The People, Respondent-Appellant,v.Vincent Barone, Appellant-Respondent.BriefN.Y.March 26, 2014APL-2013-00012 and APL-2013-00013 To be argued by DANIEL R. ALONSO (30 Minutes Requested – Kancharla) (15 Minutes Requested – Barone) (15 Minutes Requested – Cross-Appeal) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, - against - VINCENT BARONE AND V. REDDY KANCHARLA, Defendants-Appellants-Respondents. BRIEF FOR RESPONDENT-APPELLANT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent-Appellant One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov DANIEL R. ALONSO HILARY HASSLER GINA MIGNOLA AMYJANE RETTEW ASSISTANT DISTRICT ATTORNEYS Of Counsel NOVEMBER 8, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iv INTRODUCTION................................................................................................................ 1 QUESTION PRESENTED ON THE PEOPLE’S CROSS-APPEAL ........................ 5 THE EVIDENCE AT TRIAL ............................................................................................ 6 The People’s Case ............................................................................................................. 6 A. Concrete Mix-Design Testing .............................................................................. 7 B. Testwell’s Mix-Design Scheme ........................................................................... 11 C. Testwell’s Freedom Tower Mix-Design Reports ............................................. 16 D. The Victims’ Views ............................................................................................. 18 E. After the Search ................................................................................................... 21 F. Concrete Field Testing ......................................................................................... 21 G. Barone’s False Certification about Field Inspectors’ Qualifications ............. 23 H. Testwell’s Falsified Field Test Reports ............................................................. 24 I. Falsified Laboratory Test Data ............................................................................ 27 J. The Victims’ Views ............................................................................................... 35 K. The Testwell Steel Scheme ................................................................................. 38 Defendant Barone’s Case .............................................................................................. 57 Defendant Kancharla’s Case ......................................................................................... 59 POINT I CONTRARY TO THE VIEWS EXPRESSED IN JUSTICE CATTERSON’S MAJORITY OPINION, THE EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH THAT BARONE AND KANCHARLA WERE GUILTY OF ENTERPRISE CORRUPTION .................................................................................. 60 A. This Court’s Jurisdiction ..................................................................................... 61 1. The Majority Opinion Was Based on the Legal Sufficiency Of the Evidence ......................................................................................................... 62 ii 2. This Court Has Jurisdiction to Ensure that any Analysis of the Weight of the Evidence Employed the Correct Legal Standard ........................... 66 B. The Jury Heard Ample Proof of the Existence of a Criminal Enterprise .... 70 1. Continuity ................................................................................................... 71 2. Common Purpose ..................................................................................... 73 3. Ascertainable Structure ............................................................................. 78 4. The Defendants’ Participation in the Enterprise’s Pattern of Criminal Activity ............................................................................................................ 86 POINT II THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT THE UNDERLYING COUNTS AGAINST THE DEFENDANTS SHOULD BE AFFIRMED .................................................................................................................... 98 A. The Relevant Law ................................................................................................ 99 B. Analysis ................................................................................................................ 100 C. The People’s Summation Arguments .............................................................. 109 POINT III THE EVIDENTIARY RULINGS CONNECTED TO THE MIX-DESIGN COUNTS WERE PROPER ........................................................................................................................ 118 A. The Evidentiary Context ................................................................................... 119 B. Phony Reports by Other Testing Companies ................................................ 124 C. Turnaround-Time Documents ......................................................................... 130 POINT IV THERE WAS OVERWHELMING EVIDENCE THAT BARONE TAMPERED WITH TESTWELL LAB-TEST DATA ......................................... 136 iii POINT V THE EVIDENCE AMPLY PROVED THAT THE DEFENDANTS EACH INTENTIONALLY AIDED IN THE STEEL INSPECTION SCHEME ...... 148 A. The Relevant Evidence ..................................................................................... 149 B. The Defendants’ Attacks on the Verdicts ....................................................... 155 POINT VI THE THREE JUDICIAL COMMENTS BARONE ATTACKS COULD NOT HAVE INFLUENCED THE JURY’S VERDICT ................................................. 162 A. The Fax-Header Comment............................................................................... 164 B. The Thumma Comment ................................................................................... 166 C. The Read-Back Comment ................................................................................. 169 POINT VII THE COURT PROVIDED A MEANINGFUL RESPONSE TO THE JURY’S NOTE ABOUT THE CRIME OF FALSE FILING............................................. 170 CONCLUSION ................................................................................................................. 177 iv TABLE OF AUTHORITIES FEDERAL CASES Burnett v United States, 222 F2d 426 (6th Cir 1955) .......................................................... 126 Dunn v United States, 284 US 390 (1932) ........................................................................... 156 Newton v Merrill Lynch, 135 F3d 266 (3d Cir 1998) .................................................. 126, 128 Smith v United States, 188 F2d 969 (9th Cir 1951) ............................................................ 125 United States v Anderson, 626 F2d 1358 (8th Cir 1980) ...................................................... 78 United States v Brookshire, 514 F2d 786 (10th Cir 1975) .................................................. 125 United States v Bruno, 383 F3d 65 (2d Cir 2004) ....................................................... 100, 105 United States v Christo, 614 F2d 486 (5th Cir 1980) .......................................................... 127 United States v De Cavalcante, 440 F2d 1264 (3d Cir 1971) .............................................. 111 United States v DiNome, 954 F2d 839 (2d Cir 1992) ......................................... 101, 106-107 United States v Guiliano, 644 F2d 85 (2d Cir 1981) ........................................................... 105 United States v Hamilton, 334 F3d 170 (2d Cir 2003) ....................................................... 100 United States v Jones, 482 F3d 60 (2d Cir 2006) ......................................................... 100, 105 United States v Morales, 868 F2d 1562 (11th Cir 1989) ....................................................... 69 United States v Naiman, 211 F3d 40 (2d Cir 2000) ........................................................... 100 United States v Pelullo, 14 F3d 881 (3d Cir 1994) .............................................................. 107 United States v Riley, 550 F2d 233 (5th Cir 1977) ............................................................. 127 United States v Rooney, 37 F3d 847 (2d Cir 1994) ...................................................... 100, 105 United States v Seelig, 622 F2d 207 (6th Cir 1980) ............................................................. 126 United States v Tellier, 83 F3d 578 (2d Cir 1996) ............................................................... 105 United States v Wittig, 2005 WL 1227938 (D Kan 2005) ................................................. 127 v STATE CASES People v Albro, 52 NY2d 619 (1981) .................................................................................... 63 People v Alfaro, 66 NY2d 985 (1985) ................................................................................. 155 People v Almodovar, 62 NY2d 126 (1984) ........................................................................... 175 People v A.S. Goldmen, 9 AD3d 283 (1st Dept 2004) ......................................................... 80 People v Baghai-Kermani, 84 NY2d 525 (1994) ..................................................................... 99 People v Bailey, 102 AD3d 701 (2nd Dept 2013) ................................................................ 65 People v Barboni, 21 NY3d 393 (2013) ................................................................................. 88 People v Barnes, 50 NY2d 375 (1980) ............................................................................. 88, 90 People v Barone, 101 AD3d 585 (1st Dept 2012) .......................................................... passim People v Besser, 96 NY2d 136 (2001) .............................................................................. 71, 78 People v Bracey, 41 NY2d 296 (1977) .................................................................................... 90 People v Bueno, 18 NY3d 160 (2011) .................................................................................... 88 People v Calabria, 3 NY3d 80 (2004) .................................................................................... 61 People v Cantarella, 160 Misc2d 8 (Sup Ct NY Co 1993) ............................................. 80, 94 People v Castillo, 47 NY2d 270 (1979) .................................................................. 90, 110-111 People v Charleston, 56 NY2d 886 (1982) ........................................................................... 163 People v Colletti, 73 AD3d 1203 (2nd Dept 2010) ............................................................. 107 People v Concepcion, 17 NY3d 192 (2011) ............................................................................. 99 People v Contes, 60 NY2d 620 (1983) ................................................................................... 71 People v D’Alessandro, 13 NY3d 216 (2009) ........................................................................ 63 People v Daly, 14 NY3d 848 (2010) .................................................................................... 100 People v Danielson, 9 NY3d 342 (2007) ................................................................................ 71 People v DeMenus, NYLJ 4/13/95 (Sup Ct NY Co 1995) ................................................. 80 vi People v Doshi, 93 NY2d 499 (1999) ............................................................................. 99-100 People v Forson, NYLJ, 5/12/94 (Sup Ct NY Co) ........................................................ 73, 81 People v Freeman, 298 AD2d 311 (1st Dept 2002) ............................................................ 176 People v Gambino, NYLJ, 5/1/91 (Sup Ct NY Co 1991)................................................... 81 People v Giles, 73 NY2d 666 (1989) .......................................................................... 62-63, 67 People v Gilman, 28 Misc3d 1217A (Sup Ct NY Co 7/2/10) ......................................... 127 People v Goodman, 31 NY2d 262 (1972) ............................................................................. 125 People v Guardino, 62 AD3d 544 (1st Dept 2009), affd sub nom People v Hecker, 15 NY3d 625 (2010) ........................................................ 72 People v Hampton, 21 NY3d 277 (2013) ......................................................................... 61, 71 People v Horne, 97 NY2d 404 (2002) .................................................................................. 157 People v Joseph Stevens & Co, 31 Misc3d 1223A (Sup Ct NY Co 2011) ............................ 81 People v Khan, 18 NY3d 535 (2012) ......................................................................... 64, 71, 93 People v Killgo, 33 AD2d 226 (4th Dept 1970) .................................................................. 162 People v Kisina, 14 NY3d 153 (2010) ........................................................................... 125-126 People v Lugo, 81 AD3d 532 (1st Dept 2011) ................................................................... 176 People v Mackell, 40 NY2d 59 [1976] ................................................................................... 63 People v Malloy, 55 NY2d 296 (1982) .......................................................................... 174-175 People v Marasa, 32 AD3d 369 (1st Dept 2006) ................................................................. 80 People v Marshall, 106 AD3d 1 (1st Dept 2013) ................................................................. 65 People v McFadden, 106 AD3d 1020 (2nd Dept 2013) ....................................................... 65 People v Morales, 20 NY3d 240 (2012) ................................................................. 99-100, 104 People v Moscatiello, 149 Misc2d 752 (Sup Ct NY Co 1990) .............................................. 80 People v Moulton, 43 NY2d 944 (1978) ............................................................................... 166 vii People v Norman, 85 NY2d 609 (1995) ................................................................................ 71 People v O’Rama, 78 NY2d 270 (1991) ...................................................................... 170, 172 People v Overlee, 236 AD2d 133 (1st Dept 1997) .............................................................. 176 People v Picon, 73 AD3d 572 (1st Dept 2010) ................................................................... 176 People v Pustilnik, 14 Misc3d 1237A (Sup Ct NY Co 2007) ........................................ 80, 84 People v Ramos, 19 NY3d 133 (2012) ................................................................................... 71 People v Rayam, 94 NY2d 557 (2000) ..................................................................... 66, 98, 156 People v Romero, 7 NY3d 633 (2006) .................................................................................... 66 People v Sanchez, 86 NY2d 27 (1995) ................................................................................... 88 People v Santi, 3 NY3d 234 (2004) ..................................................................................... 175 People v Santiago, 52 NY2d 865 (1981) .............................................................................. 169 People v Satloff, 56 NY2d 745 (1982) .................................................................................. 155 People v Sinha, 19 NY3d 932 (2012) .............................................................................. 99-100 People v Stahl, 53 NY2d 1048 (1981) ................................................................................. 155 People v Steinberg, 79 NY2d 673 (1992) ....................................................................... 174-175 People v Thomas, 55 AD3d 357 (1st Dept 2008) ................................................................. 80 People v Torres, 8 AD3d 123 (1st Dept 2004) .................................................................... 175 People v Tucker, 55 NY2d 1 (1981) ..................................................................................... 156 People v Wakefield Financial, 155 Misc2d 775 (Sup Ct NY Co 1992) .............. 73, 80-81, 84 People v Washington, 35 AD3d 288 (1st Dept 2006) ......................................................... 175 People v Washington, 71 NY2d 916 (1988) ........................................................................... 63 People v Weinberg, 83 NY2d 262 (1994) ............................................................................. 174 People v Western Express, 19 NY3d 652 (2012) ................... 64, 68, 71, 73, 78, 81-82, 88, 94 viii People v Yarmy, 171 Misc2d 13 (Sup Ct NY Co 1996) ...................................................... 80 People v Yut Wai Tom, 53 NY2d 44 (1981) ........................................................................ 168 FEDERAL STATUTES Racketeer Influenced and Corrupt Organizations Act (RICO) .................... 69, 78-79, 86 STATE STATUTES Criminal Procedure Law §310.30 ............................................................................. 172, 175 Criminal Procedure Law §450.90 ....................................................................................... 62 Criminal Procedure Law §450.90(2)(a) ........................................................................ 61, 67 Criminal Procedure Law §470.15 ....................................................................................... 65 Criminal Procedure Law §470.35(2)(a) .............................................................................. 61 New York City Building Code §27-605 ............................................................................... 8 New York City Building Code Code §27-607 ................................................................... 21 Organized Crime Control Act (OCCA) ..................................................................... passim Penal Law §460.00 .............................................................................................. 69, 78-79, 82 Penal Law §460.10(3) ............................................................................................... 71, 78-79 Penal Law §460.10(4) ........................................................................................................... 86 Penal Law §460.20 ................................................................................................................ 77 Penal Law §460.20(1)(a) ....................................................................................... 1, 68, 86-87 Penal Law §460.20(2)(a)-(c) ................................................................................................. 87 OTHER AUTHORITIES Karger, Powers of the New York Court of Appeals, §21:6 at 715 (3d Ed. 2005) ...... 62-63, 67 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, -against- VINCENT BARONE and V. REDDY KANCHARLA, Defendants-Appellants-Respondents. BRIEF FOR RESPONDENT-APPELLANT INTRODUCTION By permission of then-Justice James M. Catterson, defendants Vincent Barone and V. Reddy Kancharla appeal from an order of the Appellate Division, First Depart- ment, entered on December 27, 2012, which modified judgments of conviction of the Supreme Court, New York County (Edward J. McLaughlin, J.), entered on April 7, 2010, and May 26, 2010. By those judgments, each defendant was convicted, after a jury trial, of Enterprise Corruption (Penal Law §460.20[1][a]). The jury also convicted Barone of two counts of Scheme to Defraud in the First Degree (Penal Law §190.65), nine counts of Offering a False Instrument for Filing in the First Degree (Penal Law §175.35), and one count of Attempted Grand Larceny in the Third Degree (Penal Law §§110/155.35). Kancharla was also found guilty of two counts of Scheme to Defraud in the First De- gree (Penal Law §190.65), nine counts of Offering a False Instrument for Filing in the 2 First Degree (Penal Law §175.35), and three counts of Falsifying Business Records in the First Degree (Penal Law §175.10). Barone was sentenced, on April 7, 2010, to serve from 5⅓ to 16 years in prison. Kancharla was sentenced, on May 26, 2010, to serve from 7 to 21 years in prison. The Appellate Division vacated the convictions for enter- prise corruption and reduced the defendants’ sentences, but otherwise affirmed. Additionally, by permission of the Honorable Sallie Manzanet-Daniels, the People cross-appeal from the order vacating the defendants’ convictions of enterprise corrup- tion. Both defendants remain free on bail pending appeal. For years, Testwell Laboratories Inc. (“Testwell”) was perhaps New York’s best- known construction materials-testing company. Both public and private builders relied on its test reports and certifications to ensure the strength of concrete and the quality of steel in structures being built in the City. In fact, though, Testwell’s president and owner, V. Reddy Kancharla, and employees working under him, as part of the routine business of this seemingly-legitimate enterprise, created hundreds of phony mix-design reports every year. To the builders who relied on them, these reports appeared to reflect the re- sults of laboratory testing on proposed concrete-mix recipes. In fact, Testwell did no testing at all, but instead used a random number generator to create phony results. Fraud similarly infected the later stages of Testwell’s work, concrete inspection and testing, with the deliberate and repeated tampering of the lab’s test data by Vincent Barone, Testwell’s vice-president of engineering, as well as the routine falsification of field-test results by other Testwell employees. As part of its criminal scheme, Testwell 3 also overbooked its steel plant inspectors, omitted steel inspections, overbilled its steel clients, and falsified steel inspection reports. On October 30, 2008, Testwell, Kancharla, Barone, and five other Testwell em- ployees were charged with enterprise corruption and a series of related crimes and pat- tern acts. Indictment No. 5248/08.1 On November 19, 2009, Testwell, Kancharla, Bar- one, and steel inspector Wilfred Sanchez stood trial before the Honorable Edward J. McLaughlin and a jury. Beginning on February 17, 2010, the jury returned a series of verdicts: convicting Testwell of all charges, finding Kancharla guilty of all counts related to the mix-design scheme, convicting Barone of all counts related to his data-tampering, and acquitting Sanchez of all charges. In addition, the jury convicted Barone of several counts related to the steel-inspection scheme and convicted Kancharla of scheme to de- fraud in that connection. Finally, the jury found Kancharla, Barone, and Testwell guilty of enterprise corruption. The defendants were subsequently sentenced as noted above. On appeal to the Appellate Division, First Department, Barone and Kancharla raised a combined total of thirteen points.2 Among other points, both men contested 1 Separate indictments were also returned against a number of other Testwell employ- ees. Three – Edward Porter, Michael Sterlacci, and Nancy Phillips – pleaded guilty in con- nection with their roles in Testwell’s false mix-design scheme. Two others, Priti Shah and Peter Promushkin, pleaded guilty for their roles in Testwell’s lab data-tampering scheme. The charges against Alfredo Caruso, vice-president of Testwell’s concrete department, were severed, and his case has yet to be resolved. Another Testwell executive was tried separately and acquitted. Finally, the governor of South Carolina refused to extradite Testwell inspec- tors Clyde Finklea and Tommy Dowd, who had been charged only with scheme to defraud. 2 Testwell, which was convicted at trial of all counts against it, including enterprise corruption, chose not to appeal. 4 the evidence proving their guilt of enterprise corruption and of the charges related to the steel-inspection scheme. They also raised four trial-related points, including a claim that the judge was wrong to exclude certain evidence, a complaint about some comments in the People’s summation, an attack on one supplemental jury instruction, and an argu- ment that the judge made a few inappropriate comments. Finally, they raised four points related to sentence, including an argument that their prison sentences were excessive. On December 27, 2012, a deeply divided court handed down its decision. People v Barone, 101 AD3d 585 (1st Dept 2012). Four judges voted to reverse the enterprise cor- ruption convictions. Justice Sallie Manzanet-Daniels dissented on that point, concluding that the evidence was legally sufficient to prove that Barone and Kancharla were part of the Testwell criminal enterprise. Three justices joined Justice Manzanet-Daniels in hold- ing that the defendants’ convictions on the underlying “pattern act” crimes should be affirmed. On that issue, Justice Catterson filed a lone dissent, expressing his view that all of the counts should be vacated and the case remanded for a new trial. That same day, Justice Catterson granted the defendants leave to appeal to this Court. By an order en- tered May 2, 2013, Justice Manzanet-Daniels granted the People leave to cross-appeal. On appeal to this Court, the defendants contend that they should be granted a new trial on every count because of alleged spillover prejudice from the now-vacated en- terprise corruption count. Barone also renews his attack on one supplemental jury in- struction and on three comments the judge made during trial. Kancharla, meanwhile, argues that the evidence was legally insufficient to support his conviction for scheme to 5 defraud in connection with Testwell’s steel-inspection scheme and renews his attack on the judge’s decision to exclude certain evidence. We argue on this appeal that the enterprise corruption convictions should be re- instated because the Appellate Division applied an incorrect legal standard in addressing both the sufficiency of the evidence and its stated review of the weight of the evidence. Because there is no prejudice at all from a proper conviction, there can be no spillover prejudice. In any event, even if the reversal of the enterprise corruption convictions stands, we argue that any alleged spillover was insufficient to require reversal of the addi- tional convictions. QUESTION PRESENTED ON THE PEOPLE’S CROSS-APPEAL Does evidence of a long-standing pattern of fraud and falsi- fications of data by two materials-testing company execu- tives, working with and through their subordinates within the corporate structure, coupled with the manner in which one type of fraudulent activity was necessary to cover up another set of frauds, establish a legally sufficient case sup- porting the jury’s decision to convict the company and the two executives of the crime of enterprise corruption? A majority of the Appellate Division concluded that “the defendants’ convictions for enterprise corruption were not supported by legally sufficient evidence and were against the weight of the evidence.” People v Barone, 101 AD3d 585, 594 (1st Dept 2012). 6 THE EVIDENCE AT TRIAL The People’s Case V. Reddy Kancharla was the sole owner and CEO of Testwell Laboratories, a li- censed materials testing lab, and Vincent Barone was its Vice-President in charge of the Engineering Department (PX 68-27: R1603; PX 122C-1: R1773).3 Testwell’s clients in- cluded government agencies and private builders and engineers (PX 122f: R1774-76 [website excerpt]). Kancharla, who was a licensed professional engineer, had joined the company as its lab director, chief engineer, and vice-president in 1996; he bought the company two years later and became its president and CEO (Sirakis: R617-20, R640; KASPAL THUMMA: R765-66, R801-02; PX 68-27: R1603).4 During his tenure, he built a new lab and installed a computer system with barcode scanning capability (Thumma: R783, R791, R803-07). Kancharla also put Barone, a professional engineer, in charge of field operations generally (Thumma: R768). As Vice-President of Engineering, Barone supervised airport projects like the Jet Blue construction (Thumma: R772-74; PX 126-11: R1777), and was the “primary contact” for projects by the New York State Dormitory Authority, for whom he had worked as a project manager before joining Testwell (Connelly: R142-43; Visconti: R883-84, R930, R993, R1002; LaPlante: R1354, R1379; PX 126-11: R1777). 3 Parenthetical references preceded by PX are to the People’s exhibits at trial, and DX are to defense exhibits. Numerical references preceded by B are to Barone’s appendix, by K are to Kancharla’s appendix, and by R are to the Respondent-Appellant’s appendix. 4 Thumma, who had been Testwell’s lab director, testified at trial pursuant to a plea and cooperation agreement (Thumma: R759, R761-64, R824-35; PX 179: R1802-06). 7 Barone also dealt directly with the School Construction Authority on billing issues for many years (Richardson: R1384). New York City presents unique challenges to builders because it is so densely packed and because the traffic and tunnels have to be taken into account (Sirakis: R594).5 The Building Code is therefore stringent (Sirakis: R595). The Department of Buildings cannot inspect all 10,000 jobs going on at any given time, so it requires third- party inspections by licensed testing companies like Testwell (Sirakis: R596-98). The test- ing company is supposed to watch over the concrete contractor and supplier on behalf of the builders and regulators (Sirakis: R615, R630). In practice, though, the concrete contractor selects both the supplier and the testing company (Bognacki: R52). Thus, to maximize their chances of getting the next job, testing companies may not wish to be the bearer of costly “bad news” to contractors (Sirakis: R632). A. Concrete Mix-Design Testing Under the law, every concrete supplier/contractor has to have a licensed facility test his or her proposed “recipe” for a particular job before it is used in construction (Si- 5 Much of the People’s evidence about concrete came from three experts. One was CASIMIR BOGNACKI, Chief of Materials Engineering at the Port Authority (Bognacki: R14-21, R125). The second was COSTADINO SIRAKIS, who headed the DOB’s Technical Affairs Division (Sirakis: R591-93, R636). The third was JAMES SHILSTONE, an experi- encd concrete consultant (Shilstone: R727-35). 8 rakis: R608-09, R637; Building Code §27-605).6 This testing is “critical” because “con- crete varies greatly based on its constituent materials” (Sirakis: R599; see also Scarangello: R320, R327). Even the same recipe will not always produce the same strength. Different materials (“Long Island sand versus Minnesota sand,” or sand from different shores of Long Island) can make a profound difference (Bognacki: R50). Ocean sand has different qualities than sand dug from a pit (Bognacki: R51). Cement from different sources will also produce different effects and results (Bognacki: R51-52). Nor can one assume that more cement will mean more strength; sometimes adding more cement creates an exo- thermic reaction that decreases the strength significantly (Bognacki: R46-47, R90-91). Thus, the concrete supplier proposes a recipe he thinks might work, but there must be testing (Scarangello: R320). The qualities of a proposed mix can never be de- termined mathematically (Shilstone: R733). Textbooks list expected strengths, but the actual materials must be tested to determine if they meet expectations (Scarangello: R346). Reliable numbers cannot come from a computer: “There is no simulation availa- ble. Period. None” (Bognacki: R68-69; see also Sirakis: R607; Shilstone: R733). Testing provides “the connection between our math and the reality in the field;” it is the only possible “confirmation that, actually, the mix performs the way the math says it should” (Scarangello: R321, R346-47, R390). 6 Testing done under this section of the law is referred to as the trial-mix or prelimi- nary-test method (Sirakis: R604; see Scarangello: R388). All the Testwell reports at issue were purportedly done in accordance with this method (Bognacki: R58-59; Scarangello: R327-30, R344; Sirakis: R601, R606). 9 The Code requires testing on four versions of the proposed recipe, each of which varies slightly in terms of the amounts of each ingredient (Scarangello: R327-28; Sirakis: R602-03). Since there will always be variation in the field, the four tests are supposed to “encompass” that variation and “envelop” the proposed mix, so that the engineers can get a sense of how the recipe will react in use (Sirakis: R602, R638-39, R643). Four tests let an engineer see how the proposed mix reacts as “you vary the cement a little, the wa- ter a little” (Bognacki: R54; Scarangello: R389-90). The four slightly different recipes also allow the engineer to ensure that there is not some “quirky” reason a particular mixture worked (Bognacki: R53-54). A testing company like Testwell is required to obtain the proposed ingredients from the concrete supplier and bring them back to its testing lab (Sirakis: R604). There, the testers run the key ingredients through a sieve and record the precise size of each on the subsequent test report, so that everyone can be certain the same ingredients are used later in the field (Scarangello: R330-31). According to the rules, Testwell should then have mixed the ingredients in accordance with the concrete supplier’s proposed recipe and in three other slightly varied batches to form the testing “envelope” (Sirakis: R604). Shortly after mixing, each of the four batches should have been subjected to a series of tests that correspond to the “field tests” performed when concrete is poured during construction (Bognacki: R60-62). The lab should also have made cylinders of concrete – just like those made for testing “field concrete” (Sirakis: R604-05). 10 In the lab, a cylinder of concrete is put into a machine that presses an ever- increasing load on it until the cylinder is crushed – called the moment it “fails” or “breaks” (Bognacki: R22-23; Scarangello: R333-34). Typically, tests are performed on each of the four mixes at 7-day, 28-day, and 56-day intervals (see e.g. PX 10: R1590-91 [Kancharla report purporting to show results of 7-day and 56-day tests on proposed mixture of 12,000 PSI concrete for 7 World Trade Center]).7 To pass muster under the Code, a mix must show results during the 28-day testing that are 25% above the strength the engineer has specified (Scarangello: R328-29, R388; Sirakis: R605). Thus, when the strength needed for the building is 12,000 PSI, the tests in the lab have to achieve 15,000 PSI (Bognacki: R58-59). That built-in margin is intended to account for variability and possible lack of quality control in the field (Bognacki: R41-42, R59; Scarangello: R329). After all the tests, the testing company puts together a report to document its findings (Scarangello: R334).8 Testwell sent that report to the contractor, who forwards it to the engineers, architects, and ultimately the regulators (Scarangello: R335-38). The engineer reviews it to confirm that the proposed mix will actually achieve the required strength, that it has all the other properties the engineer needs, and that the different ra- 7 Generally, concrete gains strength over time as it cures and, by the 28th day, “you are probably getting 80 to 90 percent of its ultimate strength” (Scarangello: R313-15). Thus, the Code focuses on the 28-day interval (Scarangello: R314). Tests on the 56th day are also commonly required by builders and engineers as a “backstop” to double-check the strength determination made at 28 days (Scarangello: R312-17). 8 In the report, the results appear in chart form and in the form of a graph that pro- vides a visual representation of the trend (Bognacki: R64-67; Scarangello: R342-43). 11 tios are within a range necessary for the particular project (Bognacki: R55; Scarangello: R332, R338-41). Each report is also required to include the signature and seal of a licensed profes- sional engineer from the testing company (see e.g. PX 10: R1590-91 [Kancharla’s seal and signature on report purporting to show results of tests for 7 World Trade Center]). It is unprofessional conduct for an engineer to affix his seal and signature unless he has done the work himself, or has supervised the work done by a “direct employee” (DeJesus: R1040-41, R1043-44). Thus, when a regulator, engineer, or architect receives a signed and sealed mix-design test report, he justifiably understands that the engineer is “saying these mix designs were batched and tested in our laboratory” (Bognacki: R56-57). B. Testwell’s Mix-Design Scheme A few times a year, Testwell did mix-design testing the way it should be done and generally charged $4,000 for the service (Thumma: R789, K271-72). However, Testwell also sent out hundreds of false mix-design test reports each year; probably as many as five a week, in fact (Thumma: R797). The falsity of these reports was proven in a num- ber of ways. First, reports for mix-design tests supposedly conducted months apart showed identical results – an event so improbable that, even with identical ingredients, it “would be like hitting the lottery” (Murphy: R160-61, R190-221). Yet Testwell reported 12 identical results in column after column, for test after test, even when the ingredients and ratios were supposed to be different (Murphy: R194; PX 69-1: R1604 [tables 1-4]).9 In addition, while the results Testwell reported looked “quite random,” they actu- ally were not (Murphy: R226). Instead, there was a pattern: all the results in column one (for the first mix) were precisely 77 PSI less than the results reported in column two – even on reports submitted years apart or for different projects (Murphy: R195-97, R216- 25, R249-61, R272-73; PX 58: R1597-98 [Second Avenue subway]; PXs 65 and 66: K433-36 [Grand Avenue bus depot]; PX 69-1: R1604 [table 5]). Patterns like this “would not happen in real testing” (Murphy: R226). Hundreds of these falsified mix-design reports were found on Testwell’s comput- ers (Murphy: R235-36).10 In addition, investigators located the program used to generate these phony “test results” on one of Testwell’s computers (Murphy: R226-31). All the user had to do was put in the desired concrete strength, and all of the numbers needed for a test report would be filled in automatically (Murphy: R231). The spreadsheet pro- 9 One example was a report generated for the Freedom Tower, which represented that the cylinders from the first mix supposedly broke in the 7-day test at 7,576 and 7,668 PSI (Murphy: R192-93; PX 69-1: R1604 [table 1]). In a second report, filed months later, Testwell reported precisely the same 7-day results of 7,576 and 7,668 PSI. Results for all three of the other mixes were also identical (Murphy: R193; PX 69-1: R1604 [table 1]). 10 This arithmetical pattern emerged on reports for projects like Jet Blue, 7 World Trade Center, Yankee Stadium, River Place II, the Freedom Tower, Junior High School 149, Hillcrest High School, and many, many others (Murphy: R199, R222-25, R234-35). The pat- tern was also found, as far back as 2002, on reports Kancharla approved then (Murphy: R222-23), and in even older Testwell reports from the 1980s before he worked there (Mur- phy: R261-71, R273; DXs RK-B1, RK-B2: K460-63). 13 gram was also attached to a random number generator so that, instead of round num- bers, the program would “give you kind of random looking results” (Murphy: R231-32). Concrete expert James Shilstone explained that Testwell’s program was not real mix-design software, which helps people determine a possible recipe that might generate the strength they will need (Shilstone: R727-37, R754).11 Testwell’s software just started with the proposed mix and generated three others arithmetically (Shilstone: R737-41). Then, the software filled in supposed testing results automatically, based solely on the strength the user wanted the mix to achieve (Shilstone: R741-42, R747). For example, if the strength required was 12,000 PSI, the program automatically filled in a number that would meet the code standard, and then the random number generator adjusted it (Shil- stone: R743, R751, R756-58). Numbers then appeared for all the other columns and “tests,” according to constant arithmetic formulas (Shilstone: R743, R751, R756-58). There is “no legitimate or technical use for a random number generator in a mix design program” (Shilstone: R745). On Testwell’s computer it simply got rid of all the round numbers, obscured the underlying pattern, and hid the fact that the report was not based on actual testing (Shilstone: R744-48, R758). The Testwell computer involved belonged to Edward Porter, whose Testwell title was “Assistant Laboratory Manager” (Connelly: R137, R143; Murphy: R226-28, R250- 51; PX 126-11: R1777). Despite his title, Porter was not on the staff of Testwell’s lab 11 Even when using real mix-design software, it is necessary to test the proposed reci- pe in the lab before deciding to use it in the field (Shilstone: R730-32). 