants what I do not; he wants to be a judge or .DA. By raising this presumably false allegation against 1lfcNally, Premo can fashion a conspiracy defense to the case against McDonough. I am a friend of McNally's. We worked together as DA 's, and I attend his Labor Day barbecue every year - not real close, but close enough to smear me. Premo will point to that friendship, l"rfcNally's subsequent requests for my appointment and expansion of authority, the cooperation agreement with Mcinerney, and my comments with McDonough at our meeting, and falsely claim that I am part of an effort to scapegoat McDonough. Premo has already essentially done all of these things in his papers. Remember McDonald's [sic] last statement to me at the FBI - he asked why we did not take a statement/rom Mcll/ally re: whether McInerney made any comments to him when he asked McNally for advice on who to choose as a lawyer. This is something Tam going to have to beprepared to deal with at trial. By making these allegations, Premo not only tries to taint the' prosecution of McDonough, but can also inflict political damage on McNally who clearly wants to go to the next level (County Court Judge) - the same position Premo aspires to." Facts: Again, in his debriefmg with the FBI and NYSP, Mr. McDonough talked only about the known facts. He did not speculate about any matter and was not asked to do so. Also, his allegations of wrongful prosecution are based solely on the evidentiary facts and the reasonable inferences drawn from them. Otherwise, your per se defamatory statements do not warrant a response at present; suffice it to say that appropriate action will be timely taken, including motions to disqualify and/or dismiss. However, a few of your comments are very telling and require further disclosure of information favorable to the defense, not merely that which is exculpatory (Brady material) as proposed in your recent letter in response to a demand for its disclosure. Initially, in past filings, you have either affirmatively or implicitly denied that you and the District Attorney are "close enough" friends to present any appearance of impropriety by your appointment, even though the District Attorney disqualified himself from the case because Mr. McInerney worked on his 2007 campaign. However, you now admit that the District Attorney requested your appointment after he disqualified himself because Mr. McInerney worked on his 2007 election campaign that was called by only a
narrow margin ("requests for my appointment ... "). Furthermore, the District Attorney recently admitted on a radio show that he and "Mac" (McInerney) are friends. Most significantly, your comment that you will need to be prepared at trial to deal with the fact that you, Inv. Ogden and Inv. Fancher did not take a statement from Mr. McNally about whether Mr. McInerney made any comments to him when he asked for advice on counsel may be very significant when viewing the e-mail in its entirety. Perspective: Your comments again reflect your typical behavior in making personal arguments and diverting attention to others when challenged. Specifically, you transpose your own known political aspirations onto me to argue a basis for a conspiracy that does not exist. Simply put, your strained argument is nearly unintelligible and ridiculous. III. FBI Special Agent Conspired with Defense Counsel to Fashion False Conspiracy Defense. Smear SDA and Damage District Attorney to further Career; Further False Ad Hominem Attacks and Per Se Defamatory Statements Against FBI Special Agent and Defense Counsel
Next, you attack the FBI Special Agent personally, allege that the FBI Special Agent was involved in a conspiracy with counsel and make the following disturbing comments: "Premo has a willing instrument in McDonald [sic], who appears to suffer from . a number of defects, notably judgment and ambition. In the Federal system, as McDonald repeatedly lectured yesterday, the accused makes a full confession before getting a deal I assume titat Mclronough has maintained his innocence in the WFP matter to SA McDonald, and that McDonald has bought into it. McDonald does not seem to be particularly interested in the mountain of evidence we have against McDonough, and he doesn't seem to give a rat's ass about Pericak's assessment, expressed in the meeting at the F.B.I, that the U.S. Attorney's Office does not accept McDonough's claim of innocence . . McDonald thinks he's got a career-maker in McNally; a crooked, elected prosecutor is a much juicier target than an appointed Elections Commissioner. Mclronald will try to make his case to D.C tltat the U.S. Attorney in Albany should pursue this matter. I am not convinced that McDonald will be able to pull this off, but of course we do not know what evidence he has. McDonald is a very strange individual, and I do not trust him: Anything said in his presence may be repeated to Premo. Mclronald's said as much. I didn't think much aboutgiving the Mclnemey file to Mclronald. I will be obligated to turn the file over to Premo anyway. What I am really interested in is whether Premo makes any statements which would reveal that McDonald has turned the file over to him. " Facts: The FBI is an independent branch of the Department of Justice; I do not have any control over any Special Agent. In our limited dealings, FBI Special Agent McDonald presented himself as an experienced, intelligent, diligent and objective agent. The NYSP
