Menendez Trial: Defense Motion For A Mistrial

Case 2:15-cr-00155-WHW Document 257-1 Filed 10/29/17 Page 1 of 45 PageID: 5176
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
v.
Crim. No. 2:15-cr-00155
ROBERT MENENDEZ Hon. William H. Walls
and
SALOMON MELGEN,
Defendants.
DEFENDANTS MOTION FOR A MISTRIAL
Abbe David Lowell Kirk Ogrosky

Jenny R. Kramer Murad Hussain
Christopher D. Man ARNOLD & PORTER KAYE
Victoria V. Corder SCHOLER LLP
NORTON ROSE FULBRIGHT US LLP 601 Massachusetts Avenue, NW
1200 New Hampshire Avenue, N.W. Washington, D.C. 20001
Washington, D.C. 20036 (202) 942-5330
(202) 974-5600
Raymond M. Brown Jonathan D. Cogan

Justin P. Kolbenschlag Samuel A. Stern
Gregg H. Hilzer KOBRE & KIM LLP
GREENBAUM ROWE SMITH & DAVIS LLP 800 Third Avenue
Metro Corporate Campus One New York, NY 10022
P.O. Box 5600 (212) 488-1200
Woodbridge, NJ 07095
(732) 476-3280
Counsel for Defendant Counsel for Defendant

Senator Robert Menendez Dr. Salomon Melgen
CPAM: 13005374.2
INTRODUCTION
As outlined during Defendants October 26, 2017 oral motion, Defendants seek a mistrial
because the Courts evidentiary rulings and comments throughout this trial evince a cumulative
abuse of discretion that has deprived Defendants of their Fifth and Sixth Amendments rights to a
fair trial, to an adequate defense, and to confront the witnesses against them. This brief attempts
to categorize Defendants arguments and provide specific supporting examples. At bottom,
however, Defendants concerns are typified by the Courts parting words at the hearing: Life is
not fair and so too is judicial discretion. (10/26/17 Tr. at 164.) Despite the light-hearted nature
of the Courts comment, the fact remains that judicial discretion must be exercised fairly
otherwise, by definition, it is an abuse of discretion. For the reasons identified below,
Defendants submit that at key moments through this trial, the Courts rulings have been unfairly
prejudicial, inconsistent, and contrary to law.
LEGAL STANDARD
Trial judges may declare a mistrial whenever, in their opinion, taking the circumstances
into consideration, there is a manifest necessity for doing so. Renico v. Lett, 559 U.S. 766, 774-
75 (2010) (quotation marks omitted). The Supreme Court has clarified that this manifest
necessity language means only that a mistrial is appropriate when there is a high degree of
necessity. Id. (quotation marks omitted). There is no mechanical formula for evaluating the
propriety of ordering a mistrial given the varying and often unique situations arising during the
course of a criminal trial. Illinois v. Somerville, 410 U.S. 458, 462 (1973). While the need for a
mistrial turn[s] on the facts and thus escape[s] meaningful characterization, it is clear that [a]
trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be
reached, or if a verdict of conviction could be reached but would have to be reversed due to an
obvious procedural error in the trial. Id. at 464. In other words, it is a proper exercise of
1
judicial discretion to grant a mistrial when, even if a conviction is obtained, it would
automatically be stripped of that success by an appellate court. Id.; see also Fed. R. Crim. P.
26.3 (requiring considering alternative remedies before ordering mistrial).
In the Third Circuit, [i]ndividual errors that do not entitle a petitioner to relief may do so
when combined, if cumulatively the prejudice resulting from them undermined the fundamental
fairness of [a defendants] trial and denied [a defendant] of his constitutional right to due
process. Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (emphasis added). Appellate reversal
is warranted when these cumulative errors so infected the jurys deliberations that they had a
substantial influence on the outcome of the trial. United States v. Hill, 976 F.2d 132, 145 (3d
Cir. 1992). As set forth below, the cumulative errors that have occurred throughout trial warrant
a mistrial here, especially in light of the fact that the prosecutions evidence is not
overwhelming. (See Dkts. 241, 242 (Defendants Rule 29 Motions).)
ARGUMENT
I. THE COURT HAS DENIED DEFENDANTS FAIR AND MEANINGFUL

OPPORTUNITIES TO PRESENT A COMPLETE DEFENSE TO THE
PROSECUTIONS CASE BY ERRONEOUSLY PREVENTING DEFENDANTS
FROM INTRODUCING ADMISSABLE EVIDENCE AND TESTIMONY
THROUGHOUT TRIAL
The Constitution, whether in the Fifth Amendments Due Process Clause or in the Sixth
Amendments Compulsory Process and Confrontation Clauses, guarantees a criminal defendant
a fair and meaningful opportunity to present a complete defense. Scott v. United States, 975
A.2d 831 (D.C. 2009) (citing McDonald v. United States, 904 A.2d 377, 380 (D.C. 2006); Crane
v. Kentucky, 476 U.S. 683, 690 (1986)) (emphasis added). These constitutional rights include the
rights to introduce admissible documentary evidence and to elicit testimony in support of defense
theories. See Scott, 975 A.2d at 838 (constitutional error where trial court erroneously precluded
defendant from introducing evidence that would have provided critical support to the defense
2
theory); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (Few rights are more
fundamental than that of an accused to present witnesses in his own defense.).
As detailed below, throughout trial, the Court has erroneously excluded relevant and
admissible testimony, documents, and witnesses called by the defense that would provide critical
support to following the defense theories: (1) that Defendants share a genuine friendship, (2) that
Defendants lacked the requisite criminal intent to engage in a bribery scheme, (3) that Senator
Menendezs advocacy for Dr. Melgen in the areas of Medicare and port security were objectively
reasonable, and (4) that there was no conealment. As a result of the erroneous exclusion of this
evidence, Defendants have been deprived of the opportunity to present a defense.
A. The Court Has Barred Relevant Fact Witnesses For The Defense In Their
Entirety
The most glaring example of the Courts erroneous exclusion of admissible evidence is
when it barred the testimony of two competent witnesses with firsthand knowledge of admissible
facts that would have provided testimony in support of defense theories from taking the stand at
trial: Amy Bassano and Marc Elias.
The prosecution called seven (7) witnesses to explain to the jury the Medicare policy
allegations. Those seven witnesses told the jury in sum and substance that Medicares policy
regarding multi-dosing of Lucentis was clear and consistent. The jury also learned through cross
examination of those witnesses (and later through direct examination of Senator Menendezs
staff) that the Senator disagreed. But the jurors never heard why the Senator disagreed.
Without evidence explaining the basis for the Senators disagreement, the jury cannot fairly
assess whether the Senators position was objectively reasonable. As explained in Defendants
letter brief of October 9, 2017, the reasonableness of a belief is a factor for the jury to consider
in determining whether a defendant actually believed and acted on it. United States v. Benson,
3
941 F.2d 598, 614 (7th Cir. 1991); see Dkt. 238 (and cases cited therein). If the jury cannot
understand whether the Senators position was objectively reasonable, it might improperly infer
that the Senator acted as a result of a bribe, rather than some other innocent reason. 1
In order to show the jury that the Senators disagreement was objectively reasonable, the
defense tried to call Amy Bassano, an employee of CMS. Ms. Bassano would have testified that
she was involved in responding to Senator Menendezs staffs inquiries from 2009 to 2012
regarding the confusing multi-dosing policy; that she helped CMS to respond to complaints from
Senator Menendez and others regarding the fact that the policy was not clear; and that, in fact,
the policy was clarified to remove a confusing example during the relevant time period. She
would have testified that she believed there was confusion, and that she knew about statements
that revealed this confusion were being made to the Senator and his staff because she was
involved in discussions within CMS regarding how to explain the policy to the Senator. The
Court barred Ms. Bassano from testifying on the grounds that her testimony would have been
cumulative and would serve no purpose. (10/18/17 Tr. at 15-21.) The Courts decision was
erroneous and prejudiced the defense by preventing it from explaining to the jury why the
Senators Medicare policy advocacy was objectively reasonable, through a neutral witness.
1
Notably, when defense counsel first raised the suggestion that evidence could be relevant
because it showed the objective reasonableness of Defendants beliefs, the Court stated with
the jury still present Theres no such thing as objective reasonableness. You made up that
theory yourself. (10/4/17 Tr. at 37.) The Court later made a gracious apology to counsel after
the submission of the related letter brief. (See 10/10/17 Tr. at 4.) However, this was outside the
presence of the jury, which heard only the original comments suggesting that Defendants were
pursuing a frivolous cross examination topic, and therefore were left with the impression that
they cannot consider the evidence to assess the reasonableness of Defendants states of mind.
4
The Courts decision to bar Marc Elias from testifying was also erroneous and
prejudicial. (10/26/17 Tr. at 34-74.) Throughout the case, mainly through documentary or
circumstantial evidence, the prosecution has asked the jury to infer that Defendants concealed
their bribery scheme. The prosecutions evidence has included, among other things, a January 4,
2013 letter from Mr. Elias to Dr. Melgen reimbursing him for two trips taken on his plane (GX-
41); a clip from a CNN Interview in February 2013 between Senator Menendez and Dana Bash
where the Senator discusses the reimbursement (GX-104); and a January 30, 2013 press release
from Senator Menendezs office stating that the Senator traveled on Dr. Melgens plane on three
occasions (GX-107).
In order to counter the prosecutions documentary evidence allegedly showing
concealment, the defense tried to call Mr. Elias. Among other things, Mr. Elias would have
testified that he personally investigated the flights allegedly concealed, and that on January 4,
2013, he disclosed to the Senate Ethics Committee the number of flights that the Senator had
taken on Dr. Melgens plane, including both personal and campaign-related trips. Not only did
the Court erroneously preclude a redacted version of the letter itself (DX-525) from coming into
evidence,2 but it precluded Mr. Elias from testifying as to the simple fact that the flights were
disclosed within the period of the alleged conspiracy at all.
The Court seemed to focus on the fact that, in its opinion, an agent of Senator Menendez,
in this case an attorney, could not testify on the Senators behalf regarding a subject the Court
believed only Senator Menendez could make. (E.g., 10/26/17 Tr. at 37, 42, 43.) But the fact that
2
See Motion to Admit Documentary Evidence.
5
Mr. Elias was the Senators attorney is irrelevant for purposes of evaluating whether his
testimony as a fact witness is admissible. The defense did not intend to elicit any legal advice or
exchanges between Senator Menendez and Mr. Elias. Anyone who knew about the letter could
have sponsored its admission, but here, it was Mr. Elias who submitted the letter. The fact that
Mr. Elias was an agent for Senator Menendez and could have presented facts known to the
Senator without the Senator taking the stand is no different than a dozen witnesses who have
testified in this trial, including the Senators staff who are also agents of the Senator a fact that
the prosecution made clear each time one of them takes the stand. Had Mr. Elias been permitted
to testify, the prosecution would have been free to have made that point with him too. Thus,
calling Mr. Elias was not an attempt to introduce evidence that the prosecution would not have
been able to test with cross examination. By barring the testimony of Mr. Elias, the Court has
prevented Defendants from showing the jury evidence to negate concealment.3
B. The Court Has Precluded Defendants From Eliciting Testimony About