14 (Thumma: R775-79, R818).12 Instead, he worked on his own, creating the phony mix- design test reports, a job Kancharla had hired him to do in the late 1990s (Thumma: R769, R775-79, R792-93, R818). Porter received “orders” from Testwell clients and generally prepared reports approving the ingredients they wanted in just a couple of days, so the person who ordered and received the report had to know it was fake, since it purportedly included results for tests that would actually have taken weeks to conduct (Thumma: R775, R822-23). The fee for a Porter-generated report was only a fraction of the $4,000 charge for real mix-design testing (Thumma: R788, R821, R841). In fact, Testwell charged only $300 for a Porter-created report on regular strength concrete mix, and just $500 for a phony “high strength” report (Thumma: R788, R821, R841).13 Initially, Kancharla placed his professional seal of approval on Porter’s phony re- ports (Thumma: R759-60, R766-67, R779). Later, Porter took them either to Kancharla or to Michael Sterlacci, another Testwell professional engineer (Thumma: R769, R775, R795-96). Sometime in 2004 or 2005, Thumma began asking Kancharla questions about what Porter did (Thumma: R794-96). Kancharla explained and asked Thumma to start signing the Porter-created reports (Thumma: R794). Kancharla said it was “standard practice, everybody has been signing [them], it’s not something that – you’re not doing it 12 Testwell’s website reported that Porter had a degree in engineering from an insti- tute in Moscow (PX 126-12: R1778), but he was not a licensed professional engineer (Thumma: R780-81). 13 Kancharla knew the prices charged for Porter’s mix-design reports and personally reviewed the prices for any real mix-design testing (Thumma: R789-90, R835). 15 yourself for the first time” (Thumma: K262). Kancharla also said that “Testwell was not the only one doing it” and “this is an industry practice, this is an industry active practice” (Thumma: K210-12). Kancharla also said, if there was “something terribly wrong” with the mix, it would show up “early in the project,” in the field tests or in early lab tests (Thumma: K213-14). Thumma agreed to go along with the scheme over the next few years because others at Testwell and “other industry people” were doing it (Thumma: K221).14 He “knew it [was] not appropriate,” but, in his mind, it was a “good time to follow” (Thumma: K221). Another practice he followed was Kancharla’s practice of stamping blank pages with his seal and signing them, in advance, for Porter’s later use (Thumma: R798-99, R816). Later, Thumma decided to affix his seal only after Porter printed out the phony reports, because “I thought at least even if it is false I know what I have done” (Thumma: R800). Investigators later discovered a cache of over 70 pre-stamped blank pages with Kancharla’s seal and signature already on them (Connelly: R156-59; e.g. PX 96- 2: R1748).15 14 Thumma never told any of the engineers or builders who relied on these reports that the data was all false (Thumma: R846-47). 15 It is professional misconduct to use the seal in this way, since, when “[you] affix your seal and signature to a blank piece of paper, you’re pretty much opening the door for fraud” (DeJesus: R1041-42; see also Sirakis: R628). 16 C. Testwell’s Freedom Tower Mix-Design Reports Typical examples of the phony Testwell mix-design reports were the ones created in connection with the Freedom Tower (PXs 2, 6, 8: R1580-88), which required con- crete that ranged from a rather routine 4,000 PSI to a very high strength 14,000 PSI (Bognacki: R76-79). Testwell created the usual phony Porter-created mix-design test re- ports, which Thumma signed and sealed – without any actual testing at all (Thumma: R808-13, R836-38, R840-43). Thumma pleaded guilty to false filing in connection with one of these reports (Thumma: R814). He admitted that sending the phony reports to the engineers “was not legitimate, it was wrong on my part to do that,” to “send[ ] data as if [testing] was done” when it was not (Thumma: K257, R839-40). Asked, on cross-examination, if he intend- ed to defraud the engineers, Thumma said, “I made a mistake in signing this document which has number[s] which do not – which purported show as things done in the labor- atory … And these test[s] were not done … They are false breaks” (Thumma: K255). He explained: It’s not a question of defrauding and not defrauding … What I pleaded guilty [to] is this document wherein I put my seal, signed saying that these are right results, these are results generated in the laboratory which in fact were not generated. … Whether this mix will work in the field or not is immaterial. Whether this mix, if you use this, whether you get the right product, right concrete or not still I made a mistake … I should not have stamped that report … I should not have done it (Thumma: K256- 57). 17 When he signed the reports “the consequences were not in my mind;” he was “simply rubber-stamping [them],” despite the fact that he had “no knowledge about those ingredients” or how they would work in the field – “which is wrong, which is wrong” (Thumma: K258, R817, K267). Questions arose at the Freedom Tower when the Port Authority took over field testing concrete in its own lab (Bognacki: R80-84, K137, R130). Testwell showed all the concrete reaching 12,000 PSI (Bognacki: R85, K140-41, R117, R127; PX 69-4: R1607 [table 13]). The Port Authority, in contrast, found that much of the concrete did not reach 12,000 PSI even after 56 days, despite the fact that the mix had supposedly reached 15,000 PSI when “tested” by Testwell (Bognacki: R85-87; PX 69-4: R1607 [ta- ble 14]). Two-thirds of the concrete failed to achieve minimum strength (Murphy: R211). When the engineers asked for a new mix, the contractor went right back to Test- well to get it (Bognacki: R89, R92-93). Testwell’s new mix-design “test” report was only slightly different from the first, despite very significant changes in the ingredients and water-cement ratio (Bognacki: R93-95; PX 6A: K427-28). In fact, some numbers were identical to those on the earlier report, which is “darn near impossible” (Bognacki: R95). The Port Authority’s expert reluctantly came to the conclusion that the materials had not been tested either time (Bognacki: R97-98). It was a difficult conclusion to come to, because this was “not your run of the mill concrete” and skipping the tests “for some- thing like this project would be unbelievable to me at the time” (Bognacki: R98). 18 Finally, the concrete supplier was told he had to revise his mix entirely (Bognacki: R100-07). He and Testwell sent yet another mix-design test report; this one listed “56 day” results – even though it came in only about 30 days after the Port Authority had asked for the new design to be tested (Bognacki: R101-03; PX 8A: K429-30). D. The Victims’ Views Twelve regulators, builders, and engineers testified that they had been duped by Testwell’s phony mix-design reports. These victims included regulators and government builders, like Sirakis from the DOB, Bognacki from the Port Authority, DEMETRIUS MILONAS from the MTA, and DAVID CHOY, from the School Construction Au- thority, who had all believed the data they received from Testwell was real (Bognacki: R66; Sirakis: R634; Milonas: R711-23; Choy: R1075, R1299-1308). Private engineers and architects were equally misled by Testwell’s phony reports. TY OSBAUGH, Jet Blue project architect, and engineer LYMAN DAVID CONGER, the project manager, received and reviewed a whole series of Testwell reports (Osbaugh: R583-90; Conger: R644-51, R660). They believed that Testwell actually mixed and tested the concrete, especially because each report bore the seal of a professional engineer (Osbaugh: K180-81; Conger: K190). Thomas Scarangello, engineer of record for the 19 new Yankee Stadium, never thought to question Testwell’s integrity or the truthfulness of its reports (Scarangello: R309-12, R318-19, R322-26, R384).16 BART SULLIVAN was an engineer specializing in high-rise buildings (Sullivan: R402-04). In 2002, Kancharla signed and sealed all the mix-design test reports for 7 World Trade Center (Sullivan: R405-19; e.g. PX 10A: R1592-95). Sullivan believed the data in these reports was authentic and that the tests had been performed (Sullivan: R418), as did John Klein, of Silverstein Development, who was in charge of design and construction for 7 World Trade Center, as well as for River Place II, a large residential apartment building (Klein: R1104-06, K335). Klein thought that “[t]he only reason [Kancharla] would sign it is because it’s accurate” (Klein: R1123). That sentiment was echoed by KIRIT MEVAWALA, construction manager for the Second Avenue subway. He assumed that the professional engineer who stamped these reports had really performed the tests, because “we respect these stamps” (Mevawala: R865-73). DMJM Harris engineer MARK LATCH, quality assurance man- ager at the MTA, also believed Testwell’s reports reflected the results of actual tests (Latch: R662-789). If he had known the results were not real, “Categorically this would 16 On cross, Kancharla’s lawyer showed that Testwell had sent Scarangello and his staff a couple of revised mix-design test reports too quickly, so that they arrived before the supposed tests could actually have been performed (Scarangello: R362-79, R386, R394-401). Scarangello and his fellow engineers did not annotate their calendars with the dates of mix- design requests and did not double-check the dates to see if the reports were legitimate (Scarangello: R379, R391-92). Scarangello had never thought to question the integrity of Testwell’s numbers (Scarangello: R393), and he did not look for fraud in mix-design test re- ports, at least “not until recently” (Scarangello: R391). 20 have been all rejected, it would have been flat, no good and you actually have to run [a] trial batch” (Latch: R680-81). The baffled fury expressed by PRABIR DAS was typical of those duped by Testwell’s phony reports (Das: R848-50). Das was the chief structural and tunnel engi- neer for the Second Avenue subway, a project in which there is a risk to existing struc- tures if the concrete in the “slurry walls” does not function as expected (Das: R851-56). Impermeable high-performance concrete is “[e]xtremely critical” to make sure rock will not fall into the tunnel (Das: R856-58). Das’s engineers therefore “check like a hawk” to make sure the concrete is what it should be and the mix design is “fundamental” for that purpose (Das: R858-60). Das never thought to monitor the dates of requests for tests or re-tests (Das: R861). Asked if he ever suspected Testwell’s reports contained phony data, Das said, “Absolutely not … because it’s stamped from registered structural engineer,” and any engineer would know that the integrity of the structure depends on these designs being tested (Das: R862-63). “Without that how do I actually myself and actually the people, public, [know] that whatever is done is still safe, I have no idea in that case, if it’s wrong” (Das: R863). When Das learned that the Testwell mix-design data was phony, “[he] had difficulty to believe that at the beginning … I could not believe our country which built unique structures in the world … could have a problem like that, I just don’t believe that, that [anybody] can give us a submittal without testing it. It’s difficult to me even now” (Das: R863-64). 21 E. After the Search After a search warrant was executed at Testwell headquarters, Thumma asked Porter to make Testwell’s phony reports have a heading that read “expected” compres- sive strength (Thumma: K264-67). The word “expected” had appeared on some of Testwell’s reports over the years (e.g. DX RK-Z: K501). Thumma wanted the word be- cause he “knew very well that [the data] is not the real,” and wanted something to tell people if anybody ever asked for an explanation (Thumma: R844-45). Thumma also asked Porter to take out references to the Building Code, because “this is an area of concern for me and at the same time I am an employee there working for a salary to make ends meet and I can’t simply say no from today I’m not going to sign” (Thumma: R819-20). About two months after the court-ordered search, Thumma met the prosecutor and saw evidence that his Testwell colleagues had been altering lab data (Thumma: R831-33). At that point, he decided to cooperate and tell “exactly what kind of falsities I’ve performed in Testwell” (Thumma: K203-06, R833-34). F. Concrete Field Testing On-site field testing is required by the Building Code and is “one of the first line defenses for quality control” for concrete (Murphy: R162; Sirakis: R600; Building Code §27-607). The four required tests are temperature, slump, air content, and density (Mur- phy: R162-63; Sirakis: R622). All of them matter – they reveal information about both 22 the durability and strength of the concrete and help confirm that the concrete in the field is actually the same as the pre-approved mix (Bognacki: R62-63; Murphy: R164; Si- rakis: R623-25).17 A field inspector reports the results of all four tests immediately, so that the engi- neer can compare this data to the results during the mix-design testing that supposedly had been done by the testing company (Bognacki: R62-63; Sirakis: R616, R624-27). The expected results for the on-site results are thus known to the engineers and to the testing company from the start (Scarangello: R321, R335-52). The Building Code requires that any person performing these field tests must be certified as qualified by the American Concrete Institute (“ACI”) (Sirakis: R610-11, R626).18 Yet, Testwell employee JAMAR SELLERS was assigned for months to do 17 The tests as a whole are somewhat labor-intensive. For the slump test, the field in- spector needs a foot-tall slump cone, a scoop, and a metal rod (Murphy: R165). He sets the flanges on each side of the cone, fills it with concrete, and then “rods the material into place” (Murphy: R165-66). He then lifts the cone off in one straight-up, slow motion; the concrete deforms and he measures the amount of slump by placing the rod into the pile (Murphy: R166). The necessary measurement is recorded to the nearest quarter inch (Mur- phy: R167). Air content and density are tested with an air pot, which the inspector fills, strik- ing off any excess with his strike-off plate (Murphy: R168-69). He weighs the pot on his scale and calculates the density of the material (Murphy: R169). Then, the lid is put on the pot and locked down, and water added through a valve at the top to displace any air inside (Murphy: R169-70). The pot is then struck with a rubber mallet a prescribed number of times to agitate the concrete and force the air to the top (Murphy: R170). At that point, the inspector can take a reading off the gauge that reflects the “percent air content” (Murphy: R170). 18 ACI’s testing involves both a written test and a performance examination with sev- en different subtests (ACI Representative JOHN NEHASIL: R1033-35). Moreover, ACI certification lasts for only five years and then it must be renewed by taking a whole new bat- tery of tests (Nehasil: R1035-36). 23 field inspection jobs on his own before he ever even took the ACI test (Sellers: R293- 95). Asked how often he worked alone before he was certified, Sellers said, “I couldn’t tell you. It’s too many times” (Sellers: R295-96). G. Barone’s False Certification about Field Inspectors’ Qualifications The SCA contract with Testwell required all personnel on SCA jobs to have the ACI qualifications specified by the Building Code (Richardson: R1382-83, R1403-04). In January 2007, the SCA instituted a procedure to check for unqualified personnel, decree- ing that the testing companies must submit a certification, with each bill, listing every inspector the company billed for and their qualifications (Richardson: R1380-81, R1397- 98, R1415-17, R1420-24). That month, Testwell submitted a bill without the required certification, so SCA Operations Manager Richardson sent a copy of the new form to Barone (Richardson: R1385-1402, R1418-21). In March 2007, Barone filled out the form, listing 24 Testwell employees and cer- tifying that the “personnel listed below who have performed inspections … have met NYC Department of Buildings qualifications requirements and all other qualification re- quirements of the [SCA] Contract …” (PX 82-1: R1691). Among the people Barone listed were field inspectors Adalberto Hoyos and Shikeen Kennedy (PX 82-1: R1691). Neither Hoyos nor Kennedy had the required ACI certification (Stipulation: R1038). Hoyos had once been certified, but he tried twice to pass the recertification test (in 2004 and 2007) and failed both times (Nehasil: R1037, R1039). Kennedy, meanwhile, was 24 never ACI certified at all; he had tried to pass the necessary tests, but failed (Nehasil: R1037, R1039). Richardson followed up in an effort to get copies of certificates for anyone whose credentials were not already on file with the SCA (Richardson: R1406). In April, Barone sent a new submission listing Hoyos and Kennedy as “concrete inspectors,” but he did not send any documentation supporting anyone’s qualifications (Richardson: R1413-14). Later, he sent “certifications” showing that various people (including Hoyos) had at- tended “in-house seminars” at Testwell (Richardson: R1407-10; PX 82-8: R1693). Later still, he sent a certificate that showed Hoyos had irrelevant credentials related to soil test- ing (Richardson: R1411). At yet another point, he sent an ACI certification for Hoyos, but it had expired (Richardson: R1409, R1412). Finally, he admitted to the SCA that Hoyos and Kennedy were not ACI-certified (PX 82-11: R1694; PX 82-42: R1695). H. Testwell’s Falsified Field Test Reports In September 2007, a monitor from the State Dormitory Authority visited the Hunter College construction site and introduced himself to the Testwell field inspector, Tsvetelub Rakovski (Leask: R1169-71, R1316, R1328-29). Even though Rakovski knew he was being observed, he skipped the required slump test (Leask: R1175, R1179, R1316-18). Nonetheless, Testwell sent DASNY a report that showed 6.5 inches as the supposed result of the slump test (Leask: R1178-79, R1183-85, R1319; PX 84-7: R1698). DASNY reported the incident to Barone, whose response was to send out a new report, 25 which listed “A visual estimate of 6.5 inches slump” (Leask: R1182-83, R1186-87; PX 84-10: R1699). However, “visual estimates” of slump are not recognized by the ACI (Leask: R1187). At DASNY’s request, Testwell stopped assigning Rakovski to DASNY projects (PX 84-94: R1713). Beyond that, though, all Barone did was to send Rakovski a notice that he had to take the next training class Testwell gave (Visconti: R1014-17; Leask: R1320-23, R1333). Shortly afterwards, monitors at Yankee Stadium saw two other Testwell workers, Jamar Sellers and Paul Moodie, skipping most of the field tests (Murphy: R173-74). On January 8, 2008, Sellers and yet another inspector, Elton Steele, did not do any field- testing at all (Murphy: R176-77). Four days later, on January 12, 2008, Steele and Sellers skipped almost all the required field tests (Murphy: R177-83). In fact, they did not even have the equipment they would have needed to conduct those tests (Murphy: R181, R185, R280). Yet, as with the Rakovski incident, Testwell’s field test reports included supposed results for tests that had not been done (Murphy: R185-89; PX 70-1 to 70-12: R1610-21). Sellers later told the jury what it was like to work as a Testwell field inspector. For a time, after he was hired, he got “job training in the field” from other inspectors while he worked as a helper (Sellers: R287-93, R308). After a few months, though, Testwell began assigning him to work alone – long before he got his ACI certification (Sellers: R293-94). Even after he was certified, he often did not have the proper equipment to do field tests: since he traveled by public transportation, he had no way to carry the air pot 26 and, at the sites, the air pot was often missing or not working (Sellers: R296-98, R304- 05). Anytime Sellers did not do a test, he left a blank on the form he sent to Testwell headquarters (Sellers: R306). No one ever asked him for the results of tests he had not done or complained about the blanks (Sellers: R299-300, R305). Examination of about 160 of his handwritten reports showed that he left about 45% of the possible test-result spaces blank, but they were all filled in on the final versions Testwell sent out to the en- gineers and regulators (Murphy: R236-45; Sellers: R307). Someone at Testwell had filled in the blanks with “results” for tests that were never actually performed (Murphy: R242- 44, R281-83). ANARADHA MURTHY, who began working on Testwell’s data entry staff in 2000, gave the jury an inside view of the institutionalized process by which these field reports were falsified (Murthy: R691, B110, B124). She and her data-entry colleagues re- ceived handwritten reports from field inspectors like Sellers (Murthy: B110-14, B124, R710). When there was data missing, they just typed in a number from another report (Murthy: R700-01, R710, B125). If they could not find a similar report themselves, they took it to her boss, Testwell vice-president Alfredo Caruso, and he told them what to put in (Murthy: B115, R700-01). After their surveillance, the Yankee organization met Barone and Caruso (PX 128A: R1779-85 [transcript of taped meeting]). Caruso admitted that their inspector had “made it sound like starting in September until now, we didn’t do these tests,” but 27 claimed it was not a regular pattern (PX 128A-6: R1783). The investigators pointed out that they had observed on only a few occasions and yet seen three different Testwell in- spectors skipping all or most of the tests (PX 128A-8: R1785). Barone said “honestly this comes as a surprise,” because at “the larger projects” someone would normally no- tice and report “if something is grossly, you know, not being done that extensively” (PX 128A-8: R1785). I. Falsified Laboratory Test Data Under the law, a third level of concrete testing is mandated: the testing company must collect concrete from the construction site and subject it to strength testing back at the lab. The company is required to collect cylinders of concrete for compressive- strength testing and beams of concrete for flexural-strength testing. Both the ACI and the Building Code set rigid standards for the preparation of the 6-by-12 inch concrete cylinders to be used for later compressive-strength testing in the lab (Bognacki: R24; Leask: R1172-73, R1316-17). On the day DASNY happened to be observing Testwell employee Rakovski at work, Rakovski violated those standards in many ways (Leask: R1172-73, R1316-17). The concrete in each cylinder is supposed to be a composite from the truck’s en- tire mixture, and so the inspector should take a little concrete at a time as it is discharged and combine it all in a wheelbarrow (Leask: R1173, R1330-32). This sampling is im- portant because the truck operator adds water while discharging the concrete (Leask: 28 R1180-81). Nonetheless, Ravoski simply stuck one cylinder under the “discharge stream” until it was full, and then used it to fill the other three before all the water had been added (Leask: R1172-73, R1177, R1180-81, R1316-17). Thus, his samples did not really reflect the quality of the concrete (Leask: R1180-81). In addition, the inspector is supposed to fill each cylinder in a step-by-step process involving three equal layers (Leask: R1137-38). After each third is filled, he must “rod it 25 times and then tap the outside, 12 to 15 times” and only then go on to the next layer (Leask: R1137-38). Rakov- ski did far less “rodding” than is required and he was not at all consistent about it (Leask: R1174). This type of impropriety in the collection procedure inevitably makes the later compressive-strength test results “suspect” (Leask: R1174). The Building Code also has rigorous standards for evaluating lab-test results to determine if the concrete has passed muster (Bognacki: R25-27).19 Generally, two or three cylinders are tested at a time and the average is viewed as one “test result” (Bog- nacki: R28-38, R111). One requirement is that “the average of three successive tests should equal or exceed the strength being required” (Bognacki: R36-39, R44, R109-110, R113-14, R131-33). Another is that “not more than 10 percent of the strength tests shall have values less than the specified strength” (Bognacki: R110-12, R131-32). Another rule mandates that “no one individual test should be more than 15 percent less than what’s being required” (Bognacki: R39, R44, R108-11, R132). Concrete that passes un- 19 There are similar rules for evaluating concrete after flexural-strength testing, includ- ing a requirement that the results on two tests on beams made from the same batch must not differ from each other by more than 16 percent (Sirakis: R611). 29 der one of these standards is still rejected if it fails any of the others (Bognacki: R43). These Code standards are minimum requirements and often structural engineers de- mand that the concrete meet more stringent criteria, because only the engineer can say how important each standard is for the structure that he is building (Bognacki: R28, R40). Originally, all of the lab-test data had to be typed up manually (Murthy: R705-09; Thumma: R783, R791, R806-07). Then, Kancharla brought in a new computerized sys- tem, in which each sample had a barcode that could be scanned (Murthy: R705-09; Thumma: R783, R791, R806-07). With this system, all the technician had to do to save the data was push a button and the data was sent automatically from the lab machine to the computers (Thumma: R782-84).20 When pavement was involved, beams were used instead of cylinders and tested for flexural strength; in this instance, the technician had to record the post-test dimen- sions at the face of the fracture (Thumma: R784, R826). At this step, the width and depth are measured at three places with a caliper, these measurements are averaged, and then the averages are entered into the system (Thumma: R785-86, R826-29; see also Si- rakis: R641). An arithmetical formula using the load and span yields the PSI “stress” re- 20 Even so, Thumma made his lab technicians write the test result on the cylinder tag as well, just in case the computer ever crashed (Thumma: R782-84). They generally kept the tags in the lab for two to three months (Thumma: R783). 30 sult (Thumma: R787, R827, R830; see also Bognacki: R119-24).21 Barone and his col- leagues assured the Yankees’ representatives that Testwell’s computerized system was tamper-proof (PX 128A: R1779-80; see also Murphy: R274-75). Caruso said the test re- sults were recorded and saved “automatically” by the machines and Barone confirmed, “It’s automatic, automatic, everything is automatic” (PX 128A: R1779-80). Another Testwell executive, Amit Guptha, claimed that “no one has access to change these num- bers. Not the lab, not the people processing, nobody,” and Caruso added, “Can’t change. That’s what it is” (Murphy: R274-75). In fact, however, a search of Testwell’s computer system revealed that there were 18 unique “users” who had access to change the data from their desks (Technology Ex- pert ANTHONY MANSOUR: R560-73, R582). Among them were Kancharla, Caruso, Thumma, and Porter, as well as members of the data entry staff (Mansour: R573-74, R580-82; DX VB-E: B303). The computer was also programmed to hide the identity of the users who changed lab-data (Mansour: R573-74, R577-78). Specifically, it deleted the user-name of the person who altered the data and substituted the camouflaging word “system” in place of the user-name (Mansour: R578-79). It had also been set up to keep track of which data had been reported to clients and to give a user trying to make a change to the data a warning that read, “The value you are trying to change is already 21 Typical results range from slightly below 6 inches to slightly above (see Exhibit 74- 9: R1628 [recording measurements from 5.96 to 6.25]). If you measure wrong, your PSI re- sult will be wrong (Bognacki: R124), so the rules certainly allow the measurements to be checked before the results are reported (Sirakis: R642). 31 reported” (Baarbe: R469-75), as a safeguard against the possibility of sending out incon- sistent or contradictory reports (Baarbe: R472, R474). None of the user-names were obviously connected to Barone (Mansour: R581), but that hardly stopped him from changing test results. As Murthy explained, Caruso and Barone routinely directed her and the rest of the data-entry staff to alter lab test re- sults (Murthy: R695). In fact, the computer was programmed to generate an alert for the typist that popped up on the screen and read “low break” whenever results were less than expected for the type of concrete involved (Murthy: R692-93). When the staff saw that alert, they notified Caruso and brought him the “low break” report (Murthy: R692- 96). If Caruso was away, or if Barone happened to drop by, as he did two or three times a week, the staff brought their “low break” reports to Barone (Murthy: R692-96). In addition, Barone sent faxes from his Queens office with directions to alter lab data – “maybe once a week or once every two weeks” (Murthy: R697-98, R701-02). Usually, the staff shredded these faxes after they made the changes (Murthy: R704). However, at the time of the court-ordered search, some were found lying on desks or filing cabinets (Connelly: R144-55; Stipulation: R146). These overlooked faxes docu- mented over 300 changes Barone had made to Testwell lab-test data (Baarbe: R466; PX 77-2: R1629). On a typical example Barone had increased a 7-day lab test result of 1740 PSI to 1940 PSI, and decreased a 28-day test result of 5680 PSI to 4960 PSI (PX 77A-4: B270; see also PX 77A-5: R1639 [increasing 56-day result from 4840 to 5840]; PX 77A-9: R1643 [increasing 28-day result from 7880 to 8580]; PX 77A-45: R1679 [decreasing a 32 28-day result from 10000 to 9000 and increasing another from 7340 to 8740]). The faxes also confirmed that he routinely altered lab results on flexural-strength beam tests (see e.g. PXs 77A-1: B267; 77A-3: B269; 77A-20: B274; 77A-36: R1670; 77A-49: B285; 77A-50: R1684).22 The faxes that had escaped the shredder were not the only evidence that Testwell employees routinely altered test data. There were many e-mail messages in which the staffers, including those in the back-office in India, alerted Caruso that data included “low breaks” (Murphy: R276-79; Baarbe: R422-25, R485-87). Typical was a message in which Murthy alerted Caruso about a list of “project results that need to be changed” (PX 80-28: B289; see also PX 80-31: B291 [staffer asking Caruso “which I need to alter”). In another, a staffer listed four reports and asked Caruso, “Please fix the low breaks” (PX 80-4: B286). Caruso’s response included a slight reprimand, “Also please do not re- quest in writing to FIX low breaks. As I have said before just send an e-mail and request me to REVIEW the reports” (PX 80-4: B286)(emphasis his). Later e-mail messages used this code-word “review” (PX 80-9: R1686; PX 80-17: R1687; PX 80-20: R1688). 22 Sometimes, Barone and Caruso ordered them to change the load number (Murthy: R693-95). When Murthy plugged in the new load number, the related stress figure (in PSI) changed automatically, because it was a result of an arithmetical calculation (Murthy: R693- 95). Other times, Barone or Caruso just gave the staff a new PSI number; for example, the order might be to change 790 PSI on a beam test to 820 PSI (Murthy: R703). With this kind of change, the staff had to guess at how much the load had to change; they put in new load numbers a few times until it gave the PSI value they had been told to produce (Murthy: R703). Essentially, the typist “just play[ed] around” with the load number to “get to the right [stress] number” like by “[t]rial and error” (Murthy: R695, R703). 33 A set of cylinder tags found in the lab also confirmed that altering test results was a matter of routine (Baarbe: R446-47, R455-56). The dates on these tags ranged from March to mid-June 2008 and, for more than 26,500 of them, it was possible to compare Testwell’s final computer data to the lab technician’s contemporaneous handwritten re- sults (Baarbe: R461-63, R557-58). Over ten percent of the time the test results had been altered by more than 10 PSI (Baarbe: R461-62, R557-58).23 This figure represented over 2,600 times someone had altered lab-test data during those 2½ months (Baarbe: R462). The average alteration changed the test results by more than 910 PSI (Baarbe: R462). Investigators had also found notebooks with handwritten data about flexural- strength beam tests (Baarbe: R448). Comparison of the data in Testwell’s computer to this original data yielded further evidence of data alteration (Baarbe: R453-54).24 Chang- es had been made to flexural-strength lab data for a number of projects, including the Second Avenue subway, the Federal Office Building, Jet Blue, River Place II, One Bry- ant Park, and 11 Times Square (Baarbe: R453). Evidence of the scheme was also revealed by comparing data in the computer to data in 15 backup copies discovered during the search (Murphy: R246-48, R284-86). Each backup copy had been made on a different date between March 6, 2008 and June 16, 2008, so if data was changed between the time one copy was made and the time the 23 This calculation did not include any change that looked like an innocent mistake, like writing a “9” for a “6” or adding an extra zero to a lab test result (Baarbe: R464-65). 24 Again, any change that looked like an innocent mistake on the part of the techni- cians was excluded (Baarbe: R464-65). 34 next copy was made, it was possible to detect the alteration (Baarbe: R420-21, R554-56). Of course, many alterations were still undetectable: for instance, comparing the backup copies of April 14th and April 19th would not reveal data that had been entered on April 15th and changed on any day before April 19th (Baarbe: R555-56). All 15 available databases were compared in sequence (Baarbe: R426-37; see e.g. PX 73: R1626-27 [comparison of 5/29 and 5/30]). In addition, a “miscellaneous” data- base with a set of strength test results was found on a hard-drive at Testwell, separate from the larger database on Testwell’s server (Baarbe: R468-70). Every one of these da- tabases yielded evidence of data-alterations for all types of projects (Baarbe: R433-34, R438, R476), including the new Yankee Stadium, the NYCTA Vent Plant, the Second Avenue subway, and the Triboro Bridge Deck replacement (Baarbe: R441-45).25 There is no way to know if other changes had been made, because the investiga- tors had “such small windows” to look through by the methods available (Baarbe: R467). Nonetheless, the total number of detected data-alterations came to over 3,250 (Baarbe: R477-78, R484). These changes affected lab-test strength data from 119 con- struction projects, including office buildings, condos, stadiums, courthouses, bridges, 25 Another discovery in the Testwell computer concerned the Freedom Tower (Bog- nacki: R70-73, R115-16). Testwell had become embroiled in a controversy when the Port Authority’s own lab took over the testing there (Bognacki: R71-75). Testwell’s results had been “very, very, very tight” – as if the supplier’s quality control was “off the charts. … be- yond excellent” (Bognacki: R118, R128-30). The Port Authority’s data was “just the oppo- site” with results that were “extremely up and extremely down” and “radical spikes and dips” (Bognacki: R85-88, R130; Murphy: R210-11; PX 69-4: R1607 [table 14]). When investigators searched Testwell’s computer for evidence about this matter, they found that all the relevant test data “were just missing from the database” entirely (Murphy: R248). 35 subways, airports, garages, schools, universities, and hospitals (Baarbe: R439-40, R479- 83; PX 159: R1801 [list of affected projects]). Sometimes, early lab-test data was adjusted down, perhaps to make sure that the concrete appeared stronger at 28 days than it had on earlier tests (Baarbe: R449-50, R452, R459-60, R518). Sometimes, one of a set of consecutive results was raised or low- ered so that it was closer to the other results (Baarbe: R450-51, R457-59). In general, it seemed that the data was altered to make the results appear more consistent with what would be expected from concrete curing properly (Baarbe: R559). J. The Victims’ Views The DOB did not know Testwell was changing its lab data (Sirakis: R634-35). Had they known, the DOB would not have issued a certificate of occupancy for any of the projects without further testing, because this type of test “goes directly” to the life and safety of the structure (Sirakis: R629-30, R635). Data changing is unacceptable: even if a result seems to make no sense, the testers should report it (Sirakis: R613-14). It might reflect a natural anomaly in one of the ingredients, a problem with the way the materials are being batched at the supplier’s plant, or something wrong with the way the testing is being conducted (Sirakis: R613-14). At trial, Barone’s attorney introduced one flexural-strength testing standard, which provided that results on any two beams from the same batch sample should not differ from each other by more than 16% (Baarbe: R488-89; DX VB-A: B299). Then, 36 despite the fact that witness Baarbe, who simply gathered data, admitted that he was not familiar with the standard, that he was not a professional engineer, and that he was not ACI-certified (Baarbe: R492, R502, R541), Barone’s lawyer conducted a long line of cross-examination with him to show that Barone had sometimes changed Jet Blue test results even when the original, accurate results deviated from each other by less than 16% (Baarbe: R493-510). However, as concrete expert Sirakis explained, there is never any legitimate reason for altering test data, even data that was within the degree of per- mitted variance (Sirakis: R612).26 Casimir Bognacki, another regulatory concrete expert, agreed, “There is never ev- er a reason for changing data. That is absolutely totally unacceptable in the engineering profession” (Bognacki: R45). “If some number is suspect, suspect, that you think that either the specimen was no good or the test was not performed properly, you bring that to the attention of the engineer” (Bognacki: R134). Asked by the defense if his “position on making changes to data is thou shalt not,” Bognacki replied, it is “not my position, that’s the profession’s position” (Bognacki: R126). All the engineers who testified agreed. Lyman Conger, the engineer for the Jet Blue project, had assumed that Testwell and Barone were sending him the actual results and he had had no idea that the data was being changed (Conger: R654-58). Conger had 26 Furthermore, some of these within-deviation changes appeared to be an attempt to disguise other problems with the real test data; for instance, one such change was to “the alarmingly low results achieved for two of the 28-day samples,” which were both lower than the results on at least one earlier sample tested at an earlier period (Baarbe: R510-11). 37 examined the test data for anomalies (Conger: R652-54, R661). Too many anomalous results would have triggered questions about the quality of the concrete and about the quality of the testing procedures (Conger: R659). Conger would have expected Barone to bring any anomalies to his attention in the portion of the report used for remarks, not just to change the anomalous results (Conger: R655). Barone’s attorney questioned the relatively inexperienced Baarbe at length to show that Barone had not eliminated every anomaly from the Jet Blue results (Baarbe: R512-53). Expert engineer Conger explained that no single odd result is critical, but that: “The more anomalies that there are, the bigger the questions become” about whether the concrete was bad or if there was something wrong with the testing (Conger: R659). Conversely, testing data without any anomalies can raise alarm bells as well (Bognacki: R118, R128-30; Murphy: R172).27 Barone’s lawyer also cross-examined Baarbe at length about one change Barone had made to lower a test result (Baarbe: R494-501; PX 72-12: R1623). However, Conger, the experienced engineer who relied on these results, ex- plained that the true result would have raised a question in his mind because it was so much higher than those conducted on the same concrete at the same time (Conger: R654, R657). 27 The Yankee Stadium investigation had, in fact, been triggered by the realization that Testwell had sent in “over 7,000 compressive strength tests” and every one showed that the concrete was “non problematic” – a result “almost too good to be true” (Murphy: R172). 