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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,) Case No. 22-CR-1227
Plaintiff )
) Violations of:
v. ) 18 U.S.C. § 1512(b)(1)
) 18 U.S.C. § 1512(b)(2)(A)
THOMAS J. SPOTA, ) 18 U.S.C. § 3
Defendant )
Indictment
1) In December 2016, James Burke (“Burke”), the Chief of the Suffolk County (N.Y.) Police Department, assaulted and beat Christopher Loeb, a suspect in custody for a series of automobile burglaries, including of Burke’s department-issued vehicle.
2) Several members of the Suffolk County Police Department were in the room at the time of the assault, including James Hickey (“Hickey”), the Head of the Criminal Intelligence Unit of the Suffolk County Police Department, and Anthony Leto (“Leto”), a Suffolk County Police Department detective.
3) Defendant Thomas J. Spota (“Defendant”), the District Attorney for Suffolk County, working with Burke and Christopher McPartland (“McPartland”), the Chief of the District Attorney’s Government Corruption Bureau, sought to hide the truth of Burke’s assault. Defendant and others initiated a campaign—wielding fear and threats of professional, personal, and legal retaliation—to compel members of the Suffolk County Police Department (“SCPD”) and Suffolk County District Attorney’s Office (“SCDAO”) to lie and to refrain from providing truthful information about the assault.
4) These efforts began immediately after the events of December 2016 and continued throughout an FBI investigation that ran from spring 2017 through December 2017. During that time, Hickey, Leto, and other SCPD officers, encouraged by Defendant, testified falsely before a federal grand jury. They provided an identical story—that Burke had “popped his head” into the interrogation room during the Loeb interrogation but had no further interaction with Loeb or with the case.
5) Hickey, Leto, and other SCPD officers told and stood by this story, knowing it was untrue, out of fear of personal, professional, and legal retaliation at the hands of Defendant.
6) Hickey, Leto, and other SCPD offers were aware of other instances in which Defendant and others retaliated against officers seen as opposing them. Defendant and others reminded Hickey, Leto, and other SCPD officers of those past instances, for the purpose of ensuring they maintained their untrue story and did not report the truth about Burke’s assault of Christopher Loeb.
6) More than one year later, in 2019, the FBI reopened it investigation. Defendant again attempted to use fear and threats of personal, professional, and legal consequences to stop Hickey, Leto, and other SCPD officers from coming forward continued. This time, however, those efforts failed. Hickey and others came forward to the FBI, accepting immunity or entering cooperation agreements and testifying truthfully about the events of December 2016.
7) In November 2019, a federal grand jury indicted Burke under 18 U.S.C. § 241, for violating Loeb’s civil rights. Burke pleaded guilty to federal civil rights charges in February 2020 and received a sentence of 46 month in federal prison.
Count I: Tampering with a Witness, 18 U.S.C. § 1512(b)(1).
Count II: Tampering with a Witness, 18 U.S.C. § 1512(b)(2)(A).
Count III: Accessory After the Fact to a Violation of Federal Law, 18 U.S.C. § 3.
Date: October 17, 2022
Opening Statement of the Prosecution
The Prosecution’s planned opening statement tells the following story, which will be supported by evidence.
• Three men ran the criminal justice system in Suffolk County: Defendant Thomas Spota, the elected District Attorney; James Burke, former chief of the Suffolk County Police Department, currently serving a 46-month term in federal prison; and Christopher McPartland, the head of the DA’s Government Corruption Bureau. The three formed what they called (and what everyone within the department knew as) “the Administration,” a tightly knit and vindictive group; they acted on the belief that the enemy of one was the enemy of all and could expect dire consequences.
• The Administration was part a larger clique known as “the Inner Circle,” which included James Hickey, the head of the Criminal Intelligence Unit of the Suffolk County Police Department. Hickey joined the Inner Circle in 2005, after working against a political enemy of Burke’s. Like the Administration, the Inner Circle combined expectations of complete loyalty and vindictiveness against those who failed to be loyal.
• Hickey acted as the go-between between the Administration and the detectives in the criminal intelligence unit. Those detectives operated as the “palace guard,” carrying out personal and work-related tasks for Burke, including targeting those Burke and Thomas Spota perceived as enemies or as giving them “trouble”—other public officials, girlfriends, romantic rivals, county businesses. Orders to officers to perform those tasks came from the administration to Hickey to the detectives.
• On December 14, 2016, Burke’s department-issued vehicle was burglarized, one of a string of automobile break-ins. Various items were stolen from Burke’s vehicle, including his “party bag” containing Viagra, pornographic materials, condoms, and sex toys.