Relevant Subjects Put In Issue By The Prosecution And Precluded
Defendants From Asking Questions From Competent Witnesses About
Documents Already In Evidence
The Courts evidentiary rulings have also prevented Defendants from eliciting testimony
about relevant events or subjects put into issue by the prosecution, and from asking competent
witnesses about documents that are already in evidence. The following are key examples that
impacted the Defendants abilities to present their theories to the jury and defend against the
prosecutions case.
3
The Court also barred Mr. Elias from testifying about other evidence as well, which was also
erroneous. (See 10/26/17 Tr. at 34-74.)
6
During the direct examination of Flor Melgen, the Court refused to allow defense counsel
to ask Flor Melgen about the value of a $1000 wedding gift her daughter received from Senator
Menendez. Mrs. Melgen would have testified that the gift was the largest received by her
daughter from a person outside her family. That fact would have given the jury a reason to
believe the Senator and Dr. Melgen were genuine friends. The Court erroneously precluded
defense counsel from asking about the value of the gift in comparison to the other wedding
guests on the grounds that the issue of friendship a key defense theory is subject to
cumulation. (10/11/17 Tr. at 134-37.) The Court also initially remarked that $1000 to a
Senator is chump change. Id.
During the direct examinations of defense witnesses Elio Muller and Gus Garcia, the
Court prevented them from testifying about specific events over a particular weekend in October
2010 that is a key part of the defense to Counts 7, 8 and 18. (10/19/17 Tr. at 229-37 (Muller);
10/26/17 Tr. at 23-32 (Garcia).) One of the trips charged as a bribe in Counts 7 and 8, and
allegedly concealed in Count 18, was a trip over the weekend of October 9-11, 2010. The trip is
an outlier in the Indictment as it is the only trip involving a chartered private plane and a first
class commercial plane rather than Dr. Melgens plane. One of the defense theories is that that
trip was not a concealed bribe, but a mistakenly un-reimbursed DSCC trip related to the 2010
Florida Senate race. By preventing defense witnesses from testifying about the specific
circumstances surrounding the Senate election in Florida that year that would have necessitated
the DSCC trip, the Court has prevented the jury from hearing key facts that explain that defense.
Additionally, the Court refused to allow Defendants to introduce a campaign-related credit card
statement reflecting that Senators travel home from that weekend trip which was reimbursed.
(10/26/17 Tr. at 57-61 (refusing to permit Mr. Elias testify about the credit card statement (DX-
7
1061) or to allow it into evidence).) In doing so, the Court has limited the ability of Defendants
to defend against bribery and concealment charges.
During the direct examinations of defense witnesses Alan Reider and Michael Barnard,
the Court prevented them from testifying about the Senators meetings with CMS Administrator
Tavenner and Secretary of HHS Sebelius in summer 2012, events preceding those meetings, and
documents given to the Senator in advance of those meetings which would have revealed the
Senators state of mind. (10/17/17 Tr. at 64-71, 82 (precluding Reider from discussing a memo
he drafted and gave the Senator, which was already put in evidence by the prosecution (GX-
237)); 10/19/17 Tr. at 104-10 (I told you I was not going to have a full exposition of that
meeting. . . .; 112 (I think thats about all we are going to hear. He [Senator Menendez]
spoke.). The meetings are charged acts and the prosecution case emphasized the importance of
these meetings. As a result of the Courts evidentiary rulings, the defense was not allowed to
present its counter-narrative to the jury to discuss the lead-up to events that the prosecution
emphasized in great detail with their witnesses during their case.
The Court has precluded Defendants from rebutting or neutralizing prosecution
arguments and documents as well. During the cross examination of prosecution witness Andrew
Thomas, after the prosecution put in issue that Senator Menendez could not have afforded to stay
at the Park Hyatt Paris without using Dr. Melgens American Express points, the Court refused
to allow the defense to elicit testimony or introduce documents showing he, in fact, could have.
(9/11/17 Tr. at 47-50.) During the direction examination of prosecution witness William
Blacker, the Court allowed the prosecutor to read aloud a stipulation regarding how the
prosecution obtained a document from Dr. Melgens office (GX-92), but refused to allow
Defense counsel to ask questions on cross examination of Mr. Blacker regarding the same
8
document to show that it was missing a page. (9/18/17 Tr. at 50-54.) During the direct
examination of Karissa Willhite, the Court prevented the defense from asking Ms. Willhite
questions about a memorandum she drafted for Senator Menendez that the prosecution had put
into evidence through a summary agent (not a fact witness) (GX-176) on the grounds that the
document speaks for itself. (10/18/17 Tr. at 70-73.) Similarly, during the direct examination of
defense witness Jodi Herman, the Court prevented the defense from asking Ms. Herman
questions about an email she authored (GX-134), after the prosecutors had already introduced the
document into evidence through a summary agent. (10/19/17 Tr. at 37.)
1. Cumulative Objections
Throughout trial, the Court has sustained defense questions, testimony, witnesses and
documents as cumulative, and sometimes even done so sua sponte. (E.g., 9/13/17 Tr. at 201,
208-09 (Nyland); 10/03/17 at 154-155 (Tavenner); 10/11/17 Tr. at 69, 71 (Mohl); 10/16/17 Tr. at
134-37 (Flor Melgen); 10/17/17 Tr. at 75-79 (Reider); 10/17/17 Tr. at 98-121 (DX-325);
10/18/17 Tr. at 20-21 (barring Bassano); id. at 162 (Willhite); 10/19/17 Tr. at 109 (Barnard);
10/25/17 at 21 (Brownfield).)4 These rulings are erroneous and prejudicial. Eliciting
corroborative or contradictory information from a different witness about a subject or document
raised during the prosecutions case is not cumulative, nor is cross-examining a witness on a
document the prosecution has inquired about with that witness. Defendants are entitled to elicit
testimony regarding the same subjects, events, and documents the prosecution puts into issue in
order to present its theories to the jury, test a witnesss credibility, or challenge the credibility of
4
Defense counsel objected to the Courts use of cumulative as grounds for excluding
testimony elicited by the defense at trial. See 10/17/17 Tr. at 98-121.
9
prior witnesses who testified about the same topics or circumstances. Moreover, Defendants are
entitled to ask their witnesses about events and documents which they, too, attended or received,
even if the prosecutions witnesses previously testified about those same events and documents.
2. Court-Approved Redactions
Relatedly, over Defendants objections, the Court has repeatedly approved the
prosecutions redactions of documents put into evidence, which de-contextualize them, and has
precluded Defendants from eliciting testimony about the underlying information to contextualize
the documents. For example, the prosecution entered into evidence an undated memorandum
drafted by Mark Lopes for Senator Menendez that described the matters he had worked on that
week (GX-37). The prosecution redacted nearly all content on the three-page memo except for
the portion relating to visa work done for Mr. Melgen. As a result, the redactions distorted the
significance of the visa work, which defense counsel attempted to neutralize on cross-
examination. However, during the cross-examination of Mr. Lopes, defense counsel was
precluded from asking Mr. Lopes about the topics underlying the redactions, and, thus, was
precluded from contextualizing the visa work for the jury. (9/11/17 Tr. at 141-60.) The jury was
therefore left with the impression that these matters were of the utmost importance as opposed to
routine business for the Senator as they present within a litany of other matters.
Other examples of over-redacted documents permitted by the Court over defendants
objections that serve no purpose and de-contextualized the information presented to the jury are:
(1) GX-92, which was a cover letter and check, which the prosecution redacted to remove the
explanatory cover letter from the exhibit in its entirety and admitted the check alone (see
Defendants September 14, 2017 Supplemental Evidence Submission (Dkt. 223) explaining why
it was improper to have admitted the exhibit in this way); and (2) GX-160, an email to Todd
10
Robinson that was redacted to remove a reference to drug trafficking in the Dominican Republic
(9/27/17 Tr. at 4-11).
C. The Court Has Erroneously Precluded Defendants From Entering