38 JOHN KLEIN of Silverstein Development Corporation concurred that an engi- neer has to know that the testing results are accurate (Klein: R1112). When he learned that the test data for the River Place II project had been altered, he ordered $170,000 of supplemental testing to ensure that the structure was safe (Klein: R1124-25). Scaran- gello, the engineer for Yankee Stadium, explained that every result is part of “an accu- mulation of data and layers of data” that provides “multiple checks to make sure that we ultimately end up with a safe facility” (Scarangello: R347-49). Breaks too low could cause concern, as could breaks too high – perhaps the testing company had done something wrong in the testing process (Scarangello: R353-55). Once his firm learned that Testwell had been altering lab-test data, they recalculated everything, now assuming that the actu- al data was all 30% lower than reported (Scarangello: R356). In addition, they did a whole series of physical tests on the concrete that cost hundreds of thousands of dollars (Scarangello: R357). K. The Testwell Steel Scheme In April 2007, DASNY began work on the expansion of a classroom building for John Jay College (RICHARD VISCONTI: R874).28 Testwell was hired to do the steel inspection at the Owen Steel plant in South Carolina (Visconti: R880-82, R908-09, 28 The People’s four main witnesses about this scheme were from DASNY: RICHARD VISCONTI and ROBERT LEASK from the code compliance unit (Visconti: R875; Leask: R1130-31, R1309), DENNIS MONAHAN from the internal affairs division (Monahan: R1045-46), and KEITH LaPLANTE, senior engineer in the code compliance unit and the head of the Material Testing Group (LaPlante: R1353, R1376-77). 39 R990-92). The plant was to produce about 7,000 pieces of steel, some 60 feet long; the work was expected to take a year (Visconti: R876-77, R882, R887, R1025). Many of the pieces had welds; some even had multiple welds (Visconti: R878). The Building Code and the DASNY contract required that all welds be inspected at the plant, and even un- welded pieces required inspection of the bolt-tightening process and measurements to confirm that the plant had performed the “cambering” in the precise way specified (Leask: R1146-48, R1257). The welding-inspection process required “visual inspection before, during, [and] after” the weld was created and post-weld testing, including mag- netic particle testing to detect any base metal defects,29 and ultrasonic testing of every full penetration weld (Visconti: R879-880; Leask: R1140-42, R1258-59).30 By far the largest part of steel inspection is “visual inspection” of every step of the welding process (Leask: R1132, R1137-39). Before welding begins, the inspector must verify that the welder has the right qualifications and that he is using the precise welding procedure listed on the approved shop drawing, the right equipment, the right type of metal, and the right position (Leask: R1133). The inspector also has to ensure 29 The inspector puts a magnetic field into the weld, sprinkles very fine steel particle powder on it, blows off the excess, and checks to see if there are any lines left, which would mean there was a defect in the weld (Leask: R1140, R1258-59). Then, the test is repeated in a different plane, tilted 90-degrees away from the first test (Leask: R1143). 30 The inspector “produce[s] a sound beam into the steel” to look for air pockets or pieces of carbon (Leask: R1141). He has to calibrate the equipment once a day (Leask: R1144). 40 that “the fit-up is right” before the welding begins and the “tolerances” involved in this process are specified to “a sixteenth of an inch” (Leask: R1133-34).31 Next, the inspector has to watch the welding process to ensure that the welder is using the right recipe and following the right criteria (Leask: R1136; see also Visconti: R958-59). He has to confirm that the welder is “preheating” correctly, that the piece reaches the correct temperature, and that the temperature measurement is taken correct- ly (Leask: R1136-37). He has to observe “post-heat” procedures to ensure that the weld cools in a controlled fashion (Leask: R1137). He must clean a completed weld of all resi- due and slag, and verify that it meets the proper size criteria, a process that involves sev- eral steps and measurements of less than an inch (Leask: R1137-38). Cleaning is especial- ly critical, because “stuff that you leave on the weld will become a defect … and corro- sion in the next pass” (Leask: R1139). The inspector also has to confirm “the weld pro- file” for cracks and defects like “porosity,” which requires careful observation, often with a magnifying glass (Leask: R1139-40). Steel inspectors generally document what they are doing and observing “as [they]’re going along,” in handwritten notes (Leask: R1145). Testwell retained two inspectors, Clyde Finklea and Tommy Dowd (Visconti: R885-86; Leask: R1150). Finklea was assigned to the 10-hour day shift and Dowd was assigned to the night shift, which varied in length, but could be as long as 13 hours (Vis- 31 This is a painstaking process: “You can’t walk by and look at it from the back of the room;” it involves several measurements and the use of a flashlight and magnifying glass (Leask: R1135). 41 conti: R886-88). DASNY thought that their work would take the full attention of two inspectors at first, and, “once production got up and running,” maybe even more (Vis- conti: R886-87). Meanwhile, though, Testwell had also assigned Finklea to inspect steel for One Bryant Park, a project being built by Tishman Construction (Project Manager JOHN DeLEONE: R1082-84). This project was a skyscraper over 50 stories tall requir- ing about 20,000 pieces of steel (DeLeone: R1083, R1088). Again, Finklea was supposed to conduct visual welding inspection, magnetic particle testing, ultrasonic testing, bolting inspection, and material inspection; Tishman thought it was a full-time job (DeLeone: R1087-88). During the 3-month period when Tishman’s steel work overlapped with DASNY’s, Testwell generally billed Tishman for every minute of Finklea’s 8-hour day, and generally billed an additional 2 hours of overtime every day as well (DeLeone: R1089-91; PX 97: K456-58 [summary of billing]). Tishman paid $16,500 during the pe- riod of overlap (Monahan: R1069; DeLeone: R1092-95). While Tishman had not de- manded “exclusivity” as part of its contract with Testwell, it had insisted on hourly and half-day rates, which meant Tishman was supposed to be charged only for time Finklea was working on steel for the Tishman project (DeLeone: R1096-97, R1100-03). DASNY, too, had no issue with the concept of inspectors being assigned to mul- tiple jobs – at least if “the time was accounted for [and] as long as we were billed only for [DASNY] work” (Visconti: R1026). DASNY’s contract, in fact, provided that it would pay Testwell an hourly rate, and the inspectors were expected to be doing DASNY 42 work for every hour Testwell billed to DASNY (Visconti: R886-87).32 DASNY would have been willing to pay for time an inspector spent waiting to inspect a DASNY piece, but Testwell was expected to provide a level of detail on the time-sheets that showed what Finklea and Dowd were doing and when (Visconti: R986-88, R1027). If an inspec- tor spent an hour working on another Testwell client’s steel, “We’d expect him to bill [the other client] for that time” (Visconti: R988-89). More than two months of work passed and yet Testwell had not sent DASNY a single inspection report, a single bill, or a single time-sheet (Visconti: R914, R994 LaPlante: R1378; PX 84-13: R1700). This lag time was unusual and troubling (Visconti: R903, R914; Leask: R1149).33 On June 19, 2007, Visconti conducted an unannounced visit to the plant, where he learned that Finklea and Dowd were also assigned to inspect steel for the One Bryant Park project (Visconti: R888-94, R910, R954-55, R957, R995- 98). More surprising, he could not find either Finklea or Dowd anywhere in the shop (Visconti: R889, R892, R1021-22). As he toured, Visconti saw that some pieces had no stamp showing which welder had done the work, which is required by DASNY rules (Visconti: R895-97, R1028-29). Moreover, the welder doing work on one piece was “kind of an intern welder,” who was 32 DASNY’s contract with Testwell was different from some other contracts used in the industry, which paid a half-day rate for any day on which the inspector had to be at the plant at all (Visconti: R886). Other clients sometimes negotiated to pay a full-day rate if the inspector was required to be at the plant for five hours or more (Visconti: R886). 33 Testwell sent Tishman inspection reports and bills for One Bryant Park on a monthly basis (DeLeone: R1089, R1093). 43 not certified to do the work (Visconti: R897, R998-99). And, of course, a Testwell in- spector should have been there to conduct “visual inspection” during the welding pro- cess, but Finklea was nowhere in sight (Visconti: R897, R999-1000). Visconti finally found Finklea in his nearby office/trailer (Visconti: R900-01, R955). Asked about his typical protocol, Finklea said he performed only an after-the-fact “review” of a weld (Visconti: R906-07, R1023). Finklea also said he took handwritten notes while he was inspecting (Visconti: R902, R949, R956). Finklea said he and Dowd sent typed up ver- sions of their reports to Testwell every week (Visconti: R902, R936). After this visit, Leask picked up a few shop drawings (Leask: R1151, R1156, R1310, R1334). At a meeting with Barone, Leask opened them randomly and compared the drawing to Testwell’s report (Leask: R1152, R1156). The Testwell report purported to show inspection of welds on this piece, including magnetic particle weld testing, but in fact the drawing showed the piece had no welds (Leask: R1153-58, R1260-62; PX 84-24: K439). Barone agreed that this inconsistency looked “odd” and said Testwell would re- view the reports (Visconti: R907, R913-14; Leask: R1152-53, R1156, R1324, R1337). A week later, one Testwell executive assured DASNY: “Currently John Jay Col- lege is the only project that Testwell is inspecting at the Owen Steel facility” (Visconti: R904-05, R957, R960; Monahan: R1047-09; PX 84-36: R1705)(emphasis added).34 In fact, though, Testwell had actually assigned Finklea and Dowd to yet another project: 34 A later memo reiterated that claim: “As of two to three weeks ago our inspectors have been inspecting John Jay only. One Bryan[t] Park has been completed” (Visconti: R916-17, R922-24, R961, R966-70, R1001, R1024; PX 84-28: R1704). 44 River Place II, an apartment building with 1359 units, being built by Silverstein Devel- opment (Klein: R1104-06). Kancharla had negotiated this contract personally and it re- quired inspection of “six or so very large box beams,” three plate girders, and various other pieces (Klein: R1110, R1113, R1128-29). Kancharla told Klein “he was going to sub the work out” to Finklea and Dowd (Klein: R1114-15, R1129). The inspection pro- cess began on July 3 – just after the One Bryant Park job ended – and continued through to late August (Klein: R1114-15, R1129). Throughout this period, Kancharla was Klein’s “primary contact” and Kancharla spoke to Klein “[o]n average I’d say prob- ably once every two weeks or so” (Klein: R1107, R1110). Yet, no one at Testwell ever told Klein that the two Testwell inspectors were also working on other projects (Klein: R1116-19). Klein received Testwell’s bills and took them at face value (Klein: R1116-19). Testwell generally billed Silverstein for every minute of Finklea’s 8-hour day and an addi- tional 2 hours of overtime as well (e.g. PX 97-22: K456). The same held true for Dowd (e.g. PX 97-8: R1756). The total Silverstein paid to Testwell for the inspection service was about $35,000 (Monahan: R1069; Klein: R1120). Nor was River Place II the only other project Testwell had assigned Finklea and Dowd to inspect during the period when DASNY was assured the two men were work- ing “only” on John Jay. Testwell was also billing the Xanadu project, a complex at the Meadowlands, for steel inspection at a plant in North Carolina, about an hour’s drive from the Owen Steel plant (Monahan: R1055-56). Testwell generally charged Xanadu for 4 hours of work a day for each of the two Testwell inspectors (e.g. PX 97-22: K456). 45 That work had begun in April, at the same time as steel production at Owen for John Jay, and it continued throughout the summer and into the fall (PXs 97-22 through 97- 24: K456-58). As of late July 2007, DASNY had still not received any invoices, and one Testwell executive said he would “check with accounting” (Visconti: R922, R1011; PX 84-37: R1706 [e-mail copied to Barone]).35 On August 1, 2007, DASNY personnel went to Testwell for a meeting (Visconti: R925, R970, R1003). Barone led the Testwell contin- gent and Kancharla put in an appearance to say hello (Visconti: R926-27, R971). Barone and Sanchez put off any real discussion about the steel, though, promising that Sanchez would address DASNY’s concerns “immediately” now that he was back from his trip (Visconti: R928-30). Two weeks later, on August 14, 2007, Barone wrote to explain that their review of the April/May reports had “unfortunately taken more time than I thought,” because the errors “were not ‘isolated incidents’ as previously anticipated” (Visconti: R931, R972-74, R1004; Leask: R1159-61; PX 84-77: K444). Barone said, “we have compared our reports to those of the production schedule from Owen Steel” and “against the de- tail [shop] drawings” (PX 84-77: K444). He also said, “we have established a database,” have “had numerous conversations with our shop inspectors,” and “have sent them a 35 Testwell had not sent any new inspection reports either, despite earlier promises that the reports would be faxed directly to DASNY from South Carolina each week (Viscon- ti: R1011). 46 copy of the data for their review and corrective action on the reports that are incorrect” (Visconti: R979-80, R1005-06; PX 84-77: K444). The next day, Testwell sent DASNY the Testwell “database” and a set of “re- vised” reports for April and May (Visconti: R973-75, R1007-10). Shortly afterwards, Testwell sent “revised” reports for June (Visconti: R1012; Leask: R1163-66; LaPlante: R1364). A month later, Testwell sent DASNY its very first set of invoices for five months – April through August (Visconti: R903, R933, R975-76, R1013; Leask: R1166- 68). In general, Testwell had billed DASNY for a full day-shift and a full night-shift for every day of the period (Visconti: R933-34). In fact, Testwell billed DASNY for 10 hours of supposed Finklea work on July 4 and July 5 and for 8 hours of supposed Finklea work on July 6 – despite the fact that the Owen plant was closed (Visconti: R1030).36 Testwell also billed DASNY for 10 full hours of Finklea’s time on the day of Visconti’s surprise visit (Visconti: R903). In fact, Testwell was generally billing all the time its inspectors supposedly spent at Owen Steel both to DASNY and to another client as well (Monahan: R1057, R1062- 63, R1067; PX 97-15: R1763 [summary of bills]). This pattern held true throughout April, May, and June until the One Bryant Park project was finished (PXs 97-15 and 97- 36 These phantom days of work were supported by “sign-in sheets” Testwell provid- ed, which had supposedly been countersigned for accuracy by an Owen representative (Vis- conti: R1030). Six months later, after DASNY’s auditors caught this obvious problem, the defendants termed it a “billing mistake” and agreed to remove the charges for those dates (Visconti: R951, R1030-02; PX 84-175: R1731). 47 16: R1763-64). In addition, in May, Testwell generally billed the Xanadu project for an additional 4 hours of Finklea time spent at the other steel plant (e.g. PX 97-15: R1763). Testwell’s bills for July and August were similar, except that, during this period, the two clients being billed for full shifts were DASNY and Silverstein (Monahan: R1064-65, R1068). DASNY was billed $37,196 for Finklea and $8,448 for Dowd during the peri- ods in which Testwell was billing two or even three clients for their time (Monahan: R1067-69, R1076-77; PX 97-22: K456). At a meeting on October 30, 2007, Barone falsely stated that Testwell had not billed DASNY for “100%” of Finklea and Dowd’s time during the overlap period (Vis- conti: R939-40; PX 84-88: R1709 [Barone memo of meeting]). Similarly, Kancharla and Barone later sent a letter to DASNY, claiming that Finklea had typically “worked a 14 hr day shift” during the overlap period, and that DASNY “was invoiced 10 hrs, a savings of 4hrs per day shift” (PX 84-95: K450 [12/5/07 letter]).37 In fact, the four additional hours of Finklea work on Testwell’s bills during this 5-month period were taking place (if at all) at the other steel plant in North Carolina for the Xanadu project (PXs 97-1 through 97-4: R1749-52). The defendants refused to give DASNY copies of Testwell’s bills for One Bryant Park, citing “privacy and confidentiality clauses,” and neither defendant mentioned River Place II or the Xanadu project (Visconti: R940-41, R943-46, R1018; Monahan: R1054, 37 This letter was signed for Kancharla by his secretary and, in it, Kancharla said that he had asked Barone to prepare “our response” to DASNY’s concerns (Visconti: R944, R980-82; LaPlante: R1355-56, R1365-66; PX 84-91: K446 [12/5/07 letter]). 48 R1078-79; PX 84-95: K450). Meanwhile, DeLeone still had no idea that Tishman had been billed for – and paid for – full days of work when Finklea was working on another job as well (DeLeone: R1094). Tishman would have paid for some down time, if it was dedicated to its job, but it would not have consented to being billed for an entire day while another project was also being billed for the whole day (DeLeone: R1099-1101).38 Ultimately the defendants admitted Testwell had billed “multiple clients” for its two inspectors (Visconti: R948, R984-85; PX 84-172: K452 [Kancharla 2/14/08 let- ter]).39 They claimed it would be “almost impossible” to “delineate[ ]” which hours were dedicated to which client (Visconti: R950; PX 84-174: K454), which was certainly true given their time “records.” At one point, Kancharla claimed that there were sign-in sheets countersigned by someone at Owen Steel (PX 84-92: K447), but it turned out that Testwell’s inspector just used one copy of the signature and changed the date on the sign-in sheet (Visconti: R1019), a fact Kancharla later admitted (PX 84-96: K451). At another point, Testwell created a “summary chart” of the inspectors’ supposed hours (PX 84-96: K451), which was also supposedly signed by an Owen Steel supervi- 38 John Klein, at Silverstein, had also been duped into paying bills he thought repre- sented time Testwell’s inspectors had been watching “my steel work” and “working on my projects” (Klein: R1120-21, R1126). If he had known Testwell’s inspectors were working on other projects during those 10 hours, “I would have had a conversation with Mr. Kancharla” (Klein: R1122). Many months later, in April 2008, Kancharla called Klein out of the blue, said Testwell had “over billed” through a “billing mistake,” and offered “a credit” to make up for it (Klein: R1122, R1127). By this point, DASNY had announced its plan of going to a prosecutor (Visconti: R942, R978-79; Monahan: R1081). 39 This letter was from Kancharla and included an addendum written by Barone (Vis- conti: R947-48, R952, R983; LaPlante: R1370-72; PX 84-172: K452). 49 sor, who purported to be verifying in November the precise time each Testwell inspector had signed in and signed out every day since the job began six months earlier in April (Monahan: R1050-51; PXs 84-162 to 84-166: R1718-22 [Finklea]; PXs 84-167 to 84-171: R1723-27 [Dowd]). Later, Testwell produced what Barone termed “timesheet reports” and “payroll records,” but these records generally just mirrored the invoices (Visconti: R945-46; Monahan: R1052-53; LaPlante: R1357, R1367-68; PX 84B-9: R1736 [Barone e- mail of 12/10/07]).40 Testwell “time” records showed all sorts of inconsistencies. Testwell generally billed Finklea’s time to two clients on the basis of the claim that he had been at the Ow- en Steel plant until 5:30 p.m. (Monahan: R1072-74). Yet, Testwell also reported that he signed in at the other steel plant (an hour’s drive away) at 5:30 p.m. (Monahan: R1072- 74). On other occasions, like April 9 (the first day of John Jay steel production), Finklea’s “daily” inspection report and worksheet initially reported he had spent four hours on John Jay from 5:30 to 9:30 p.m. – which contradicted Testwell’s later 10-hour bill (PX 132-1: R1786; PX 132-4: R1787). In contrast, Testwell’s later “revised” report for that day, provided to DASNY by Barone just before the bills were sent, showed Finklea working from 7:00 a.m. to 5:30 p.m. for John Jay (Monahan: R1071; PX 132-27: R1793) – which now supported the 10-hour bill Testwell sent (PX 84-180: R1733).41 40 At some point, Kancharla began offering DASNY discounts for the overlap period (LaPlante: R1356-58, R1363-64, R1369, R1374-75). 41 Another example of this type of revision was April 13 – a date on which Finklea reported on some documents that he signed in at 6:00 a.m. and signed out at 2:30 p.m. (PX 50 DASNY, of course, was not aware of all these discrepancies when Testwell sent the invoices. At that point, they thought that the “dual client” issue affected only a brief period and might be resolved by reviewing the inspectors’ contemporaneous handwrit- ten notes from the relevant days. Barone, in fact, had suggested that the errors in the earlier reports were word-processing mistakes, occurring when piece numbers were “in- advertently carried over” from one report to another (Visconti: R935, R938). Barone had also assured DASNY that Testwell’s “database” had resolved all the reporting prob- lems (Visconti: R938-39, R1020). DASNY had been expecting to receive those handwritten notes, had repeatedly asked for them, and thought they would accompany the revised reports (Visconti: R936- 37, R977; Leask: R1197, R1338). In fact, the revised reports arrived with nothing to sup- port them and no contemporaneous notes were ever sent to DASNY (Leask: R1198). Instead, many months later, the defendants announced – in flat contradiction of what Visconti had learned from Finklea – that “there are no handwritten notes” and that 84-162: R1718), and on others that his work during those hours was devoted to One Bryant Park (PX 84-135: R1717). Yet, Testwell also sent DASNY a “revised” inspection report that indicated four hours of work for John Jay between 2:30 p.m. and 6:30 p.m. (Monahan: R1058; PX 132-34: R1797), and a “revised” daily inspection worksheet purporting to show that he had worked for John Jay from 6:00 a.m. and until 2:30 p.m. (Monahan: R1058; PX 132-35: R1798) – which purportedly justified Testwell’s bill to DASNY for eight hours of Finklea work that day (Monahan: R1058; PX 84-180: R1733). There were other examples of hours being changed and lengthened on later documents (Monahan: R1058-61, R1075, R1190-96, R1212-18, R1265). Indeed, the amount charged just for the days when Finklea’s initial hours were doubled (or more than doubled), coupled with the charges for the phan- tom days of work over the Independence Day holiday, exceeded the $3,000 threshold for third-degree grand larceny, without even any consideration of the defendants’ more general practice of double-billing. 51 “[o]ur inspector[s] generate daily reports directly on their laptop computers” (Visconti: R949; Leask: R1252; PX 84-174: K454).42 The kind of corrections DASNY had expected to see on the corrected reports were revisions of typographical errors, which could have been be corrected based on an inspector’s contemporaneous notes. An example would be changing piece “1986B1” (which did not exist) but was listed on Finklea’s report for April 11 (PX 132-6: R1788) to “1086B1” (which did exist) on the revised report for that date (Leask: R1266-70; PX 132-31: R1794). However, “word-processing error” could not explain all the other revi- sions on the three reports that mentioned this piece, which included “code” deletions, hour changes, and the unexplained disappearance of supposed magnetic particle testing (compare PXs 132-6 to 132-8: R1788-90 with PXs 132-31 to 132-35: R1794-98). The initial reports, for instance, showed magnetic particle testing had supposedly taken place on some piece on each of the three dates (PX 132-6: R1788 [4/11]; PX 132- 7: R1789 [4/12]; PX 132-8: R1790 [4/13]). The revised versions deleted this claim (PXs 132-31 through 132-35: R1794-98). The originals claimed Finklea worked for 4 hours on each date in the afternoon or evening, but the revised versions showed 10.5 hours from 7:00 a.m. to 5:30 p.m. on the 11th (PX 132-31: R1794), 10.5 hours from 7:00 a.m. to 5:30 p.m. on the 12th (PX 132-33: R1796), and 8.5 hours from 6:00 a.m. to 2:30 p.m. on the 13th (PX 132-35: R1798). The revised reports also made substantive changes to the work 42 Obviously, it is theoretically possible to take notes on laptops, but Testwell never sent any computer-generated notes either (Leask: R1325, R1339). 52 supposedly done, so that, initially, on the 11th (PX 132-6: R1788), Finklea had supposed- ly watched the cutting and drilling of both a main member and a detail, but, in the new report (PX 132-31: R1794), this work had shrunk to only the cutting of a main member. Testwell’s initial reports for April and May often purported to show inspections taking place after Owen had completed a piece and stored it away (Leask: R1188-89). A typical example involved a report for April 30, 2007, listing four pieces (Leask: R1199- 1200; PX 85-129: R1737). One of the pieces (1018B1) had no welds, so the report’s welding codes were plainly wrong (Leask: R1202). More telling, that piece was complet- ed on April 12, 2007 – 18 days before Finklea was supposedly inspecting it on April 30 (Leask: R1202; see also Visconti: R937-38). Similarly, the reports showed inspectors work- ing on piece 1007B3 for 25 days – at least 15 of which were after the piece had been fin- ished and stored (Leask: R1204). Some of Testwell’s initial reports showed Testwell’s inspectors at work on pieces that did not exist (Leask: R1205, R1208, R1219, R1293; PX 92: R1746). A typical example was non-existent piece 1035B5, which Testwell’s initial reports showed Finklea inspecting on June 14 and Dowd inspecting on June 13, June 14, and June 15 (Leask: R1228-29; PX 93: R1747). In fact, the “revisions” forwarded to DASNY were massive: of the 22 initial re- ports for April, all were changed and some were changed completely (Leask: R1162, R1243). Yet, they still did not contain basic information such as “who the welder was … what the welding process was,” which the contemporaneous notes made in the shop would have included – or at least they would have, if the pieces were really being in- 53 spected (Leask: R1145, R1249, R1326-27). Similarly, none of the reports indicated which weld had been inspected or tested, despite that fact that many pieces had a dozen or more welds (Leask: R1248-49). Sometimes Testwell’s revisions simply deleted inspection “codes” that could be proven false by the shop drawings. For instance, a typical revised report seemed more consistent with the shop drawing since the new version simply deleted codes that had purported to show work on cutting, drilling, and bolting of a “detail,” when there was no “detail” on the piece (Leask: R1263-65; see also Leask: R1196-98 [piece 1018B1]).43 In other instances, an original report had listed 13 pieces, including one that did not exist (Leask: R1205; PX 132-13: R1791).44 On the revised report every single one of these pieces had disappeared and four different pieces had been added, including “14” copies of piece “3M1” (Leask: R1205-07; PX 132-45: R1799). The April 30 reports presented a similar wholesale revision (Leask: R1200). The first version reported that Finklea had been working on four pieces that day and had performed magnetic particle testing on at least one (PX 132-24: R1792). On the revision, the magnetic particle testing disappeared and now Finklea was supposedly inspecting 948 different pieces, most of which had not been on the initial report, including 928 43 As Leask commented, reports “revised” in this way were more plausible than the originals, but without handwritten notes or contemporaneous records of some kind, it was impossible to view them as accurate: “How did they know what information to put in those [revised] reports if there was nothing to go back and follow up on?” (Leask: R1198). 44 Finklea had supposedly inspected while the main member of this phantom piece was cut and drilled, and then conducted a “final” inspection on it (Leask: R1205-06). 54 pieces marked “2M3” – which was a set of 4 inch square plates (Leask: R1200-03, R1290-91; PX 132-65: R1800). Obviously, these revisions could not be explained as cor- recting typos in numbers that had been inverted during word-processing or as piece numbers that had been “inadvertently carried over” from one report to another. Other phantom pieces included 1005B5, which did not exist, but which appeared in reports for June for Finklea in both old and “revised” versions and in Testwell’s “da- tabase” (Leask: R1208-11, R1219-27, R1292-93; PX 92: R1746 [compilation]). Other re- ports by both Finklea and Dowd referenced phantom beam 1035B5, as did Testwell’s da- tabase (Leask: R1229-32, R1295-96; PX 93: R1747 [compilation]). On cross, the defense tried to theorize that an inspector might have confused one of these pieces with piece 1000B5, which does not appear on any Testwell report – except that this piece had been finished before these phantom pieces appeared on the reports (Leask: R1293).45 In any event, it is hard to see how both inspectors could have repeatedly made the same typo- graphical errors on different days, at least if they were really conducting inspections at all, since “the very first thing” an inspector does is to confirm the number on the shop drawing (Leask: R1294). The records from the other Testwell clients also undermined Testwell’s billing claims. For instance, DASNY was billed for a 10-hour day for Finklea on April 20 – the same day Testwell later told Tishman that Finklea had been doing a full shift of work for 45 The defense also pointed to piece 1035B3 in support of the “typo” theory, but that piece also appeared on reports by both inspectors after its completion date (Leask: R1296- 97). 55 them – including scores of ultrasonic tests that would have taken up almost the whole shift (Leask: R1235-41; PXs 89-286 through 89-291: R1740-45). The initial John Jay re- port for that date (PX 132-13: R1791) listed far too much work to have actually taken place during the same shift as the work listed for Tishman (Leask: R1238). The “re- vised” John Jay report (PX 132-45: R1799) listed only about an hour’s worth of work, so that it might have been possible for one inspector to do this work and all the work listed for Tishman during a single shift (Leask: R1233-38). However, one hour’s worth of work on John Jay steel clearly did not justify the 10-hour bill later sent to DASNY (Leask: R1238). Another flaw with the “revised” reports was that there was no indication who had revised them or how. DASNY had understood, from Barone’s e-mails, that Finklea and Dowd would be doing revisions based on their handwritten notes (Leask: R1338, R1342-45; e.g. PX 84-77: K444). Instead, not only were no notes provided as support for the changes, but Kancharla and Barone refused even to have the inspectors “sign and date” the revised reports to attest to their (supposed) accuracy (Visconti: R951; PX 84- 176: R1732). It appeared, therefore, that the revisions had been done by someone who just used the shop drawings and production records to try create a more plausible ver- sion by removing provable errors (Leask: R1242, R1249, R1269-89, R1346). The large number of changes made it unlikely that the revisions were real. For in- stance, every April report was “revised” and several were completely changed (Leask: R1162, R1243). At least three phantom pieces were shown on the original reports and 56 two carried over to the revisions (Leask: R1244). Reports in both sets showed supposed welding inspection on pieces that had no welds (Leask: R1244-47). Most startling, Test- well’s reports listed only about 970 pieces on its inspection reports – only about one-third of the total manufactured during that period (Leask: R1255). There were, in fact, about 2,000 pieces that had welding on them that should have been inspected and only about 900 appeared in Testwell’s reports, despite the Building Code requirement that every weld must be inspected (Leask: R1256). Moreover, many of the Testwell reports that did show weld inspections also showed the welds being inspected only after a piece had been stored, not at the time of welding, as the law and the contract required (Leask: R1253- 54). Yet, on March 24, 2008, Barone “signed off” as a professional engineer on the Finklea and Dowd inspection reports (PX 84-219: R1735). Specifically, he certified the “validity of the reports previously submitted to your office” and attested, as a profes- sional engineer, that all the work had been done in accordance with the contract and the Building Code (id. [Barone seal and signature on letter copied to Kancharla]). Similarly, in one of Testwell’s last letters on the subject, Kancharla said that Testwell had evaluated the “inspection staff” at Owen and concluded “their performance meets or exceeds our requirements” (PX 84-95: K450). DASNY never paid Testwell the money demanded by their invoices (Visconti: R953; Monahan: R1070; LaPlante: R1364). At Testwell’s final meeting with DASNY, after the agency decided to end Testwell’s contract, Kancharla complained that “he was 57 being singled out and treated unfairly” and “this is the way everybody does it” (LaPlante: R1359-61, R1373), sentiments Barone echoed (LaPlante: R1361-62). Defendant Barone’s Case Barone called EMANUEL CIMINIELLO to lay a business-records foundation for a set of Jet Blue reports (Ciminiello: R1425-26). Ciminiello was the engineer on the project and had reviewed these reports during construction (Ciminiello: R1427). He had had no idea that changes had been made to the lab-test data and would have been very concerned if he had known (Ciminiello: R1429-30). SIMON MERRETT, a paralegal working for Barone’s attorneys, prepared an “anomalies” spreadsheet based on the 5,800 Jet Blue beam-test results submitted to Ciminiello, DMJM Harris, and the Port Authority (Merrett: R1498-99). He defined an “anomaly” as a result that showed an older beam breaking at a PSI lower than or equal to a younger one (Merrett: R1504). Merrett also listed any “low breaks” – when the 28- day or 56-day results were below the required 750 PSI (Merrett: R1500-05). According to Merrett’s chart, Testwell reported only 43 “low breaks” out of all these results – only .74% (Merrett: R1505-06). Only 12.69% of Testwell’s reported 28- day results and only 11.82% of its results overall were “anomalous” – by Merrett’s defi- nition (Merrett: R1506). Merrett, who had no background in engineering, had no idea if the numbers on Testwell’s reports “reflect[ed] the actual tests that were being per- formed” (Merrett: R1499, R1507-09). He also had no idea what an engineer would ex- 58 pect real test data to look like or whether reports “cleansed of all anomalies would be more suspect to an engineer” than reports with a few left in (Merrett: R1509). Barone also called TRAVIS MINNAUGH, Testwell’s personnel director, to ex- plain documents about employee Rakovski (Minnaugh: R1447-48). After DASNY com- plained, Barone arranged for Rakovski to receive a warning notice that said that the next incident could result in a suspension, but Rakovski was not penalized in any way for this incident (Minnaugh: R1449-55, R1458, R1461). Barone also called OMONT McBRIDE, who had worked at Testwell for many years (McBride: R1430-33). During that time, Barone had promoted him from inspector all the way to project coordinator (McBride: R1433-37, R1439). On direct, McBride said he sometimes saw documents on Barone’s desk with break numbers and “[s]ome of them had cross-outs” and “different numbers” written in (McBride: R1438). On cross- examination, asked if he knew what these documents were, McBride said, “it wasn’t my business,” and “I’m not going to look at documents and ask questions” (McBride: R1441-42). McBride also admitted that Shikeen Kennedy had worked with Barone at Jet Blue for two years without ever getting certified (McBride: R1440-41). McBride and Barone knew that Kennedy was not certified (McBride: R1442) – a fact confirmed by Kennedy’s personnel file (Minnaugh: R1459-60, R1462; PX 195: R1806). Kennedy had, in fact, failed the ACI test and then had never rescheduled (Minnaugh: R1461, R1463). Barone’s final witness was ENRIQUE MATURANA, whose job was to help car- ry test cylinders and beams into the lab (Maturana: R1477-78). Sometimes or “lots of 59 times” or even “[a]lmost every day,” Maturana saw Barone in the lab “using a tape measure to measure something there” (Maturana: R1479-82, R1485). Barone measured whole beams and broken beams (Maturana: R1483, R1484-85). Barone also measured cylinders and “[s]ometimes [the cylinders] would be whole, sometimes they would be a piece” (Maturana: R1485). Defendant Kancharla’s Case As his sole witness, Kancharla called AMIT GUPTHA, Testwell’s manager of operations to lay the business-records foundation for several Kancharla exhibits from Porter’s office and from the concrete department (Guptha: R1486-92). Part of Guptha’s job was to dispatch concrete inspectors to the jobs (Guptha: R1491-92). Asked if he once told Jamar Sellers to make an extra set of cylinders and back-date them, Guptha replied, “I don’t recall” (Guptha: R1491). Asked if he tried to cajole Sellers into back-dating the cylinders by promising Sellers could add hours to his time sheet for the previous day, Guptha again replied, “I don’t recall” (Guptha: R1491). Asked, “You don’t recall telling him to fill out a phony time sheet and back date cylin- ders,” Guptha said, “I don’t recall that” (Guptha: R1491-92). Asked a fourth time, Gup- tha finally gave a substantive answer, but it concerned only the idea of giving an inspec- tor extra pay: “We would never say that to any of our inspectors to put extra hours on the time sheet” (Guptha: R1493). Even then, asked again if he ever told an inspector to take two sets of cylinders on one day and back-date one, he said, “I don’t have a recol- 60 lection of anything” (Guptha: R1497). He did admit that Testwell sometimes allowed concrete contractors to make the cylinders and sent a Testwell inspector only to put a Testwell tag on the contractor’s cylinders (Guptha: R1495-96). POINT I CONTRARY TO THE VIEWS EXPRESSED IN JUSTICE CATTERSON’S MAJORITY OPINION, THE EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH THAT BARONE AND KANCHARLA WERE GUILTY OF ENTERPRISE CORRUPTION. In the Appellate Division, the defendants claimed that the evidence was legally in- sufficient to prove their guilt of enterprise corruption. In an opinion by Justice Catter- son, four judges vacated the enterprise-corruption counts “on the law and the facts.” That opinion was based on a misapprehension of the elements of the crime of enterprise corruption and an erroneously narrow view of the evidence that led the jury to convict the defendants of that crime. In fact, the defendants and their confederates corrupted a legitimate business and used it – for years – to commit acts of fraud directed against multiple public and private victims. Moreover, the evidence established both (1) the existence of a criminal enter- prise and (2) the defendants’ knowing and intentional participation in its affairs through a pattern of criminal activity. Accordingly, as Justice Manzanet-Daniels observed in her dissent, the evidence “more than sufficiently established the enterprise corruption counts as to defendants Kancharla and Barone” (101 AD3d at 601). 61 Before turning to the merits of the People’s appeal, we confirm in the next sec- tion the Court’s jurisdiction over the appeal. A. This Court’s Jurisdiction The Court may properly address the People’s appeal because it presents a ques- tion of law. CPL §470.35(2)(a) (Court may determine “[a]ny question of law which was determined by the intermediate appellate court and which, as so determined, constituted a basis for such court’s order of reversal or modification.”). Notwithstanding some of the language in the decretal paragraph of the Appellate Division’s decision, this case squarely presents such a question of law for this Court’s review, for two reasons. First, under the amended version of CPL §450.90(2)(a), this Court is not bound by an inter- mediate appellate court’s characterization of its own holding as “on the law,” “on the facts,” or otherwise, and a close reading reveals that the decision was based on legal in- sufficiency – a quintessential question of law.46 Second, even if the Appellate Division did reverse based on a weight of the evidence review, this Court always retains jurisdic- tion to ensure that the intermediate court applied the proper legal standard for conduct- ing that review. We argue each in turn. 46 See People v Hampton, 21 NY3d 277, 287 (2013) (“legal sufficiency presents a pure question of law”); People v Calabria, 3 NY3d 80, 83 (2004) (terming the determination of legal sufficiency “an inquiry well within our province”). 