Sr. Investigator involved in the case similarly conducted himself as a highly competent and diligent professional. It is not missed that you did not have the audacity to make similar allegations against that Sf. Investigator, who will without doubt deny any and all ofthe reprehensible allegations made against FBI Special Agent McDonald. Nonetheless, you have essentially accused Special Agent McDonald of unethical and criminal conduct because acting as a "willing instrument" of another to fashion a false conspiracy defense, seeking the 'Wrongful prosecution of the District Attorney to further his career and/or "leaking" infonnation to the defense that is considered proprietary to his investigation is tantamount to obstruction of justice. In any event, it certainly would be actionable unethical and improper conduct. Contrary to your preposterous allegations, however, it is known that FBI Special Agent McDonald was assigned to conduct an investigation of alleged voter fraud in the 2008 general election as well as the alleged wrongful prosecution of Mr. McDonough at the request of the US Attorney's Office. It is also believed that both FBI Special Agent McDonald and the NYSP Sr. Investigator involved in the case obtained and/or reviewed substantial testimonial and documentary evidence and concluded independently that Mr. McDonough did not commit the crimes charged andlor is being "scapegoat" prosecuted in lieu of those Democrat officials and party workers responsible for the 2009 WFP voter fraud, as alleged. It is believed that both FBI Special Agent McDonald and the NYSP Sr. Investigator have also concluded that there is overwhelming evidence of the guilt against those Democrat officials and party workers who allegedly committed the subject 2009 voter fraud and that a federal probe into the investigation and prosecution of Mr. McDonough in lieu of them should be completed, and that a related federal prosecution should be commenced. Mr. McDonough again calls for the same. Furthermore, upon information and belief, both FBI Special Agent McDonald and the NYSP Sr. Investigator involved in the case sought to complete an investigation into the alleged wrongful prosecution of Mr. McDonough and, specifically, to obtain complete truthful information from Mr. Mcinerney and others about the matter before they obtained any disposition or favorable consideration pursuant to any purported "cooperation agreement". It is also known that because you scheduled Mr. McInerney's purported (but also invalid) guilty plea to a felony before he provided such cooperation, the NYSP supervisory investigators took action to prevent such a disposition, sought the assistance of the FBI to conduct a proper investigation into the subject voter fraud and alleged wrongful prosecution of Mr. McDonough and also arrested Mr. McInerney on various charges of voter fraud committed in 2007 andlor 2008 in an attempt to ensure a proper prosecution of the subject voter fraud. Nonetheless, you then simply orchestrated his appointment to the prosecution of Mr. Mcinerney for the alleged voter fraud in 2007 and 2008 (that he previously ignored and refused to consider), successfully took action to have the federal investigation terminated (in contradiction of his statements to the Court and public that he sought and welcomed their assistance or handling of the matters), debriefed Mr. McInerney alone before his debriefing with law enforcement and then orchestrated Mr. Mcinerney's invalid purported conviction, as previously discussed.
Also, contrary to your pretentious comment, there is no "mountain of evidence" against Mr. McDonough. In fact, the only "evidence" against Mr. McDonough is the selfserving, false accusations of Mr. McGrath you obtained in return for immunity from prosecution for the crimes he allegedly committed, but denied. In addition, if Mr. McInerney, .Mr. O'Malley, Mr. Brown or any otber person has made any accusations against Mr. McDonough, they are of the same patently incredible nature. Parenthetically, it is unlikely that Asst. U.S. Attorney Pericak ever told the FBI that he did not believe Mr. McDonough's claim of innocence for one simple reason: he never reviewed the substantial testimonial and documentary evidence in this case. Perspective: As stated, your comments were made when you were concerned about the information the FBI might possess and whether a federal investigation of the voter fraud and wrongful prosecution of Mr. McDonough was still being conducted after your apparent successful efforts to have it quashed. Therefore, one of your statements is of . particular interest: "Mclronald thinks he's got a career-maker in McNally; a crooked, elected prosecutor is a much juicier target than an appointed Elections Commissioner. McDonald will try to make his case to D.C that the U.S. Attorney in Albany should pursue this matter. I am not convinced that McDonald will be able to pull this off, but of course we do not know what evidence he has." The scope and significance of that statement in relation to this case and the wrongful prosecution of Mr. McDonough is breathtaking. Standing alone, it demands a federal investigation. In the first place, your comment that the FBI Special Agent would seek "to make a case to D. C" that the US Attomey in Albany should pursue the matter clearly reflects your knowledge that after the US Attorney's' office requested tbe FBI to conduct an investigation into the matter, it effectively terminated that investigation at his request, in complete contradiction to what you repeatedly told the Court and public in the past. Also, you again make the assumption that the FBI has evidence against the District Attorney; why? If you did not have a basis for that belief or at least a concern for that possibility, why did you again mention the prospect that an FBI agent wanted the Department of Justice to investigate your friend, the DA, after you were apparently successful in having the US Attorney quash a federal investigation of this matter? Why did you speculate about what evidence the FBI might have against the DA unless you had knowledge of some relevant facts of concern? Many questions must be now be asked of, and answered by, you, the FBI Special Agent, NYSP Sr. Investigator and others. IV. Identification of Brown, LaPorta, Campana and McDonough but not McInerney as "Main Players" in 2009 WFP Voter Fraud; Further Per Se Defamatory Statements Against Defense Counsel; and Speculation that DA May Have Been Involved in Conspiracv to win 2007 Election
In ending the e-mail, you speak more directly to the investigators, as follows: I do not know for a certainty that McNally is uninvolved; think of how all oj the main players in our case -
"Each of us is trained to be objective.