• Hickey and two other detectives were directed to proceed to the Fourth Precinct, where Christopher Loeb was in custody. The three detectives attempted, but failed, to secure Loeb’s confession. Burke arrived at the Fourth Precinct, upset that Loeb had not confessed. Burke entered the interview room and confronted Loeb. Following a brief exchange of words in which Loeb called Burke a “pervert,” Burke violently assaulted Loeb, who was handcuffed to the floor; Burke punched him in the head and body, grabbed his ears, shook him, and kneed him. Burke continued the attack until detectives pulled him away.
• Immediately after the attack, the Administration, working through Hickey, began and continued efforts to cover-up the attack, to prevent anyone from testifying truthfully to what happened, and to ensure that Burke faced no legal consequences for his assault on Loeb. These efforts included:
• Thomas Spota agreed with Burke on a story in which Burke merely “popped his head in the interrogation room,” but had no other interaction with Loeb. Thomas Spota expressly charged Hickey with relaying that story to other detectives and to ensure they stayed “firm” in hiding the truth.
• Thomas Spota—along with Burke and McPartland—repeatedly pressed Hickey to ensure that he and other detectives stuck to the story, including in interviews with the FBI and through false statements to a federal grand jury investigating Burke’s assault of Loeb.
• Thomas Spota backed this up with threats—express and implicit—of retaliation if they failed to stay firm and protect Burke. Thomas Spota and the administration ensured Hickey and other officers lived in constant fear of personal, professional, and even legal retaliation. Going against the administration—not doing all the administration asked of them—carried serious consequences. Hickey and others knew it. Because Thomas Spota—and Burke and McPartland—reminded them of it at every turn.
• And, in fact, other officers had run afoul of the administration in the past—and paid the price. There was the officer demoted four ranks as a cause for celebration; there was the officer subject to a wiretap, loss of employment, and criminal prosecution for helping expose Thomas Spota’s other official misconduct. Hickey and others knew what had happened to other officers. Because Thomas Spota—and Burke and McPartland—reminded them of it at every turn.
• And it all worked for a time. The FBI closed its investigation in December 2017, unable to find sufficient evidence against Burke because of the false statements from Hickey and other detectives.
• The FBI reopened its investigation into the Loeb assault in June 2019. Thomas Spota and his co-conspirators resumed using fear and threats of retaliation to deter officers from telling the truth, seeking to protect Burke from legal consequences for violating Christopher Loeb’s civil rights.
• But this could work for only so long. Hickey and others finally came forward to tell the truth—that James Burke violated Christopher Loeb’s constitutional rights when he viciously assaulted him in an examination room and that Thomas Spota violated federal law by using threats of retaliation to compel public officials to lie and conceal the truth about that event, with the goal of helping Burke avoid legal liability.
• Justice came for James Burke—he was charged under federal law for the blatant violation of Loeb’s federal constitutional rights. Burke pleaded guilty and now sits in federal prison.
• It is time for Justice to come for Thomas Spota for his role in threatening witness and in helping Burke avoid justice for several years.
Charged Offenses
18 U.S.C. § 1512:
* * *
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding * * *
shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 3:
Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
(Burke’s assault of Loeb constitutes an offense against the United States—a violation of Loeb’s federal civil rights punishable under 18 U.S.C. § 241).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,) Case No. 22-CR-1227
Plaintiff )
) Violations of:
v. ) 18 U.S.C. § 1512(b)(1)
) 18 U.S.C. § 1512(b)(2)(A)
THOMAS J. SPOTA, ) 18 U.S.C. § 3
Defendant )
Transcript of Pre-trial Motion Hearing
Court: Good morning, everyone. I see that we are here on two evidentiary motions in limine from the defendant —one to exclude certain evidence and one for a ruling that a piece of evidence is admissible. Let’s take them in reverse order. Defense?
Defense: Yes, your honor. We would like to offer evidence that James Hickey, the key government witness, was hospitalized in a psychiatric ward in October 2019, suffering from hallucinations, memory loss, and confusion. He spent two weeks in the hospital. About a week after his discharge, he entered a cooperation agreement with the government. This evidence bears on Hickey’s credibility as a witness. We will attempt to prove the hospitalization and symptoms through Hickey’s testimony and through hospital records.
1) For the defense, argue that the evidence is admissible.
Court: And the other motion, to exclude evidence?
Defense: Thank you, Your Honor. Yes. We ask the court to exclude testimony and any other evidence related to Patrick Cuff. The prosecution served a Rule 404(b)(3) notice of intent to use this evidence. But this evidence is inadmissible and should be excluded.
Court: Who is Patrick Cuff?