62 1. The Majority Opinion Was Based on the Legal Sufficiency Of the Evidence Under the Criminal Procedure Law as originally enacted, appeal was limited to cases in which the lower court’s order expressly stated that its decision was based “on the law alone.” Karger, Powers of the New York Court of Appeals, §21:6 at 715 (3d Ed. 2005); L. 1970, ch. 996, §1. Thus, review by this Court was barred whenever the intermediate appellate court’s order recited that its determination was even partially based upon the facts. Preiser, Practice Commentary to CPL §450.90, McKinney’s at 741 (1994). In this case, for instance, under that old version of section 450.90, the lower court’s two brief refer- ences to the weight of the evidence, like its decretal paragraph mentioning “facts,” would have barred this Court from reviewing an unresolved issue of obvious statewide importance. Indeed, the “impracticality of this straightjacket” precluded review even when “the intermediate court determined facts and applied an erroneous legal standard to reach an erroneous conclusion.” Id. Fortunately, in response to a suggestion by Chief Judge Breitel, the Legislature addressed the issue in 1979 and amended the statute to ensure that this Court would have the power to look behind orders that purport to have been factual in order to as- certain if they were actually on the law. Preiser, supra, at 740-41.; see L. 1970, ch. 996, § 1, as amended by L. 1979, ch. 651, § 1. This “remedial amendment” consigns the “threshold determination” about the true nature of a lower court’s decision to this Court. People v Giles, 73 NY2d 666, 668 (1989). The reasons for this change had been suggested by Chief Judge Breitel in 1976: in the case of “a mistaken order by a court, or an intended 63 frustration of appellate review,” the Court of Appeals should have “the power to review questions of law following a conviction for a crime, despite a recital that the reversal is also on the facts.” Id. at 669-70 (quoting People v Mackell, 40 NY2d 59, 64-65 [1976] [Breitel, Ch. J., concurring]). Thus, the label placed on the reversal or modification by the lower court is no longer conclusive. Karger, supra, §20:22 at 722; see also id. at §21:10 at 769. This Court is, therefore, authorized to determine the basis of the decision below for itself. Karger, su- pra, §20:22 at 722-23; see also id. at §21:10 at 769; see People v D’Alessandro, 13 NY3d 216, 218 (2009) (this Court has the authority “to look beyond the Appellate Division’s recital in the decretal clause”); Giles, 73 NY2d at 670 (the statute now allows this Court “to go behind the recitation in the decretal clause … and determine for itself whether a deter- minative legal question is present”). The intermediate appellate court’s labeleling its deci- sion a reversal “on the law and the facts” does not bar review of its underlying determi- nations of law. People v Albro, 52 NY2d 619, 621 (1981); see also People v Washington, 71 NY2d 916, 918 (1988) (decision reviewable despite Appellate Division’s statement that it was reversing “as a matter of discretion in the interest of justice”). In this case, looking beyond the “law and the facts” decretal language to deter- mine the true basis of the Appellate Division ruling requires a careful reading of the ma- jority opinion, which, to be sure, contains ambiguous language. For instance, at one point, the majority states that “the defendants’ convictions for enterprise corruption were not supported by legally sufficient evidence and were against the weight of the evi- 64 dence” (101 AD3d at 594) – even though weight-of-evidence review is required only if the court finds that the evidence is legally sufficient. Once a court has found the evi- dence legally insufficient, there is no logical need to assess weight when, by definition, no rational trier of fact could have found guilt beyond a reasonable doubt. People v Khan, 18 NY3d 535, 541 (2012). A close review of other aspects of the majority opinion, as well as the dissent, similarly demonstrates that at no time did the majority weigh inferences or credibility based on the facts. Instead, although the majority used the words “weight of the evidence” (101 AD3d at 587) and “weight of evidence” (101 AD3d at 594) in its opinion, those words are delivered as conclusions, with no actual analysis of the evidence’s weight. To the contrary, all of the Appellate Division’s actual analysis goes to the sufficiency of the evi- dence and not its weight. For example, at one point, the opinion states that “the evi- dence necessary to establish the elements of enterprise corruption was wholly missing from the People’s proof” (101 AD3d at 589) (emphasis added). At another, the majority in- vokes this Court’s legal sufficiency ruling in the seminal People v Western Express, 19 NY3d 652 (2012), and states that, in this case, there was “no proof of concerted activity” that could lead a reasonable jury to find the “criminal enterprise” necessary for a convic- tion of enterprise corruption (101 AD3d at 591). Even the majority’s sharpest language criticizing the People’s case – the assertion that based on “pure conjecture bolstered by empty rhetoric, the People failed to produce any evidence that … the defendants spearheaded a criminal enterprise” (101 AD3d at 587) 65 – says nothing about the evidence’s weight or the relative strength of competing infer- ences. It simply argues that the evidence is lacking. (As to that point, see discussion infra, Section B). At every turn, the language in this case is in sharp contrast to the language that Appellate Division panels use in cases in which they actually weigh evidence. See e.g. Peo- ple v McFadden, 106 AD3d 1020, 1025 (2nd Dept 2013)(reversing on weight of evidence review where “the rational inferences which can be drawn from the evidence presented at trial do not support the conclusion that the defendant intended to sell” drugs); People v Marshall, 106 AD3d 1, 9 (1st Dept 2013)(“Upon exercising our independent factual re- view power (CPL 470.15), we find that the verdict convicting Marshall of grand larceny under the eighth count of the indictment is against the weight of the evidence” when “[t]he evidence does not warrant a finding that Marshall committed grand larceny. . . .”); People v Bailey, 102 AD3d 701, 702-03 (2nd Dept 2013)(reciting in detail the elements of weight-of-evidence review and reversing a one-witness identification attempted murder conviction based “on a combination of factors negatively affecting the reliability of [complainant’s] identification of the defendant as the perpetrator”). Such language is nowhere to be found in the majority opinion. Examination of the dissent confirms that one member of the panel – Justice Manzanet-Daniels – was of the view that the majority was indeed reviewing the suffi- ciency of the evidence and not its weight. Throughout her opinion, she focused clearly and exclusively on the legal sufficiency of the evidence. She began, for instance, by stat- 66 ing her belief “that the evidence at trial more than sufficiently established the enterprise corruption counts” (101 AD3d at 601). Similarly, she ended, after a thorough review of the arguments of the defense and the majority, by concluding that “[t]he evidence, in its totality, was more than sufficient to establish enterprise corruption” (101 AD3d at 606). At no point did she address any arguments in terms of an assessment of the weight of the evidence, an inconceivable omission by the dissenter if the majority had in reality been relying on the weight of the evidence. It was thus clear to Justice Manzanet-Daniels that her colleagues were ruling on the legal sufficiency of the evidence and not substitut- ing their own view of the facts for that of the jury. And, had the majority disagreed, surely its opinion would have pointed out the dissent’s error. This Court, therefore, has ample basis to conclude that, notwithstanding the brief mentions of the term, the Appellate Division did not in fact decide the case based on a weight-of-the-evidence analysis, but solely on its view of the legal sufficiency of the evi- dence. 2. This Court Has Jurisdiction to Ensure that any Analysis of the Weight of the Evidence Employed the Correct Legal Standard Even if this Court were to conclude that the majority actually did base its decision on the weight of the evidence, the Court nevertheless has the power to determine whether the panel “employ[ed] an improper legal standard” in doing so. See e.g. People v Romero, 7 NY3d 633, 644 (2006); People v Rayam, 94 NY2d 557, 560 (2000) (reviewing le- 67 gal question whether Appellate Division’s weight of the evidence review must take into account an implied inconsistency in a mixed verdict). After all, an intermediate appellate court cannot evaluate the weight of evidence if it is using the wrong standard for legal sufficiency, and it surely cannot insulate an incorrect legal standard from further review by using that very standard to weigh the evidence. Here, the majority made a series of predicate legal rulings that, as we argue on the merits in section B below, necessarily de- formed any second-tier factual determinations it made when deciding if the evidence measured up to the legal standard the court had erected. Notably, the 1979 amendment to CPL §450.90(2)(a) was also designed to expand this Court’s jurisdiction so that it can review decisions on an appeal by the People in which a controlling legal issue determined the outcome below, even if that determina- tion was “combined with incidental but nondispositive factual issues.” Karger, supra, at 623; Preiser, supra, at 741. An appeal by the People is permitted if this Court “determines that the intermediate appellate court’s determination of reversal or modification was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal or modification.” CPL §450.90(2)(a)(emphasis added). Thus, when a lower court’s reversal is predicated on the application of a legal principle, this Court has the power “to act on the determination of the intermediate appellate court on the law issue only, and, if necessary, to remit for further consideration by the courts below.” Giles, 73 NY2d at 670. It is, simply put, a question of law whether the Appellate Division applied the correct standard. 68 As described more fully in Section B, below, the Appellate Division majority based its decision about the criminal enterprise element of enterprise corruption on a number of incorrect legal premises. First, apparently on the basis of its reading of this Court’s recent decision in Western Express, 19 NY3d 652, the majority reached the legal conclusion that the enterprise-corruption statute (“OCCA”) requires proof of a “hierar- chical structure” (101 AD3d at 590) – an issue that had expressly been left open by this Court. See 19 NY3d at 659. Second, again striking out on its own and contrary to the statute’s legislative history, the majority concluded that the statute requires a “distinct hierarchy” (101 AD3d at 590), that is, one separate and distinct from the corporate structure of the legitimate enterprise within which the defendants committed their crimes. Third, the majority appears to have ruled that the statute requires proof that Kancharla, Barone, or Testwell “encouraged or expanded” the crimes being committed (101 AD3d at 592) rather than simply participating in the enterprise’s affairs through the requisite pattern of criminal activity, as the statute says. Penal Law §460.20(1)(a). But perhaps the most aberrant departure of law is the legal rule the majority seems to have created on the basis of this Court’s observation in Western Express, 19 NY3d at 659-60, that no New York court has ever concluded that the structure of a criminal enterprise may be inferred solely from its pattern of criminal activity. Specifically, the majority seems to have concluded from that observation that it is legally impermissi- ble even to consider reasonable inferences from the nature of the defendants’ crimes and their interdependent pattern when determining if the defendants committed their crimes 69 with intent to participate in the affairs of a criminal enterprise. Indeed, the majority deci- sion appears to rest on a legal premise that no court interpreting either OCCA or the federal RICO statute on which it is based (or, for that matter, conspiracy or any other crime) ever has: that no conviction is permitted without direct proof on matters like “a leadership structure [and] overall planning of the criminal enterprise” (101 AD3d at 592), evidence of “meetings” at which the defendants discussed the criminal conduct, or direct evidence of “communications” between them “in furtherance of the criminal en- terprise” (101 AD3d at 592). The novel requirement that only direct evidence may be used to establish the ex- istence of a criminal enterprise would severely undermine the utility of the Organized Crime Control Act, particularly in cases in which the criminal activity is “entrenched” – the very cases the Legislature had in mind (Penal Law §460.00) – which makes these questions of law crucial for this Court to review and determine. As this Court well knows, in such cases, direct evidence will always be rare. E.g. United States v Morales, 868 F2d 1562, 1574 (11th Cir 1989) (“[T]he existence of an agreement in a conspiracy case is rarely proven by direct evidence that the conspirators formally entered or reached an agreement”). Here, for instance, by the time investigators became aware of the crimes being committed at Testwell, the schemes were fully developed and had been in place for a very long time. There was little need, by that point, for defendants like Barone and Kancharla to remind each other of the parameters of the scheme, let alone to hold meet- ings to discuss these matters with each other or their subordinates. Even though their 70 decision-making phase had long since passed, under the law as it now stands in the First Department there is a real possibility that such entrenched, secretive schemes would for- ever be insulated from the full reach of New York’s courts.47 These erroneous determinations of law constituted the erroneous underpinning of any factual analysis the majority might be held to have undertaken. Accordingly, these questions fall squarely within this Court’s law jurisdiction. We note that confusion on these crucial legal points is particularly damaging because there is so little appellate case law on the crime of enterprise corruption. By going beyond the decretal recitation and reaching these questions of law, the Court can provide clarity on these key legal princi- ples. B. The Jury Heard Ample Proof of the Existence of a Criminal Enterprise The majority and the dissent began at the same point – recognizing that the Peo- ple were required to prove that the defendants were associated in a group (1) sharing a 47 Of course, as Justice Manzanet-Daniels observed, the nature of the various schemes spoke volumes – at least if one draws the fair inferences from the evidence that the law plainly permits. Thus, the mix-design scheme could not have continued without detec- tion if participants like Kancharla did not know that colleagues like Caruso and Barone were falsifying subsequent field test results whenever necessary (101 AD3d at 605). And Barone would have had no motive to commit his crimes if he had actually been “in the dark” about the crimes being committed by the others in the group. The pattern itself was powerful cir- cumstantial evidence establishing that these defendants were, in fact, associated with each other and pursuing a common criminal purpose. Yet, the majority suggested that the law does not permit an appellate court, in considering the legal sufficiency of the evidence, to consider the fair inferences that flowed from the nature of the crimes and the pattern into which they fell. 71 common purpose of engaging in criminal conduct, (2) with an ascertainable structure distinct from their pattern of criminal activity, and (3) with a continuity of existence, structure, and criminal purpose beyond the scope of the individual criminal incidents. Penal Law §460.10(3); see Western Express, 19 NY3d at 656; People v Besser, 96 NY2d 136, 142 (2001). Nor is there any question about the legal sufficiency standard. Specifically, the appropriate inquiry is whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the jury on the basis of the ev- idence at trial, viewed in the light most favorable to the People. People v Norman, 85 NY2d 609, 620 (1995); see also Hampton, 21 NY3d at 287; People v Ramos, 19 NY3d 133, 136 (2012); People v Contes, 60 NY2d 620, 621 (1983). “A sufficiency inquiry requires the court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof.” Khan, 18 NY3d at 541, citing and quoting People v Danielson, 9 NY3d 342, 349 (2007). Judged by this standard, the evidence fully justified the jury’s finding that there was a criminal enterprise. 1. Continuity As Justice Manzanet-Daniels noted, the evidence established that the Testwell Group had “extensive continuity.” 101 AD3d at 602. The crimes committed to perpetu- ate Testwell’s schemes spanned many years and targeted hundreds of different projects. 72 People v Guardino, 62 AD3d 544, 547 (1st Dept 2009), affd sub nom People v Hecker, 15 NY3d 625 (2010)(continuity element established when enterprise functioned for “over a year” and, “if undetected by law enforcement, could have continued indefinitely”). In fact, Testwell had been preparing phony mix-design test reports for a decade (Murphy: R222- 23, R261-71, K184; DX RK-B1: K460-61; DX RK-B2: K462-63) and Testwell staff were falsifiying field data and lab data during the entire seven years Ana Murthy worked there (Murthy: R691, B111). The evidence also revealed another of the hallmarks of continuity, for the enter- prise recruited new members and continued its criminal activities even when old mem- bers left. Porter, for instance, was the third in a series of employees Kancharla used to create Testwell’s fraudulent mix-design reports (Thumma: R779). Similarly, over the years, Kancharla recruited new engineers into the scheme, so that the role he and Ster- lacci played early on (Thumma: K211-12, R769, R775) was later taken over by Thumma and Phillips (K221, R352). And, when Murthy left the company (Murthy: R698, B126), Barone and Caruso continued falsifying field-test results and tampering with lab-test data with the assistance of other data-entry personnel, like Shah and Promushkin. Most im- portant, there was no pre-planned end in sight for this pattern of criminal activity. If this investigation had not uncovered the schemes and put an end to them, the defendants would undoubtedly be perpetrating them even today. Thus, as Justice Manzanet-Daniels held, the statute’s continuity requirement was “easily satisfied” by the evidence in this case (101 AD3d at 602). 73 2. Common Purpose Justice Manzanet-Daniels was equally correct that the evidence plainly satisfied the “common purpose” requirement (101 AD3d at 602). Contrary to the majority’s view, this case provides an instructive contrast to Western Express on just this point. That case, after all, involved a collection of strangers, each pursuing his or her own “inde- pendent agenda[ ],” and conducting arms’ length transactions anonymously over the in- ternet. 19 NY3d at 660. These anonymous strangers did not share any common pur- pose, for there was in fact “no hint that any of [them] acted except for and according to their own particular interests” or with “any objective other than the expedient conduct of their own individual transactions.” Id. at 659 and n 4. Though they used Western Ex- press’s services, this “carder clientele” had no connection with or allegiance to that company and simply switched to different providers when Western Express was no longer available. Id. at n 5. In sharp contrast, the members of the enterprise in this case were not strangers to each other or to Testwell, and none was seeking to maximize his own profit at the ex- pense of the others. Rather, as the indictment alleged, the common purpose the defend- ants shared was to make money for Testwell and, thus, for each other.48 Read in the light most favorable to the People, the evidence revealed that all the defendants shared the 48 The defendants have never disputed that the realization of profit by criminal means is an appropriate “common purpose.” See e.g. People v Wakefield Financial, 155 Misc2d 775, 784 (Sup Ct NY Co 1992)(“defendants’ unlawful purpose [was] to profit from their manipulative market tactics”); see also People v Forson, NYLJ, 5/12/94, p. 29, col. 3 (Sup Ct NY Co)(purpose was to profit illegally). 74 goal of maximizing Testwell’s profit by cutting labor costs to the bone and then hiding that fact with falsified reports and phony test results (People’s Summation: K374)(arguing that the pattern repeated throughout all Testwell’s crimes was to “provide the illusion of inspection [or testing] while cutting corners at every opportunity”). In the mix-design scheme, for example, Kancharla and his subordinates skipped the labor-intensive process of testing altogether and covered up that fact with “test re- sults” made up out of whole cloth by a random number generator (see Evidence at Trial: Section B). By charging $300 to $500 for each worthless piece of paper, the company was able to generate an extra $100,000 a year – a fact undisputed by the defense or the majority (101 AD3d at 593). Similarly, in the steel-inspection scheme, Testwell cut its labor costs in half by assigning two inspectors to do the work of four and then filled in the gap with phony inspection reports and forged and falsified timesheets (see Evidence at Trial: Section K). Through this method, the company was able to generate double the gain on these workers by billing two clients for all the hours they worked (or at least the hours they claimed to have worked) (see Evidence at Trial: Section K) . The crimes related to the field and lab schemes fell into a similar pattern. Again, the evidence established that it was Testwell’s practice to cut costs in the field through various expedients, like leaving workers without necessary equipment (Murphy: R181, R185, R280; Sellers: R296-98, R304-05), or sending too few workers to a site to handle the work involved (Sellers: R302-03). In addition, Testwell also assigned workers without the proper qualifications (Sellers: R293-96). 75 The majority somehow came to conclude that the “only evidence” that Testwell used unqualified workers “was the fact that two of its employees worked for the [SCA] without the proper certificates for one day each” (101 AD3d at 593)(emphasis in original). The evidence did, in fact, prove that, these two workers, Shikeen Kennedy and Adalber- to Hoyos, worked for the SCA for one day each (PX 82-1: R1691), but that was not the only day they worked for Testwell without the proper qualifications.49 Kennedy worked with Barone on the Jet Blue job for two years without ever getting certified (McBride: R1440-41). Jamar Sellers was assigned for months to do field inspection jobs on his own before he even took the ACI test (Sellers: R293-96).50 Although Testwell saved money by using too few workers, workers without nec- essary equipment, and workers who should never have been in the field on their own at all, it did so at the risk of jeopardizing its standing with regulators and clients. Once again, though, when problems created by shoddy workmanship showed up in the data, Testwell employees stood ready to cover them up by fraud and falsification (Investigator 49 There was no dispute about their lack of qualifications (Stipulation: R1038). Hoyos had once been certified, but then failed the recertification test in 2004 and again in 2007 (Nehasil: R1037, R1039). Kennedy, meanwhile, was never ACI certified at all; he had tried to pass the necessary tests, but failed (Nehasil: R1037, R1039; Minnaugh: R1460, R1463). 50 The majority also concluded that Testwell’s field work must have been fine, be- cause one developer said it did a very good job (101 AD3d at 594; Klein: R1108-09). How- ever, that developer also explained that he was a very hands-on manager, walking the site every day, and personally monitoring the work of the Testwell inspectors (Klein: K329), which probably explains why Testwell did not cut corners on his sites, as it did on others. Notably, when Klein was not in a position to monitor what was done, Testwell cheated him with phony mix-design test reports (e.g. PX 10A: R1592), and with altered test data (Baarbe: R453; Klein: R1112, R1124-25). In any event, that one client believes it was not victimized hardly speaks to whether other clients were. 76 Murphy: R173-85; e.g. PX 70-1 to 70-13: R1610-22 [video surveillance by client’s moni- tor on three random dates reveals Testwell workers skipping field tests, but Testwell re- ports subsequently filed include “results” for those unperformed tests]; Leask: R1175- 85, R1316-82; PX 84-7: R1698 [surveillance by another client reveals that worker skips test, but Testwell test report includes “result” for it anyway]). In fact, Testwell’s data-entry staff routinely filled in any blanks on field test re- ports with plausible seeming numbers they found on other reports or got from their bosses (Murthy: B115, R700-01, R710, B125). Meanwhile, to cover up Testwell’s fraud at the mix-design stage, Caruso and Barone tampered with the lab data to hide instances when the concrete failed to measure up to the required strength (Evidence at Trial: Sec- tion I). Similarly, to hide the various regulatory infractions involved in cutting costs in the field, they altered other lab data that would have raised ‘red flags’ about Testwell’s collection and testing process (Id.).51 Thus, as the jury found, the common purpose behind all of Testwell’s crimes was to increase and protect the company’s profit through the commission of fraud. In this respect, the majority’s reference to other cases involving different schemes that took in more money for the enterprise is immaterial (103 AD3d at 594) (citing to stock fraud 51 Barone accurately notes that the changes he made to beam test results did not alter failing results to make them appear to have passed muster in the flexural-strength tests (Bar- one Brief: 11). Those “changes” were designed to hide erratic results that would have raised suspicions about the quality of Testwell’s work. In addition, like Caruso, Barone also tam- pered with cylinder test data to raise failing results to make it appear that that the concrete had passed the required strength-tests. The nature of Barone’s data-tampering is addressed in de- tail in Point IV. 77 case that caused more than $6 million in losses), as is Kancharla’s reliance on this fact in his argument below (Kancharla AD Brief: R1816 [noting that some defendants in other cases “stole literally millions from their victims”]). It is hard to understand what difference it makes that the Testwell defendants were willing to commit their crimes for less profit than defendants in some other cases. Had the Legislature wanted to impose a million-dollar threshold for this crime, it could have done so, but it did not. Compare Penal Law §460.20 (enterprise corruption) to Penal Law §155.42 (first-degree grand larceny). Much more salient is the fact that in the stock fraud case to which the majority cited, “[a]ll of the traders were part of the company- wide scheme to manipulate the market and the trading to maximize the commissions to the company” (103 AD3d at 594), a circumstance strikingly similar to one in this case: a company-wide scheme to falsify testing results and inspections to increase company profits.52 Moreover, in light of the longevity of their schemes, the amount of their illegal profit was hardly de minimis. As the majority recognized (101 AD3d at 593), the mix- design scheme alone brought in about $100,000 a year of pure – if unlawful – profit. Thus, over the ten-year course of the scheme, the takings were hardly paltry. Moreover, many of the Testwell crimes were designed to maximize profit on the company’s field 52 The defendants also seemed to want to add a requirement that the People prove that the legitimate enterprise through which the defendants operated was devoted entirely to criminal activity (Kancharla AD Brief: R1816 n.26 [noting that there was no proof that every service Testwell provided “was tainted by fraud”]). Once, again, however, the Legislature could have created a requirement of that type, but chose not to do so. 78 and lab operations while safeguarding those operations from the sort of scrutiny that would have exposed the way corners were being cut in the field. These crimes helped protect the millions of dollars Testwell brought in from those operations on even a sin- gle project (Connelly: R136-40; Murphy: R171; Louis: R724-76). Thus, as Justice Manzanet-Daniels found, the statute’s requirement of a common purpose was “easily satisfied” by the evidence in this case (101 AD3d at 602). 3. Ascertainable Structure The OCCA’s final requirement is evidence that the members of the enterprise were “associated in an ascertainable structure distinct from the pattern of criminal activi- ty.” Penal Law §460.10(3).53 In contrast to Congress’s choices when it enacted RICO, 18 U.S.C. §§1961 et seq., the New York legislature required that the “structure” must be “distinct” from the pattern of criminal activity. Western Express, 19 NY3d at 659-60. This determination reflects the Legislature’s focus on groups whose “sophistication and or- ganization make them more effective at their criminal purposes … to address the partic- ular and cumulative harm posed by persons who band together in complex criminal or- ganizations.” Besser, 96 NY2d at 142. Similarly, the purpose of the OCCA was to allow prosecutors to target groups whose “structure and insulation protect their leadership from detection and prosecution.” Penal Law §460.00 at ¶5. 53 This legislative phrase reflects federal RICO cases such as United States v Anderson, 626 F2d 1358, 1372 (8th Cir 1980). 79 Much of the defense argument below rested on the view that this “structure” re- quirement mandated that a qualifying enterprise must function like a traditional La Cosa Nostra family or take the form of the type of criminal specialization used by narcotics, loansharking, and gambling operations (Kancharla AD Brief: R1809, R1817; see also Kancharla Brief: 21 [referencing the Chicago Vice Lords]; Kancharla AD Brief: R1814, n.24 [discussing a gambling “syndicate” and the fact that the defendant’s employees called him “Boss”]); Kancharla AD Brief: R1815 [discussing various aspects of a drug- selling operation recently prosecuted under RICO]).54 The statute, to be sure, does apply to enterprises formed on this old-fashioned autocratic model, with a “boss” who can wield the power of life and death over his underlings. But our Legislature expressly found that prosecution under the OCCA “should not be limited to traditional criminal syndicates or crime families.” Penal Law §460.00 at ¶3 (emphasis added). Instead, it used the words “ascertainable structure distinct from a pattern of crim- inal activity.” Penal Law §460.10(3). A structure is just that: a structure. It is not neces- sarily a conspiracy, a hierarchy, a street gang, or a legitimate business, although it can be all of those things. Nowhere in the statute, its interpretation, or the intention of the Leg- islature is there a requirement that the requisite criminal enterprise use the names or col- 54 Similarly, prior to trial, Kancharla argued that the enterprise corruption charge should be dismissed because he was not a “capo” or the “titular head of a criminal crew,” and the other defendants were not his “soldiers” (Kancharla Omnibus Motion Memo of Law: R1820). 80 ors or code of a street gang or the titles and initiation ceremonies of a Mafia family.55 What is required, as Justice Manzanet-Daniels recognized, is an “ascertainable structure” beyond that which is necessary to effectuate the individual substantive crimes (101 AD3d at 603), the kind of proof that will establish that the defendants comprise more than an ad hoc group that happens to be committing some crimes together. People v Wake- field Financial, 155 Misc2d 775, 785 (Sup Ct NY Co 1992); see People v Cantarella, 160 Misc2d 8, 18 (Sup Ct NY Co 1993). Cases in which OCCA does not properly lie, then, are those in which the relation- ships and interactions between the defendants do not involve anything beyond what is inherent in the nature of the crimes they commit together. Bill Jacket, Governor’s Ap- proval Memorandum (noting that the OCCA does not cover “[c]rimes committed by individuals who engage in a brief series of individual acts in a[n] ad hoc and unstructured group”); see also People v Yarmy, 171 Misc2d 13, 17 (Sup Ct NY Co 1996)(two-man con- spiracy to sell guns is not a criminal enterprise); People v Moscatiello, 149 Misc2d 752 (Sup Ct NY Co 1990)(three men committing bribery-related crimes were not an enterprise but simply a labor official and two men who wished to bribe him); see also People v De- Menus, NYLJ 4/13/95, p.28 (col. 4) (Sup Ct NY Co 1995) (no enterprise when the only 55 Indeed, since its enactment, the OCCA has often been used against white-collar de- fendants, and not just against drug gangs, burglary rings, and La Cosa Nostra families. See People v Thomas, 55 AD3d 357 (1st Dept 2008)(securities firm); People v Marasa, 32 AD3d 369 (1st Dept 2006)(group committing stock fraud); People v A.S. Goldmen, 9 AD3d 283 (1st Dept 2004)(brokerage firm); People v Pustilnik, 14 Misc3d 1237A (Sup Ct NY Co 2007)(medical management company); People v Wakefield Financial, 155 Misc2d 775 (Sup Ct NY Co 1992) (securities dealers). 81 supposed members of the group are one individual and his two wholly-owned corpora- tions). Thus, in Western Express, the key New York decision on this issue, the main prob- lem with the proof was that it established only an ordinary conspiracy: the roles the de- fendants played were simply what was required by the nature of the crimes they commit- ted: some stole credit card data, others bought it, and still others acted as middlemen to facilitate the process. Id. at 659-60. Here, by contrast, the Testwell defendants worked together in precisely the type of “enduring structurally distinct symbiotically related crim- inal entity” that the OCCA statute requires. Western Express, 19 NY3d at 660. Indeed, Justice Manzanet-Daniels, who had found the evidence insufficient in Western Express (101 AD3d at 603), correctly recognized that this case did involve an enterprise with “a discernible organizational structure,” and “indeed a traditional hierarchical structure” (101 AD3d at 603). More particularly, as she observed, the structure of the criminal en- terprise in this case was “largely based on the corporate structure of Testwell Laborato- ries” (101 AD3d at 603). And, “it is frequently the case that legitimate corporations ‘both len[d] their corporate form, hierarchy and operations to criminal enterprises which flourish[ ] within their corporate structure’” (101 AD3d at 603), citing and quoting People v Joseph Stevens & Co, 31 Misc3d 1223A at *8 (Sup Ct NY Co 2011); Wakefield Financial, 155 Misc2d at 784-5; People v Gambino, NYLJ, 5/1/91, p. 23, col. 3 (Sup Ct NY Co 1991); People v Forson, supra. 82 Nor is there any question that a finding of the requisite “structure” may be based on proof of this kind. In fact, the Governor’s Memorandum approving the law under- scores this point: [T]he definition of criminal enterprise in this [law] does not require that the structure of a criminal enterprise be distinct from that of a legitimate one .... This ac- complishes two important results: First, it makes clear that groups that have both legitimate and illegitimate purposes ... can constitute criminal enterprises. Second, it permits the hierarchy of the positions within a le- gitimate enterprise ... to contribute to the structure of a criminal group existing and operating within that legitimate enterprise. Practice Commen- tary, Penal Law §460.00 (McKinney 2000), at 347 (emphasis added). Unsurprisingly, the defense agreed at the charge conference that it was accurate for the judge to instruct the jury that “the structure [of the criminal enterprise] need not be distinct from that of a legitimate enterprise” (Charge Conference: R1534). Thus, although the majority opinion dismissed this principle as a mere “legal aphorism” (101 AD3d at 594), the principle is in fact exceedingly sound: the structure employed by white-collar criminals specializing in fraud can, and regularly does, mirror that of the legitimate company within which they operate (101 AD3d at 603).56 And the evidence here was amply sufficient to show just that. 56 Importantly also, the definition of criminal enterprise requires only a “structure”; it does not require that structure necessarily be hierarchical. In Western Express, this Court left that precise question open: “The People urge that a criminal enterprise need not be hierar- chical to be structured and that structure may be inferred from patterns of criminal con- duct.” The Court noted that “both of these propositions may be true in theory,” but held that the proof that the structure at issue was “ascertainable” was insufficient, as was proof of common purpose. 19 NY3d at 659. 83 The majority narrowly focused on its mistaken view that the only evidence of “Testwell’s corporate hierarchy” was a printout of the company’s website, which listed various executives and their titles, and its suggestion that this evidence was “effectively negated” by Thumma’s testimony that the website was “totally out of date” (101 AD3d at 591; see PX 122C: R1773; Thumma: B175). In fact, though, Thumma’s comment at trial was provoked by the fact he had left the company in 2008, but Testwell’s website still listed him as Vice President of the Testing Laboratory on October 29, 2009 (PX 122C: R1773; Thumma: R759, R824, B158). There was, however, no dispute at trial about the fact that Thumma had held that position from 2002 to 2008 or that, during the entire period when the Testwell group was charged to be a criminal enterprise, Kan- charla was Testwell’s president and CEO – facts that were proven by Testwell’s own li- censing submissions (e.g. PX 68-27: R1603; see Sirakis: R621). Indeed, Kancharla’s attor- ney began his opening statement by introducing his client as “the President, Chief Exec- utive Officer and owner of Testwell Laboratories” (R5). Barone’s role as Vice President was similarly confirmed repeatedly by his own correspondence (e.g. PX 72-1: B256; PX 72-3: B257; PX82-2: R1692; PX 82-47: R1697; PX 84-80: R1708). Indeed, it would be difficult to argue that this ongoing enterprise did not have a corporate structure. Thus, there was no controversy at all about the nature of the corporate hierarchy during the relevant period. Moreover, the jury was amply justified in finding that the defendants’ crimes were committed through the use of this hierarchical corporate structure. Insiders Thumma 84 and Murthy explained the way this structure worked. The top tier of the group consisted of Testwell CEO and owner, Kancharla, and two other Testwell executives, Barone and Caruso.57 Beneath them were those who did the day-to-day work of carrying out the various schemes. In the mix-design scheme, this lower rank included Porter, who creat- ed the phony test reports, and engineers such as Thumma, Sterlacci, and Phillips, who gave the reports a patina of legitimacy by applying their seals and signatures (see Evi- dence at Trial: Section B). There was a similar division of labor in the other concrete schemes as well, in which the lower-level members, such as Murthy, Shah, and Pros- mushkin, took their orders from top-tier members Barone and Caruso (see Evidence at Trial: Sections H and I). And in the steel-scheme, Kancharla and Barone left the creation of falsified documents to their subordinates, and took part actively only in the higher- level aspects of the fraud – such as assigning Finklea and Dowd to a job or attempting to smooth over clients who had become suspicious (see Evidence at Trial: Section K). In each instance, the corporate subordinates took their directions from their “le- gitimate” superiors as to the criminal activities, just as they did in lawful ones. And, cer- tainly, it was fair to infer the existence of the structured criminal enterprise within the legitimate one from the way “persons at all levels of the company participated in a series of continuing frauds and falsifications of data,” and from “the manner in which one type 57 While some prosecutions have involved criminal enterprises run by a single “lead- er,” shared responsibility by a few people at the top level is also common. See e.g. Pustilnik, supra (husband and wife were “at the top”); Wakefield Financial, 155 Misc2d at 784 (four men were “operating at the top of the structure”). 