Brown, Lol'orto, Campana, McDonough - each has their defenders (including themselves) that they would never do that which they very clearly did. I strongly believe McNally is flat involved, and that Premo is making all of this up; I know that Premo has lied in this case, and done so under penalties of perjury. Regardless of what I believe, each of us has to be open to the possibility, however slight, that McNally has committed a crime or crimes. The attitude of those who break these laws is pretty nonchalant, like it's no big deal, done all the time, etc." "Maybe you both have already thought of these things, but it seems pretty clear to me that this is what is going on, and you both need to think long and hard and draw your own conclusions about how to proceed going forward. None of this has anything to do with tite integrity 0/ our investigation of Mclronough. Premo wants us to get lost in a conspiracy thicket. Regardless a/what McNally did or did not do in 2007, it's Mclronough!s DNA on two ballot envelopes, McDonough who told O'Mallry to forge application excuses, etc. I think Capt. James wastrying to clue me in 011 all of this weeks ago, but it took awhile for it to get through my thick German skull." Facts: As stated, your per se defamatory statements do not warrant a response at this time, but appropriate action will be taken. It must also be noted that you stated to the two NYSP investigators who assisted your investigation of the 2009 VlFP voter fraud: "each of us has to be open to the possibility, however slight, that McNally has committed a crime or crimes". Why did you make that comment? If that possibility had no effect on the integrity of your investigation, as stated below, why mention it at all?Otherwise, your conclusion about what was going on with the investigation of the case after learning that Mr. McDonough met with the FBI and NYSP without your knowledge is truly mind-bending. In short, you say that the following seems pretty clear to you: (1) despite having a career-long, well-known reputation for impeccable integrity and professionalism, I committed perjury and fashioned a false conspiracy defense that the District Attorney conspired with Mr. McInerney to win the 2007 election to damage him for my own future political aspirations; (2) Mr. McDonough conspired with me and told that lie to the FBI Special Agent assigned to investigate the case; (3) that FBI Special Agent investigating, among other things, the alleged wrongful prosecution of Mr. McDonough agreed to further that false conspiracy theory because he suffers from lack of judgment and blind ambition; also, he is a "willing tool" of mine, leaked information to me and seeks to convince the Department of Justice to prosecute the District Attorney for conspiring with Mr. Mcinerney to win the 2007 election in order to advance his career (after you successfully had the local US Attorney quash a federal investigation); (4) the District Attorney may have committed crime(s), but you doubt it; and (5) "none of this has anything with the integrity of our investigation cf Mclsonough" Again, if the possibility that the District Attorney was involved in criminal conduct with the primary target of the 2009 massive voter fraud, a friend who was insulated from
prosecution by you (another friend that he effectively had appointed SDA) until arrested by the NYSP, has 110 effect on the integrity of your investigation of Mr. McDonough in lieu of those responsible for the voter fraud, then why send an e-mail discussing that issue at length at 5:00 a.m. within hours of learning about the meeting between the NYSP, FBI and Mr. McDonough in regard to an investigation of the alleged wrongful prosecution? It is obvious that you immediately realized the enormity of the situation when faced with the prospect of an impending federal investigation into this matter. An author of fiction could not dream such a twisted story. Perspective: It is more than ironic that you claim that Mr. McDonough's arguments of wrongful prosecution are no more than outrageous conspiracy theory when your entire response to the investigation of his alleged misconduct is the most preposterous conspiracy theory imaginable. It is, in a word, incomprehensible. Lastly, in the context of this discussion, your [mal message to the investigators who assisted your investigation and prosecution of Mr. McDonough is very telling and perhaps even implicitly threatening: "•.. you both need to think long and hard and draw your own conclusions about how to proceed going forward." At best, you seem to be suggesting that they proceed cautiously because of the prospect of a potential federal investigation; why? Again, many more questions must now be asked and answered. It now appears with certainty that your conduct will be a material issue at the trial of this matter and it is impossible to understand how you can continue in this case.