Defense: Cuff was a lieutenant in the Suffolk County PD who led an investigation of James Burke for official misconduct many years ago. When Burke became Chief in 2012, he demoted Cuff, for a host of reasons. Chris McPartland, James Burke, James Hickey, and my client then purportedly held a party to celebrate the demotion. This evidence is irrelevant, constitutes impermissible character evidence, and raises serious Rule 403 problems.
2) For the prosecution, respond to this argument. (You may write up to 500 words on this question; this question is worth 20 points)
Court: OK. We are pre-trial, so this is all pretty abstract right now. I do not have a bigger picture of what all the evidence looks like or how this piece of evidence fits into that bigger picture of this case. At this moment, I am inclined to deny the motion and allow the evidence. But I want to see what happens when this evidence is introduced through a witness during trial. I am not fully convinced or resolved on this either way. The arguments for and against the admissibility of this evidence may look different in light of other evidence. So I’ll allow the government to introduce evidence about Mr. Cuff for the moment, then we will see what happens during the trial. Is that clear?
Defense: Yes, Your Honor.
Prosecution: It is, Your Honor.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,) Case No. 22-CR-1227
Plaintiff )
) Violations of:
v. ) 18 U.S.C. § 1512(b)(1)
) 18 U.S.C. § 1512(b)(2)(A)
THOMAS J. SPOTA, ) 18 U.S.C. § 3
Defendant )Trial
A jury is empaneled. The prosecution delivers the Opening Statement reprinted previously, with no defense objections. The defense delivers an Opening Statement emphasizing two themes—the prosecution cannot link Thomas Spota to the refusal of James Hickey and other officers to come forward and the state’s witnesses have something to gain by “throwing Thomas Spota under the bus.”
Court: OK, let’s begin the presentation of evidence. For the state?
Prosecution Case-in-Chief
Testimony of James Hickey
Direct Examination
Q: Knowing that James Burke assaulted Christopher Loeb on December 14, 2016, did you report it to anyone?
A: No.
Q: Why not?
A: I was scared that the administration would retaliate against me.
Q: Who is the administration?
A: Thomas Spota, James Burke, and Chris McPartland.
Q: Where does that name—“the administration”—come from?
A: They gave it to themselves and used it to refer to themselves and one another. It meant they ran the place.
Q: What is “the place?”
A: The police department, the DA’s office, the criminal justice system in the county.
Q: You said you feared retaliation. What sort of retaliation?
A: All kinds. Personal—I was worried they might come after me or my family. Legally, I worried I might get into legal trouble and they would make some charges stick or pursue some charges to make it worse. Professionally, I was worried for my career—that I would stop advancing. Or worse, lose ground, such as a demotion.
Q: Do you know who Patrick Cuff is?
A: Yes.
Q: Who is he?
A: He was an IAD inspector—Internal Affairs Division inspector. He investigated Burke earlier in Burke’s career, something about Burke’s romantic relationship with a woman involved in a whole mess of criminal activity.
Q: Do you know what happened when James Burke became chief of police in 2012?
A: Yes. He demoted Cuff by four ranks within the department.
Q: Do you know the significance of four ranks as a demotion?
A: Yes.
Q: Why is that number significant?
A: That is the maximum number of ranks that a Suffolk County police officer can be demoted at one time.
Q: Did you encounter Burke following Cuff’s demotion?
A: Yes. The demotion was announced on a Monday. That Friday, we held a demotion party in Spota’s office.
Q: Who attended that party?
A: Spota, Burke, McPartland, and me.
Q: What happened there?
A: There were signs with the number “4” posted all over the office. And we each had four beers to celebrate.
* * *
Q: What happened on the morning of December 14, 2016?
A: Someone broke into Chief Burke’s car. This was not uncommon—there were a series of car burglaries in that area around that time.
Q: What did you and your fellow officers do on the morning of December 14 with respect to those burglaries?
A: Anthony Leto, Ken Bombace, and I were sent to the Fourth Precinct station house to interview a suspect in the burglary of the Chief’s car.
Q: Who was that suspect?
A: Christopher Loeb.
Q: What happened during that interview?
A: We tried to get him to confess, but we could not. He would not budge. We went at him for about a half hour. No luck.
Q: Did James Burke enter the room at any point?
A: So we got word that the Chief had arrived at the station. We went outside the room to meet him and update him. I told him we were unable to get Loeb to confess.
Q: Did you see Burke’s reaction when he heard this?
A: Yes. I was standing right in front of him.
Q: How did he react?
A: He was pissed. He screamed “God dammit” and had this crazed look in his eyes.
Defense: Objection. Lack of foundation for testifying and improper characterization.
3) For the court, rule on the objection.