85 of fraudulent activity was necessary to cover up another set of frauds” (101 AD3d at 604). The enterprise’s system of authority was also dictated by the corporate overlay. Barone, Kancharla, and Caruso did not, of course, exercise the life-or-death authority of Mafia dons, but their positions in the criminal enterprise were firmly grounded in their corporate authority to hire-and-fire (Minnaugh: R1456-57). And, the system of authority binding an employee to the boss’s will – with the promise of reward and the threat of firing – clearly functioned quite efficiently. Thumma, for instance, explained that he wanted to put an end to the mix-design scheme after the first search of Testwell’s prem- ises, but did not do so precisely because he feared Kancharla would wield that hiring- and-firing power. Specifically, Thumma said that “this [was] an area of concern for me and at the same time I am an employee there working for a salary to make ends meet and I can’t simply say no from today I’m not going to sign” (Thumma: R819-20). Simi- larly, the jury was justified in concluding that Thumma’s decision to join the scheme in the first place – despite his knowledge that it was wrong to do so (Thumma: K221) – also stemmed from his sense that his choice was to “follow” in Kancharla’s footsteps or find another job (Thumma: K221). And, it is no coincidence that Murthy – who had al- ready left the company (Murthy: R698, B126) – was the only lower-tier member from the concrete department who agreed to cooperate. Thus, as Justice Manzanet-Daniels concluded, the structure of this enterprise was the one most familiar in white-collar situations like this one, in which corporate execu- 86 tives use their legitimate positions to manage the group’s criminal activities, just as they manage the ordinary work of their lawful business. Evidence of that sort of “ascertaina- ble structure” is precisely the type the Legislature contemplated in enacting the OCCA. 4. The Defendants’ Participation in the Enterprise’s Pattern of Criminal Activity In addition to proving the existence of the criminal enterprise, any enterprise- corruption case must also prove that each defendant played a knowing and intentional role in its affairs. On this point, the OCCA provides that a person is guilty of enterprise corruption when, “having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise, he . . . intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity.” Penal Law §460.20(1)(a). Thus, for the jury to convict, it was necessary for them to determine, first, whether each defendant had participated in the enterprise’s pattern of criminal activity. The statute provides that a “pattern of criminal activity” occurs when persons en- gaged in the corrupt enterprise commit three or more separate “criminal acts,” which are not “isolated incidents,” in furtherance of the common scheme. See Penal Law §460.10(4). These criminal acts must satisfy various requirements, which are far more stringent than those required for a federal RICO prosecution.58 Yet, neither the defend- 58 Penal Law § 460.10(4) states in its entirety: 87 ants nor the Appellate Division majority quarreled with the fact that the evidence proved that Barone and Kancharla each committed at least three criminal acts that satisfied the rules in this regard. Indeed, each man was convicted of at least four times the required number of underlying “pattern act” crimes. The remaining question, then, is whether there was legally sufficient proof of the mens rea required to establish enterprise corruption. Specifically, the issue is whether the jury was justified in concluding that Barone and Kancharla had “knowledge of the exist- ence of [the] criminal enterprise and the nature of its activities,” and committed their crimes with intent to “conduct or participate in [its] affairs.” Penal Law §460.20(1)(a). “Pattern of criminal activity” means conduct engaged in by per- sons charged in an enterprise corruption count constituting three or more criminal acts that: (a) were committed within ten years of the commencement of the criminal action; (b) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a criminal offense or criminal transaction, as those terms are defined in section 40.10 of the criminal procedure law; and (c) are either: (i) related to one another through a common scheme or plan or (ii) were committed, solicited, requested, im- portuned or intentionally aided by persons acting with the men- tal culpability required for the commission thereof and associat- ed with or in the criminal enterprise. Additionally, two of the pattern acts must be felonies other than conspiracy; also, two of the pattern acts -- including one felony – “must have occurred within five years of the commencement of the criminal action;” and each of the pattern acts must have occurred “within three years of a prior act.” Penal Law §460.20(2)(a)-(c). 88 Of course, a defendant’s intent is rarely proved “by an explicit expression of cul- pability by the perpetrator.” People v Bueno, 18 NY3d 160, 169 (2011), quoting People v Barnes, 50 NY2d 375, 381 (1980); see also People v Barboni, 21 NY3d 393, 405 (2013). In- stead, like other matters of mental culpability, it is often established “circumstantially by conduct.” People v Sanchez, 86 NY2d 27, 32-33 (1995).59 The majority decision reflects a view that the enterprise corruption statute requires direct evidence on these points – such as direct evidence of “meetings” at which the top-tier defendants discussed the criminal conduct or direct evidence of “communications” between the leadership “in furtherance of the criminal enterprise” (101 AD3d at 592). Nothing in the statutory language or traditional principles of New York criminal law and evidence supports this interpretation. And, as a policy matter, an insistence that only direct evidence be used to satisfy these elements would severely undermine the Legislature’s purpose. After all, the possibility of successful prosecutions, especially in cases in which the criminal activity is entrenched, would be damaged immensely by any such requirement. 59 Although it is an open question whether New York’s statute would allow the ‘as- certainable structure’ of the criminal enterprise to be proven solely by inferences drawn from the pattern of criminal activity, we do not urge such a rule here. Western Express, 19 NY2d at 659-60 (noting that, unsurprisingly in light of the statutory language, “there are no New York cases in which the requisite structure has been inferred simply from an underlying pat- tern”). In this case, as described above, evidence of the structure of the enterprise was pro- vided through the direct testimony of two enterprise members – Thumma and Murthy – who each described the roles played by the top-tier members of the group and the way the lower-level members carried out the directions of top-level members like Kancharla, Barone, and Caruso. 89 Here, for instance, by the time investigators became aware of the crimes being committed at Testwell, the schemes were fully developed and had been in place for years. Indeed, even the conversation in which Kancharla recruited Thumma into the mix-design scheme happened as early as 2004 or 2005 (Thumma: K215-18, B148-49).60 And, once the schemes were in place, there was no need for defendants like Barone and Kancharla to meet to discuss them, with each other or their subordinates, much less to undertake any “overall planning” of the sort the majority felt was required (101 AD3d at 592). The planning phase had long since passed, the fraud was institutionalized, and did not require meetings and communications for purposes of coordinating the criminal ac- tivity. Thus, in concluding that each defendant’s knowledge of the enterprise and intent to participate in its affairs must be established by direct evidence, the Appellate Division majority erected a new and unwarranted requirement that the Legislature had not. In- stead, in determining each defendant’s mental culpability, as in all cases, circumstantial evidence can and should suffice. Moreover in this context, as in every other, its legal suf- ficiency should be judged with a recognition that the jury’s evaluation need only be a ra- tional one. Thus, on mens rea issues of this type, “competing inferences to be drawn, if 60 The majority refers to this act on Kancharla’s part as “an extremely brief exchange sometime in 2004 with Thumma concerning the mix design reports” (101 AD3d at 591). It was hardly as insignificant, however, as this characterization might make it appear. It proved, after all, that, in addition to his own active participation in signing and approving phony re- ports, and his hiring of subordinates like Porter to churn them out on a routine basis, Kan- charla also suborned previously uninvolved Testwell employees when they came asking ques- tions about the fraudulent mix-design practice. 90 not unreasonable, are within the exclusive domain of the finders of fact,” whose factual finding should not be second-guessed on appeal. Barnes, 50 NY2d at 381; People v Castillo, 47 NY2d 270, 277-78 (1979); People v Bracey, 41 NY2d 296, 299-300, 302 (1977). Indeed, even when some “equally consistent” finding of intent is “a possibility,” the evidence is legally sufficient, unless no jury could reasonably have rejected the supposedly innocent “possibility” under the circumstances of the case. Bracey, 41 NY2d at 302. Here, as Justice Manzanet-Daniels pointed out, the defendants’ pattern of crimi- nal activity gave the jury an eminently rational basis for finding they each knew of the enterprise’s activities and intended to participate in them. Indeed, the nature of the crimes Barone and Kancharla committed established that they were aware of the exist- ence of the enterprise as a whole and intentionally participated in its affairs through their own personal “pattern act” crimes. In fact, as the author of the opinion striking down the OCCA count, Justice Catterson seems to have concluded that there was insufficient evidence of enterprise corruption at least in part because he – alone among the Justices – discounted the evidence of the crimes each defendant had committed individually and then ignored the pattern into which those crimes fell. But the majority opinion regarding enterprise corruption demands close scrutiny in this regard. For instance, the opinion began with the notion the jury did not hear “any evidence that either defendant knew that test results and inspection reports were fabri- cated” (101 AD3d at 591). However, the three justices who concurred in his decision could not have agreed with this sentiment, for they all voted to affirm the underlying 91 substantive counts of which Barone and Kancharla were convicted. In fact, the starting point for any analysis of the sufficiency of the evidence proving Kancharla guilty of en- terprise corruption should have begun with the acknowledgement that he had mastermind- ed a scheme for ten years in which he and his underlings fabricated wholly bogus mix- design test reports, a scheme that four Justices found to be supported by legally suffi- cient evidence, a ruling that Kancharla does not challenge before this Court.61 Those falsified reports were not the result of a few mistakes due to employee neg- ligence and lax oversight. In fact, the required testing was simply never done at all. In addition, the court’s sufficiency analysis should have been founded on a recognition that Kancharla had hired Porter and his two predecessors to manufacture these phony re- ports with a computer system attached to a random number generator that would en- sure that those receiving the reports would not realize that they had been manufactured out of whole cloth (see Evidence at Trial: Section B). The court’s sufficiency analysis should have been founded on a recognition that, when Thumma became suspicious about Porter’s role, Kancharla recruited Thumma into joining the scheme as well (Thumma: K215-18, B148-49, K262). Its analysis should have begun from the premise that the jury heard proof that Kancharla and his accomplices, like Porter, Thumma, Ster- lacci, and Phillips, produced literally thousands of fabricated reports over the years (see Ev- idence at Trial: Section B). 61 Indeed, not only did the three concurring justices upheld Kancharla’s convictions on the mix-design scheme, but Kancharla himself does not challenge the legal sufficiency of the evidence supporting his mix-design convictions. 92 Similarly, the proper place to begin the assessment of the sufficiency of the evi- dence proving that Barone was a knowing participant in the activities of the criminal en- terprise was with an acknowledgement of the many underlying crimes he had commit- ted, the sufficiency of which he does not challenge here. The majority, instead, began from the premise that “there [was] no proof of record that Barone altered any test re- sults” (101 AD3d at 594) – a position rejected by the three concurring judges, who af- firmed Barone’s convictions in connection with the data-alteration scheme, finding that they were supported both by the sufficiency and the weight of the evidence.62 Viewed in the light most favorable to the jury and the People, the evidence estab- lished that Barone routinely replaced the true results of lab tests with numbers more to his liking, by ordering his secretary to transmit the false numbers to Testwell’s data-entry staff (Murthy: B118, R698-701, B120). Indeed, while the majority characterized the evi- dence as only “a handful of faxes” (101 AD3d at 595), there were hundreds of falsifica- tions even in the few faxes that survived the shredder (e.g. PX 77-2: R1629). Moreover, Murthy’s testimony that she and the staff received these faxes for “one or two years” be- fore she left in 2007 (Murthy: B118) plainly supported a conclusion that Barone tam- pered with the data on thousands of occasions during Murthy’s years at the firm. Of course, in the exercise of its power as a ‘thirteenth juror’ any appellate court could reach a different conclusion if it wished. However, in assessing the legal sufficien- 62 Notably, in fact, Barone does not challenge the legal sufficiency of the evidence supporting his conviction on any of the underlying counts, but argues only that he may have been a victim of spillover prejudice. 93 cy of the evidence of enterprise corruption, the court has a duty to “marshal competent facts most favorable to the People” (People v Khan, 18 NY3d at 541), a duty the majority conspicuously failed to carry out in evaluating the evidence of the underlying crimes Barone and Kancharla committed.63 A similar failure marks the majority’s insistence that only three of the Testwell schemes were “[a]t issue in this appeal” (101 AD3d at 588). It is true that each individual defendant was not personally charged in every one of Test- well’s schemes (101 AD3d at 588-89). That fact, however, hardly means that the evi- dence proving those crimes was not relevant to the finding of enterprise corruption. After all, as Justice Manzanet-Daniels pointed out (101 AD3d at 605), there is no requirement that each individual defendant participate in all of the enterprise’s crimes or 63 The majority’s discussion of Murthy’s testimony about how Barone filled in to run the scheme in Caruso’s absence again shows error in the failure to marshal the facts in the light most favorable to the People. The only testimony quoted consists of portions of Murthy’s testimony that Barone had used to support the defense argument (101 AD3d at 595). But the preceding testimony, supporting the People’s view, appears not to have been considered: Q: Now, you said you worked under Mr. Caruso. Now, if Mr. Caruso were on vacation or ill, was there another person you might work with in the concrete department? A: We would. The same way we report it to Mr. Caruso, we would ask to report it to Mr. Barone. Q: In Mr. Caruso’s absence, Mr. Barone would pitch in? A: Whenever he comes in our office, like he comes maybe twice or three times a week and then we would have the reports and then give it to him (Murthy: B117). Plainly this testimony supported the People’s summation argument that “[Murthy] said Vin- cent Barone would check and authorize changes when Alfredo Caruso was not available” (101 AD3d at 595). 94 even that each individual have knowledge of all of them. Nor does the fact that Barone and Kancharla were not personally charged in connection with every scheme and crime mean that they were “in the dark about the criminal enterprise” (101 AD3d at 605). Nor does the statute require the People to prove that the top members of the enterprise planned out each crime and scheme together, much less that they “encouraged or ex- panded any criminal transactions” or “encouraged ‘more and larger criminal transac- tions’” (101 AD3d at 592).64 Instead, provided the defendant is aware of the basic struc- ture and purpose of the enterprise, and intentionally participates in its affairs by commit- ting the required crimes, an individual defendant can and should be held criminally lia- ble. Cantarella, 160 Misc2d at 18. More important, the evidence in this case did show that Barone and Kancharla were aware of the nature of the crimes their confederates were committing. The defense, of course, posited that each of these three top executives at Testwell was committing crimes of fraud in his division, but was doing so unbeknownst to the others. However, viewed in the light most favorable to the People and the jury, as required, it is clear that the very nature of the crimes being committed establishes that they were intentionally working together. 64 This quotation from the majority opinion comes from a footnote in Western Ex- press. 19 NY3d at 659 n.4. However, in that footnote this Court was describing a specific fac- tual argument advanced by the prosecutor in that case, not a new legal requirement for a conviction. 95 First, as Justice Manzanet-Daniels observed (101 AD3d at 605), some of the schemes provided the motive for the defendants to commit other crimes. Thus, once Kancharla and his codefendants in the mix-design scheme skipped the testing and faked the test reports, they had to anticipate that some of the concrete would not meet the specifications. Similarly, given the state of Testwell’s field teams, they had to expect that Testwell’s sample-collection work would often be shoddy and that the lab results would reflect that fact. Thus, Caruso and his team routinely altered results when they fell below the engineer’s requirements – thereby ensuring that no one would question the authen- ticity of the mix-design reports Kancharla and his team had faked previously. Barone, meanwhile, stepped in to perform the more sophisticated tampering: hiding flaws in the concrete and in Testwell’s field-inspection process by smoothing the lab’s results to make them conform to expectations. Thus, as Justice Manzanet-Daniels pointed out, the jury had every reason to reject the defense view that this case presented a series of “disparate crimes [that had] been ‘stitched together’ simply because the perpetrators all worked for the same company” (101 AD3d at 604). On the contrary, it was “evident from the pattern of criminal activity that all of Testwell’s crimes were committed as part of a single enterprise, intent on in- creasing Testwell’s profits” (101 AD3d at 604-05), even if it meant vitiating the very purpose of a materials-testing company. In this sense, Barone may never have affixed his seal to a phony mix-design re- port, but he certainly knew about that scheme. After all, he would have had no motive 96 to tamper with the lab-data to hide “low breaks” by changing the failing results to pass- ing ones, if Testwell had done the mix-design testing the way it should have, rather than skipping the testing and faking the reports. Similarly, Barone may not have been respon- sible for the state of the concrete field teams, but he plainly performed his data- tampering in order to hide the problems in the field, just as he lied to the SCA to hide the fact that two of Testwell’s workers did not have the required credentials (see Evi- dence at Trial: Section G). Kancharla, meanwhile, may never have tampered with lab-data personally, but he certainly relied on his confederates to do so, for it was a necessary step to cover up the mix-design crimes he was committing. Moreover, Testwell’s “state of the art” computer system was installed on his watch – along with the hidden programming that meant supposedly tamper-proof results were anything but.65 And, while no one would suggest that Kancharla personally programmed the computer to allow for tampering and to dis- guise which “user” had altered the test data, it was plainly reasonable to infer that he knew about the ease with which the data could be falsified, for he himself was one of the 65 For instance, the computer automatically alerted lower-tier members of the enter- prise when they needed to consult top-tier members like Barone and Caruso (Murthy: R692, B115). In addition, it alerted anyone trying to enter altered data that he or she was changing a test result that had already been forwarded to the client (Baarbe: R469-75), so that they would not get caught out in an inconsistency that would reveal their routine tampering (Baarbe: R472, R474). And, to insulate the defendants from detection and protect them in the event of an investigation, the system was pre-programmed to erase the identity of any user making “changes” to test data (Mansour: R575-79). This programming illustrates that an enterprise was at work and that its activities went far beyond what was minimally necessary to commit any individual crime. 97 “privileged users” with access to tamper with the lab data (Mansour: R573-74, R580, B96; DX VB-E: B303). What the evidence showed then was “a pervasive scheme involving systematic falsification of concrete data testing at many levels of the company, and defendants’ par- ticipation in the manipulation of the data” (101 AD3d at 601). The same pattern of cut- ting costs and making up the difference with falsified reports – of “provid[ing] the illu- sion of inspection while cutting corners at every opportunity” (People’s Summation: K374) – defined all of Testwell’s schemes. More specifically, Kancharla and Barone committed their crimes – and directed others to commit crimes – in order to assist Testwell to obtain money from duped clients for feigned work and fraudulent “results.” They each did so, for years, despite their status as professional engineers, and their trained understanding of how important true test data is to the building industry. They committed these crimes through Testwell’s corporate hierarchy and with intent to ac- complish their common goal of increasing Testwell’s profit. When viewed in the light most favorable to the People, the evidence “amply” supported the jury’s decision to convict them of enterprise corruption (101 AD3d at 602). 98 POINT II THE APPELLATE DIVISION CORRECTLY CONCLUDED THAT THE UNDERLYING COUNTS AGAINST THE DEFENDANTS SHOULD BE AFFIRMED (Answering Barone Brief, Point One, pp. 21-30; Kancharla Brief, Point One, pp. 9-16). The defendants contend that, when the lower court reversed the enterprise- corruption counts, it should also have reversed the defendants’ convictions on all the predicate substantive crimes. Specifically, they theorize that the jury convicted them of these underlying crimes only because of supposed spillover prejudice from the allegedly “tainted” enterprise-corruption counts. Of course, as discussed earlier, the enterprise- corruption counts were not “tainted” at all. In any event, it is no surprise that the Appel- late Division majority rejected the spillover prejudice claim without discussion.66 After all, judged by the proper standard, the facts and circumstances preclude any finding of spillover prejudice. 66 Kancharla claims that the majority devoted a sentence to this claim (Kancharla Brief: 10). In fact, though, the sentence he quotes was part of the majority’s rejection of the disguised repugnancy arguments the defense made in connection with the steel-inspection scheme (101 AD3d at 600). The entire paragraph, including the case citation with which the majority concluded, makes that fact clear: We reject all of defendants’ arguments relating to the fact that they were convicted of some counts and acquitted of others. There is nothing in any of the acquittals that would undermine the sufficiency or the weight of the evidence supporting the convictions (see People v Rayam, 94 NY2d 557 [2000]). This discussion of the impact of the jury’s “acquittals” – which occurred in connection with the steel-related charges – shows that the majority was rejecting the defense arguments on that point and not addressing spillover from their own appellate decision to reverse and va- cate the enterprise corruption count. 99 A. The Relevant Law There appears to be no dispute about the legal principles that govern a claim of spillover prejudice. It is well settled that the paramount consideration is whether there is a “reasonable possibility” that the jury’s decision to convict on the reversed counts influ- enced its guilty verdicts on the remaining counts in a “meaningful way.” People v Doshi, 93 NY2d 499, 505 (1999), citing and quoting People v Baghai-Kermani, 84 NY2d 525, 532-33 (1994); see also People v Morales, 20 NY3d 240, 250 (2012). By contrast, when the jury’s de- cision to convict on the reversed counts had only “a tangential effect” on its decision to convict on the remaining counts, no reversal is warranted. Doshi, 93 NY2d at 505; Baghai-Kermani, 84 NY2d at 532. The issue of possible spillover prejudice can be resolved only on a case-by-case basis. Morales, 20 NY3d at 250. The Court must give due regard for “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome.” Id., citing and quoting Baghai-Kermani, 84 NY2d at 532; see also People v Concepcion, 17 NY3d 192, 196-97 (2011). One factor to consider is whether the trial court’s instruc- tions made it clear that the jury must decide each count separately. People v Sinha, 19 NY3d 932, 934 (2012). Another is whether the counts are “readily distinguishable” from one another. Doshi, 93 NY2d at 505. In some cases, “the relative uniformity of the evidence” on all counts will militate against a finding of spillover impact. Baghai-Kermani, 84 NY2d at 532. In contrast are cas- es in which the error as to one count opened the door to highly prejudicial evidence 100 about other crimes that the jury would not otherwise have heard. Morales, 20 NY3d at 250. Another factor that will weigh against a finding of spillover prejudice is the exist- ence of “strong evidence of defendant’s guilt with respect to the remaining convictions.” Sinha, 19 NY3d at 935; see also People v Daly, 14 NY3d 848, 849-50 (2010)(rejecting claim of spillover prejudice from one robbery and shooting to another incident involving an attempted robbery and shooting, because there was “strong, independent proof of the defendant’s guilt” as to the second incident). Most notably, claims of prejudicial spillover will in some cases be “belied by” a jury’s decision to acquit on some of the remaining counts that supposedly would have been influenced by the tainted counts. Doshi, 93 NY2d at 506.67 B. Analysis Several critical factors weigh heavily against the defendants’ claim of prejudice. First, the judge gave clear and emphatic instructions that the jurors must render a sepa- rate verdict as to each of the defendants. Specifically, he told them: 67 As Kancharla notes, the federal courts use a similar approach (Kancharla Brief: 11), examining the totality of the circumstances to determine if the evidence on the reversed count or counts was especially inflammatory or pejorative, deciding whether it was similar or dissimilar to the evidence on the remaining counts, and assessing the strength of the evi- dence on those remaining counts. United States v Bruno, 383 F3d 65, 91 (2d Cir 2004); United States v Rooney, 37 F3d 847, 855-56 (2d Cir 1994). In addition, like this Court, the federal courts examine the verdict to see if it belies a claim of spillover prejudice. United States v Jones, 482 F3d 60, 78 (2d Cir 2006); United States v Hamilton, 334 F3d 170, 185 (2d Cir 2003); United States v Naiman, 211 F3d 40, 50 (2d Cir 2000). 101 I remind you that you are assembled to do four separate trials. Each per- son is entitled to a separate consideration of the evidence whether it be individually or under the theory of in concert but as you decide whether or not a case, any of the counts have been proven against any of the de- fendants, they are entitled to an individual determination as I said whether alone or in concert they can be proven to have done any of the elements of any of the crime (Charge: R1537). Second, the nature of deliberations in an OCCA case underscores for the jury that their determination of guilt as to the underlying predicate crimes is to be undertaken separately and prior to any consideration of the enterprise-corruption count. Thus, here, the judge told the jurors to consider and resolve every substantive count and pattern act before moving on to decide whether a defendant committed his crimes to advance or par- ticipate in the pattern of criminal activity of a criminal enterprise (Charge: R1536). The jury therefore knew that their determination as to the underlying felony charges should not be influenced in any way by the existence of the enterprise-corruption charge. Third, the claim of spillover prejudice is belied by the carefully mixed verdicts the jury returned before moving on to consider the enterprise-corruption count.68 At one end of the spectrum stands the verdict against the corporate defendant, which was con- victed of all five schemes to defraud and of every single count and pattern act charged (R1569-79). In contrast, in their first partial verdict, the jurors acquitted one individual 68 Notably, one of the federal cases Barone cites points to the length of the delibera- tions as a factor weighing against a finding of spillover prejudice. United States v DiNome, 954 F2d 839, 843 (2d Cir 1992)(rejecting spillover claims by most of the defendants in part due to the length of the deliberations). That reasoning certainly applies here. The jurors spent more than two weeks deliberating and returned three partial verdicts as to different defend- ants and different charges at intervals before even turning to the enterprise corruption count. 102 defendant, Wilfredo Sanchez, of every single charge, including the count of enterprise corruption (R1545-47). Significantly, unlike Barone and Kancharla, Sanchez was charged in only one of Testwell’s many schemes, so, if any defendant was at risk of spillover prejudice, it would have been Sanchez. Yet, despite hearing about all the fraud the other defendants committed, and despite the existence of the enterprise-corruption charge, the jury had no trouble giving Sanchez the benefit of the doubt. Fourth, the jurors returned mixed verdicts against Barone and Kancharla as well, a fact that stands as compelling proof that the jurors did not rush to judgment because of any supposed spillover prejudice. Kancharla, like Testwell itself, was convicted of all charges related to the mix-design scheme (R1547-53), and of the steel-inspection scheme to defraud count (R1562-68). However, he was acquitted of over 40 other charges relat- ed to the steel scheme and of the scheme to dupe the SCA about the qualifications of Testwell’s field inspectors (R1562-87). Barone was convicted of 13 counts and 14 pat- tern acts related to data-tampering, steel-inspection, and defrauding the SCA, but was acquitted of 13 other counts and 13 other pattern acts (R1554-61, R1579). These mixed verdicts refute the defendants’ claims of spillover prejudice. Notably, too, Barone appears not to dispute the fact that even a jury trying him separately would have heard the same evidence this jury did. And, even at a separate trial with no OCCA charge, the jury would have heard about all of Testwell schemes, be- cause Barone’s motive for faking lab data was comprehensible only in the context of all the other misconduct being committed by the company. An executive of a legitimate test- 103 ing company would have no reason to fake lab test results. Barone did so precisely be- cause he needed to hide the company’s phony mix-design reports and the shoddy work of its understaffed and under-equipped field inspectors. Thus, even at a separate trial, the jurors would have learned about the crimes his Testwell associates were committing at earlier stages of the process so that they could understand his motive and intent in committing his own crimes at the final stage.69 Kancharla does assert that, if he had had a separate trial without an OCCA charge, the jury would not have heard anything about the Testwell schemes in which he did not personally take part (Kancharla Brief: 12-13).70 However, evidence about the crimes his colleagues were committing was highly relevant to the charges against him. After all, if no one had been falsifying data at the later stages of the process, Kancharla’s scheme to skip the preliminary tests would have been exposed the first time an untested recipe failed to pass muster in the field. Thus, in evaluating whether he was part of a sys- tematic, ongoing scheme to defraud at the preliminary testing stage, the jurors had to understand that he had a back-stop of lab-data tamperers in place to cover up the crimes he was committing at the beginning of the process. 69 Barone’s efforts to dupe the SCA about the qualifications of two Testwell inspec- tors would have been relevant to show his motive to falsify lab results on concrete samples collected by these men, especially given that one of the two worked for Barone at the Jet Blue site for two full years. 70 Kancharla claims that, without the enterprise corruption count, a jury would have heard only about the mix-design and steel-inspection schemes, but would not have heard anything about Testwell’s shoddy field-inspection procedures or the manner in which Test- well employees tampered with lab data or about the lies told to the SCA about the qualifica- tions of Testwell field inspectors. 104 Jurors at that hypothetical separate trial certainly would have heard the compel- ling evidence about the way Testwell was faking both mix-design tests and field and lab data at the Freedom Tower. Specifically, after Testwell created its first set of phony mix- design reports for the project, the Port Authority began doing its own field and lab test- ing (Bognacki: R80-84, K137, R130), and quickly discovered that Testwell’s field and lab results were very different from its own. Indeed, Testwell reported that all the concrete was as strong as it should be (Bognacki: R85, K140-41, R127; PX 69-4: R1607 [table 13]), but the Port Authority found that most did not reach the necessary strength, despite the fact that the mix had supposedly passed muster when Testwell “tested” it at the mix- design stage (Bognacki: R85-87; Murphy: R211; PX 69-4: R1607 [table 14]). Thus, evi- dence about the mix-design scheme Kancharla masterminded was necessarily inter- twined with proof that someone at Testwell was also faking the company’s field and lab reports. Nor is this case anything like those the defendants cite, which involved evidence of violent and far more serious crimes committed by the defendant’s “associates.” For instance, in Morales, 20 NY3d at 250, the erroneous inclusion of terrorism charges opened the door to evidence about numerous acts of assault and homicide committed by the defendant’s fellow SJB gang members over a period of three full years. Thus, the “aura of terrorism looming over the case” (id.) did not consist of the word ‘terrorism’ being used at various times during the trial. Instead, it was the admission of “largely, if not entirely, inadmissible” evidence of acts of “unrelated assaults, murders, and other 105 offenses” that created spillover prejudice there (id.). Here, as Kancharla concedes (Kan- charla Brief: 13), the enterprise-corruption charge did not open the door to evidence about any “violent acts” by the defendants’ associates.71 Rather, the crimes by the other Testwell defendants were of the same quality and nature as those Kancharla and Barone were charged with committing themselves.72 Indeed, the possibility of unfair spillover prejudice is belied by the relatively uni- form nature of the proof on the charges. First, all the crimes were “paper” crimes in- volving white-collar fraud, like offering false instruments for filing and the falsification of business records.73 Moreover, while Kancharla posits that the jury must have been alarmed to learn that field and lab tests were being faked (Kancharla Brief: 14), there is no reasonable possibility that they found that evidence qualitatively different from the evidence about Kancharla’s own crimes. See Jones, 482 F3d at 78 (while proof of murder 71 Similarly, in Bruno, 383 F3d at 91, which Kancharla cites (Kancharla Brief: 12), it was not the use of the word “racketeer” that required reversal of the remaining charge. Ra- ther it was the fact that the defendants – properly tried only for lying to the FBI – were tried along with mob defendants charged with two gangland murders. In United States v Guiliano, 644 F2d 85 (2d Cir 1981), it was not the mere existence of the racketeering charge that re- quired a reversal of the remaining count. Rather, it was the fact the government improperly introduced evidence that made it appear that the defendant might have committed arson that required a new trial on charges that otherwise involved a relatively minor instance of embez- zlement. And, in Rooney, 37 F3d at 856, the error at trial introduced “pejorative” visions of public corruption into what would otherwise simply have been a routine fraud case. 72 Nor was this a case like United States v Tellier, 83 F3d 578 (2d Cir 1996), in which a defendant, who should have been charged separately with a single Hobbs Act robbery count, was instead lumped in with a set of defendants who had committed fifteen major robberies, four murders, one attempted murder, two sales of stolen drugs, and one bribery of a witness. 73 In this sense, the charges of scheme to defraud were all based on proof that the de- fendants engaged in manufacturing false testing reports in a systematic, ongoing process. 106 was inflammatory, it was not substantially more so than some of the other evidence).74 The existence of the mix-design scheme stunned every builder, engineer, and regulator, given the critical nature these tests played in the building process. And, nothing in the other evidence had a more dramatic impact than evidence that Kancharla’s own conduct in over-booking his steel inspectors forced them to cut corners so much that an unsu- pervised “intern” welder was left to work on the structural steel components of sky- scrapers (Visconti: R897). Moreover, even without an OCCA charge, Kancharla’s supervisory role in the mix-design scheme would have revealed him as “the leader of a criminal enterprise” (Kancharla Brief: 29). After all, he not only filed false test reports personally for years, but he also hired Porter to create hundreds of additional phony reports and used his role as the CEO and owner of Testwell to persuade his employee, Kaspal Thumma, to begin faking reports. His leadership role in carrying out and advancing systematic, long-term organized criminal activity would have been before the jury one way or the other. United States v DiNome, supra, to which Barone devotes much discussion (Barone Brief: 24-25), is another instructive contrast. In that case, the two defendants who estab- lished spillover prejudice were convicted solely of fraud in connection with their efforts to obtain a home loan and a car loan. 954 F2d at 844. However, unlike Barone and Kan- charla, Mr. and Mrs. Hellman were tried – not with other people charged with similar 74 Moreover, the People’s evidence also made it clear that structures affected by Testwell’s phony and falsified “test” reports had been inspected after-the-fact – albeit at considerable cost (e.g. Scarangello: R356-57) – to ensure that the buildings were safe. 107 types of fraud – but with members of the DeMeo Crew of the Gambino Crime Family, who had engaged in a “vast array of illegal activities, including kidnapping, loansharking, narcotics distribution, pornography, extortion, [and] firearms conspiracy.” 