PREMO LAW FIRM, PLLC
Brian D. Premo, Esq. BDPllp Rensselaer County Supreme and County Clerk (via filing) Mr. Michael Feit, Esq., (all others via facsimile) Maj. William S. Sprague, Commander, Troop G Capt Steven G. James, Bel, Troop G Sf. !nv. Christopher O'Brien, Brunswick Station, Bel FBI, Public Integrity Unit, Attn. SA Julie Mounce Mr. Edward McDonough
John Ogden OBrien, Christopher 8/3/2011 8:44 AM Fwd; mdnemey
Looks like' he sent this at 5:06 a.m.
»> Trey Smith <trey@shl!c,net> John, Albro,
8/3/2011 5:06 AM
on SA MacDonald's comments yeSterday, and thinKIng back on comments made by Vandenbumh on the radio, and by Capt. James to me, I would assume that McDonough was debriefed by SA MacDonald and implicated McNally in a conspiracy wfth Mcinerney to win the DA's race in 4007. All McDonough would have to do is say that he overheard Mcinerney and McNally discussing the same, and that would be sufficient for the Feds to bring a conspiracy allegation against McNally •. I also assume that presently MacDonald has nothing to corroborate McDonough's allegation. I also assume that McDonough'~allegatlon's are a lie, and that Premo tailored this. It is so like him. Premovvants what I do noti he wants to be a judge, or DA. By raising this presumably false allegation against McNally, Premo can fashion a consplracy.defense to the case against McDonough. 1 am a friend of McNally's. We worked together as DAs, & I attend his Labor Day barbecue every year- not real close, but close enough to smear me. Premo will point to that friendship, McNally's subsequent requests for my appointment and expansion of authority, the cooperation agreefll"'Jlt with McInerney, and my comments to McDonough at our meeting, and falsely .dalrn that I am part of an effort to scapegoat McDonough. Premo has already essentially done all of these things in his papers. Remem_berMacDonald's last statement to me at our meeting at the FBI - he asked why we did not take a statement from McNally re: whether Mdnemey made any comments to him when asked McNally for advice on who to choose as a lawyer. This is something I am going to have to be prepared to deal with at trial.
By making these alleqations, Premo not only tries to taint the prosecution of McDonough, but can also inflict politkaldarnaqe on McNally, who c:Jearly wants to go to the-next level (County Court Judge) - the same position Premo aspires to. .-.
Premo has a willing instrument in MacDonald, who appears to suffer from a number of defects, notably judgment and ambition. In the federal system, as MacDonald repeatedly lectured yesterday, the accused makes a full confession before getting -a deal, r assume that McDonough has maintained his innocence in the WFP matter to SA MacDonald, and that MacDonald has bought into it. MacDonald does not seem to be particularly interested in-the mountain of evidence we have against McDonough, and he doesn't seem to givea rat's ass about Pericak's assessment, expressed in the meetill9 at the F.B.I., that the U.S. Attorney's Office does not accept McDonough's claim of innocence. MacDonald thinks he's got a careermaker in McNallYi a crooked, elected prosecutor is a much juicier target than an appointed Elections Commissioner. MacDonald will try to make his case to D.C. that the Attorney in Albany should pursue this matter. I am not convinced that MacDonald will be able to pull this off, but of course we do not know what evidence he has.·
MacDonald is a very strange individual, and I do not trust him. Anything said in his presence may be repeated to Premo. MacDonald's said as much. I didn't think much about giving the Mcinerney file to MacDonald. I wfll be obligated to- tum the file over to Premo anyway. What I am really interested in is whether Premo makes any statements which would reveal that M_acDonald has turned the file over to him. Each of us is trained to be objective. I do not know for a certainty that McNally is uninvolved; think of
how all of the main players in our case - Brown, LoPorto, Campana, McDonough - each has their defenders (inducting themselves) that they would never do that which they very clearly did. I strongly believe McNally is not involved, and that Premo is making all of this up; I know that Premo has lied in this easel arid done so under penalties of perjury. Regardless of what I believe, each of us has to be open to the possibility, however slight, that McNally has committed a crime Dr crimes. The attitude of those who break these laws Is pretty nonchalant, like it's no big deal, done all the. time, etc.
Maybe you both have already thought·of these things, but it seems pretty dear to me that this is what is going on, and you both needto think long and hard and draw your own conclusions about how to proceed going forward, None of this has anything to do the integnty of our investigation of McDonough. Premo wants us to get lostin a conspiracy thicket Regardless of what McNally did or did not do in 2007, it's McDonough's DNA on two ballot envelopes, McDonough who told O'Malley to forge application excuses, etc.
I think Capt. James was trying to through my thick German skull. Trey Smith, Esq.
me in on all of this weeks ago, but it took. awhile for it to get
Rensselaer Technology Park 105 Jordan Road Troy, New York 12180-8376 Telephone: (518) 283-4100 Facsimile: (518) 283-7649 .E-mail: trey@shHc.net Website: wWw.sh1lc.net
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