Admissible Documents Into Evidence
The Court has also erroneously excluded admissible documentary evidence offered by
the defense.5 In doing so, the Court has handicapped the credibility of the defense theories
presented to the jury. The reason is simple: when the jury begins deliberations, each juror will
have a different recollection of the many weeks of testimony. But there will be only one set of
exhibits. The Courts refusal to let Defendants enter admissible documents, particularly on the
grounds that the jury already heard testimony or received prosecution exhibits about similar
topics, fundamentally deprives Defendants of a fair and equal consideration of its case in the jury
room. The following are a few examples of documents that the Court has precluded Defendants
from entering into evidence. Viewed in total, the preclusion of these documents has undermined
Defendants ability to present a meaningful defense.
DX-6, DX-25
One of the most fundamental defense theories in this case is that because Defendants are
long-term close friends, it is less likely that they were motivated to act out of bribery. During the
direct examination of Robert Kelly, the defense tried to introduce an email in which the Senator
asks Mr. Kelly to enter the date for the wedding for Dr. Melgens daughter into his calendar
nearly a year in advance (DX-6). (10/25/17 Tr. at 22-23.) Similarly, during the direct
5
The legal basis for the admission of the documents discussed herein are set forth in Defendants
Motion to Admit Documentary Evidence (Dkt. 256), as are additional documents that were
erroneously excluded further prejudicing the defense.
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examination of the Senators son, Robert Menendez, the defense tried to introduce an email for
the limited purpose of showing the jury that in an email to his father, Rob had referred to Dr.
Melgen as tio melgen (DX-25). (10/16/17 Tr. at 58-64.) Both documents independently
verify critical facts that support the defenses theory that the defendants are close friends and,
thus, there was no bribery scheme. For the reasons detailed in Defendants Motion to Admit
Documentary Evidence, the Courts exclusion of these documents, was erroneous and prejudiced
the defenses presentation of this theory to the jury.
DX-3, DX-525, DX-806A, DX-806B
As discussed supra at pp. 5-6, the prosecution has introduced evidence of concealment
and alleged that the bribery scheme underlying all counts in the case is a product of concealment.
In response, the defense has attempted to rebut such evidence with documentary evidence
negating concealment such as: (1) a newspaper article reflecting that Senator Menendez gave an
interview from Dr. Melgens home in Casa de Campo in August 2006 in the run-up to the
Senatorial elections (DX-3); (2) a January 2, 2013 email from Senator Menendez to a staffer
listing the dates of trips taken with Dr. Melgen (DX-806A and 806B); and (3) a January 4, 2013
letter to the Senate Ethics Committee disclosing the number of flights taken on Dr. Melgens
plane (DX-525). These documents provide facts from which the jury could infer there was no
concealment of the alleged bribes and rebut the evidence introduced by the prosecution. The
Court excluded these three documents. (10/16/17 Tr. at 83-84; 10/25/17 Tr. at 5-13; 10/26/17
12
Tr. at 35-43.)6 For the reasons detailed in Defendants Motion to Admit Documentary Evidence,
the Courts exclusion of these documents was erroneous and prejudiced the defense
DX-325; DX-342
As discussed supra at pp. 3-4, that Senator Menendezs advocacy in the Medicare dispute
was objectively reasonable is relevant to the Defendants lack of criminal intent. As a result, the
defense sought throughout trial to introduce documentary evidence showing why Senator
Menendezs position in the policy dispute was objectively reasonable. For example, the defense
sought to introduce: (1) a Medicare website showing frequently asked question (DX-325),
which multiple witnesses were able to authenticate, and which was provided to the Senator and
relied upon or referenced during various meetings in preparation for or during meetings with
HHS officials (see 10/17/17 Tr. at 72-75, 98-121 (Reider); 10/19/17 Tr. at 104-09 (Barnard));
and (2) an email showing, among other things, that the confusion in multi-dosing policy was
known to CMS (DX-342 - which would have been introduced through Amy Bassano, who was
barred from testifying altogether). These documents show why Senator Menendezs position
that the Medicare policy was confusing was objectively reasonable. For the reasons detailed in
6
Not only was the Courts exclusion of DX-525 erroneous, but it was inconsistent with the
Courts ruling to admit prosecution exhibit GX-41 a second letter authored by Marc Elias on
January 4, 2013. At that time, the Court indicated that defense counsel could seek to introduce
DX-525 in their own case. See 9/25/17 Tr. at 114 (in good time you can proffer to the Court by
way of admissibility. I am not bringing it in at this point.) Yet, in their own case, when the
defense produced a competent witness to sponsor DX-525, the Court barred the witness and the
document and stated: If I committed a mistake [by entering GX-41], Im not going to commit it
a second time. 10/26/17 Tr. at 42.
13
Defendants Motion to Admit Documentary Evidence, the Courts exclusion of these documents,
and others similar to them, was erroneous and prejudiced the defense.
DX-1307
DX-1307 is an email sent by Kory Vargas Caro, a fundraiser for Senator Menendezs
campaign, to other members of the fundraising team dated December 14, 2011. The email
includes a list composed by Vargas of potential donors to the New Jersey Democratic State
Committee (NJDSC), each of whom resides outside of New Jersey. During the direct
examination of Mr. Vargas Caro, the defense sought to admit the document into evidence; the
Court, however, denied this request absent any objection from the prosecution, instead stating
that it was the Courts discretion to exclude the document and that the defense doesnt need to
burden the jury with another piece of paper. (10/24/17 Tr. at 108-110.) While the Court did not
provide any additional reasons for the preclusion of admission, this appears to be an exclusion of
the evidence based on an assertion that it is cumulative. For the reasons detailed in Defendants
Motion to Admit Documentary Evidence, this evidentiary ruling was erroneous and prejudiced
the defense.
DX-1320A, DX-1320B
The Melgen familys political contributions dating back to the 1990s are similarly
relevant to the Defendants lack of criminal intent. During the direct examination of Mr. Vargas
Caro, the defense sought to introduce an FEC document showing the Melgen familys long
history of political contributions to committees related to Senator Menendez or New Jersey, to
show why the charged political contributions were not the product of a corrupt motive (DX-
1320A, DX-1320B). The Court erroneously precluded the document from coming into evidence
through him, and limited the admissible contribution information to contributions by Dr. Melgen
14
alone. Because the defense did not have a newly redacted version available, the Court permitted
defense counsel to read aloud the dates and amounts of Dr. Melgens contributions (and to
introduce a redacted version of DX-1320A at a later time). However, the Court erroneously
precluded any contribution history regarding Dr. Melgens family members from being read into
the record, even though his family members contributions to Senator Menendez are charged in
the Indictment. (10/24/17 Tr. at 115-40.) For the reasons detailed in Defendants Motion to
Admit Documentary Evidence, this evidentiary ruling was erroneous and prejudiced the defense.
D. The Court Has Admitted It Is Intentionally Excluding Defense Exhibits
Not only has the Court erroneously precluded the defense from putting admissible
documents into evidence, but it has stated multiple times on the record when excluding defense
exhibits that it is purposefully limiting the number of exhibits that will go back with the jury.
For example, when the Court precluded the defense from introducing a document
reflecting the date of a campaign contribution (DX-1318) with Raul Alarcon, the Court stated: I
think you can make reference to the earlier document. I am trying to prevent the jury from being
overwhelmed by just the sheer weight and number of physical documents, many of which are
duplicitous. (10/23/17 Tr. at 16.) Additionally, the Court sua sponte precluded the defense
from introducing a December 2011 document reflecting the names of potential out-of-state
donors to the New Jersey Democratic State Committee (DX-1307) during the direct examination
of Kory Vargas Caro, even though this document was the origin of the solicitations of
contributions charged as bribes in Counts 9-10. The Court stated: No it doesnt need to go into
evidence. He has already told us quite clearly what it is and what he had. You dont need to
burden the jury with another piece of paper. (10/24/17 at 109.)
The Court has applied this improper rationale to admissible evidence proffered by the
defense but not the prosecution, as a simple comparison of the number of exhibits admitted into
15
evidence shows. Over the course of 26 days of trial, the prosecution offered 226 exhibits into
evidence, of which 218 were admitted, or 96 percent. Defendants offered 61, of which 34 were
admitted, or 55 percent.
Moreover, the rationale underpinning the Courts decisions to preclude certain admissible
defense exhibits is fundamentally flawed. Testimonial and documentary evidence are not
interchangeable. Each serves a specific purpose.
Jurors will not be sent back to deliberate with transcripts of the proceedings or with any
way to recall the testimony of witnesses at trial. Documents, on the other hand, are sent back
with the jurors to deliberate. Documents may be an aid to trigger a memory of testimony,
supplement testimony that was never elicited, or corroborate or contradict a jurors memory of a
witnesss testimony. By excluding defense exhibits and confining the defense to proving its
theories with testimonial evidence only, the Court has prejudiced the defense: while the jurors
will have ample prosecution documents available to trigger their memories, the jurors will be
largely dependent on their fallible recall of two months of testimony for the facts supporting the
defense theories. At the time of deliberation, the jurors will lack independent verification of
critical facts that support defense theories, but will have ample documents that support the
prosecutions. The exclusion of documents in this way and for this reason is a constitutional
error. See Scott, 975 A.2d at 839. Moreover, the Courts refrain throughout trial that [i]ts not
quantity, its quality7 is meaningless when so many documents are excluded such that there is
no way for the jury to measure quality.
7
E.g., at 9/18/17 Tr. at 80.
16
II. THE COURT HAS ASSUMED THE ROLE OF AN ADVOCATE AND