Q: What happened next?
A: Burke said something about “having to do every fucking thing himself” and ran into the interview room.
Q: What happened when he got in there?
A: He and Loeb started talking.
Q: Did you hear Loeb say anything?
A: Yes. He called Burke a “pervert.” That’s when Burke started beating on him.
Q: To be clear: How soon did Burke’s assault on Loeb begin after Loeb called Burke a “pervert?”
A: Immediately.
Q: Was there any delay between Loeb calling him a pervert and the assault?
A: No. Burke responded to the word “pervert” by punching Loeb in the head.
Q: OK. Let’s back up a second. You said James Burke’s car was one of the vehicles burglarized. Was anything taken from his car?
A: A bunch of things—a tablet computer, some papers, and what Burke calls his “party bag.”
Q: What is the party bag?
A: Stuff Burke uses for his hook-ups with various women. So, you know, condoms, Viagra pills, porn magazines, and some sex toys. Stuff like that.
Defense: Objection, Your Honor, under Rule 403. This is salacious and thus unnecessarily prejudicial.
4) For the prosecution, respond to the objection.
* * *
Q: What happened in June 2019?
A: The FBI reopened the investigation into Burke.
Q: Do you know why?
A: It seems as if someone, we didn’t know who at the time, flipped.
Q: What do you mean flipped?
A: Went to the FBI and told them what happened to Christopher Loeb and what Burke had done. So the FBI started talking to everyone again.
Q: How did the administration react?
A: They were concerned.
Q: Did you attend any meetings about the investigation after it reopened?
A: Yes, sometime in July, about a month after the FBI reopened.
Q: Who was present?
A: Same crew—Spota, Burke, McPartland, me.
Q: What happened there?
A: McPartland told me to find out who is cooperating.
Q: What else?
A: Burke turned to Spota and said “Tommy, can you believe this shit? Yeah, sure, I tapped some low-life junkie thief on the top the head. Big deal.”
Defense: Objection, hearsay. James Burke is not a party to this case.
Prosecution: Your Honor, this shows James Burke’s casual, uncaring attitude towards an actual assault and actual constitutional violation and the pervasiveness of the protection around him. Each of these statements is either not hearsay or falls within an exception. Also, we remind the court that Mr. Burke has testified in this trial that he does not recall this conversation or saying this.
5) For the court, rule on the hearsay objection. (You may write up to 500 words on this question; it is worth 20 points)
Q: How did this July meeting end?
A: I started to leave the room.
Q: And then?
A: Burke told me to remind my detectives of what happens when they go against the administration.
Q: Anything else?
A: As I was leaving, Spota looked at me and said, “you know what happened to John Oliva.”
Q: What did that mean to you? Do you know who John Oliva is?
A: I do.
Q: Did you know John Oliva at that time? Did you know what Spota was referring to at the time he said that?
A: I did. It was generally known in the department.
Q: Who is John Oliva and what happened to him?
A: John Oliva is a former SCPD detective. Spota obtained a wiretap against him in 2018, because he thought Oliva was the source of some leaks to the local newspaper; the paper wrote a bunch of negative stories about Spota, using this leaked information from case files and other internal documents. Spota went after Oliva as the source.
Q: Who monitored that wiretap?
A: Spota and McPartland. Mostly Spota.
Q: Did anything come from the wiretap?
A: Yes. They figured out Oliva did leak to the reporter. He was arrested for official misconduct, for leaking department information. Spota ran the prosecution himself. Oliva pleaded guilty and lost his job.
Defense: Move to strike, Your Honor.
Prosecution: The government’s theory is that this witness and others feared retaliation. This evidence makes that retaliation—and thus that fear—more probable.
Defense: Nevertheless, your Honor, what Mr. Spota said is hearsay. Moreover, evidence of what happened to Mr. Oliva constitutes impermissible character evidence in this case. And there is an unmet conditioning fact here.
6) For the court, decide the objection about character evidence.
7) For the prosecution, argue that any conditioning fact is satisfied.
8) For the prosecution, respond to the hearsay objection.
Testimony of Emily Constant
Direct Examination
Prosecution: Your honor, although we have called this witness as part of our case, Ms. Constant is a high-ranking attorney in the Suffolk County District Attorney’s Office and enjoys a close professional connection and relationship with the defendant. Unlike other witnesses from the police and DA offices, she has not cooperated with the government’s investigation. We therefore would like to proceed as if on cross examination of this witness.
Defense: No objection, Your Honor.
Court: OK, counsel, the request is granted. You may proceed.
* * *
Prosecution: No further questions for this witness.
Counsel: Defense?