954 F2d at 842. Indeed, the sixteen-month trial included evidence about “the brutal murders of var- ious persons viewed by the Crew as a threat to their business.” Id.; see also United States v Pelullo, 14 F3d 881, 899 (3d Cir 1994)(defendant improperly branded a convicted felon and portrayed as an associate of a Mafia family); People v Colletti, 73 AD3d 1203, 1205, 1207-08 (2nd Dept 2010)(trial was replete with references to the ‘Genovese-Bonnano Gambling Organization,’ evidence about “the structure, hierarchy, and activities of the ‘Cosa Nostra’ and its constituent organized crime families,” and even an expert’s testi- mony that Colletti himself was a “soldier” in the Genovese Family). Finally, the evidence as to each defendant’s guilt of the charges of which they stand convicted was compelling and unanswerable. Even at trial, the defendants did not contest the fact that the hundreds of test reports and test results they produced were ei- ther falsified or made up out of whole cloth. Nor could they dispute the fact that their bogus concrete reports did, in fact, defraud the builders, engineers, and regulators with whom they were filed, for more than a dozen of his victims testified that they believed that Testwell had done the required tests and had forwarded the true machine-generated results. Similarly, all three victims of the steel-inspection scheme believed that Testwell inspectors were actually supervising the manufacture of the structural steel pieces for 108 their construction projects, and did not know they were simply skipping the inspections and relying on someone to produce plausible-looking inspection reports to fill the void. Both defendants did apparently hope to convince the jury that they had acted in good faith, just as Kancharla now tries to write off his crimes as some sort of minor reg- ulatory infraction (Kancharla Brief: 17). However, as professional engineers, the defend- ants knew that the builders who relied on them could not even have imagined engineers at a testing company skipping the testing that constituted the whole purpose of their company or falsifying the data their tests did generate. And, Kancharla’s use of a random number generator to phony up the falsified mix-design “test results” established his fraudulent intent beyond any reasonable doubt, for there is “no legitimate or technical use for a random number generator in a mix design program” (Shilstone: K201). Moreover, his decision to pre-sign and pre-stamp blank pages that would later be used to generate phony test reports made Kancharla’s commitment to fraud as a routine business practice overwhelmingly clear. Similarly, Barone’s fraudulent intent was estab- lished, beyond peradventure, by the fact that there is never any legitimate reason for al- tering test data (e.g. Sirakis: R612). In addition, the fact that Testwell’s computer was programmed to eradicate the name of the “user” who altered the data (Mansour: R575- 79), like the less high-tech practice of shredding Barone’s faxed tampering instructions (Murthy: R704), made it clear that Barone and his confederates were perfectly well aware that what they were doing was wrong. 109 Thus, there is no reasonable possibility that the jury’s decision to convict the de- fendants of the underlying substantive crimes was tainted by the enterprise-corruption charge. On the contrary, given the strength of the evidence, and the patent weakness of their defense, it is impossible to imagine any jury reaching any other verdict but guilty. C. The People’s Summation Arguments The defendants point to comments in the People’s opening and summation in an effort to shore up their spillover argument. Notably, though, Barone concedes that these comments were proper at the time and became “inflammatory and highly prejudicial” retroactively, only when the enterprise-corruption count was vacated on appeal (Barone Brief: 27).75 In addition, both defendants resort to broad rhetorical flourishes, like the assertion that “[r]eferences to the ‘Testwell Group’ pervaded the record” (Kancharla Brief: 14; see also Barone Brief: 27). In fact, during the many months of this trial, the People used the term only once in their opening statement (R4), twice in questioning (B52, R141), and once in summa- 75 Barone points to one comment in the People’s opening and eight remarks in the summation, which was over 200 pages long. Kancharla’s arguments overlap, but he points to a few additional comments in the opening and about 20 more comments in the closing. Nei- ther defendant argues that he preserved an attack on these comments, to which they general- ly made no objection of any kind at trial. Moreover, their collection of supposedly prejudicial comments has grown over time, for they have added a great many since they briefed this is- sue in the Appellate Division. 110 tion (R1532).76 Moreover, it cannot be seriously asserted that the term ‘Testwell Group’ has anything like the inflammatory impact of repeated references and evidence about the ‘Genovese-Bonnano Gambling Organization,’ or the ‘DeMeo Crew of the Gambino Crime Family.’ Indeed, rather than tarring the defendants by association with a well- known and justly-feared entity like the ‘Cosa Nostra,’ the prosecutor here used an in- nocuous term based only on the name of the corporate entity for whom the defendants worked. Moreover, the People (and the judge) made it clear that the jury had to deter- mine if the defendants had formed a criminal enterprise within that corporation. Nor did the People’s summation hinder the jury from segregating the proof as to the specific counts and schemes from the separate question of whether the defendants committed those crimes as part of a criminal enterprise. In fact, the prosecutor properly used the proof of the specific crimes to establish that there was a criminal enterprise, but never argued proof that there was an enterprise could establish that the defendants were guilty of the underlying predicate crimes. For this reason, Kancharla’s invocation of Peo- ple v Castillo, 47 NY2d 270 (1979), is particularly misplaced. In that case, if Castillo had been tried properly, he would have faced a single count of attempted burglary based on an incident in which he was simply seen on a win- dow ledge tugging at a window. Instead, at his trial, the People introduced evidence of an earlier incident, in which a burglar who actually intruded into a family’s apartment, 76 The defense used this supposedly pejorative term somewhat more often (Defense Openings: R6-13; Defense Questions: R769-70; Defense Summations: R1510-11, R1518-19, R1521-22, K371). 111 robbed them, and committed first-degree sexual abuse against the family’s teenage daughter. Most important, the People argued, and the court instructed, that Castillo’s in- tent at the time of the second incident could be inferred from his completed actions dur- ing the first, far more sensational incident. Accordingly, once it was determined that the proof did not establish that Castillo was the intruder on the first occasion, there was little question that the uses of the first crime at trial might have tainted the jury’s evaluation of the second. See also United States v De Cavalcante, 440 F2d 1264 (3d Cir 1971)(evidence of other threats and statements by other people used to convict defendant of extortion de- spite lack of evidence showing that they were coconspirators). Here, in contrast, the People’s “spillover” arguments – to the extent they existed at all – were simply that proof of the underlying crimes could be used to support a finding of guilt on the OCCA count and not vice versa. Thus, there is no reasonable possibility that these arguments convinced the jury to convict on the predicate crimes when they otherwise would not have done so. Indeed, many of the remarks would have been the same, even if there had been no enterprise-corruption charge. After all, each defendant was charged with a series of crimes that require proof that the defendants intended to defraud builders and regulators about Testwell steel and concrete testing data. In addi- tion, each man’s defense consisted of claims that he committed his many falsifications without intent to defraud. Thus, with or without an OCCA charge, the People would certainly have argued that the defendants were “generating an intricate web of deceit” (People’s Opening: 112 B6.1), and that they were guilty of “fraud by design,” “[f]raud so thoroughly entrenched at Testwell that you can see the pattern repeated over and over literally for years” (Peo- ple’s Summation: K373-74; see also K374 [the fraud was not accidental, coincidental, sep- arate or disconnected, but was “the master plan”]; K375 [fraud was a “deliberate busi- ness strategy”]; B227.5 [fraud was the corporate defendant’s “gravy train”]). Plainly, the People would have argued that the fraud the defendants committed with the help of their underlings was deliberate, planned, and entrenched – even if there had been no en- terprise-corruption charge.77 In a similar vein, Kancharla complains about the People’s discussion of his viola- tion of the Building Code and his misuse of his professional engineer’s seal (K380 [ref- erence to Code]; K383 [use of seal as a “license to steal”]). These comments were direct- ly related to the mix-design scheme in which he participated and would certainly have been discussed in precisely the same terms if he had been tried on his own, particularly given that Kancharla trained Porter to perform these abuses and recruited other engi- neers to take part in the scheme. Nor is there any question that the People would have reminded the jurors that Barone and his Testwell colleagues hired and supervised field inspectors who were ill- 77 Comments Kancharla has culled from the People’s opening are similar (Kancharla Brief: 14 n.15). The People would certainly have predicted that the evidence would show that “the defendants falsified thousands of concrete and steel test reports that assured the integrity of buildings” (People’s Opening: R1) even if Kancharla and Testwell had been tried only on the mix-design and steel schemes, just as they certainly would have observed that the “frauds were ongoing and widespread” (People’s Opening: R2). 113 trained and unqualified (B229), even at a separate trial. After all, the fact that Barone knowingly had unqualified inspectors like Shikeen Kennedy working on his Jet Blue pro- ject for two years (McBride: R1441-43; PX 82-1: R1691) was one of his strongest mo- tives for falsifying lab data that would otherwise have raised questions about the quality of the field operation there. Even if there had been no OCCA charge, the People would certainly have pointed out that one motive for the lab-test data-tampering was to hide the shoddy work performed by the field teams. In other words, as the prosecutor said, Barone’s crimes were “part of the way [he and his confederates] covered up the false mix design reports and the incompetent and skipped field testing” (B230). Discussion of his motive was just as relevant to the substantive, predicate crimes, like scheme to de- fraud, as it was to the enterprise-corruption charge. Similarly, given that Barone was charged with, and convicted of, affixing his pro- fessional engineer’s seal to false concrete test data (PX 72-3: B257) and to phony steel inspection reports (PX 84-219: R1735), it was proper to include his name on the list of Testwell engineers who “stamp[ed] things that they knew were not true” (B228). More- over, with or without an OCCA count, the People would have discussed Testwell’s cor- porate liability for Barone’s conduct by describing how the evidence established he was a high managerial agent (B227.4-227-5) (characterizing him as Kancharla’s right hand man 114 and as the “last stop before Kancharla,” on the basis of examples drawn from Barone’s conduct).78 One lengthy quotation Kancharla pulls out of the summation is a perfect illustra- tion of the flaw in his reasoning (Kancharla Brief: 15, citing K373-74). The People cer- tainly did argue that the crimes the defendants committed were “not accidental, coinci- dental or separate and disconnected.” Notably, though, the crimes under discussion were Kancharla’s own crimes. More particularly, the prosecutor pointed to the false mix- design test reports and the shoddy steel inspection reports that were the heart of the charges against Kancharla personally (K373). Other comments Kancharla cites also con- cerned his own conduct and his own crimes, such as the assertion that he “allowed cor- ruption to seep into the concrete and steel divisions at Testwell, he built the company on a culture of fraud” (K378). These arguments would have been exactly the same, and equally proper, even if Kancharla had been tried solely on the mix-design and steel- inspection schemes with no OCCA count at all. Many of Kancharla’s other arguments are meritless for similar reasons. He ob- jects, for instance, to the People’s assertion that he had “trained his people in the fine art of half truth” and “fake responsive[ness]” (K378), asserting that there was “no proof of 78 Barone points to one comment in which the prosecutor noted that Kancharla had owned the company for ten years (B227.2), and asserts that this remark might have confused the jury into concluding that Barone’s schemes were also charged as taking place over a ten- year period, instead of the three-year period alleged in the indictment (Barone Brief: 28). A timely objection would have clarified any theoretical ambiguity on the timing of his crimes. In any event, the indictment was perfectly clear on this point. 115 such training” (Kancharla Brief: 16). Preliminarily, however, even Kancharla does not dispute that this argument was related to the concrete and steel crimes with which he was charged. And, in fact, contrary to his claim, the evidence established that he had hired and trained Edward Porter and two predecessors to make up “fake” mix-design test reports (Thumma: R775-79). Moreover, the various letters he sent out to DASNY in connection with the steel scheme were clearly intended to appear “responsive,” de- spite the fact that they were full of “half truth[s]” and outright falsehoods (PX 84-91: K446 [letter of 12/5/07]; PX 84-172: K452 [letter of 2/14/08]).79 In much the same way, the People’s comment that Kancharla’s ambition for the company “fueled” even the schemes as to which he had “delegated” responsibility to subordinates (K389, K393), like the field-test and lab-data schemes, was based on legit- imate inferences the jury might draw. After all, there was direct evidence from Thumma that Kancharla had recruited him into Testwell’s phony mix-design scheme and then delegated responsibility for it to Thumma (Thumma: K215-18, B148-49, K262). This evidence plainly supported the inference that Kancharla had taken a similar approach 79 For example, in his December letter, after an introduction about how “committed” Testwell was to “giving DASNY the level of detail they require,” Kancharla went on to state falsely that Testwell’s inspector at Owen had typically “worked a 14 hr day shift during this period” (PX 84-95: K450). Similarly, in his February letter, after lamenting that “our re- sponses did not meet [DASNY’s] satisfaction,” Kancharla stated falsely that Testwell had never received “guidelines” from DASNY about its views of billing DASNY for time in- spectors spent on other clients’ work (PX 84-172: K452). In addition, he revealed the falsity of prior assurances from his subordinates that DASNY would be billed only for time the Testwell inspectors spent on the DASNY project, by announcing that it would be “almost impossible” to delineate what time each inspector spent on any given piece (PX 84-174: K454). 116 with Testwell’s other schemes, especially when coupled with the evidence that he not only installed the computer system that allowed supposedly inviolate computer- generated lab test results to be altered at will, but was also one of the “privileged users” with access that allowed him to tamper with Testwell’s lab data (Mansour: R573-74, R580, B96; DX VB-E: B303). Of course, the People did discuss evidence about crimes with which Kancharla was not personally charged (Kancharla Brief: 13-14, citing K392-93, R1523-26, R1533). Even at a trial solely on the mix-design scheme, however, the jurors would have learned that “the affected projects included ‘schools, hospitals … every type of building we know’” (Kancharla Brief: 13), for his phony mix-design reports were filed for projects in Manhattan and elsewhere, such as Jet Blue, 7 World Trade Center, Yankee Stadium, River Place II, the Freedom Tower, Hillcrest High School, and Junior High School 149 (Murphy: R199, R222-25, R234-35). Indeed, to the extent that Kancharla seems to be implying that his crimes were less serious or less extensive than Barone’s, his position is at best ironic, since it was Kancharla’s crimes at the start of the concrete testing process that gave rise to Barone’s decision to tamper with lab data at the end of the testing pro- cess. The defendants are right, of course, that, having proved each of the substantive crimes and pattern acts, the People devoted a portion of their summation to the enter- prise-corruption count – arguing that each of the crimes at Testwell fell into a “pattern 117 of criminal activity” that justified a conviction on the OCCA charge.80 Of course, if that fact were enough to establish spillover prejudice, reversal would be automatic and inevi- table in every single case. The issue is not whether the People discussed evidence of the other crimes, for obviously they did. Rather, the question is whether the People argued that evidence of the “tainted” charge should lead the jury to convict on the proper ones. As noted, the situation in this case was precisely the opposite: having proven the de- fendants’ guilt on the substantive counts, the People went on to discuss the pattern es- tablished by those crimes. Thus, nothing in these arguments could have tainted the jury’s consideration on the substantive counts. In sum, as their lengthy deliberations and carefully mixed verdicts demonstrate, this jury was not stampeded into convicting anyone on the basis of prejudice. Indeed, their acquittal of one codefendant on all charges belies the defendants’ current claims that the enterprise-corruption charge tainted the trial and consumed their defenses. In- stead, that charge could have had only the most tangential effect on the jury’s earlier de- 80 Barone’s examples include: B232.2 [noting “the pattern in the fraud itself, in the enterprise”]; B232.3 [pointing to “the pattern of lies, deception, and fraud”]; B227.3 [arguing that the issue on the enterprise corruption count would be whether the defendants were part of an illicit “subgroup of a once legitimate company” and whether they committed “a series of crimes in an organized manner”]. Kancharla’s examples include: R3 [noting that fraud “continued from the phony mix design test reports to out to the field and then back to the lab”]; R1531 [arguing that “the fraud in these concrete and steel divisions were simultaneous and layered and that simultaneous institutionalized fraud is really obvious”]; R1531 [discuss- ing similar techniques of fraud used in various schemes]; R1527-28 [using a timeline for one month to show the crimes were not isolated events]; K410 [arguing that “These crimes work together. They had a cadence, they are not ad hoc or occasional and they all conform to a pattern of criminal activity …”]. 118 termination that Kancharla and Barone were guilty of some substantive crimes and not guilty of others. Accordingly, the Appellate Division majority correctly rejected their as- sertion that they were the victims of spillover prejudice. POINT III THE EVIDENTIARY RULINGS CONNECTED TO MIX-DESIGN COUNTS WERE PROPER (Answering Kancharla Brief, Point Three, pp. 29-39). For more than a decade, Kancharla and his Testwell confederates sold cut-rate mix-design reports, filled with false but plausible-looking “results,” when in fact the re- quired testing had never been done. Testwell offered concrete suppliers these phony re- ports for about one-tenth the cost of testing. Hundreds of times a year, a group of Testwell’s professional engineers – including Kancharla – rubber-stamped a report de- signed to convey the false impression that the mix the supplier wanted to use had passed muster in the lab. Suppliers simply contacted Testwell’s “Assistant Laboratory Manag- er,” Edward Porter, dictated the ingredients they proposed to use, and got a Testwell engineer’s seal of approval on the “test results” they wanted. On the basis of this evidence, Testwell and Kancharla were convicted of the “mix-design” scheme-to-defraud count and of a representative sample of false-filing counts. Kancharla does not challenge the sufficiency of the evidence supporting these verdicts or dispute the fact that he knew the reports were false. He does, however, claim that he should have been permitted to introduce (1) a series of phony test reports pre- 119 pared by other testing companies and (2) a set of emails showing that some people out- side Testwell knew that Testwell’s reports were falsified. However, as the Appellate Di- vision majority found (101 AD3d at 601), the trial judge exercised his discretion soundly in excluding these documents, because Kancharla never provided the foundation neces- sary to establish that they were relevant. A. The Evidentiary Context The New York City Building Code requires a concrete supplier to have its sug- gested recipe for concrete tested in advance (Bognacki: K97-99; Sirakis: R608-09, K184). Compliance with this rule would have required the supplier to provide Testwell with quantities of the actual ingredients the supplier wanted to use in a particular construction project, so that Testwell’s engineers could mix four slightly different batches and test them at various intervals over a period of two months (Thumma: K271-72). Kancharla now tries to paint his decision not to perform this required testing – and to provide falsified reports instead – as some sort of minor “regulatory violation” (Kancharla Brief: 30). However, a series of experts established that these tests were criti- cal because of the variable nature of the materials that go into making concrete and be- cause of the odd chemical reactions that can occur with some mixtures (Bognacki: R46- 52, R90-91; Sirakis: R599; see also Scarangello: R320, R327). Thus, as every engineer who testified agreed, no matter what one might expect from a proposed mixture, there must be testing. 120 Kancharla also implies that the Testwell “technician” who generated the false re- ports used some sort of “professional training and experience” in creating reports with “expected” results (Kancharla Brief: 30). However, the experts agreed that the strength of a proposed mix can never be simulated or described mathematically (Bognacki: R68- 69; Sirakis: R607; Shilstone: R733). Expected strengths listed in textbooks, much less numbers generated by arithmetical formulas, cannot be used without testing on the spe- cific actual materials and testing provides the only possible confirmation that the recipe will actually work “the way the math says it should” (Scarangello: R321, R346, R390). A licensed professional engineer like Kancharla plainly knew that estimates or expecta- tions, even when based on an engineer’s “professional training and experience,” were worthless. Furthermore, the “technician” who prepared these phony reports – despite his impressive Testwell title of “Assistant Laboratory Manager” (PX 126-11: R1777) – was not even a licensed professional engineer (Thumma: R780-81), and would not even have been permitted to supervise the required mix-design testing. Moreover, Testwell’s bogus reports did not present any kind of knowledgeable estimate of “expected” results. Ra- ther, what Kancharla now refers to as the Testwell “computer algorithm” (Kancharla Brief: 30) was only a set of arithmetic formulas like addition and subtraction that were set up to generate satisfactory “test results” for the recipe the supplier wanted Testwell to rubber-stamp (Shilstone: K197-98, R747). 121 The Code, for instance, required testing on four slightly different versions of the proposed recipe (Scarangello: R327-29; Sirakis: R602-03), to allow the engineer to ensure that there is not some “quirky” reason a mixture worked as it did (Bognacki: R53-54). This requirement is important since mixing in the field will always involve some degree of variation in the ratio of ingredients (Bognacki: R54; Scarangello: R389-90; Sirakis: R602, R638-39, R643). Testwell’s “software,” however, was simply an Excel spreadsheet into which the user input the ingredients as dictated by the supplier and then the pro- gram automatically filled in numbers for three other mixes (Shilstone: R737-38, K195-97). Obtaining the supposed “results” was equally automatic; the user simply typed in the strength the supplier wanted, the “algorithm” filled in a number that would meet the code standard, and a whole series of numbers then appeared for all the other columns and “tests,” based on nothing but pre-set constant arithmetic formulas (Shilstone: K197- 99, R751, R756-58). This system guaranteed a graph that seemed to show that the con- crete had functioned as it should across the “envelope” of four sets of tests. In fact, all it actually showed was that Kancharla and the other Testwell engineers knew what a good report should look like. It showed nothing about the results that could be “expected” from that mix-design in the field. Kancharla also asserts now that he may have “lacked fraudulent intent” because the otherwise phony test reports sometimes presented the concocted “results” of non- existent tests under the title “Expected Compressive Strengths” (Kancharla Brief: 31, citing DX RK-Z: K501). However, even if any of Testwell’s victims had noticed the oc- 122 casional insertion of the word “expected,” they would not have tumbled to the notion that the required tests had never been performed. After all, not only did the Code re- quire the tests, but other portions of the phony Testwell reports were designed to dupe the uninitiated into the belief that Testwell had obeyed the law. The “Subject” line, for instance, mentioned the legal provision that required test- ing (Bognacki: R58-59; Scarangello: R327-30, R344; Sirakis: R601, R606; see DX RK-Z: K500). The “Materials” were falsely characterized with the phrase “Typical as submitted by supplier” (Id.)(emphasis added). Moreover, Testwell’s “algorithm” did not generate round numbers that might have looked like guesses or estimates. Instead, the “technician” en- tered a round number, and the Testwell random number generator eliminated it and hid the underlying arithmetic pattern (Shilstone: K99-201, R746-58).81 Thus, Kancharla and his Testwell colleagues made sure that their phony reports mimicked real test data. Giv- en the deliberately misleading design of these reports, Testwell’s victims could have read the title “Expected Compressive Strengths” only to mean that these results could be “expected” in the field during construction. The engineers, architects, and regulators who received and relied on these bogus documents were duped into believing that the code-required tests had been performed (Bognacki: R66; Scarangello: R309-12, R318-19, R322-26, R384; Sullivan: R418; Sirakis: R634; Latch: R672, R680; Milonas: R711-16, K193-94, R717-23; Mevawala: R871-73; 81 On the example Kancharla points to (DX RK-Z: K501), the “technician” would have entered the round number specification of 5950 PSI, but the random number generator produced real-seeming “results” like 6688 PSI, 7154 PSI, 7618 PSI, and 8156 PSI. 123 Klein: K335; Choy: R1299-1308; Osbaugh: K180-81; Conger: K190). The chief struc- tural engineer for the Second Avenue subway expressed the views of these victims best: even after seeing the overwhelming proof that Testwell’s reports were phony, he found it difficult to believe any engineer would have committed this crime, given that the integ- rity of the structure depends upon these tests (Das: R863-64). In fact, none of these victims had ever thought to question the integrity of the re- ports, in part because each bore the signature and seal of a licensed professional engineer (DeJesus: R1040-44). Yet, Kancharla could not even be bothered to use his own “pro- fessional training and experience” to review the reports the unlicensed Porter generated. Instead, Kancharla streamlined the fraud by providing Porter with a stack of 70 pre- signed blank pages, with Kancharla’s professional seal already affixed (Connelly: R156- 59; Thumma: R798-800; e.g. PX 96-2: R1748). It was against this backdrop that Kancharla offered two sets of documents he had drawn from Testwell’s files. These documents appeared to show that other testing com- panies had sometimes produced falsified mix-design test reports and that some people working for concrete suppliers and contractors were aware that Testwell’s reports were fraudulent. However, as the courts below found, the documents did not establish that these other people were acting in good faith, much less that Kancharla lacked intent to defraud the victims of his scheme. 124 B. Phony Reports by Other Testing Companies The first set of documents Kancharla sought to introduce were mix-design test reports filed by other testing companies, which tended to show that someone at those companies had faked some reports on some occasions over the years (K75-82).82 Typi- cal were two reports from Stallone Testing Laboratories: the test results on the first re- port, from December 2002, were identical to the results on the second, from August 2004, despite the fact that the tests had supposedly been performed on different ingredi- ents more than 18 months later (R1821-26).83 As the People noted, these documents do appear to establish probable cause to believe that someone at these other testing companies was guilty of the same form of fraud as the defendants (K83-84). However, proof that others engaged in this “practice” showed only that this crime was not unique to Testwell. It did not show that anyone en- gaging in the fraudulent practice was acting in good faith. Quite the contrary, the most obvious import of an argument that “others did it too” is an implied claim that the defendant is being “selectively prosecuted” (Id. at 81), 82 With startling hyperbole, Kancharla asserts that these documents showed that “virtually every materials testing laboratory in the New York area” faked its mix-design test reports (Kancharla Brief: 29). In fact, he offered reports from only eight companies, one of which had been founded by a former Testwell employee (K80). 83 Most of these other companies appeared to use Stallone’s fairly crude method of creating false reports by copying “results” from one report to another. The exception was Ava Shypula Consulting, which used Testwell’s more sophisticated method of presenting “results” that appeared random unless one detected the hidden pattern (K80). As Kancharla conceded, Ava Shypula had worked at Testwell in the 1980s and appeared to have “taken the Testwell program with her when she established her own laboratory” (K80). 125 an appeal that is not only irrelevant, but also improper. People v Goodman, 31 NY2d 262, 269 (1972) (arguments about supposed discriminatory enforcement or selective prosecu- tion are for the court, prior to trial, and are not properly raised before the jury). And, while Kancharla disclaimed any desire to use the evidence to appeal for an acquittal based on this type of improper consideration (K81), the risk that the jury would be mis- led into considering it for this improper purpose was apparent.84 The question then was whether there was any proper purpose to be served by ad- mitting this potentially misleading evidence. Of course, a defendant may introduce evi- dence that “bears directly and not too remotely on his intention to defraud” (Kancharla Brief: 29), citing People v Kisina, 14 NY3d 153, 160 (2010). However, that hornbook prin- ciple does not allow a white-collar defendant to introduce any evidence he says reflects an “industry practice,” for most evidence of this type will show only that crime has be- come routine for some in the industry. Indeed, the line of case-law Kancharla invokes rests on the proposition that “[c]ustom, involving criminality, cannot justify a criminal act.” Smith v United States, 188 F2d 969, 970-71 (9th Cir 1951)(emphasis added) (uphold- ing decision to exclude proof that defendant knew that VA had earlier paid vouchers for false claims, similar to the ones he was charged with submitting); see United States v Brook- shire, 514 F2d 786, 789 (10th Cir 1975)(“[c]ustom and usage involving criminality do not 84 Notably, the defense never did make a direct claim of “selective enforcement,” pre- sumably because they knew the People were investigating and prosecuting other testing companies guilty of this type of fraud. Indeed, by the time of this trial, Stallone Testing La- boratories had already been indicted (Voir Dire: R1807-08). 126 defeat a prosecution for violation of a federal criminal statute”); Burnett v United States, 222 F2d 426, 427(6th Cir 1955)(“No custom is a justifiable defense for [a] violation of the [federal] criminal code”). Indeed, as the Third Circuit observed in a case Kancharla cited below, “[e]ven a universal industry practice may still be fraudulent.” Newton v Merrill Lynch, 135 F3d 266, 274 (3d Cir 1998). Like the trial court in this case, the Third Circuit refused to accept the notion that proof that others have committed the same wrongful conduct supports an argument that any of them were acting in good faith. Id.85 Instead, proof that other people have done the same thing becomes relevant only if a defendant can offer a logical threshold foundation that establishes they are all acting in good faith. Thus, exceptions can occur when a defendant offers proof of his own generally le- gitimate “custom and practice” to support a claim of inadvertence or mistake – as in some of the cases Kancharla cites. Kisina, 14 NY3d at 160 (defendant doctor charged with billing for unnecessary treatment should have been permitted to show that she did not commit fraud when visited by undercover officer posing as patient); see also United States v Seelig, 622 F2d 207 (6th Cir 1980)(in a prosecution of pharmacists for selling too much cough medicine too quickly, defense could present testimony about routine pro- cedures used in pharmacies to show how and why the defendant-pharmacists might 85 As Kancharla concedes (Kancharla Brief: 41-42), the judge made it clear that this ruling concerned only the admissibility of these documents and placed no limitations on any testimony Kancharla might want to give if he took the stand (K247). 127 have sold too much cough medicine within a 48-hour period without intending to do so).86 Similarly, it may be proper to introduce evidence about a victim’s “custom and practice,” as in the other cases Kancharla invokes.87 In United States v Riley, 550 F2d 233 (5th Cir 1977), for example, the evidence at issue showed that the victim, a bank, rou- tinely allowed trusted customers to cash checks, as the defendant did, and treated the matter as an informal loan. Thus, it could fairly be said that Riley was offering proof that the victim was not defrauded, not proof that other people indulged in fraud. See United States v Christo, 614 F2d 486, 492 n.7 (5th Cir 1980)(another bank fraud case); see also United States v Wittig, 2005 WL 1227938 at *4-5 (D Kan 2005)(admitting evidence of per- sonal use of corporate aircraft by other employees of the same corporate-victim to show that this usage might have been a known and permitted “perk”). Here, in contrast, the vic- tims of the fraud all testified that they knew nothing about Testwell’s phony “approach” 86 Along these lines, as Kancharla concedes (Kancharla Brief: 31), the trial judge al- lowed Kancharla to introduce documents showing that someone at Testwell had been pre- paring fake mix-design test reports well before he joined the company (K460-63). Notably, though, this evidence did not persuade the jurors that he was acting in good faith when he continued the process for more than a decade after taking over. If anything, the evidence established why he concluded that he could get away with faking results, not that he believed it was proper to do so. 87 In Justice Yates’s decision in People v Gilman, 28 Misc3d 1217A (Sup Ct NY Co 7/2/10), for instance, the documents at issue could have supported a claim that the defend- ants’ “bidding process” was not only “standard in the industry, [and] used by other brokers,” but, critically, also that it was “known to [the] clients” who had supposedly been victimized. 28 Misc3d at ***8-9. 128 to these vital tests and would never have approved it.88 Kancharla’s proffered proof that other testing companies had defrauded their own victims had no bearing on whether Testwell’s victims knew that Testwell’s reports were bogus. More important, Kancharla never offered a thing to provide the required founda- tional link. There was no evidence that the engineers and builders who relied on Stal- lone’s phony reports were aware that the Stallone lab had not really done the tests. There was nothing to show that the Stallone engineers thought they were acting properly or without fraudulent intent. Contrast Newton v Merrill Lynch, 135 F3d at 273-74 (defendants submitted sworn affidavits from “other respected members” of their industry stating that they had followed the same practice as defendants without believing it to be an im- plied misrepresentation). Thus, all Kancharla would have proven with his documents was that he was not the only professional engineer deceiving builders and regulators about this critical phase of testing—the very sort of “custom” argument that cannot jus- tify criminality. The fact that a particular type of crime is prevalent does not show that people who commit it lack intent to defraud, much less that no one is defrauded. Many people feel comfortable committing tax fraud because they suspect, or even know, that other people do so without getting caught. Plainly, though, they file their false returns with in- 88 Indeed, as the judge observed during a mid-trial colloquy, it was hardly accurate to call this type of conduct an “industry practice,” simply because some testing companies may have indulged in it, particularly when witness after witness from the construction industry took the stand and testified that they were “shocked” to learn that anyone had ever commit- ted this kind of fraud given the safety concerns it raised (K245-46). 129 tent to defraud the tax authorities. Similarly, many businessmen who commit fraud try to excuse their crimes with the notion that “everyone does it” and that they will be unable to compete unless they cheat as well. However, proof that they were right about their competitors does not establish that they acted in good faith or without intent to defraud those taken in by their schemes. It simply proves that they are not the only ones who deserve to be prosecuted. Thus, as the Appellate Division majority found, the judge ex- ercised his discretion soundly in excluding evidence that there were other companies that produced false testing reports. Finally, Kancharla notes that he recruited Thumma into the scheme by telling him that it was “standard practice” at Testwell and that “Testwell was not the only one doing it” (Thumma: K262-63). After this testimony, Kancharla said he feared that the People would argue that Kancharla lied to Thumma about the other testing companies and therefore wanted to use his documents to prove it was true (K245, K248). However, the People immediately assured him that they would never make that argument (K245, K248), and they never did. Thus, the jury could not have received this “misimpression” (Kancharla Brief: 35), and there was no basis for the judge to admit the otherwise inad- missible documents. Nor does the fact that the jury asked to hear Thumma’s testimony on this point prove that they thought Kancharla “may have lied” about it (Kancharla Brief: 35-36). Instead, they undoubtedly wanted to hear this testimony because it was powerful evidence of Kancharla’s complicity and his motive for committing these crimes. 