PREJUDICED THE DEFENSE BY EXAMINING WITNESSES WHILE THE
DEFENSE IS ELICITING TESTIMONY, INSTRUCTING THE JURY SUA
SPONTE WHILE THE DEFENSE IS ELICITING TESTIMONY, AND SUA
SPONTE STRIKING DEFENDANTS QUESTIONS AND EXHIBITS
A judge must not abandon his proper role and assume that of an advocate. United
States v. Green, 544 F.2d 138, 147 (3d Cir.1976), cert. denied, 430 U.S. 910 (1977). Indeed,
[t]he judges participation may never reach the point where it appears clear to the jury that the
court believes the accused is guilty. United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1982)
(quoting United States v. Robinson, 635 F.2d 981, 984 (2d Cir.1980), cert. denied, 451 U.S. 992
(1981)). The Third Circuit has held that a judge crosses the line between judge and advocate
where [t]he courts vigorous participation in examining the defendants witnesses, especially
when contrasted with the complete freedom from hostile interruption of the prosecutions
witnesses, must certainly have conveyed the judges skepticism about [a proffered defense] to
the jury. United States v. Beaty, 722 F.2d 1090, 1095-96 (3d Cir. 1983) (citation omitted)
(holding the judges overzealous examination of the defendants witnesses one of whom was
a key witness for the defense was prejudicial error). As the Eighth Circuit has expounded,
A trial judges isolated questioning to clarify ambiguities is one thing; however, a trial judge
cannot assume the mantle of an advocate and take over the cross examination for the prosecution
to merely emphasize the governments proof or question the credibility of the defendant and his
witnesses. United States v. Singer, 710 F.2d 431, 436-37 (8th Cir.1983) (en banc) (quoting
United States v. Bland, 697 F.2d 262, 265-66 (8th Cir.1983).
A. The Courts Improper Cross Examination of Defense Witnesses
The Court abandoned its role as neutral arbiter and assume[d] the mantle of an
advocate at trial while critical defense witnesses were testifying. Singer, 710 F.2d at 436-37.
The Courts cross examination of these witnesses in front of the jury at trial stands in stark
17
contrast to the Courts limited interruption of prosecution witnesses. As a result, the overall
effect was to show the jury that the Court was skeptical of the defenses theories and witnesses.
See Beaty, 722 F.2d at 1095-96. This was prejudicial error. The following are three critical
examples.
During the cross examination of defense witness Kerri Talbot, the prosecution unartfully
attempted to elicit a contradictory statement from Ms. Talbot. After the prosecutions
unsuccessful attempt, the Court interjected itself into the cross examination and asked Ms. Talbot
questions intended to obtain a statement that undermined what she had previously testified. The
Courts cross examination had the effect of challenging Ms. Talbots credibility in front of the
jury and clearly assisted the prosecutor. In fact, after the Court obtained Ms. Talbots answer,
the Prosecutor repeated the answer in the form of a question in front of the jury and signified to
the jury that the Court agreed with the prosecution that Ms. Talbot was not being forthcoming.
Q. Miss Talbot, I just want to make sure were clear on your testimony here.
Even though you gave that testimony two years ago, your testimony today is
that you told a federal law enforcement agency that Senator Menendez wanted
them to stop a security related equipment donation without any such request
actually coming from him?
A. I did not say that in the deposition or the Grand Jury. I said that I couldnt
understand him very well but that what I thought he wanted was a briefing
before they took action.
THE COURT: In order to have a briefing before they took action they would
have to stop whatever action was in progress, wouldnt they?
THE WITNESS: Yeah, it could be later in the day though.
THE COURT: Regardless of time period, you did want them to hold off?
THE WITNESS: Uh-huh, right.
THE COURT: Go ahead. Put your next question.
Q. You wanted them to hold off long enough to give you a briefing?
A. Yes.
18
(10/23/17 Tr. at 49-50.)
During the direct examination of defense witness Michael Barnard, Defense counsel
asked Mr. Barnard whether the cost of Lucentis was raised when he attended a meeting with
CMS. The question sought to rebut evidence that the prosecution elicited from its witnesses
about what occurred at the meeting. The Court interjected itself into the defenses direct
examination, interrupted Mr. Barnard as he was responding, and directed him to answer only
yes or no to the question posed.
Q. And at the time of your having these conversations, did the issue of the costs
of the drug and who would be the beneficiary of the policy come up?
A. It was because the way that the policy is now, its interesting that the drug
manufacturer actually reaps quite a bit of a windfall.
THE COURT: The question was did it come up.
THE WITNESS: Yes, sir, it did.
THE COURT: It is not an exposition. I am not going to permit expositions.
(10/19/17 Tr. at 85.)
During the direct examination of defense witness Robert Kelly regarding the financial
disclosure forms, the prosecution interrupted Mr. Kellys response by improperly testifying in
front of the jury that the answer was misleading and there is no friendship exception. The
prosecution did not state any evidentiary grounds for the objection. Following this interchange,
the Court did not reprimand the prosecution, but instead cross examined Mr. Kelly about his lack
of knowledge of such an exception and then made comments to the jury and counsel about the
witnesss lack of knowledge about the very forms about which he was called to testify.
Q. Did you ever ask him about any of the exchanges he had with friends like Dr.
Melgen?
A. No, because it fell under the friendship exception.
19
MS. ABRISHAMI: Objection, your Honor, there is no friendship exception to

the reporting role. That is entirely misleading and --
MR. LOWELL: Your Honor, I dont think she should be testifying.
THE COURT: []
You went in there and gave it to your boss?
You gave the form to your boss to review, right?
THE WITNESS: Yes.
THE COURT: You are not a CPA, are you?
THE WITNESS: No, Im not.
THE COURT: And you gave it to him to determine what he was going to sign
as his form, did you not?
THE WITNESS: Thats correct, after --
THE COURT: You werent signing it, were you?
THE WITNESS: No.
THE COURT: Is there a place for you to sign it as one who prepared the form?
THE WITNESS: No, sir.
THE COURT: So you gave it to the boss to look it over?
Q. And you discussed each of the categories with the boss?
A. Yes, we did.
THE COURT: Its really immaterial whether he discussed it or not. Its the
boss final say.
20
(10/25/17 Tr. at 125-27.) Then, again, at the very end of Mr. Kellys examination, the Court
asked questions of Mr. Kelly in front of the jury that questioned the truthfulness of regarding the
date on which Mr. Kelly had previously testified that the financial disclosure forms were signed.8
MR. LOWELL: Thats all I have.
MS. ABRISHAMI: Nothing further.
THE COURT: I have a couple of questions. Pull up the last, the first two forms
prepared by the witness. I may have, I want to see something. The first two
forms which is 2010 reflecting 2009 action, because I may have confused
something and I just want to ask something.
MS. ABRISHAMI: The first one is 322, your Honor.
THE COURT: 2000, right?
MS. ABRISHAMI: This is 2010 prepared for 2009 your Honor.
THE COURT: Say again.
Mr. Kelly, I may have the wrong one. This is one you prepared, right?
THE WITNESS: Yes, sir. That should be my first one.
THE COURT: And its dated by obviously the Senator. I mean its dated for his
signature, May 13, 2010?
THE WITNESS: Thats correct.
THE COURT: When was it filed?
THE WITNESS: It looks like May 17, 2010.
THE COURT: How long did it take you to walk down the hall?
MR. LOWELL: Judge, I have to object to your question.
8
The date the forms were signed (and thus, Mr. Kellys credibility on this issue) is highly
relevant to whether or not the prosecution lacks venue for the forms underlying Count 18.
21
THE COURT: Say again. You may object. I will reframe it then.
You said to the jury that after he signed it you walked it down the hall. There is
a weeks difference. How do you explain the week?
MR. LOWELL: Judge, he said he files it when its due not when its signed.
THE COURT: Its up to this witness to deal with what he told the jury. He said
that after the Senator signed it, he would take it down to someplace down the
hall and file it, right?
THE WITNESS: Judge, what I said was I would take it down on the date it was
due to the Senate ethics committee.
THE COURT: So in other words it was not the same date?
THE WITNESS: Exactly.
THE COURT: All right. So thats what explains the 7 days hiatus.
THE WITNESS: The four but yes.
THE COURT: Thats all I wanted to know okay.
THE WITNESS: Okay.
THE COURT: So you would not take it as soon as it was signed. You would
take it only on the date that it was due?
THE WITNESS: Thats right, sir.
THE COURT: All right. Thats it
MR. LOWELL: Will you take judicial notice that May 13, 2010 was a
Thursday? Just like the one of the one he did before. And May 17 was the
following Monday. Could you take judicial notice of that?
MS. ABRISHAMI: Objection, your Honor. What. is the relevance, your Honor?
THE COURT: I will take judicial notice that May 13th was a Thursday. If you
want me to pull out a diary and say you are right, as to what significance it
attaches will be up to our friends the jurors.
MR. LOWELL: Thank you, Judge.
THE COURT: All right. Okay. So, as far as I am concerned, you didnt say you
walked it down the same day.
THE WITNESS: No, sir.
22
THE COURT: All right. Fair enough. Thats why I was confused how long it
would take you to walk down the hall. All right.
(10/25/17 Tr. at 201-04.)
B. Sua Sponte Supplemental Jury Charges During Testimony Elicited By

