19:29, September 01 364 0 law.com

2017-09-01 19:29:04
As Menendez Trial Starts, What Has Been Keeping Prosecutors and Defense Lawyers Up at Night?
Senator Robert Menendez (D-NJ) at a Senate Banking Committee hearing addressing the scandal relating to Wells Fargo’s opening of fake bank accounts without customer knowledge, on Tuesday, September 20, 2016. Photo: Diego M. Radzinschi/ALM

After working while under a criminal indictment for 28 months, U.S. Sen. Robert Menendez is about to get a chance to prove his innocence. The 63-year-old senator’s career and future are on the line when he and Florida ophthalmologist Salomon Melgen go on trial Wednesday in U.S. District Court in Newark.

The April 2015 indictment charges that Menendez received a series of gifts from Melgen—travel on private jets, luxury resort vacations, campaign contributions—and repaid the favors by intervening in regulatory matters involving the doctor. The case will provide a look at the new landscape for federal corruption law in light of the U.S. Supreme Court’s June 2016 ruling vacating the corruption conviction of former Virginia Gov. Bob McDonnell.

Federal prosecutors also have a lot riding on the case in light of recent rulings reversing corruption convictions against McDonnell and former New York Assembly Speaker Sheldon Silver. As the trial of Menendez and Melgen proceeds, here are three questions that are likely weighing on the minds of lawyers in the case.

Will the government’s case be undone by the “McDonnell” ruling?

McDonnell’s conviction was overturned by the Supreme Court on a finding that favors he provided to a benefactor did not rise to the level of official acts. The court ruled that “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’” In the McDonnell case, the governor arranged meetings with other state officials where the donor could discuss his fledgling business, and hosted events for the business at the governor’s mansion.

Menendez, on the other hand, is accused of intervening with the Department of Health and Human Services to advocate for Melgen after the doctor was accused of overbilling Medicare by $9 million, at one point arranging a meeting with then-HHS Secretary Kathleen Sebelius. Menendez is also accused of intervening three times after girlfriends of Melgen—from Brazil, the Dominican Republic and Ukraine—were denied visas to enter the U.S. Menendez is also accused of pressuring the State Department to resolve a dispute between the government of the Dominican Republic and a company owned by Melgen when it appeared that the conflict would endanger the company’s $115 million contract to install X-ray imaging equipment in that country’s ports.

Randall Eliason, a George Washington University professor of law and a former assistant U.S. attorney in Washington who prosecuted public corruption cases, does not think the government’s case against Menendez will be torpedoed by the McDonnell ruling

“What Menendez allegedly did for Melgen is a lot more substantial than what McDonnell did for his benefactor,” said Eliason. “McDonnell arranged some introductions, set up some meetings. Menendez is alleged to have actually gone to meetings himself. If that’s how the evidence comes in, there is an actual proceeding in controversy going on. Menendez, although he can’t resolve them himself, is trying to pressure someone else to resolve them. Under McDonnell, that’s enough.”

Robert Mintz, a former assistant U.S. attorney who is a white-collar criminal defense lawyer at McCarter & English in Newark, said the facts of the Menendez case are different than in McDonnelland the ultimate impact of that ruling is yet to be seen.

“What we can say about McDonnell is that it did narrow the scope of what is an official act. The facts of this case may test the limits of McDonnell, because the allegations are that Sen. Menendez took a more active role than Gov. McDonnell did,” Mintz said.

The decision in McDonnell showed that an official act “concerns the formal exercise of power before a public official,” Mintz said.

Menendez’s attempt to influence Melgen’s Medicare dispute “is closer to what could be described as a matter pending before a public official than the facts in McDonnell. This certainly moves much closer to the definition that the Supreme Court laid out for what might constitute an official act,” Mintz said.

Will Melgen testify for the prosecution?

Prosecutors would get a big break if Melgen were to testify against Menendez, but such a turn of events is seen as unlikely. It became the subject of speculation after sentencing on Melgen’s fraud conviction was postponed until December. But if Melgen were to testify against Menendez, the government would have to notify the defense, which would then be expected to seek adjournment, and none of that has happened, said Mintz. Still, Melgen could always change his mind at the last minute, Mintz said.

The government would have a lot to gain if Melgen testified against Menendez, Mintz said. In government bribery cases, understandings between the official and the person paying bribes to them is often implicit, not spelled out, Mintz said. Having Melgen’s testimony would have made things easier for prosecutors, since the case against the senator is “circumstantial, where the government is going to have to prove a quid pro quo arrangement by laying out a timeline of gifts bestowed on Menendez.

How will this case play before a New Jersey jury?

Jurors are likely to hear Menendez’s compelling personal story: that he was born to Cuban refugee parents, raised in a Union City tenement, and elected to his local school board at age 20. If jurors “find him to be a person who they would like to have a beer with,” that will “contribute to the calculus when they weigh the credibility of the defense,” said Mintz.

Menendez, a Democrat, was re-elected in 2012 with 58 percent of the vote when he ran against Republican Joseph Kyrillos. In 2006, when he won his first full term in the Senate, he beat Thomas Kean Jr. by eight percentage points. Before his indictment, more people approved of his performance than disapproved, said Ben Dworkin, director of the Rebovich Institute of Political Science at Rider University in Lawrenceville. Menendez has strong political skills and is a good speaker, and “in small settings he is not stiff at all,” said Dworkin, who once saw the senator “singing ‘Danny Boy’ at an Irish gathering in Chicago in a beautiful tenor voice.” Still, “I’m not sure enough people know about who he is,” Dworkin said of Menendez, noting that he lacks the nationwide profile and strong social media presence of the state’s junior senator, Cory Booker.

The battle to impress jurors could play out like “Lifestyles of the Rich and Famous,” as prosecutors warned in a trial brief filed Wednesday that they intend to present photos and other evidence at trial about the lavish accommodations Menendez enjoyed at Melgen’s expense. A resort where the senator stayed is frequented by Beyonce and Jay-Z, and when the senator visited Paris, he requested Melgen provide him a hotel room with a “limestone bath with soaking tub and enclosed rain shower,” and “views of courtyard or streets,” the prosecution’s trial brief said.

“The lavishness of the gifts Melgen provided to Menendez is evidence that Menendez accepted them, at least in part, to be influenced in his official action,” the prosecution said in the pretrial memo. “These details demonstrate Menendez’s willingness to be influenced in his official action, as well as Melgen’s intent to exert that influence, keep Menendez on retainer, and obtain official action as needed.”

But filing of the trial brief is not required by court rules and was not directed by the judge, Menendez lawyer Raymond Brown said in a letter to U.S. District Judge William Walls. The inclusion of details about luxury accommodations drew extensive media attention and was a “gratuitous” and “lurid” attempt to create pretrial publicity, Brown said.

Could the prosecution’s emphasis on the lavish nature of Melgen’s gifts to Menendez backfire? Mintz says the senator’s lawyers have sought to portray his friendship with Melgen as genuine and long-standing, one where birthdays are celebrated together. The defense “will paint the government as overreaching, trying to punish Sen. Menendez for simply being involved in a friendship with an individual who is financially well-off,” Mintz said.