130 In sum, if these exhibits were “the heart of [Kancharla’s] defense” (Kancharla Brief: 44), it was only because he had no real defense at all. Proof that other testing companies sometimes produced bogus “test” reports might have distracted the jury into debates about selective prosecution. In contrast, there was no foundation offered to make these bogus reports relevant to Kancharla’s intent to defraud. C. Turnaround-Time Documents The second category of documents Kancharla offered consisted of e-mail mes- sages that showed people working at concrete supply companies or for concrete con- tractors received phony mix-design reports from Testwell in less time than it would have taken to perform real tests. As the judge observed during one preliminary colloquy, as a general matter, this evidence showed only that there were some “unindicted coconspira- tors” at the concrete supply companies and concrete contractors (K90-91). It did not show that the victimized regulators, builders, architects, and engineers had not been duped by Testwell’s phony reports once the concrete suppliers passed them on to these victims. In fact, as the judge put it, it comes as no surprise “that two people complicit in a scheme to defraud know exactly what’s going on, but the alleged victim doesn’t” (Id.). Accordingly, as a general matter, the judge ruled that Kancharla could not intro- duce exhibits to show that someone working in some part of the “industry” knew Test- well produced false reports “within a day or two of a customer’s request” (Kancharla 131 Brief: 31-32).89 The distinction the judge drew was between people who were alleged to be victims (like builders, engineers, architects, and regulators) and people who were not (like concrete suppliers and contractors). Indeed, the suppliers and contractors were among the beneficiaries of the scheme, since Testwell’s charge for a phony report was generally less than 10 percent of what real testing would have cost (Thumma: R788, K270, R841). Additionally, for this massively-discounted price, Testwell’s “algorithm” guaranteed that the phony reports would reflect the results they wanted and Testwell’s “practice” guaranteed that a Testwell engineer would give their “mix” the required seal of approval. The trial court did admit any document that might be relevant to the credibility of a witness or that might show something about a victim’s knowledge. For instance, the judge allowed nearly 30 pages of questions about a single Testwell modified report dur- ing the testimony of one victim (Scarangello: R358-87). In addition, the judge admitted three “quick turnaround” exhibits showing that this engineer’s firm may have received a report slightly too soon for the results on it to be real (R360-62, R367-69).90 89 Kancharla’s use of the term “customer” to describe the concrete suppliers and con- tractors is telling, for in fact a materials-testing company is supposed to be independent of the concrete contractor and supplier and checking up on them on behalf of the builders, the en- gineers of record, and the regulators (Sirakis: R615, R630). 90 In fact, this cross-examination underscored how much Scarangello, and engineers like him, trusted and relied on Testwell. He explained that he and his colleagues never thought to question Testwell’s integrity, much less to annotate their calendars so they could double-check whether the reports were legitimate (Scarangello: R391-92). Asked if they were 132 The judge pursued the same careful course about a thousand pages later, during the testimony of engineer Mark Latch. Before commencing his cross, Kancharla sought to question Latch about a set of faxes involving the concrete supplier, the concrete con- tractor, the general contractor, and Testwell (R683-84). As the People pointed out, the witness was not a party to any of these emails and could not lay a foundation (R685-86). Thus, their admission would properly be a matter for the defense case – if a proper foundation was laid then (R685-86). Substantively, meanwhile, there was nothing to show that the witness knew when the concrete supplier requested the reports from Test- well and thus no basis for him to have tumbled to the fact that the reports were not real (R686).91 Accordingly, the judge sustained the People’s objection to questioning of this particular witness about the proffered exhibits, but commented that he could not tell what, if anything, might be different “on the defense case” (R688). In response to this basic foundational ruling, the defense protested that the judge was making “a finding” that, “if Porter’s name appear[ed] on [any document],” the recip- ient must be “an unindicted co-conspirator” (R688). On appeal, Kancharla takes the looking for fraud in their review of these reports, he explained, “No. Not – well, not until recently” (Scarangello: R391). 91 For instance, one of the exhibits showed that someone at S-3 Tunnel Constructors requested a report from Testwell on September 27, 2007, and that Porter sent it out to them only a few days later. Notably, though, the related engineering specifications are dated Janu- ary 31, 2007 – eight months before the request went to Porter. Thus, an engineer in Latch’s position – unaware that the report was not requested until the last minute – had no way to know anything at all about Testwell’s “turnaround” time, or what it said about the phony nature of Testwell’s reports. 133 same tack, asserting that the judge somehow “took judicial notice that a whole segment of the construction industry was an accessory to crime” (Kancharla Brief: 45). In fact, as the judge observed, he was not making “a finding” that all the concrete contractors were “in bed with Testwell,” much less “disparag[ing] a whole industry,” but merely “making evidentiary rulings about this case” (R689). Kancharla asserted, again, that his proposed exhibits “suggest[ed] that the general contractor on this job” knew the tests had not been done (R689-90). The judge pointed out, again, that, while things in the concrete industry might be “as bad as [the defense] contend[ed],” cross-examination of this witness was “not the vehicle to discuss that” (R689-90). The propriety of this foundational ruling is underscored by the judge’s later deci- sion, during the defense case, when Kancharla offered some of these documents again.92 This time, as Kancharla concedes (Kancharla Brief: 38), the judge did admit the exhibit – along with a whole series of others (K472-85). Kancharla’s goal was to show that an en- gineer, or at least a general contractor (who was only one step away from the victims in the paper trail), had received a report so quickly that he could have pieced together the fact that it was fraudulent (R1443-45, R1465-76, K356-64). And, the judge admitted such documents whenever Kancharla could lay a proper foundation. There was one other set of exhibits that the judge excluded (R1445-46, R1464; e.g. DX RK-HHH: K496-99), but, again, contrary to Kancharla’s claim, the ruling was prop- 92 Specifically, Kancharla offered this exhibit again, as part of Exhibit RK-FFF-4 (K488), through a witness who could at least testify that the documents were a part of Test- well’s business records (Guptha: R1489-90). 134 er. These 31 e-mail exchanges appeared to show that some contractors were requesting and receiving Testwell’s phony reports so quickly that they must have known they were fake.93 Of course, these contractors were at least two steps removed on the paper trail from the victims, so their knowledge of the fraudulent nature of Testwell’s reports did not reflect whether the victims had been duped. Kancharla could easily have felt comfort- able tipping his hand with contractors he knew. An intent to conceal the truth from the victims was not inconsistent with the openness Kancharla and Testwell appear to have shown with long-time contractors in on the scam.94 Moreover, some of the exhibits included engineering specifications that showed that the victims would not have known about the fraud. The specifications are often dat- ed many, many months earlier than the reports Testwell subsequently churned out in response to a crony’s last-minute request (see e.g. DX RK-HHH2: R1827-30 [specifica- tions dated more than a year before the Testwell report]; DX RK-HHH17: R1841-42 [nearly a year]; DX RK-HHH23: R1843-44 [more than a year]; DX RK-HHH26: R1845-46 [six months]; DX RK-HHH27: R1847-48 [five months]). Thus, none of these exhibits were relevant to whether the victims were duped by Testwell’s phony reports or whether Kancharla intended to dupe them. 93 These email exhibits implicated far fewer people than Kancharla’s numbering might imply, for most concerned the same four contractors. 94 Ten of these e-mail exhibits relate to fraudulent reports stamped by Kancharla himself (e.g. DX RK-HHH3: R1831-36). He clearly had a longstanding relationship with two or three of these concrete contractors (e.g. DX RK-HHH3: R1831-36 [dating from 1999], DX RK-HHH4: R1837-40 [same]). 135 At the same time, the most likely impact of these documents would have been to distract the jury, who could easily have interpreted them as an appeal to sympathy on the basis of selective enforcement. Thus, the decision to sustain the People’s objection to the documents, which had no relevance to the charges at hand, was plainly proper. Finally, Kancharla complains that the People “were able to blunt the force” of the “turnaround” documents the judge did admit (Kancharla Brief: 38). Specifically, he points to a few lines in the People’s summation in which they discussed the “handful” of Testwell reports that had been “submitted to engineers in less time than it takes to run tests,” pointing out that the victims had overlooked that fact because, in “those days at least,” “they weren’t plotting dates” (K383-84). Kancharla implies that this argument would have been less persuasive if the jury had learned “of the many documents evi- dencing that concrete contractors knew of the quick turnaround time” (Kancharla Brief: 46)(emphasis his). If anything, proof that so many suppliers and contractors received the reports too early and that so few were delivered prematurely to the victims would have added force to the People’s point. Clearly, most of the people who were in on Testwell’s scheme were careful not to pass on the reports too early, except in a “handful” of in- stances. These cronies plainly knew, as Kancharla did, that the victims were expecting genuine reports with real test results, not the worthless pieces of paper with made-up numbers Testwell actually produced. * * * 136 In sum, the People presented overwhelming evidence that, for years, Kancharla and his confederates created phony “test reports,” knowing that they would be viewed as genuine by engineers and architects building major construction projects. His person- al justification for these crimes might have been his sense that “everybody does it,” but that fact does not excuse what he did or provide any basis for his attack on the judge’s evidentiary rulings. POINT IV THERE WAS OVERWHELMING EVIDENCE THAT BARONE TAMPERED WITH TESTWELL LAB-TEST DATA (Answering Bar- one Brief, Point I(C), pp. 30-37). Before the jurors even considered the enterprise-corruption count, they convicted Barone of four counts of first-degree false-filing and of first-degree scheme to defraud. Specifically, they found that he had falsified lab-test data about concrete being poured at the construction sites with intent to defraud those who relied on Testwell to ensure that the concrete was all it should be. To bolster his claim of spillover prejudice, Barone as- serts that his defense to this charge was tainted by the “aura of a criminal enterprise cor- ruption charge taking center stage at trial” (Barone Brief: 30). In fact, the evidence left no doubt of his guilt. First, even Barone does not dispute that the evidence proved that other Testwell personnel tampered with the test data thousands of times a month, on more than 100 building projects including office buildings, courthouses, stadiums, bridges, subways, 137 airports, garages, schools, and hospitals (Barone Brief: 9, 31; see PX 159: R1801). Indeed, Testwell was found guilty of all the data-tampering counts, and two Testwell employees, Priti Shah and Peter Promushkin, pleaded guilty for their part in this scheme. Second, incontrovertible documentary evidence – in the form of faxes Barone sent to the concrete department – established that he altered lab-test data on scores of occasions by ordering the Testwell staff to change the lab’s true result to a new number of his choosing (e.g. PX 77A-1: B267). Of course, according to their regular protocol, the staff shredded these faxes after they entered Barone’s new numbers in place of the real results (Murthy: R704). That fact was powerful proof that he and the staff knew there was nothing innocent about the “changes” he was making. Fortunately, some overlooked faxes were found during the court-ordered search and even that very limited sample showed how routinely he tampered with the lab data, for the faxes established over 300 instances in which he ordered true data to be changed (R466). In addition, Anaradha Murthy – one of the employees tasked with entering Bar- one’s new “data” into the supposedly tamper-proof system – confirmed that Barone sent similar faxes “maybe once a week or once every two weeks” (Murthy: B118-20). Barone’s defense hinged on the fact that flexural-strength testing of concrete beam samples requires the lab technician to do six measurements and some arithmetic before arriving at a result (Thumma: B145, R785-87, B162-63, B166, B171; see also Bognacki: B27-28; Sirakis: R641). Capitalizing on that fact, Barone’s attorneys tried to persuade the jury that Barone – the company’s Vice-President – was constantly showing up to dou- 138 ble-check the lab techs’ measurements and then altering data when he discovered that their measurements were wrong. While he now characterizes this defense as “strong” (Barone Brief: 30), it was in fact doomed from the start. After all, as he concedes (Barone Brief: 11), about 10 percent of the changes that survived the shredder concerned cylinder test-results (see e.g. PX 77A-4: B270; 77A-5: R1639; 77A-9: R1643; 77A-22: B270; 77A-28: R1662; 77A-37: B283; 77A-42: R1676; 77A-45: R1679, 77A-47: R1681). Even his attorneys have never come up with an inno- cent explanation for these data alterations, since there is no measurement step in the testing of cylinders, which are literally crushed to pieces by the machines. Nor is there any acceptable reason for an engineer to change test data of this type (Bognacki: R45). Thus, Barone could only have been substituting a falsified number he preferred for the true result determined and stored by the lab’s test machine. And, given that he routinely made fraudulent changes to cylinder data, the jury had every reason to find that his beam changes were fraudulent as well. Barone’s “re-measurement” theory, flimsy as it was as a theoretical matter, was weakened still further by the fact that it rested solely on the testimony of a single defense witness, Enrique Maturana, whom Barone no longer even mentions. Maturana, who worked as a laborer carrying concrete into the lab, did testify that he saw Barone meas- uring beams sometimes or “lots of times” or even “[a]lmost every day” (Maturana: R1477-78, B217-21, R1485). On cross, though, he embroidered this tale with details that proved it was made up out of whole cloth. Specifically, he said that Barone measured 139 broken beams, which might have made sense, but also that he measured whole beams (Maturana: B221, R1484-85) – which no engineer would have done. He also said Barone measured cylinders and “[s]ometimes [the cylinders] would be whole, sometimes they would be a piece” (Maturana: R1485). Maturana clearly thought that the more measur- ing he reported, the better it would be for Barone. However, the jury knew that cylinder testing does not involve any measurements and that this embellishment was not only false but nonsensical. Finally, Maturana undid everything else he said by claiming that Barone had made all these supposed re-measurements with a tape measure (Maturana: B217-20). That testi- mony may have seemed plausible to the untutored Maturana, but the jurors knew that the measurements involved have to be made in hundredths of an inch (see PX 74-9: R1628), and the proper tool to make them is a set of calipers (Thumma: B162-63 [demonstrating the process]). No engineer would have measured beams with a tape measure or believed that such measurements were more “correct” than those performed with the proper tool. As a result, Maturana’s testimony, and Barone’s “re-measurement” defense, was revealed for what it was: an unconvincing, after-the-fact attempt to explain away the faxes that proved Barone’s guilt. With the core of his defense proven false, Barone is left with a series of thread- bare attacks on the People’s evidence. For instance, he asserts that he was “unfairly linked” to the fraudulent conduct of Testwell colleagues like Caruso (Barone Brief: 31). In fact, the four false-filing charges against Barone were based on conclusive fax evi- 140 dence that proved he personally ordered data to be falsified on the reports and certifica- tion underlying those counts. The faxes also revealed his guilt on the scheme-to-defraud count since they established hundreds of other data-falsifications for which he was per- sonally responsible. It hardly mattered, then, whether he also made false data changes in person when he visited Testwell headquarters, since it was overwhelmingly clear that he did so by fax on a routine basis throughout the years that Murthy worked at Testwell (Murthy: B120). Nor was there anything “ambiguous” about Murthy’s testimony that Barone stepped in to review “low break” reports on days Caruso was not available. After ex- plaining that, generally, when the staff saw the computerized “low break” alert pop up, they notified Caruso and he gave them a new number to put in (Murthy: R692, B115-16, R695, B117), Murthy was asked what happened when Caruso was not around: Q: … Now, if Mr. Caruso were on vacation or ill, was there another person you might work with in the concrete de- partment? A: We would. The same way we report it to Mr. Caruso, we would ask to report it to Mr. Barone. Q: In Mr. Caruso’s absence, Mr. Barone would pitch in? A: Whenever he comes in our office, like he comes maybe twice or three times a week and then we would have the reports and then give it to him (B117). Thus, while there was no need to prove Barone falsified data in person at Test- well headquarters, Murthy’s testimony did prove that point. Nor did it matter that “there was no evidence that Mr. Caruso and Mr. Barone ever discussed altering test results” 141 (Barone Brief: 32), for Barone certainly communicated with other participants in the scheme to achieve that end. Barone’s other arguments are equally specious. It is not true that “[t]he investiga- tion revealed that [he] never had any access privilege” that would allow him to alter data directly and on his own (Barone Brief: 31)(emphasis his). All the computer search “re- vealed” was who had “access” during the brief period from March to June 2008 for which back-up copies of the system were available. While no “privileged” user-name from that period was obviously connected to him, the search confirmed that Kancharla, Caruso, Porter, and the entire data-entry staff all had access to tamper with data (DX VB-E: B302-03). Thus, whether Barone he had his own “privileged” user-name or not, he had “access” to tamper with the data whenever he wanted by the simple expedient of issuing orders to the staff. In fact, what was most significant about Testwell’s state-of-the-art computer was that it was programmed to eradicate all the incriminating information it would otherwise have contained about which specific “user” altered which specific result (Mansour: R575-78). Like the practice of shredding Barone’s faxes or Caruso’s orders that the staff use code on the e-mail (Barone Brief: 20-21; see PX 80-4: B286), this unusual program- ming was powerful evidence of consciousness of guilt. Similarly, Barone’s decision to do his tampering through an indirect route that would not leave any forensic “fingerprints” showed that he was more wary than his confederates, but not that he was any less cul- pable. 142 Barone also asserts that his data-tampering did not “follow Mr. Caruso’s distinct fraudulent pattern” – a claim he bases on the contention that he “never instructed em- ployees to flag low breaks for revision” (Barone Brief: 33). However, no one had to in- struct the employees to flag “low breaks,” because the Testwell computer was pro- grammed to generate an alert whenever results fell below the required threshold (Murthy: R692, B115). Moreover, even in the few faxes available, there were multiple instances in which Barone raised a “failing” result to a phony number that made it appear that the concrete had “passed” the test.95 While he now touts the fact that he sometimes “in- structed employees to point out failing test results” (Barone Brief: 33), those instructions have to be viewed in context. One can consider Exhibit 77A-22 in conjunction with Ex- hibit 77A-37. In the first fax, he falsely raised the 28-days results from 4480 to 4510 PSI, a bit under the 5000 PSI threshold. When the 56-day results were still below specifica- tion, he marked the result he had changed earlier as failing to “meet design strength” and then falsely raised the 56-day result to 5010 PSI to make it appear that the concrete had ultimately “passed” – when in fact it had not (PX 77A-37: B283). In general, he was careful to leave a realistic number of anomalies), for, as a pro- fessional engineer, he realized that a complete lack of “non-problematic” results would 95 For instance, in one fax (PX 77A-47: R1681), the concrete had not reached the re- quired 4000 PSI even by the time of the 56-day testing. Barone hid that “failing” result by substituting a false result of 4280 PSI for the true result of 3980 PSI. On another occasion (PX 77A-5: R1639), the true data showed that the concrete had not reached the threshold of 5000 PSI by 56 days and Barone raised the “failing” result of 4840 PSI to a “passing” result of 5840 PSI. 143 have been highly suspicious as “almost too good to be true” (Murphy: R172).96 And, while sometimes his goal was to hide flaws in the concrete, at other points his intent was to conceal flaws in Testwell’s collection and testing process. Caruso generally handled matters when the concrete was under-strength (Barone Brief: 32). Barone played a more sophisticated role – even lowering results on occasion – to cover up a suspiciously high result that might have raised questions about the quality of Testwell’s work (Bognacki: R134; Scarangello: R353-54; Sirakis: R613-14; Conger: R659).97 And, Testwell’s field operation – which was under Barone’s command – had a lot of flaws that required covering-up. The staff was over-worked, under-staffed, and un- der-equipped (Sellers: R301-03). Some personnel were simply unqualified. One example was Jamar Sellers, who worked as a field inspector for months before he passed the re- quired ACI tests (Sellers: R293-96). Notably, Barone went to elaborate lengths to try to keep the SCA from learning about two other unqualified Testwell inspectors (Stipula- tion: R1038; Richardson: R1405-06; PX 82-1: R1691). The lies he told were designed to ensure that no questions would be raised about the quality of the work these unqualified 96 Notably, though, the defense tally of Jet Blue beam results showed there were very, very few “low breaks” – only .74% in the data submitted to the engineers (Merrett: B225- 26). 97 At one point, Barone contends that senior investigator Murphy found “no fraudu- lent pattern” in Barone’s data-tampering (Barone Brief: 37). In fact, Murphy was asked was whether “there would be any engineering basis to change [the beam results]” (Murphy: B55)(emphasis added). To that question, he replied that he had looked at the matter “pretty hard” and decided that “[t]here [was] no reason to change the compressive strength test re- sults, and we could not figure out any rhyme or reason behind the change[s] for the flexural strength” either (Murphy: B55-56). 144 men did on the few days they worked for the SCA, but also the work they did on all the rest of the days, weeks, and months they worked for Testwell. Significantly, one of them worked for Barone at the Jet Blue project for two years (McBride: R1440-41) – despite his inability to pass the necessary exams (ACI Rep Nehasil: R1037, R1039).98 It is no surprise that the true results from Testwell’s lab often reflected suspi- ciously high results until Barone stepped in to falsify the data downwards. And, it does not take an engineering degree to see the fraudulent motive behind these downward changes: he covered up problems by making an earlier sample appear weaker than a later one (as it ought to) and to make adjacent test results on the same batch of concrete ap- pear similar (Baarbe: B68-69). For instance, Count 21 concerned concrete poured on June 25, 2007 (PX 72-25: R1624). The related faxes show that Barone tampered with the test-data twice: once on July 13 (PX 77A-20: B274) and once on August 29 (PX 77A-40: R1674). His goal each time leaps from the page. First, he tampered with the 7-day and 14-day results once they were available to disguise the fact that two of the 7-day results were far too high, so he lowered them and raised two of the 14-day results. When the 56-day test results came in, he stepped in again. The 820 PSI result on one would have cast doubt on all the other 98 Testwell inspectors who technically were qualified for the work often failed to fol- low the required procedures. A few days of surveillance at Yankee Stadium, for instance, re- vealed that three ACI-qualified inspectors routinely skipped required field tests (Murphy: R174-89). A day of surveillance at one DASNY job revealed another Testwell inspector vio- lating every rule in the book when collecting test cylinders (Leask: R1169-79, R1316-18, R1328-29). His dereliction was all the more significant because he knew the monitor was watching (Leask: R1171-73, R1316, R1328-29). 145 results because it was so low, so he raised it to 920 PSI – creating the smooth upward progression expected from properly curing (and properly tested) concrete. The 1100 PSI result, in contrast, might have looked too good to be true for 750 PSI concrete, a prob- lem he solved by lowering it (PX 72-25: R1624; PX 77A-20: B274; PX 77A-40: R1674). The data-tampering he committed in connection with Count 22 is similar (PX 72-29: K437). Again, he lowered early results to more plausible numbers to hide flaws in the collection process and then tampered again to raise later results to conform to the falsi- fied data he had already provided (PX 77A-20: B274; PX 77A-40: R1674). The data-tampering he committed with concrete cylinders reflects the same pattern of criminal falsifications. For example, on one fax (PX 77A-4: B270), he ordered the staff to lower the true 28-day test result 5660 PSI to 4960 PSI. The true results on the three sequential tests on the concrete poured that day were 4850, 5660, and 4960. The 5660 PSI result would have stuck out like a sore thumb and raised questions about whether the Testwell inspector who collected that sample could be trusted at all. After Barone falsified the data, however, no one would have suspected a thing, because they now read 4850, 4960, and 4960.99 Nor was there anything exculpatory about the fact that he sometimes tampered with early test results before the results from later tests were available (Barone Brief: 33- 99 On another cylinder-related fax (PX 77A-45: R1679), Barone falsified the data (in connection with 6000 PSI concrete) to change it from 10,000 to 9,000 PSI. Again, the true result would have “stood out” – raising questions about how the concrete could possibly have come in so far over the specifications. 146 34). He simply “fixed” results at an early point in order to hide problems that were al- ready apparent. For example, he “changed” 7-day results for concrete poured on July 3, 2007, before the later results were available (Barone Brief: 34-35). As the related faxes reveal (PX 77A-19: R1653; 77A-20: B274), his immediate goal was to cover up problems in the data he already had – which showed a 3-day result (1150015) that was higher than the related 7-day result (1150016). In another example, the same incriminating pattern is clear, for once again, he tampered with a set of 3-day and 7-day results by switching them around, falsely switching the 3-day result of 800 for the 7-day result of 720. And, contrary to his claim (Barone Brief: 35), the same incriminating pattern is revealed by the tampering he did in another fax he sent (PX 77A-41: B284), altering the results for one test sample to decrease the 7-day result from 790 to 690 PSI. The final report he submit- ted to engineer Conger (PX 72-87: R1635) shows why: as altered, the data shows a smooth progression from 550 PSI at 3 days to 690 PSI at 7 days and on to 780 and 710 PSI at 14 days. The true data, in contrast, would have shown a 7-day result that was higher than either of these two 14-day results. It is also misleading to attack young Simon Baarbe for the fact that he “never bothered to analyze whether the original or altered results fell within, or outside of, the acceptable standard deviation” (Barone Brief: 36). To the uninitiated, this theory might sound weighty, but it was no accident that Barone’s attorneys avoided the subject with the many expert engineers available as People’s witnesses. Baarbe was a little out of his depth on this matter (Barone Brief: 35-36), but the expert Sirakis had already explained, 147 what Barone ignores: it is never legitimate to alter test data, even within the degree of per- mitted variance (Sirakis: R612). Thus, a trained engineer like Barone could not have thought he could safely, or legitimately, use his “judgment” to decide which results were important and which could be hidden from the engineer of record. Barone also devotes some discussion to an “anomalies” chart prepared by a para- legal working for his attorneys (Barone Brief: 34).100 According to this chart, on the Jet Blue project, only 12.69% of Testwell’s reported 28-day results and only 11.82% of its results overall were “anomalous” – by the paralegal’s definition, which included only in- stances when later tests did not show higher strength than earlier ones (Merrett: B224- 26). Notably, though, this chart did not include the other sort of anomaly relevant to the engineers: instances in which one result out of three “adjacent” tests conducted on the same concrete at the same time was widely divergent from the others (Conger: K190, R657). Moreover, the paralegal, who had no background in engineering, had no idea how many “anomalies” a trained engineer would expect in real test data (Merrett: R1509). What is plain, though, is that the paralegal’s “analysis” would have yielded a far higher percentage of anomalous results if it had included the ones Barone eradicated by tampering with the real test data. 100 Barone is right that the young Thacher employee tasked with tabulating the data changes did not also make a chart of all the Jet Blue beam test results (Barone Brief: 33). In- stead, the defense had their own paralegal perform that task – without in any way changing the jury’s conclusion that Barone had been up to no good. Nor is it fair to fault young Baarbe for the fact that he did not interview any Testwell technicians (Barone Brief: 33-34), for that was not his role. Notably, though, Barone’s team did not call any of the lab techs to testify – presumably because they did not have anything exculpatory to offer. 148 Equally without merit is Barone’s argument about what he terms “the Blank Fax” (Barone Brief: 36), for it rests on one piece of evidence viewed in a vacuum. The jury, in contrast, knew that this exhibit was only one of a pair of faxes Barone sent one day. In the first, Barone had demanded that the staff “mark” a series of 24 tests so that he could view the lab’s results from his terminal (PX 77A-32: R1666 [“Please mark ‘checked’ I need to see results”]). Obviously, if he had “independently” re-measured the beams, he would not have “need[ed] to see [the lab’s] results” before sending over data from his own re- measurements. Thus, when he sent “the Blank Fax” later that day, after the staff had time to make the lab’s true results viewable on his screen, it is no surprise that it contained orders to alter two of the lab’s results. In sum, there was overwhelming evidence that Barone routinely tampered with Testwell’s lab-data and his conviction was due to that evidence, not to any non-existent spillover prejudice. POINT V THE EVIDENCE AMPLY PROVED THAT THE DEFENDANTS EACH INTENTIONALLY AIDED IN THE STEEL INSPECTION SCHEME (Answering Kancharla Brief, Point Two, pp. 19-29; Barone Brief, Point One(C)(3) pp. 37-39). Kancharla asserts that the evidence was legally insufficient to support his convic- tion of scheme to defraud in connection with Testwell’s steel inspection scam (Kanchar- la Brief: 19). Barone does not attack the sufficiency of the evidence, but does argue that 149 the verdicts were tainted by “spillover” prejudice (Barone Brief: 37). In fact, the jury’s careful verdicts on these counts conclusively refute any claim of prejudice and the evi- dence fully warranted the jury’s finding of guilt. A. The Relevant Evidence The jury convicted Testwell of defrauding three clients who had contracted to obtain structural-steel inspection services on the basis of evidence that Testwell cut costs by assigning its two steel inspectors far more work than any two men could possibly have performed. The DASNY job alone involved about 7,000 pieces of steel, some of which were 60 feet long (Visconti: R876-77). Since the Building Code requires that every single weld be inspected during production and that most be subjected to after-the-fact testing as well, DASNY expected this work to absorb the full, essentially round-the- clock, attention of two inspectors, and maybe even more once production got moving (Visconti: R886-87; Leask: R1140-42, R1257). Nonetheless, Testwell assigned these same two inspectors to handle other, equally intensive jobs. The day inspector, Clyde Finklea, was supposedly conducting all the in- spection and testing for Tishman’s One Bryant Park skyscraper (DeLeone: K313, K317- 18). Like DASNY, Tishman thought that this work would be a full-time job (DeLeone: K318). Yet, for three full months, from April through June 2007, Testwell assigned Finklea to both jobs – and even to a third “night” job at a plant an hour’s drive away in 150 North Carolina, where steel was being manufactured for use in the Meadowlands Xana- du project (Monahan: R1055-56).101 Nor was this over-booking of the inspectors a one-time, short-term aberration. Rather, Testwell double-booked, and even triple-booked, its two inspectors in a system- atic and ongoing fashion. Almost immediately after Tishman’s steel was finished, Test- well assigned Finklea and his fellow inspector, Tommy Dowd, to yet another full-time steel inspection project: River Place II, a huge high-rise apartment building by Silverstein Development (Klein: K327, R1114-15, R1129). For two months, the two Testwell in- spectors were assigned, yet again, to two full-time 10-hour-a-day jobs at one steel plant and to an additional 4-hour-a-day shift each at the other plant as well. Testwell not only fraudulently cut its costs (and the services provided), but also maximized its revenue by duping each client with falsified bills. During the three months when Tishman’s work overlapped with DASNY’s, Testwell generally billed Tishman for every minute of Finklea’s 10-hour day (DeLeone: K319-24; e.g. PX 89-1: R1738). During the next two months, when steel was being made for both Silverstein and DASNY, Testwell generally billed Silverstein for every minute of the inspectors’ time (e.g. PX 97- 22: K456). Thus, unless the inspectors did no work at all for DASNY during these five months, Testwell’s bills to Silverstein and Tishman were false. 101 Testwell generally charged Xanadu for 4 hours of work a day for each of the two Testwell inspectors beginning in April (at the same time as steel production at Owen for John Jay), and it continued right on through to the fall (e.g. PX 97-22: K456). 151 The bills sent to DASNY were equally false, for Testwell also billed DASNY for the full period of each inspector’s shift for every day of the overlap period (Visconti: R903, R933-34, K297-98; Monahan: R1057, R1059-69; e.g. PX 84-180: R1733). Testwell even billed DASNY for full-time work on three days when the plant was closed (Visconti: R1030). Again, unless the inspectors did no work at all for Silverstein and Tishman dur- ing these months, the DASNY bills were false. Silverstein and Tishman were duped by Testwell’s inflated bills and paid them (DeLeone: K322-24; Klein: K330). DASNY would have been duped as well, had it not been for the things their representative learned on an unannounced site-visit, including the fact that Testwell had the men working on two projects at once (Visconti: K294-95, R888-94, R957, R995-98, R1021). In addition, he saw an unqualified “intern welder” working on one of the John Jay pieces without any supervision from Testwell’s inspec- tor, who was nowhere to be found (Visconti: R889, R892, R897-99, R998-1000, R1021- 22, R1028-29). Most shocking, when the DASNY rep finally did find Finklea, Finklea said he performed only after-the-fact “review” of the steel, rather than the kind of real- time weld inspection required by the Building Code (Visconti: R906-07, R1023). The false bills Testwell sent to each client were, in part, an end in themselves, since they could have allowed the company to double its “take” on each inspector. The phony bills were also a means of covering up the more pernicious fraud involved in as- 152 signing two men to do the work of at least four.102 Another step taken to hide the fact that the overbooked inspectors could not inspect every weld, as required, was the sub- mission of falsified steel inspection reports for the DASNY project. The first set of in- spection reports Testwell sent DASNY was, in fact, so badly falsified that its fraudulent nature was revealed by a random spot-check.103 Unfazed, Testwell set about creating a set of “revised” reports, which Barone states contained only “two mistakes out of approximately 970 pieces of steel listed” (Barone Brief: 13). Nothing could be further from the truth. There were now only two non-existent steel pieces listed, and the defendants tried to suggest that those reports rep- resented pieces with similar numbers (Barone Brief: 13, citing cross of Leask: B191-92). However, both of the real pieces with similar numbers had been finished and stored away before the phantom pieces appeared on Testwell’s reports (Leask: R1293, R1296- 102 Oddly, Barone states that DASNY was required to pay for an inspector’s entire shift even if there was “downtime during the shift” (Barone Brief: 14 n.8, citing B178-83; see also Kancharla Brief: 27 n.26, citing the same pages as K309-10, K325-36). In fact, these pages show only that, under their hourly billing system, DASNY would have been willing to pay for some downtime, if there was proper “clarification” on the time sheets about why he was performing no work then (B182-83; see also K325-26 [Tishman would have paid for down- time if “it was dedicated to [their job]”). In any event, it hardly mattered that the victims would have been willing to pay for some properly documented “down time,” for the heart of the fraud here was that there was no “down time.” Because the two men were booked to do the job of at least four, Testwell stood to gain a corrupt windfall profit from the fact that some steel would never be inspected – a fact dramatically proven by the fact that fully two- thirds of DASNY’s welded pieces appear nowhere on Testwell’s inspection reports. 103 At a meeting with Barone and his Testwell associates, a DASNY rep happened to compare one Testwell report to the related shop drawing, only to discover that the report purported to show that Testwell had tested welds on a piece of steel that actually had no welds at all (Leask: R1152-55, R1156-57, R1260-62; PX 84-24: K439-41). 