The Defense
In addition to cross examining defense witnesses, the Court repeatedly and improperly
issued erroneous jury instructions sua sponte while defense counsel was eliciting testimony from
prosecution witnesses on cross examination or while defense witnesses were testifying. The
Court did not do this with the prosecutions witnesses when presented with similar circumstances
where relevance objections had been sustained or a witnesss credibility was called into question.
Just like the Courts cross examination of key defense witnesses, the timing and manner of
issuing instructions in this way underscored for the jury that the judge was skeptical of the
defense theories. The following are several key examples.
During the cross examination of Louis Jacques, defense counsel asked him a question to
probe the circumstances surrounding a contentious phone call he had testified about on direct
examination with Senator Menendezs staffers. Following the prosecutors objection, the Court
sustained the question and answer, and interrupted cross-examination to instruct the jury that the
question is not relevant to their inquiry - essentially directing them to disregard defense
counsels cross examination and credit the witnesss previous testimony.
MR. COONEY: Objection.
THE COURT: Sustained.
MR. COGAN: May I be heard on this?
THE COURT: No. We sustain it for the basic reasons that I told this jury on two
occasions and told you on other occasions.
We permit a general discussion of this telephone call only for the purpose of
permitting the jury, if it wishes, to determine whether or not that together with
23
other circumstances that may or may not appear in the evidence, is enough to
determine whether or not there was a presence or absence of intent on the part
of the two individual defendants in this case.
Thats the only reason why we are listening to this discussion. That is the third
time I told you that, ladies and gentlemen, but I mean what I told you. That is it.
So, for an extended discussion of the virtues of each side with regard to this
dispute is of, is not relevant to our inquiry.
Q. Okay.
THE COURT: I am speaking to the jury now. It is not relevant to their inquiry.
They may use it, if they wish. And I stress you may use it if you wish, to
determine whether or not, together with other circumstances this bespeaks a
lack of intent on the part of the defendant Melgen and also the defendant
Menendez.
But thats the only purpose you hear this. So, there is no need for a long
encyclopedic discussion of the virtues of one side against the other with regard
to Medicares practice with regard to Lucentis.
MR. COGAN: Okay.
THE COURT: Does anyone not understand what I have just told you? If so,
raise your hand.
Does anyone have any problems with what I just told you? If so, raise your
hand. Do you understand what I have told you? Okay. All right.
Q. So, in response to your --
THE COURT: No one raises her or his hand, for the purposes of the record. Go
ahead.
(9/27/17 Tr. at 112-14.)
During the re-cross examination of prosecution witness Agent Mohl, defense counsel
asked a question about the January 4, 2013 Letter to the Senate Ethics Committee in which the
Senator disclosed a number of flights taken on Dr. Melgens plane (DX-525). The Court
sustained the prosecutors objection to defense counsels question, and then repeated the
prosecution witnesss prior testimony that he had not considered the letter because it was
untimely - thus reinforcing and repeating the witnesss testimony he gave on redirect.
24
THE COURT: No, no. Ladies and gentlemen, you have heard that there was a
letter written on behalf of the defendant Menendez by an attorney dated January
4, 2013, to the select committee of the senate.
You have heard the answer of this witness indicating that he did not consider it
in direct response to the reports that had been filed because he claimed it was
untimely. And you have heard counsel indicating by his questions what was in
that letter and what was attached to the letter.
Thats all you need to hear at this time. You will decide eventually whether this
circumstance is relevant as far as you are concerned. And if you decide that it is
relevant, you will decide what weight to be given to it on behalf of any or both
parties.
And thats all we need to hear about this letter at this point. So, I am asking
Counsel to move on.
(9/25/17 Tr. at 122-23.)
During the cross examination of prosecution witness Darlene Higginbotham, defense
counsel asked a question about how Medicare bills for Lucentis to elicit facts from which the
jury could evaluate whether it was objectively reasonable for Senator Menendez to take the
position that the Medicare policy was confusing. The Court sustained an objection to defense
counsels question as irrelevant before the witness could answer, and then instructed the jury on
what testimony is and is not relevant in the middle of cross examination.
MS. ABRISHAMI: Objection, your Honor, relevance, 403.
THE COURT: This is irrelevant.
MR. OGROSKY: This is the hypothetical we went through yesterday.
THE COURT: I know its a hypothetical. It is irrelevant.
This issue, Im constrained to tell you ladies and gentlemen, is irrelevant for our
discussions and for our purposes.
MR. OGROSKY: I will move along.
THE COURT: Whether he was charged correctly or not by way of calculations

made by this person or other persons in the chain of determining quote
overpayment is really in a sense immaterial and irrelevant as far as you are
concerned.
25
You are not here to determine the validity of an overcharge or the undercharge
or the proper charge or whatever it may be. You are here to determine whether
the government proves, beyond a reasonable doubt, that these two defendants
conspired to make this subject, this subject of overbilling, an object of bribery.
Thats what you are here to determine. Whether the charges were valid, whether
they were legitimate, makes no difference.
To a limited degree they may eventually make a difference if you determine that
they bespeak lack of intent or motive by the two defendants, by the two
defendants, by the two defendants, not by anybody else but by the two
defendants.
And so I am constrained to tell present Counsel that it is immaterial -- strike

that, its irrelevant. And there is no point in just going over and over and over
this subject. And I know thats what they want to do, representatives of the
defense, but, it is irrelevant. That is not your issue. That is not your issue.
Your issue is to whether the government proves, beyond a reasonable doubt,

that these two used that subject as an object of bribery between themselves.
Thats it. Move on.
(9/27/17 Tr. at 61-63.)
Prosecution witness Agent Mohl was called numerous times and permitted to admit
various documents and give ample testimony regarding such documents on direct examination,
including testimony explaining how the documents chosen by the prosecutors to introduce
through him supported the timeline of charges in the Indictment a subject about which Mohl
had no firsthand knowledge. During cross examination, defense counsel asked a question about
whether Senator Menendez offered to contact HHS Secretary Sebelius in 2009 for Dr. Melgen
an act which was not charged to directly challenge the timeline presented by the prosecution on
direct examination. After the prosecution objected, the Court intervened to instruct the jury on
Agent Mohls competence, and prevented defense counsel from eliciting a counter-timeline from
Mohl.
MR. KOSKI: -- I object.
26
THE COURT: This discussion with this witness requires me to advise the jury
this witness, for the most part, notwithstanding the entreaties and the designs of
both sides, is not a fact witness. He is here only to give us a chronology of
events.
And thats why I have to intervene because I have a feeling that the defense
Counsel is now taking him down a road that can only lead to a factually based
answer which I contend this witness is not competent to give.
He is not a fact witness. He was only permitted by me to testify before you on