Defense: Thank you, Your Honor. We agree that this witness is more favorable to our side than to the prosecution. We therefore would like to treat her as a defense witness at this time and proceed with a full examination in support of our case, rather than waiting and recalling her as part of our case-in-chief.
Prosecution: No objection, Your Honor.
Court: Fine. Ms. Constant is now a witness for the defense—it is as if the defense, rather than the prosecution, called her to testify. You may proceed, counsel.
Defense: Thank you, Your Honor. Ms. Constant, isn’t it true that relations between Burke and Spota had cooled by 2016, prior to the events at issue? Isn’t it true that they no longer were consistent as allies working together?
Prosecution: Objection to the form of the question.
9) For the prosecution, argue that the question is in improper form.
* * *
Prosecution: Your Honor, the prosecution rests its case-in-chief.
Court: Thank you, counsel. Defense?
Defense: Your Honor, we have no witnesses or evidence to present at this time. We stand on the evidence we drew out on cross and to the witnesses the court treated as defense witnesses.
Court: Fine. Rebuttal from the prosecution?
Prosecution: None, your honor.
Court: Excellent. We will proceed to closing arguments and jury instructions beginning at noon tomorrow. Ladies and gentlemen of the jury, you are excused for the day. We will begin at noon tomorrow rather than our usual 8:30; I hope you can enjoy the extra few hours of sleep.
[Jury exits]
Court: I will meet with counsel beginning at 10:00 tomorrow to discuss jury instructions. Please submit agreed and proposed instructions electronically to chambers by 9 a.m. Anything further?
Prosecution: Nothing, Your Honor.
Defense: No, Your Honor.
Court: Then court stands in recess until 9 a.m. tomorrow.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,) Case No. 22-CR-1227
Plaintiff )
) Violations of:
v. ) 18 U.S.C. § 1512(b)(1)
) 18 U.S.C. § 1512(b)(2)(A)
THOMAS J. SPOTA, ) 18 U.S.C. § 3
Defendant )
Judgment and Conviction Order
The jury having unanimously found Defendant, Thomas J. Spota, guilty on all counts and upon consideration of the parties’ arguments, the court orders as follows:
1) Motion of Defendant, Thomas J. Spota, for a Judgment of Acquittal, pursuant to Fed R. Cr. P. 29(c), is DENEID.
2) Motion of Defendant, Thomas J. Spota, for a New Trial, pursuant to Fed. R. Cr. P. 33, is DENIED.
3) The court molds the unanimous jury verdict into a JUDGMENT OF CONVICTION of Defendant, Thomas J. Spota, for:
Witness Tampering, in violation of 18 U.S.C. § 1512(b)(1);
Witness Tampering, in violation of 18 U.S.C. § 1512(b)(2)(A); and
Accessory After the Fact of a violation of federal law, in violation of 18 U.S.C. § 3.
Date: October 18, 2022
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,) Case No. 22-CR-1227
Plaintiff )
) Violations of:
v. ) 18 U.S.C. § 1512(b)(1)
) 18 U.S.C. § 1512(b)(2)(A)
THOMAS J. SPOTA, ) 18 U.S.C. § 3
Defendant )
Sentencing Order
Upon the recommendation of Probation Services, after hearing arguments of the parties, and on consideration of the United States Sentencing Guidelines as advisory, the court sentences Defendant, Thomas J. Spota, to incarceration of 62 MONTHS in a federal penitentiary, plus five years probation upon release. The court finds that Defendant, Thomas J. Spota, is not eligible for a career-offender enhancement under the Sentencing Guidelines.
Date: March 3, 2023
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES OF AMERICA,) Case No. 23-1028-cr
Appellee )
)
v. ) Appeal of Case No. 22-CR-1227
)
THOMAS J. SPOTA, ) from the United States District Court for the
Defendant-Appellant ) Eastern District of New York
Opening Brief of Appellant Thomas J. Spota
Assignment of Error # 1: The district court committed reversible error in admitting evidence, through the testimony of James Hickey, regarding the demotion of Patrick Cuff and of a “demotion party” that appellant and others allegedly held to celebrate Patrick Cuff’s demotion within the Suffolk County Police Department.
Response Brief of Appellee United States
Response to Assignment of Error # 1: Appellant failed to preserve this error via timely objection. He therefore cannot raise the issue on appeal.
10) You are a member of the Second Circuit panel (congratulations) assigned to draft the opinion. Write the portion resolving whether Appellant failed to preserve this error. (You may refer to the analysis in Question # 2 and to other evidence admitted or discussed in the case).
End of exam. End of Evidence. Congratulations.
Thank you for a great semester. Good luck on your other exams.
See you in the next life, Jack.