153 97). Moreover, the other “revised” reports were “accurate” only in the sense that some- one took more care, this time around, to minimize obvious errors (Leask: R1269-70, R1273-78). At the same time, the jury was fully justified in finding that these new reports were just as false as the first set. They did not contain basic information such as the name of the welder, which an inspector’s contemporaneous notes would have included – at least if the pieces had really been inspected (Leask: R1145, R1249, R1326-27). The revisions still included reports showing welding inspection on pieces that had no welds (Leask: R1244-47). Moreover, the defendants could not, or would not, provide any con- temporaneous back-up for the “revisions” (Visconti: R951; PX 84-176 [2/14/08 letter]: R1732). Thus, the jury was justified in finding that the new reports had simply been falsi- fied wholesale from the shop drawings and the plant’s production records. Even more revealing of the corruption fueling Testwell’s scheme is what did not appear anywhere in these stacks of falsified reports. Of about 2,000 pieces with welds that should have been inspected, fully two-thirds were nowhere to be found in Testwell’s reports (Leask: R1256). No one even bothered to falsify reports for every piece of steel, a fact that confirms that Testwell’s sole goal in concocting its fraudulent “inspection” reports was simply to pro- vide plausible-looking pieces of paper to justify its bills. Similarly revealing was the way Testwell reneged on the promise to provide DASNY with copies of its inspectors’ contemporaneous notes (Leask: R1198). Any en- gineer would have realized that these notes were needed to ensure that the required in- 154 spections had been performed (Leask: R1251, R1311-15). After all, anyone with a bit of knowledge, a set of shop drawings, and a copy of the plant production records could type up an “inspection” report that appeared to be legitimate. In contrast, no one could produce honest “revised” reports without contemporaneous notes, because nothing ex- cept such notes could show whether the inspector had actually inspected the welding as the piece was being made (Leask: R1198, R1339-42, R1347-52). Finklea and Dowd themselves could not have “corrected” the reports without contemporaneous notes, since no one could reconstruct from memory in August exactly which pieces they had worked on at any given moment in April, May, and June. Thus, the defendants’ refusal to provide the notes underscored the fraudulent nature of Testwell’s revised reports. On the basis of this overwhelming evidence, the jurors convicted Testwell, across-the-board, of every single steel-related count. This included the over-arching scheme to defraud the steel clients (count 27), as well as counts related to the falsified steel inspection reports (counts 29-35) and to the falsified DASNY invoices (counts 36- 40). The jury also convicted Testwell of larceny from Silverstein and Tishman, who had paid the money demanded by Testwell’s falsified invoices (count 46-48 [Silverstein], counts 42-45 [Tishman]), and of attempted larceny from DASNY (count 28). The verdicts as to Kancharla and Barone were more mixed. As to Barone, the ju- rors chose to acquit of some charges, such as those related to the creation and filing of the false inspection reports, apparently on the theory that it was possible he played no ac- tive part in fabricating these fraudulent documents. Notably, though, the jurors also 155 unanimously agreed that Barone was guilty of false-filing when he gave his stamp of ap- proval to these falsified reports in his final certification (Pattern Act 45). Similarly, they convicted him of aiding his Testwell confederates to file the false bills with DASNY in an attempt to steal from that agency (counts 36-40, 38), and of participating in the over- all scheme to defraud (count 27). As to Kancharla, the jury acquitted him of taking any active role in creating and filing the many false documents and of the larceny-related counts, but found that, like Barone, he had played an active and culpable role in the scheme itself (count 27). B. The Defendants’ Attacks on the Verdicts The defendants’ attack on their steel-related convictions rests on disguised, and often unpreserved, claims of repugnancy. Barone, for instance, attacks the jury’s mixed verdicts as “contradictory” (Barone Brief: 39). Kancharla, meanwhile, admits that the verdicts are not “legally repugnant,” but, in the same breath, terms the verdict convicting him of scheme-to-defraud “defective” and “anomalous” (Kancharla Brief: 28-29). Of course, Kancharla’s decision not to frame his argument as a repugnant-verdict claim may stem from his awareness that he failed to preserve any such argument. It is well settled that such claims must be raised before the jury has been discharged. People v Alfaro, 66 NY2d 985, 987 (1985); People v Satloff, 56 NY2d 745, 746 (1982); People v Stahl, 53 NY2d 1048, 1050 (1981). Kancharla, however, did not voice an inconsistency argu- ment at any point and did not join even in the single repugnancy argument Barone 156 raised (B249-50). Barone did raise one such argument, but his other newly-evolved in- consistency claims are not preserved. In any event, the jury’s decision to grant the de- fendants a measure of leniency as to some of the charges in no way undermines the va- lidity of their decision to convict of the others. On the contrary, the mixed verdicts re- fute any suggestion that there was unfair “spillover” prejudice. There appears to be no dispute that repugnancy claims can result in a reversal only when “the jury, as instructed, must have reached an inherently self-contradictory ver- dict.” People v Tucker, 55 NY2d 1, 7-8 (1981); see also Rayam, 94 NY2d at 561. When a verdict seems inconsistent in light of the facts, reversal is not proper. Instead, the court’s examination must focus on the elements charged, not the evidence presented or specula- tion about what the jury was thinking. Tucker, 55 NY2d at 7. After all, it is always possi- ble “that the jury has not necessarily acted irrationally, but instead has exercised mercy.” Id.; see also Dunn v United States, 284 US 390, 393 (1932); Rayam, 94 NY2d at 562. Judged by these standards, the defendants’ repugnancy claims are singularly un- persuasive. In his sole preserved argument (B249-50), Barone asserts that he could not be convicted of filing false DASNY invoices and trying to steal from DASNY because he was not also convicted of filing the false inspection reports (Barone Brief: 38). In fact, there is nothing inconsistent about finding that a defendant filed one set of false docu- ments, that he did not file another. Nor is there any merit to Barone’s assertion that, “[i]n acquitting [him] of the counts concerning the steel inspection reports … the jury, by definition, found that the 157 reports were not falsified and that [he] did not intend to defraud DASNY” (Barone Brief: 43). By the same reasoning, he could just as easily argue that, in acquitting him of false filing, the jury also found, “by definition,” that the reports were never filed or that DASNY is not public authority. In any event, the jury certainly did not conclude that the reports were accurate. After all, they convicted Testwell “across the board” of every charge related to these reports (R1569-78), accepting the overwhelming proof that they were false. They also convicted Barone of the crime related to his certification of these blatantly falsified reports (Pattern Act 45; Verdict Sheet: B338), thereby signaling their finding that he knew the reports were false and that he intended to defraud DASNY. The basis for their mixed verdicts is equally plain: as to each individual defendant, the jurors convicted of a document-related charge only when they were sure the individ- ual personally took part in creating or filing it. By this “rough justice” approach, they granted Barone a measure of mercy by declaring that it was possible he did not help con- coct the fraudulent inspection reports.104 They reached a similar conclusion in acquitting Kancharla of the document-related counts and the larceny-related counts. That choice is not “equivalent to a finding of innocence.” People v Horne, 97 NY2d 404, 413 (2002). In a different, and unpreserved, repugnancy claim, both defendants assert that, by acquitting them of the Tishman and Silverstein counts, the jury necessarily found that “they did not defraud or steal from [these clients]” (Barone Brief: 37-38; Kancharla 104 In doing so, they appear to have accepted Barone’s summation effort to to shift the blame to another Testwell executive, Nagesh Goel (Barone Summation: R1512-17, R1520). 158 Brief: 28).105 Again, it may be that the jurors “found” only that it was impossible to tell which individual personally created and filed the false Tishman and Silverstein invoices. Af- ter all, they convicted Testwell across-the-board as to these two victims – a set of verdicts that, “by definition,” represents a finding that these clients were victimized by someone at Testwell as part of the broader scheme in which Barone and Kancharla took part. Nor does the decision to acquit Barone and Kancharla of aiding their subordinates in the Tishman/Silverstein aspects of the scheme represent a “finding” that the defendants did not intend to defraud all three of the victims. In yet another unpreserved argument, Barone asserts that he could not be guilty of “double-billing” DASNY unless he also “double-billed” at least one other client (Barone Brief: 38-39). Of course, billing two different clients for the same hours is one form of theft. However, billing a single client for more hours than the inspectors worked is another. Here, even if Testwell had never submitted false bills to Tishman and Silver- stein, Barone would still have been guilty of trying to steal from DASNY, because the DASNY bills were false and he knew it. Whether he ever met the Tishman and Silver- stein representatives (Barone Brief: 15), he certainly knew these projects existed and that Finklea and Dowd were spending part of their time on them. Nonetheless, he blithely billed DASNY for every minute of every day the two men spent at the Owen plant and 105 Barone did not mention Tishman or Silverstein or these charges when raising his other repugnancy argument at trial (B249-50). Instead, his argument then dealt solely with the DASNY steel inspection reports. 159 even for three full Finklea days when the plant was closed. As the jury recognized, these facts proved him guilty of attempting to steal from DASNY. Kancharla’s argument that the verdicts were “anomalous,” meanwhile, comes down to a claim that, unless he personally put together the false bills for at least one cli- ent, he could not have participated in a scheme to defraud at all (Kancharla Brief: 39). Fraudulent over-billing was only a part of the scheme. Its core was the decision to cut costs by pretending to staff the jobs, while actually making it impossible for much of the inspection work to be done at all. And, it was Kancharla who negotiated the contract with Silverstein and who told this new client that he “was going to sub the work out” to Finklea and Dowd (Klein: R1114). Of course, in some circumstances, this conversation might not have constituted proof that Kancharla knew Silverstein would be “misbilled” (Kancharla Brief: 28). But, here, it certainly did. After all, at the time Kancharla spoke to Silverstein about assigning Finklea and Dowd to Silverstein’s full-time job, these two local men were already as- signed to a full-time job for DASNY. If Kancharla knew that fact, he was plainly part of the scheme. If he deliberately chose not to ask about their prior time commitments, that act of conscious avoidance was also telling proof of his guilty knowledge. That left a slim possibility that his subordinates lied to him on this point, but his subsequent conduct laid that possibility to rest. For instance, when DASNY first got suspicious, Kancharla and Barone tried to shift attention away from the lack of inspection with a series of ever more threadbare lies. 160 First, they falsely claimed that Finklea had typically “worked a 14 hr day shift” at Owen during the overlap period, and that the 10-hour bills submitted to DASNY repre- sented a “cost savings” for the agency (PX 84-91 to 84-95: K446-50). In fact, the extra four hours Testwell was billing for Finklea’s services during this 5-month period were taking place (if at all) at the other steel plant in North Carolina and for yet another client (PXs 97-1 to 97-4: R1749-52). Kancharla now tries to write this falsehood off as “an er- ror” (Kancharla Brief: 23), but it is hard to see how it could have been an honest one.106 Second, when forced to retreat from that lie, Kancharla and his Testwell subordi- nates began offering DASNY a discount (Kancharla Brief: 24), just as Kancharla called Silverstein out of the blue, many months after-the-fact, and offered a “credit” to make up for “over bill[ing]” that resulted from a so-called “billing mistake” (Klein: K332, R1127). Of course, by this point, DASNY had already mentioned going to the authori- ties (Visconti: R942, R978-79; Monahan: R1081), and Kancharla is certainly not the first white-collar defendant to offer up informal restitution in an effort to avoid prosecution. Barone is right that he was always “responsive” to DASNY (Barone Brief: 14, cit- ing B186) – at least in the sense that he, and Kancharla, were never at a loss for a re- sponse of some kind. That ability with words is virtually a stock-in-trade for a white- collar con artist. However, the quality of their responses confirmed their consciousness of 106 Tellingly, the letter in which the defendants falsely claimed Finklea spent 14 hours a day at Owen was drafted in a way that allowed each man to disclaim responsibility for the lies it contained. Specifically, it was signed for Kancharla by his secretary and, in it, Kanchar- la said that he had asked Barone to prepare “our response” to DASNY’s various concerns (PX 84-91 [12/5/07 letter]: K446). 161 guilt. For instance, when DASNY asked to see the Tishman invoices to verify Barone’s (false) claim that DASNY had not been billed for the same hours as Tishman, Barone retreated to a claim that there might be “a privacy issue” (Visconti: R940; Monahan: R1054, R1078-80), a claim Kancharla was still echoing months later (Visconti: R945). Neither man ever addressed the obvious possibility of getting permission from Tishman – for the equally obvious reason that the bills would prove they were lying. Similarly, months into the “dialogue” with DASNY, Kancharla confided that Testwell “does not have any special internal procedures” to address billing for multiple clients and lamented that DASNY had never given them any “guidelines” about the matter (PX 84-172 [2/14/08 letter]: K452) – as if time-keeping was an abstruse and in- tricate process. Plainly, this answer, while “responsive” to the topic at hand – was pa- tently fraudulent coming from the CEO of a multi-million dollar corporation. What was most telling was Kancharla’s consistent pretense that this matter was simply a billing dispute. Any innocent person looking at the inspection reports and time records would have realized that none of the three victims could be sure any particular piece of steel had actually been inspected – as required not only by Testwell’s contracts, but by the Building Code as well. His refusal even to address the critical issue of whether the steel had been inspected once again signaled his own consciousness of guilt. Thus, the evidence about Kancharla’s conduct after DASNY began to realize that the inspec- tors had been booked to do twice as much work as they should have been proved that Kancharla was in on that aspect of the fraud from the start. 162 In sum, the jury granted Barone and Kancharla “rough justice” leniency in acquit- ting them of many of the steel-related charges, but correctly found that each man inten- tionally participated in the scheme. Moreover, that mixed verdict is telling proof that there was no spillover prejudice. POINT VI THE THREE JUDICIAL COMMENTS BARONE ATTACKS COULD NOT HAVE INFLUENCED THE JURY’S VERDICT (An- swering Barone Brief, Point Two(B), pp. 46-52). Barone asserts that, “[t]hroughout the trial,” the judge distracted the jury with a “pattern” of prejudicial comments (Barone Brief: 47-48). Notably, though, in a trial that began before Thanksgiving and ended after Presidents Day, Barone now attacks only three judicial remarks. Moreover, as the Appellate Division majority found (101 AD3d at 601), Barone failed to preserve this attack on the judge. Barone raised no objection to the first comment (B77-78). He did object to the second (B150), but when the judge sustained the objection and delivered a curative in- struction (K219-20), the defense sought no further relief. Barone’s attorney did note an objection “for the record” to the third remark, but he also disclaimed any desire for a curative instruction and sought no other relief (B252). At no time did the attorney seek a mistrial on the basis of any of these remarks.107 Still less did he assert that they were part 107 In contrast, in People v Killgo, 33 AD2d 226, 277 (4th Dept 1970), on which Barone relies, the defense not only objected but also sought a mistrial. 163 of a “pattern” of bolstering the People’s case, undermining the defense, or conveying an opinion. People v Charleston, 56 NY2d 886, 887-88 (1982)(claim unpreserved when de- fense counsel objected three times to specific questions, but never to any supposed pat- tern of judicial interference). Indeed, Barone never even asserted that the “cumulative effect” of the three remarks deprived him of a fair trial. Plainly, therefore, his current complaint is not preserved. Barone tries to bolster his attack on the judge by pointing to a fourth comment in which the judge supposedly “foreshadowed” his “pattern of interrupting examinations” (Barone Brief: 48). This accusation illustrates how threadbare Barone’s claims are, for the judge’s comment about his own “persnickety” nature certainly did not demonstrate anti-defense bias. The remark occurred in response to an objection the People made dur- ing defense questioning of their first witness. At one point Kancharla’s lawyer made a rhetorical comment on an answer, stating “Sir, can I ask, who asked you that question?” (R135). When the People objected to counsel’s remark (R135, B49), the judge did step in, but certainly not to “bolster[ ] the prosecution’s theory” (Barone Brief: 48). Instead, the judge chastised the People for not using their “months and months of preparation” to explain to their witnesses “what to expect when we get in the courtroom especially given the persnickety nature of the Judge” (B49). The judge then overruled the People’s objection and admonished the People’s witness to confine himself to “answer- ing the question” (B49). The defense saw nothing prejudicial in this comment at the 164 time, and, contrary to Barone’s appellate theorizing, it obviously did not foreshadow any pattern of bolstering the People’s case.108 A. The Fax-Header Comment Barone first claims that the judge “rehabilitated” prosecution witness Baarbe dur- ing Barone’s cross-examination (Barone Brief: 57). In this section of the cross, Barone was trying to show that he changed one set of 7-day test results before he had the 28-day test results in hand (Barone Brief: 48). Specifically, he showed that the header on the fax he sent to alter the data said July 16, 2007 – one day before the 28-day tests should have been performed (B77-79; PX 77A-4: B270). Counsel then asked the witness to confirm whether one possibility was that Barone had changed the data before the 28th day, and the witness replied that another possibility was that the fax was sent first and the “change” made later, since “We don’t know if it [the page] was written [on] and then 108 Barone also complains about comments in which the judge jokingly referred to the jurors as his clients (Barone Brief: 48 n.18). There was no objection to any of these remarks. Nor did these minor pleasantries “bolster” the People’s case. A typical example was the judge’s comment that the exhibit then being projected on the screen was likely to make “my clients go blind” unless the People fixed the picture quality (B189; see also B65). Other re- marks occurred in the context of scheduling (B196 [on the question of taking a break, the judge says, “I want to see to my clients’ wishes here”], B227 [the judge wants to “consult with the clients over there” about whether it is time for a break]; see also B6, B26, B190). Other times the judge sought clarification of some minor point in the People’s questioning to assist his “clients” (B25, B53, B98). Once, he pressed the prosecutor to truncate her ques- tions about an exhibit because his “clients” could see it on the screen and did not need it ex- plained in such detail (B99). Once he overruled the People’s objection to a question com- menting that he was sure his “clients over there” understood the defense attorney’s point (B193). The other “client” references took place outside jury’s presence (B7-8, B176, B246- 48). 165 faxed or faxed and then written on” (B80-81). The judge then noted the additional obvi- ous fact that the question “presupposes that the fax machine calibration, as far as date, is accurate” and that there are “[a] lot of presumptions here” (B81). Barone now labels this comment “[i]nexplicable” and complains that “[n]o cura- tive instruction was given” (Barone Brief: 49). Of course, no curative instruction was re- quested, which undoubtedly explains why none was given. Indeed, the defense made no objection of any kind. Moreover, as Barone appears to have realized at the time, fax ma- chines and their date-calibration functions are a commonplace aspect of daily life and well known to any juror. Thus, the judge’s comment added nothing to what the jurors’ plain common sense must have told them from the start. Nor did this comment cause any prejudice. After all, even if Barone falsified the data before the 28th day, it would not have shown he was acting in good faith. On the contrary, Barone had several goals in fabricating data. Sometimes, he tampered to make sure that the concrete appeared stronger at 28 days than it did at 7 days. Other times, he falsified data to hide anomalies in test results done on the same concrete at the same time. In these instances, he raised or lowered data on one of three 7-day results to a val- ue closer to the results for the other two samples (Baarbe: B68-69, R457-59). Thus, when Barone changed this 7-day result on the 27th day, his goal was to ensure that it would not stand out from the data generated on the other two 7-day tests performed. Most important, Barone was falsifying cylinder test-data, so he was plainly acting with in- 166 tent to defraud, for even Barone has never posited any legitimate reason for an engineer to alter data on a test of this type. Thus, the judge’s common sense comment about fax header dates could not have had any deleterious impact on the jurors’ finding that Barone falsified data with intent to defraud. B. The Thumma Comment Next, Barone contends that the judge improperly intervened at one point during Thumma’s direct examination (Barone Brief: 49). Of course, as Barone notes (Barone Brief: 46), a judge should not make rulings in a way that might lead the jury to think he has an opinion “as to the credibility of the testimony of any witness or the merits of any issue in the case.” People v Moulton, 43 NY2d 944, 945 (1978). Here, however, Barone’s analysis of the judge’s comment is seriously flawed. By this late point in Thumma’s direct, the topic was how Thumma had been re- cruited into the mix-design scheme. Thumma explained that, at some point in 2004 or 2005, he was trying to find out about how the mix-design test reports were made and Kancharla told him (Thumma: B146). Kancharla also tried various assurances to allay Thumma’s concern, such as the declaration that phony mix-design reports were an in- dustry-wide practice and the theory that anything “terribly wrong” with the recipe would be discovered when the 7-day tests were done (Thumma: B146-50). At that point, the People asked, “Based on Mr. Kancharla’s assurances about what would happen if the 167 mix didn’t work, what did you do based on certifying the reports?” (Thumma: B150). Kancharla’s lawyer interposed an objection (B150), which he later explained was that the People were “leading” (B151). Correctly perceiving the nature of the objection, the judge sustained it, but explained, “The topic, of course, is perfectly fine, but I would suggest ‘when did you realize you were doing something wrong’ … ‘When did you realize you were committing a crime?’” (B150). Barone’s claim of prejudice hinges on his implication that the judge’s illustration of proper ways for the People to frame the question constituted a “signal[ ] to the jury” (Barone Brief: 50). Indeed, he asserts that Thumma “had difficulty admitting any crimi- nal conduct” and that the judge made him “admit” his conduct had been wrong (Barone Brief: 49). In point of fact, over 100 pages earlier and without any difficulty at all, Thumma had already told the jury that he had committed a crime and that he had plead- ed guilty to it (Thumma: K203-06).109 Thus, the jury was well aware that Thumma be- lieved that his conduct in certifying phony mix-design test reports was wrongful. Indeed, they knew that the crime he had committed, and pleaded guilty to, was the felony of of- fering for filing a false mix-design report in the first degree (K204). Thus, the judge’s re- framing of the People’s question did not “signal” anything new about Thumma’s views of his conduct – or anything at all about the judge’s views. 109 In addition, the written agreement was introduced into evidence – without objec- tion (PX 179: R1802-06). 168 Barone’s reliance on People v Yut Wai Tom, 53 NY2d 44 (1981), is curious, for the contrast between the two cases could not be greater. There, the key issue was identifica- tion, and yet the judge asked questions that referred to the defendant as the shooter, de- spite the fact that “no witness had up to that point identified defendant as the killer.” 53 NY2d at 59. In addition, in introducing the case, the judge informed the jury that “the indictment alleged” that the defendant was a member of one Chinese gang and that the victim was a member of another, despite the fact that there was no such allegation in the indictment. Id. at 61. Judicial declarations on matters such as these could have had a ma- jor impact on the jury. Here, in contrast, the jury knew that Thumma had pleaded guilty to a felony long before the judge used the word “crime” in explaining his ruling about the form of the People’s question. In addition, his immediate instructions certainly dispelled any sup- posed prejudice. Even before the sidebar discussion, the judge instructed the jurors to “forget about what I just said” (B150). Afterwards, he reiterated that point in a set of in- structions that were anything but “perfunctory” (Barone Brief: 50). He began by ac- knowledging that he had had “a senior moment” (B152), as Barone notes (Barone Brief: 50). In addition, however, he also stressed that the jurors should forget what had just been said and disregard it completely, by reminding the jurors: There’s a place for me, there’s a place for you, there’s a place for them [the attorneys]. I anticipated this not know- ing exactly what was going to happen … I remember guar- anteeing I would go right at you and say forget about that. It would be as if I took something out of the book of the 169 trial. Forget it, even if you remember, the last thing I said. Go ahead. It ain’t in the record of this case anymore (K219-20). Notably, Barone did not view these instructions as “perfunctory” or inadequate then, for he made no protest and did not request anything more or anything different. People v Santiago, 52 NY2d 865, 866 (1981). His failure to do so not only renders his complaint unpreserved, but also belies his after-the-fact allegation of prejudice. C. The Read-Back Comment The final comment Barone challenges took place deliberations. While reading back some testimony, the stenographer stumbled over a word beginning with the letter “M” and the judge suggested it might be “massage” (B252). Barone contends that this single word requires a new trial, because the jurors must have thought that the judge was endorsing the view that Barone had been “massaging” test results (Barone Brief: 52). If so, he was simply endorsing a view that the jurors had already announced by their verdicts. After all, this remark occurred on the last day of deliberations. By this point, the jurors had already announced their verdicts convicting Barone and Testwell of falsifying the lab-test data, as well as all the other substantive crimes of which he now stands convicted. Thus, the “massage” comment could not have affected the jury’s eval- uation of his guilt on any of these charges.110 110 If the term “massaging the numbers” occurred to the jurors at all, it might have led them to wonder if the judge disagreed with their decision. The jury, after all, had found 170 * * * In his final instructions, the judge emphasized, once again, that “there’s nothing that counts less in a jury trial [than] a judicial opinion even if I had one” (Charge: R1535). In this context, as the Appellate Division majority found, there is no reason to suppose that the jury’s verdicts were influenced by any of the three comments Barone now views as “damaging.” Thus, his unpreserved arguments on this score should be re- jected. POINT VII THE COURT PROVIDED A MEANINGFUL RESPONSE TO THE JURY’S NOTE ABOUT THE CRIME OF FALSE FILING (Answer- ing Barone Brief, Point Two[A], pp. 40-46). Barone also complains about the judge’s response to one of the jurors’ many notes. Specifically, he claims that the judge violated People v O’Rama, 78 NY2d 270 (1991), and “effectively deprived [him] of his right to help frame the instruction provid- ed to the jury” (Barone Brief: 45 n.17). In addition, he claims that the court “instructed the jury to consider highly prejudicial spillover evidence wholly unrelated to [him]” when determining his guilt (Barone Brief: 41). In fact, the instruction directly mirrored what the judge had told the parties he would say, and what he said was perfectly proper. that Barone “falsified” the numbers by altering the data. The term “massaging,” in contrast, implies only a manipulation of actual data to make it appear as favorable as possible. 171 The three-part note at issue was received on the third day of deliberations. The jury’s first question was: “What does offering a false instrument for filing mean?” (B317). Their second question was: “If numbers have been changed to numbers that are accurate? Is that OK?” (Id.). Their third question was “i.e. Does it matter?” (Id.). This note was shown to all the parties (B240-41). Barone’s lawyer suggested that the court simply respond, “if the numbers on the report have been changed to make them accu- rate, then the instrument does not contain false information and you cannot convict” (B240). Kancharla’s attorney agreed that “the short answer is if they’re accurate, they’re not false … you cannot convict” (R1539). Both lawyers said that nothing else was re- quired, except that it might be good to add a reminder that the statute also required in- tent to defraud (B241, R1538). The judge agreed to deliver the defendants’ proposed “short answer” (B242). He also agreed that the short answer alone might have been sufficient, if the data-tampering charges related to beams had been the only crimes under consideration (B241). Howev- er, it was not clear which of the many false-filing charges the jurors were considering (B241).111 And, the jury’s term “accurate” was too ill-defined to make a “short answer” like the one the defense proposed a meaningful response. After all, changes in test re- sults that were based on “accurate” measurements of concrete beams could have resulted 111 A later note made it clear that the judge was right—the topic in the jury room was far broader than Barone and his concrete beams. In that note, the jury sought “testimony regarding when it is okay to make changes on tests” and specified that they wanted to in- clude anything relevant to “concrete – cylinder, beam; steel” (B319). 172 in reports that gave accurate test results. In contrast, if Barone altered test data on con- crete cylinders to give an “accurate” reflection of his personal view of the strength of the concrete, the document would still be false – because it purported to represent test data, but did not. The steel scheme presented yet other factors (B240-41), because changes designed to make the reports an “accurate” reflection of the shop drawings would still have presented an entirely false picture of what had actually been inspected. Given this level of complexity, the judge felt that his response should include the “short answer,” but should couple it with a charge that “only the jury is in a position to decide, as I told them, what they’re dealing with, they’ve got to decide what’s accurate, what’s false” (B242). The judge also made it clear in advance that he planned to explain that “they’ve got to try to remember the complexity of the four-thousand, three- thousand pages of testimony, [and] the varieties of these pieces of paper” (Id.). Finally, he promised to remind the jury that proof of an intent to defraud was required and said he would reiterate that “in the context of this case they have to decide all of the elements regarding any charge that they are considering” (Id.). In this context, it is clear that Barone’s O’Rama rights were not violated. CPL Sec- tion 310.30 requires that the judge give the parties (1) notice of the jurors’ note, (2) a chance to suggest appropriate responses, and (3) an opportunity to comment on any proposed instructions the judge is considering. O’Rama, 78 NY2d at 277-78. The judge did exactly that. He let each party comment on the note and then previewed every as- pect of his subsequent instruction. And, while the defense would have preferred that the 173 judge stick to their “short answer” proposal, they certainly knew he intended to do more. Accordingly, Barone is wrong to suggest that there was ever an “agreed upon re- sponse” from which the judge “deviated” (Barone Brief: 43). Nor is there any question that the judge exercised his discretion soundly by re- sponding as he did. For instance, he began his instruction, just as he had predicted, by addressing the jury’s “Does it matter?” question. More particularly, he explained: If you remember that part of the charge when I was de- scribing how you approach your deliberations, there was a section where you[’ve] got to decide what happened. Factu- al decisions are exclusively yours, I can’t make them for you, I can’t say anything that [signals what], if anything, I’m thinking about and you have to decide what you think the facts are in order to put yourselves in [a position] to make a decision from which your verdict will follow (B243). The judge next reiterated that the crime has five elements “one of which is that the document has to be false” (B243-44). He then turned to their “Is it OK” question, and delivered the “short answer” instruction the defense had requested: [W]ith regard to a charge that you’re considering, with re- gard to the element of falsity, [if] a document was being changed from inaccurate to being accurate, then that means that the element regarding falsity was not proven beyond a reasonable doubt (B245).112 112 This quotation is drawn from the text as resettled by the court the next day (B245), rather than from the somewhat garbled version that was originally transcribed. Ap- pellate counsel for Barone and Kancharla, who were also the lawyers at trial, expressly agreed that the resettlement was accurate (R1543-44). 174 Next, returning to the jury’s “Does it matter” question, he emphasized, as he had told the lawyers he would, that the jurors would need to look at each document alleged to be a false instrument in context: But in the context of this two month case and thousands of pages of testimony and all these exhibits you have to con- sider any count and any defendant in the context of this case considering all of the elements and all of the testimony that you heard (R1543).113 Then, as predicted, he explained that “only [the jurors] were in a position to de- cide … what’s accurate, what’s false,” much less what “matter[s]” (B242): This is one where you’re the jury and you’re there to make the decision. I can read the elements of [the crime], but there comes a point when a jury asks a question beyond which me as a judge or anybody else can’t go (B244). Finally, he asked if the jurors wanted to hear the elements of the crime again (R1540). Learning that they did, he repeated his earlier instructions about the elements before sending them back for further deliberations (B244, R1540-42). Thus, while the judge included more than just the “short answer” the defense would have liked, the defendants were clearly on notice about everything he said. And, there is no merit to Barone’s quarrel with the substance of the instruction. Preliminarily, the trial judge is generally in the best position to evaluate the import of a deliberating ju- ry’s question and is therefore vested with discretion in framing the response. People v Weinberg, 83 NY2d 262, 267-68 (1994); People v Steinberg, 79 NY2d 673, 684 (1992); People 113 Again, this quotation is drawn from the text as resettled. 175 v Malloy, 55 NY2d 296, 302 (1982); CPL §310.30 (court should respond to note with “such requested information or instruction as the court deems proper”). The goal is to respond meaningfully. People v Santi, 3 NY3d 234, 248 (2004); Steinberg, 79 NY2d at 684; People v Almodovar, 62 NY2d 126, 131-32 (1984). Moreover, the propriety of the court’s response is to be gauged by the form of the question, the issue the court was called on to address, the content of the instruction, and the prejudice (if any) to the defense. Stein- berg, 79 NY2d at 684; Almodovar, 62 NY2d at 131-32. Barone’s argument stems mainly from his assertion that it was “clear to all” that the jurors’ note concerned changes he had made to concrete-beam test data (Barone Brief: 42). In fact, the note could have applied to any of the defendants and concerned beams, cylinders, or even steel. Thus, as the judge realized, the “short answer” was not the best approach. People v Torres, 8 AD3d 123, 124 (1st Dept 2004) (recognizing that an “oversimplified response” can sometimes be “misleading” to the jury); see also People v Washington, 35 AD3d 288 (1st Dept 2006)(judge correctly declined to give one-word an- swer to jury question). There was no easy, across-the-board answer to questions about “accuracy.” Still less could the judge tell the jury what “mattered” in their evaluation of the many different ways the defendants had altered data and reports. In giving a broader answer that applied to all possible defendants and all possible charges, the judge was certainly not instructing the jury to use evidence “completely un- related” to Barone in assessing his guilt – either “expressly” (Barone Brief: 43), or “in essence” (Barone Brief: 45). Nor did later notes show the jury had become confused, as 176 Barone suggests (Barone Brief: 45). One follow-up note focused on beams and beam testing and asked for related evidence, such as the relevant regulations, testimony about changes to such results, and an explanation: “What possible reasons [are there] for changing ALL beams results for weeks on end – e.g. JFK” (B318)(emphasis in original). The other note, sent five minutes later, asked to expand the read-back to include testi- mony about concrete cylinders and steel (B319). That second note does not show that they “conflate[d] evidence relating to different schemes” (Barone Brief: 45), but only that they had learned how long it could take to get read-back and therefore chose to hear all of it in one session, rather than in a piecemeal fashion. Finally, Barone asserts that the instruction “bolstered,” “reinforced and ultimately sanctioned” the same three summation remarks he mentions in the context of his OCCA argument (Barone Brief: 46, 55, citing B228-30). As noted, Barone made no ob- jection to these remarks.114 That lack of objection is the best indication of the absence of any prejudice. People v Overlee, 236 AD2d 133, 142 (1st Dept 1997). Nor did Barone mention the summation when the jury’s note was received or even in his subsequent fol- low-up letter (B332-35). Thus, he has not preserved a claim that the judge should have kept these remarks in mind in crafting the supplemental instruction. People v Lugo, 81 AD3d 532 (1st Dept 2011)(defendant’s proposed response to a note failed to preserve a 114 Thus, if Barone means that these remarks provide an independent ground for re- versal, his claim is unpreserved. See e.g. People v Picon, 73 AD3d 572, 573 (1st Dept 2010); Peo- ple v Freeman, 298 AD2d 311, 312 (1st Dept 2002). 177 later, different complaint about the supplemental charge). Most important, as noted in Point II, there was nothing improper in these summation remarks. In sum, there is no risk that anything in the supplemental instruction caused this jury to “conflate” Barone with his codefendants. CONCLUSION The order of the Appellate Division, First Department, reversing the enterprise- corruption counts should be reversed, the order affirming the defendants’ convictions of the other crimes should be affirmed, and the matter should be remitted to the Appellate Division for a consideration of the facts. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov By: ______________________ ADA Amyjane Rettew DANIEL R. ALONSO HILARY HASSLER GINA MIGNOLA AMYJANE RETTEW Assistant District Attorneys Of Counsel November 2013 PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 49,353, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Gara- mond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.