several occasions, he has been permitted to testify to give us, according to the
requests from the government, a chronology so that you could follow the time
events of what the government alleges.
But, for him now to, by giving us factual determinations about things that are
inside, in or without the indictment or the scope of the indictment, I will not
permit.
(10/11/17 Tr. at 45-53.)
During the re-direct examination of defense witness Karissa Willhite, defense counsel
asked Ms. Willhite about GX-168, which the prosecutor had had her read select portions from on
cross examination. Defense counsel attempted to have Ms. Willhite read portions the prosecutor
did not ask her to read to neutralize the information elicited on cross examination, but was cut off
by the Court, indicating to the jury that the testimony about to be given was unimportant.
THE COURT: Ladies and gentlemen, Im doing it for your benefit because
what was being offered by this and other attorneys is material that you have
available to you by way of written documentation.
And so when you retire to reach verdicts in this matter, according to you, you
will read them and you will decide what those documents say. And just having
someone read the document again and again in open court really serves no
purpose since you will have available to you each and every document to which
reference is made by Counsel for both sides.
So, Im doing that in the interest of efficiency of the trial. And when you retire
to deliberate, bring your glasses.
(10/18/17 Tr. at 163.)
During the direct examination of defense witness Michael Barnard, defense counsel
asked Mr. Barnard whether the cost of Lucentis came up at a meeting with CMS in 2012 in order
27
to rebut the testimony of prosecution witness Marilyn Tavenner. There was no objection, but the
Court intervened to admonish the witness to answer the question posed and then instructed the
jury that it is to disregard the merits of the Medicare dispute even though the merits were not
being discussed.
THE COURT: I am going to permit what we have talked about, consistent with
my telling you, ladies and gentlemen of the jury, we are not discussing the
merits of the controversy, the controversy being the Medicare controversy. We
are not discussing that.
You are not being asked eventually to decide who was right and who was
wrong. You are permitted to hear the various points of view of the parties to the
controversy but you are not to determine who was right in that context.
You are here to determine, if you wish, whether that removes from its ability to
prove, the government, its ability to prove beyond a reasonable doubt the
criminal intent of the alleged defendants with regard to that issue.
Does anyone not understand what I just said? Anyone have any problems with
what I just said? Raise your hand.
This is not the first time I have told you that. But I think from time to time we
have to renew our instructions to you.
Go ahead.
(10/19/17 Tr. at 85-86.)
During the redirect examination of defense witness William Brownfield, defense counsel
asked the witness to read aloud a sentence in an admitted exhibit sent by Brownfield, which
prosecutors had just examined with him during cross examination (GX-150). Defense counsels
question sought to clarify Brownfields prior testimony about what Senator Menendez had been
asking him (and the State Department) to do. There was no objection, but the Court nevertheless
intervened to disrupt the line of questioning about an admitted exhibit that the witness was
competent to testify about, and then, with the witness on the stand, instructed the jury that it was
28
not here to determine the merits of the port security dispute (which was not being elicited) or the
Medicare dispute (which had nothing to do with Mr. Brownfield).
Q. Let me ask you about a document that was shown to you then by Mr.
Cooney. This is government exhibit 150.
Do you remember just a moment ago seeing it?
A. I do, yes.
Q. Okay. Please read the sentence that begins the second.
A. You want me to read it out loud?
THE COURT: I interrupt this. Ladies and gentlemen, similar to our discussion
about the Medicare dispute, do you remember I have talked to you about the
Medicare dispute? Well, the contract dispute between Dr. Melgen and the
Dominican Republic falls in that same basic category, that we are not here to
determine the merits of that dispute. We are not here to determine the merits of
that dispute.
So consequently thats why I have told Mr. Lowell and anyone else who wishes
to go down that path, we are not going down that path. Whether scanning is or
is not relevant to the contract dispute is really of no moment to you.
We know that there was a dispute. No one challenges that there was a dispute.
No one challenges that the Ambassador, who is the present witness, spoke to the
President of the Dominican Republic about that dispute. And we have heard
from this witness what he says he told the President.
As to the intricacies, the technical intricacies, thats none of our business.
Put your next question if its relevant.
MR. LOWELL: Your Honor, I dont like to be understood so I dont run afoul
of what you dont want me to do, but I wanted him to read a document the
government asked him about and the jury can then see the document.
(10/24/17 Tr. at 55-56.)
During the direct examination of defense witness Kory Vargas Caro, defense counsel was
precluded from putting into evidence a document showing the Melgen family prior political
contributions to four committees related to Senator Menendez or New Jersey, in order to
contextualize the familys 2012 contributions that are charged in Counts 9-14 and 17 (DX-
29
1320A). Instead, the Court only permitted the admission of Dr. Melgens own contributions.
Because the defense did not yet have a further redacted version of the exhibit, the Court asked
defense counsel to read aloud the pertinent information. Following that recitation, the Court
instructed the jury that they should only use the facts read aloud to them to evaluate whether
prosecutors have proven criminal intent with respect to the $600,000 donations (the amount of
which was incorrect and the judge corrected after a recess). After a mid-morning break, the
judge corrected the instruction, which only further minimized the limited weight the Judge gave
to the information read into the record.
THE COURT: I permitted you to hear that. You have the history of what the
defendant Melgen has contributed to political organizations here in this State
and elsewhere, but primarily to this State.
For one reason and that is you may, if you wish, use that to determine whether
or not the government has failed to prove beyond a reasonable doubt that this
defendant had a criminal intent with regard to an alleged $600,000 that he made
by way of contributions to democratic agencies. Remember the two $300,000
payments.
You may use that if you wish to show that there has been no demonstration of
criminal intent by the defendants in this matter but thats up to you.
All right.
(10/24/17 Tr. at 144-45; see also id. at 153-54 (correcting supplemental charge while Mr. Vargas
Caro was still on the stand).)
During the cross-examination of defense witness Donald Scarinci, prosecutors questioned
Mr. Scarincis credibility on the stand by asking him questions about whether he attended an
event in New Jersey on June 1, 2012 with Dr. Melgen, the same date on the check for Dr.
Melgens first contribution to Majority PAC. Mr. Scarinci testified that he received that check
via FedEx from Dr. Melgen. (10/24/17 Tr. at 180.) During the middle of the prosecutors cross-
examination, the Court interjected to tell the jury that it must evaluate the witnesss credibility,
30
and then immediately excused the jury for its mid-morning break. After the break, while Mr.
Scarinci was still on the stand, the Court gave a second instruction to the jury on credibility.
After the Court gave this even stronger instruction, the prosecution chose not to ask any further
questions:
THE COURT: So you dont actually remember being at the Pegasus?
THE WITNESS: No.
THE COURT: At that time?
THE WITNESS: I do not remember being at the Pegasus event on June first. I
believe I was.
THE COURT: It would be up to the jury to evaluate your credibility, as any

other witness.
[] [Break and Objection]
THE COURT: Where is Mr. Scarinci? As soon as he is seated, all of you can be
seated.
Ladies and gentlemen, before we broke for our 11 oclock break, I told this
witness, and in your presence, it would be up to the jury to evaluate your
credibility, as any other witness and then we had our break.
I want to make sure that you understand what I said, and that is I wasnt
singling out this particular witness. I am referring to your job to evaluate the
believability of each and every witness who has testified here, regardless of his
status.
I will repeat, I want you to evaluate whether you believe what this person told
you, regardless of his or her status. And that pertains to everybody who took
that stand and swore to tell the truth.
Just because someone swears to tell the truth does not mean the truth will be
expressed. One can be mistaken in his or her answer. One can have forgotten
what happened years or even months before she takes the stand. And one may
even be lying to you deliberately or trying to con you deliberately. You know
what the expression got over on you means.
Well, people take that stand and, believe it or not, they sometimes try to get
over on the jury and the Judge. So, you have to use your commonsense
individually and collectively to determine whether a person sincerely said what
he or she said and whether it forms whether you accept it to form part of your
31
factual background or factual determination of what happened or did not happen

in this case.
All right. You knew that before, didnt you? You now know it again from me.
All right. You will assess the believability of each and every person who takes
the stand in order to determine factually what did or did not happen upon which
you will apply the law as I give it to you. Thats how you decide the case. All
right.
MR. KOSKI: Thank you, your Honor.
THE COURT: Thats our homily for this morning.
All right. Go ahead.
MR. KOSKI: Thank you, your Honor.
You know what, I dont have any more questions.
(10/25/17 Tr. at 65-69 (emphasis added).)
During the direct examination of defense witness Robert Kelly, after the same improper
speaking objection discussed in Section II.A, where the prosecutor stated there is no friendship
exception in front of the jury, the Court instructed the jury that it would be up to them to
determine whether the Senator fell or did not fall within the friendship exemption. That
instruction is erroneous because it is not for the fact-finder to decide the scope of the friendship
exception.
Q. Did you ever ask him about any of the exchanges he had with friends like Dr.
Melgen?
A. No, because it fell under the friendship exception.
MS. ABRISHAMI: Objection, your Honor, there is no friendship exception to

