Ex-Sen. Bob Menendez demands new trial over evidence error
by Dana DiFilippo, New Jersey Monitor
November 27, 2024
Attorneys for former Sen. Bob Menendez and two businessmen convicted last summer of bribing him want a federal judge to vacate their convictions and order a new trial, saying an evidentiary error prosecutors recently revealed deprived the men of a fair trial.
Prosecutors alerted the defense and Judge Sidney H. Stein two weeks ago that they accidentally uploaded nine documents to a laptop jurors could consult during deliberations that had fewer redactions than Stein had ordered.
But in a flurry of filings Wednesday, defense attorneys say they since have found two more insufficiently redacted exhibits given to jurors — including one in which Menendez co-defendant Fred Daibes referenced Adolf Hitler. The defense attorneys also complained that prosecutors wiped the laptop clean, without their knowledge or consent, making it impossible for a forensic review that could determine if jurors reviewed any of the 3,074 exhibits that had been there, and which ones.
Menendez’s attorneys called prosecutors’ goof “undoubtedly prejudicial” because the documents at issue could have eliminated a skeptical jury’s reasonable doubt.
“The pall cast over Senator Menendez’s convictions by the revelation of the government’s error — and the attendant prejudice to Senator Menendez — is more than sufficient basis for this Court to vacate all counts of conviction and order a new trial,” they wrote.
They also urged Stein not to accept prosecutors’ contention they made an innocent mistake in uploading the wrong exhibits. Prosecutors fiercely fought to get the documents introduced as evidence because they deemed them “very critical” to their argument that Menendez was acting as a foreign agent for Egypt when he signed off on billions in U.S. funding and military sales to Egypt. Uploading them for jurors’ review without Stein’s ordered redactions could amount to recklessness that warrants court sanctions, they added.
“Had prosecutors blurted out the contents of the Unredacted Exhibits during closing, there is no doubt this Court would have ordered an immediate mistrial,” Menendez’s attorneys wrote. “The only question here is whether a different remedy is warranted, because the government slipped this ‘very critical’ evidence to the jury via a laptop, rather than a summation. The answer is no.”
The drama over the documents comes just days after Damian Williams, the U.S. attorney for the Southern District of New York who brought the case, said he would resign next month. President-elect Donald Trump had already announced that he picked former Securities and Exchange Commission chairman Jay Clayton to lead the office.
Defense attorneys have asked for fuller discovery in the matter. Prosecutors have until Dec. 6 to respond.
In a letter to Stein sent earlier this month, prosecutors insisted the mistake caused no harm because jurors — who deliberated less than three full days — probably never saw the documents in dispute, given that the laptop contained thousands of pages of exhibits and they’d heard nine weeks of testimony.
All the defense attorneys blasted that argument, though, saying it insulted jurors by assuming they ignored Stein’s directive to deliberate carefully.
“The government declares that the Court need not worry, because the jury probably did not bother looking at these violative exhibits,” Menendez’s attorneys wrote. “But the government offers nothing for this Alfred Neuman defense — which is premised on the jury ignoring this Court’s instruction to review the summary charts’ underlying exhibits. The only proper remedy here is vacatur on all counts.”
Besides, attorneys know jurors consulted the laptop because early in their deliberations, they alerted the judge they had a technical problem and needed a cord to help them view the laptop’s contents on a TV screen in the jury room.
For the convictions to stand, prosecutors must prove — not presume — their error was harmless, said attorney Lawrence Lustberg, who represented Menendez co-defendant Wael Hana.
“A criminal defendant’s Sixth Amendment rights are violated when a jury considers incriminating evidence that was not admitted at trial,” Lustberg wrote. “Indeed, courts have consistently reversed convictions under circumstances like those present here, where information that should have been redacted was provided to the jury.”
The wrinkle in this wrongly introduced evidence is that it centers on a constitutional protection known as the speech or debate clause, which protects legislators from liability for actions they take in the course of their jobs.
A 1992 federal ruling — in a money-laundering case against a congressman from Georgia — held that harmless-error arguments don’t excuse a violation when the speech or debate privilege is invoked, Menendez’s attorneys argued.
“This Court expressly prohibited any evidence of past legislative activity, including involvement in the provision of any particular military aid to Egypt,” Menendez’s attorneys wrote. “The Unredacted Exhibits squarely crossed that line, however, and allowed the jury to infer bribery from Senator Menendez’s legislative acts — exactly what the Speech or Debate Clause is meant to prevent.”
While Hana and Daibes aren’t protected by that clause, their attorneys argued that the evidentiary gaffe harmed them too because prosecutors argued all the defendants’ actions were part of a single, overarching scheme in which the businessmen would benefit by bribing Menendez and his wife, Nadine, with gold bars, cash, a luxury car and more in exchange for his influence.
Attorneys for Daibes had portrayed the Edgewater real estate developer during the trial as a longtime, dear friend of the Menendezes who gave them gold and other gifts because he was generous.
But one of the unredacted documents at issue is a text from Daibes to a Qatari official that referred to an antique Mercedes Benz Daibes had bought that he referred to as his “Hitler car,” because it was believed to have been commissioned by Hitler or used by his generals, Daibes’ attorneys wrote.
“The prejudice to Mr. Daibes could not be more obvious,” his attorneys wrote. “A Palestinian-born American citizen, conversing with an Arab, and making reference to Adolf Hitler would certainly lead a contemporary jury to question his character.”
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