the reporting role. That is entirely misleading and --
MR. LOWELL: Your Honor, I dont think she should be testifying.
THE COURT: It will remain for the jury to determine whether the Senator fell
or did not fall within the exemption.
(10/25/17 Tr. at 125.)
32
C. Sua Sponte Striking Questions And Exhibits Offered By The Defense
Not only did the Court interject to cross examine defense witnesses and issue
supplemental charges that undermined the defense theories, the Court also made it a habit to
sustain defense questions and preclude documents sua sponte, but did not do the same to the
prosecution. (E.g., 10/10/17 Tr. at 153-154 (Court interrupts defense counsels cross
examination of Agent Mohl regarding a document admitted into evidence on direct examination
of Agent Mohl (GX-172) to sustain the line of questions and stated, I will not permit any further
discussion of Miss Engel [the recipient of the email, GX-172] at this point because its
irrelevant); 10/19/17 Tr. at 104-09 (Court sua sponte refused to allow the defense to enter into
evidence a document authenticated by Mr. Barnard (DX-325) during the direct examination of
Mr. Barnard on grounds that it is cumulative); 10/3/17 Tr. at 115-34 (Court sua sponte
dismissed the jury and objected to defense introducing exhibits (DX-337A and 337B) during the
cross examination of Marilyn Tavenner as irrelevant).
In sum, the Courts substantive and procedural interference throughout trial showed the
jury the Court was not crediting defendants, their counsel, or their defense theories, and has
prejudiced the defense.
III. THE COURT HAS SHOWN BIAS AGAINST THE DEFENDANTS BY MAKING
INCONSISTENT EVIDENTIARY RULINGS IN FAVOR OF THE
PROSECUTION
Not only were the evidentiary rulings against the defense erroneous and prejudicial, as
described in Section I and in Defendants Motion to Admit Documentary Evidence, but the
Court also showed bias against the defense by making inconsistent evidentiary rulings in favor of
the prosecution. Defendants do not suggest that the Court has not ruled for the defense on
straightforward applications of the rules of evidence; however, the following notable examples
highlight the Courts inconsistent application of those rules, to the prosecutions benefit.
33
GX-245 v. GX-161
On October 10, 2017, the Court properly excluded the prosecutions attempt to introduce
GX-245, a 2013 email internal to Senator Menendezs office in which his staffer Tricia Enright
summarized and discussed hearsay statements by a reporter (from Bloomberg News) about
statements that Dr. Melgen had supposedly made to the reporter. However, two weeks later, the
Court permitted the prosecution to introduce a similarly hearsay-defective email, GX-161, over
Defendants objections, and without permitting any redactions of the manifestly hearsay
material.
On October 10, the Court described the first email, GX-245, and its analysis as follows:
This is the recount from the Senator Menendezs staff person as to what shes
learned about an interview that his friend had with the subject and now I, his
name is Voreacos, right, of Bloomberg.
[ . . .]
I still dont see how you get it in. Im serious about that. It seems to me you
have a staff member coming in and saying I just heard that X had an interview
with B and B said this. Now what have we got there? Weve got, normally
weve got hearsay on top of hearsay.
(10/10/17 Tr. at 128, 131.) Although the Court concluded that DX-245 was completely relevant
as to what [the prosecution] want[ed] to do, it nonetheless held that the email was inadmissible
hearsay despite any probative value. (Id. at 132.)
By contrast, on October 23, 2017, the Court improperly allowed the prosecution to
introduce GX-161, whose hearsay defects were identical to GX-245. Like the earlier exhibit,
GX-161 was a 2013 email among Senator Menendezs office in which Ms. Enright once again
summarized and discussed hearsay statements by a reporter (this time, from the New York Times)
about statements that Dr. Melgens attorney had supposedly made to the reporter. In every
respect, GX-161 matched the hearsay analysis that the Court undertook with GX-245: [Y]you
34
have a staff member coming in and saying I just heard that X had an interview with B and B said
this. Now what have we got there? Weve got, normally weve got hearsay on top of hearsay.
Yet on October 23, when defense counsel reminded the Court that GX-161 presented the
same problems as the previously excluded GX-245 did, the Court declined to apply the hearsay
rules consistently. (See 10/23/17 Tr. 62 (MR. HUSSAIN: . . . [GX-245] was an email in which
the staff was basing their discussion on hearsay from the reporter that was imbedded into the
bottom of that e-mail and throughout. . . . THE COURT: I am not going to rule that way this
time. I going to rule this time that I am going to permit [GX-161] because this witness has been
quite persistent in what she claims was not meant by what she wrote on behalf of her boss.).) In
so ruling, the Court elevated GX-161s ostensible probative value over its inadmissibility as
hearsay. The Court also declined to permit any redactions to the news media hearsay embedded
within GX-161. (Id. at 64-65.)
GX-41 v. DX-546
On September 20, 2017, the Court properly admitted GX-41, a January 4, 2013 letter
from Senator Menendezs attorney Marc Elias that accompanied a check to Dr. Melgen
reimbursing him for certain trips on his plane. The prosecution had previously moved the check
into evidence, after removing the letter that accompanied the check. A few days after the
defense submitted a letter brief on the issue (see Dkt. 223), the Court permitted the defense to
introduce the letter, on the rationale that the letter was contemporaneous with and informative of
the check. Yet on October 10, 2017, the Court refused to permit a letter from Dr. Melgen to
Senator Harry Reid that accompanied Dr. Melgens June 27, 2012 check for a $100,000
contribution to Majority PAC. That letter was admissible as non-hearsay circumstantial
evidence of Dr. Melgens state of mind, showing that he associated the $100,000 contribution
35
directly with Senator Reid. Without that letter, the jury has been deprived of evidence showing
that Dr. Melgens uncharged $100,000 contribution was directly connected to Senator Reid in
Dr. Melgens own mind. That unearmarked contribution is not charged. The connection of
that large uncharged contribution with another U.S. Senator who was also at the August 2, 2012
HHS meeting is directly probative of Dr. Melgens similarly innocent intent in making the two
charged Majority PAC contributions that were earmarked to support Senator Menendezs
race. (See 10/10/17 Tr. at 17.)
On September 20, the Court explained that its admission of GX-41, the Marc Elias letter,
was consistent with the Courts own research and experience:
The Second Circuit teaches me that they have a right to bring [the letter] in to
explain the non hearsay check. . . . This caselaw, which I willingly accept
because it is consistent with what I used to do when I was in private
practice. So, consequently, no, they can bring in the letter . . . .
I refer to U.S. v. Romano, et al., which is 684 F.2d, 1052 coming from the
Second Circuit. And this dealt with Christmas payments which were cash
Christmas payments. The boys were going around collecting Christmas
payments so that they could spread it among the unions. Its an extortion case. .
. . So, consequently, when the boys were going around talking to the
wholesalers in the market, among other things, the Court said even if the district
Courts finding was clearly erroneous, the request to give the money to the boys
in the Union were admissible as an utterance which was contemporaneous
with an independently admissible nonverbal act and which relates to the act
and throws some light upon it.
Thats our situation here. The check is obviously admissible and non
hearsay. And we have this letter coming forward for whatever it may be worth I
will permit the defense to deal with it and you can deal with it too.
(9/20/17 Tr. at 5-6 (emphases added).)
By contrast, on October 11, the Court refused to allowed the defense to introduce the
letter accompanying Dr. Melgens check to Senator Harry Reid (part of DX-546). Sustaining the
prosecutions objection, the Court explained that it ha[d] no problem with the check going into
evidence, but did have great problems with the balance of the exhibit, which it did not
36
admit. (10/11/17 Tr. 18.) The letter to Senator Reid was admissible as non-hearsay under the
very same rationale that the Court cited on September 20.
The Document Speaks for Itself
During the direct examination of Ambassador Brownfield, defense counsel asked him
about a document already in evidence, GX-138, which he was on. The prosecutor objected to
Amb. Brownfield explaining what he wrote on the grounds that the document speaks for itself.
Q. It says a little more gloss. And these are your words, correct?
A. These are my words.
Q. Okay. And this first issue that you are providing gloss to, what are you
talking about?
MR. COONEY: Objection. Your Honor, the document speaks for itself and that
has been your ruling throughout this trial. He is not a receiver of the e-mail, he
is the sender of the e-mail.
THE COURT: I think I will, I think I will agree with you since he is the sender.
Go ahead.
Q. On this when you were talking about the meeting, sir, were you talking about
issues relating to corrupt officials in the D.R.?
MR. COONEY: Objection. The document speaks for itself.
THE COURT: I think you are bound by the document Mr. Ogrosky particularly
since you are on direct. Put another question.
Q. What do you recall saying to your staff about the issues that were raised with
you in the meeting?
MR. COONEY: Objection. Its a non issue.
THE COURT: Sustained.
Q. Do you recall
THE COURT: You cant go down that road. I am just letting you know now. I
am not going to permit you to go down that road what he discussed with his
staff after the meeting.
37
(10/23/17 Tr. 147-49.)
This ruling cannot be resolved with the Courts ruling the very next day during the cross
examination of the same witness regarding a similar email (GX-127):
Q. You did know at the time you got this e-mail that Pedro Pablo Permuy
said that to Mark Wells correct?
A. That I knew from the message yes.
Q. And you also knew that in the meeting with Mark Wells he dropped the
name of Senator Menendez pretty squarely as having an interest in this case,
correct?
MR. LOWELL: Your Honor, Im sorry, just to be clear, doesnt, based on Mr.
Cooneys objection yesterday, documents speak for themselves?
THE COURT: No, Ill permit it. Its overruled. Go ahead.
(10/24/17 Tr. at 9-10.) There are other similar examples where the Court sustained a
prosecution objection on the basis that a document speaks for itself to prevent the defense from
eliciting testimony, but overruled a defense objection.
Evidence After The End of The Alleged Conspiracy
In an additional area, the Court has been inconsistent, and the Courts inconsistency has
again favored the prosecution. The period of the alleged conspiracy is January 1, 2006 to
January 31, 2013. (Indict.) The Court has sustained prosecutors objections to evidence or
documents the defense has sought to introduce to negate concealment, including testimony or
documents that explain what happened in 2013, on the grounds that such evidence post-dates the
end of the alleged conspiracy. By contrast, the Court has permitted the prosecution to introduce
ample evidence that post-dates the alleged conspiracy, including for example: (1) evidence
regarding the fact that there was an FAA block placed on Dr. Melgens plane on February 1,
2013 (9/18/17 Tr. at 34-38); (2) a February 2013 CNN Interview (GX-104); (3) documents
38
reflecting correspondence with the press in February 2013 (GX-107; GX-243); and (4) evidence
regarding the fact that Dr. Melgens multi-dosing dispute continued after January 2013.
IV. THE COURTS EXCLUSION OF ADMISSABLE EVIDENCE AND COMMENTS

AS TO TESTIONY ARE IMPROPERLY PRESSURING DEFENDANTS TO
TESTIFY
In violation of the Defendants Fifth Amendment rights against self-incrimination,
throughout trial, the Court has indirectly challenged Defendants to testify by precluding the
defense from introducing admissible evidence be it documents or testimony from which
jurors could infer the defendants state of mind, as discussed in Section I.9 As a result,
Defendants have been precluded from negating the prosecutions evidence of the Defendants
criminal intent. See United States v. Hurn, 368 F.3d 1359, 1365 (11th Cir. 2004) ([I]t would be
difficult if not impossible for a defendant to introduce evidence specifically about his mental
state. Consequently, he [must] focus on providing circumstantial evidence concerning collateral
matters, such as the reasonableness of his beliefs, from which the jury could infer what his
mental state was.)
Additionally, the Court has, during its evidentiary rulings, directly and improperly
challenged Defendants to testify. During argument regarding whether Mr. Elias would be
permitted to take the stand, Defendants proffered that he would testify about the non-hearsay
fact that a January 2011 flight on Dr. Melgens plane was not reimbursed by the Menendez for
Senate campaign until Mr. Elias learned of the flight around December 2013. Obviously, Mr.
Eliass testimony that no flight was invoiced or reimbursed in 2011 would not have been
9
See also Motion to Admit Documentary Evidence.
39
hearsay; it would merely have relayed a fact concerning when a financial transaction occurred.
Similarly, Mr. Eliass testimony about when he himself learned of something would not have
been hearsay. His testimony about when he authorized reimbursement for that flight, and his
reasons for doing so, would also not be hearsay. Yet the Court refused to permit the witness to
testify to these facts, refused to hear Defendants explanations why Mr. Elias would not be
offering hearsay, characterized the proffered testimony as hearsay, and stated the following:
THE COURT: How are you going to establish this evidence of mistake? How
are you going to establish this evidence of mistake?
MR. HUSSAIN: The evidence of mistake would be that no invoice was

submitted at the time of January 2011 --
THE COURT: How are you going to establish, or strike establish. How are you
going to demonstrate, how are you going to adduce this evidentially?
MR. HUSSAIN: Mr. Elias --
THE COURT: Mr. Elias will not do it because I will not permit a lawyer to get
up and speak hearsay on behalf of an absent client [Senator Menendez].
MR. HUSSAIN: Absolutely.
THE COURT: All right. If your client [Dr. Melgen] wants to talk about it, he
can talk about it or someone else. But, Elias is not going to abuse the hearsay
rule with regard to getting up supposedly -- by the way, whos mistake would it
be? To whom will be imputed the mistake?
MR. HUSSAIN: Dr. Melgen and Eddie Rodriguez.
THE COURT: You will go to Philadelphia on that.10 I will not permit a

lawyer to get up there and try to be the messenger of mistake by clients
who have said nothing [Senator Menendez] because its hearsay.
10
Throughout trial, the Court has also prevented defense counsel from making an adequate
record of the grounds for its objections and challenged defense counsel to go to Philadelphia,
referring to the Court of Appeals. E.g., 9/6/17/ Tr. at 180 (Im not going to sit here and listen to
(Cont'd on following page)
40
[]
THE COURT: What I see coming from the defendants is that they want this
lawyer who represents, who represents I thought the Senator, to come in and
give me information which he has obtained by way of hearsay means, which I
would permit the jury to consider as evidence of mistake, by one whom he did
not represent, and that is your client, as well as by one whom he did represent,
and that would be inadmissible hearsay.
(10/26/17 Tr. at 64-65 (emphasis added).) Combined with all the other erroneous evidentiary
rulings that have occurred so far, including the Courts observable bias against Defendants, their
witnesses, their counsel, and their arguments, there is a real danger that the jury will not be able
to fairly evaluate the defense theories, warranting a mistrial.
(Cont'd from preceding page)
a clinical discussion of Lucentis. So Im telling you that right now. And if you think you can go
to Philadelphia after this trial, you can go to Philadelphia.); 9/12/2017 Tr. at 63 (Im not going
to permit cross examination of that which is obvious or that which is false. And that is false, that
question you put to the witness. I will put it on the record for Philadelphia to see too.);
10/23/17 Tr. at 63 (You heard me. I have already ruled. I dont need you to put anything on the
record because do you know why? I said I noted your objection. So, when you get to
Philadelphia, if you have to go to Philadelphia, you can speak ad tedium); 10/26/17 Tr. at 43 (I
dont need any further argument. You can go to Philadelphia with my assertion that that is
nothing more or less, and thats not to denigrate it, but thats nothing but advocacy on behalf of a
lawyer in writing on behalf of his client before an inquiring committee.); 10/26/17 Tr. at 65
(You will go to Philadelphia on that).
41
CONCLUSION
For the foregoing reasons, the Court should grant the Defendants Motion for a Mistrial.
Dated: October 29, 2017
Respectfully submitted,
/s/ Abbe David Lowell /s/ Kirk Ogrosky

Abbe David Lowell Kirk Ogrosky
Jenny R. Kramer Murad Hussain
Christopher D. Man ARNOLD & PORTER KAYE
Victoria V. Corder SCHOLER LLP
NORTON ROSE FULBRIGHT US LLP 601 Massachusetts Avenue, NW
1200 New Hampshire Avenue, N.W. Washington, D.C. 20001
Washington, D.C. 20036 (202) 942-5330
(202) 974-5600
Raymond M. Brown Jonathan D. Cogan

Justin P. Kolbenschlag Samuel A. Stern
Gregg H. Hilzer KOBRE & KIM LLP
GREENBAUM ROWE SMITH & DAVIS LLP 800 Third Avenue
Metro Corporate Campus One New York, NY 10022
P.O. Box 5600 (212) 488-1200
Woodbridge, NJ 07095
(732) 476-3280
Counsel for Defendant Counsel for Defendant

Senator Robert Menendez Dr. Salomon Melgen
42
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2017, a true and correct copy of the foregoing motion
was filed with the CM/ECF system for the United States District Court for the District of New
Jersey, which will send electronic notification of the filing to all counsel of record.
/s/ Abbe David Lowell
43
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Menendez Trial: Defense Motion For A Mistrial

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Menendez Trial: Defense Motion For A Mistrial

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Case 2:15-cr-00155-WHW Document 257-1 Filed 10/29/17 Page 1 of 45 PageID: 5176

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

DEFENDANTS MOTION FOR A MISTRIAL

Abbe David Lowell Kirk Ogrosky

Raymond M. Brown Jonathan D. Cogan

Counsel for Defendant Counsel for Defendant

to categorize Defendants arguments and provide specific supporting examples. At bottom,

otherwise, by definition, it is an abuse of discretion. For the reasons identified below,

prejudicial, inconsistent, and contrary to law.

judicial discretion to grant a mistrial when, even if a conviction is obtained, it would

26.3 (requiring considering alternative remedies before ordering mistrial).

overwhelming. (See Dkts. 241, 242 (Defendants Rule 29 Motions).)

I. THE COURT HAS DENIED DEFENDANTS FAIR AND MEANINGFUL

Amendments Compulsory Process and Confrontation Clauses, guarantees a criminal defendant

fundamental than that of an accused to present witnesses in his own defense.).

evidence, Defendants have been deprived of the opportunity to present a defense.

trial: Amy Bassano and Marc Elias.

In order to counter the prosecutions documentary evidence allegedly showing

disclosed within the period of the alleged conspiracy at all.

prevented Defendants from showing the jury evidence to negate concealment.3

B. The Court Has Precluded Defendants From Eliciting Testimony About

Senator is chump change. Id.

to defend against bribery and concealment charges.

emphasized in great detail with their witnesses during their case.

The Court has precluded Defendants from rebutting or neutralizing prosecution

document into evidence through a summary agent. (10/19/17 Tr. at 37.)

10/25/17 at 21 (Brownfield).)4 These rulings are erroneous and prejudicial. Eliciting

corroborative or contradictory information from a different witness about a subject or document

Other examples of over-redacted documents permitted by the Court over defendants

(9/27/17 Tr. at 4-11).

C. The Court Has Erroneously Precluded Defendants From Entering

Defendants ability to present a meaningful defense.

the defenses presentation of this theory to the jury.

DX-3, DX-525, DX-806A, DX-806B

history of political contributions to committees related to Senator Menendez or New Jersey, to

D. The Court Has Admitted It Is Intentionally Excluding Defense Exhibits

burden the jury with another piece of paper. (10/24/17 at 109.)

interchangeable. Each serves a specific purpose.

no way for the jury to measure quality.

II. THE COURT HAS ASSUMED THE ROLE OF AN ADVOCATE AND

United States v. Bland, 697 F.2d 262, 265-66 (8th Cir.1983).

A. The Courts Improper Cross Examination of Defense Witnesses

THE WITNESS: Yeah, it could be later in the day though.

THE WITNESS: Uh-huh, right.

THE COURT: Go ahead. Put your next question.

(10/23/17 Tr. at 49-50.)

yes or no to the question posed.

THE COURT: The question was did it come up.

THE WITNESS: Yes, sir, it did.

THE COURT: It is not an exposition. I am not going to permit expositions.

(10/19/17 Tr. at 85.)

A. No, because it fell under the friendship exception.

MS. ABRISHAMI: Objection, your Honor, there is no friendship exception to

MR. LOWELL: Your Honor, I dont think she should be testifying.

You went in there and gave it to your boss?

You gave the form to your boss to review, right?

THE WITNESS: Yes.

THE COURT: You are not a CPA, are you?

THE WITNESS: No, Im not.

THE WITNESS: Thats correct, after --

THE COURT: You werent signing it, were you?

THE WITNESS: No.