Anello’s defense given more time on dismissal
Lawyers for ex-Falls mayor get extra week in effort to toss out corruption indictment
A federal judge has given attorneys for Vince Anello an additional week to submit legal arguments before he rules on their request to dismiss charges against the former Niagara Falls mayor.
U. S. Magistrate Judge Jeremiah J. McCarthy peppered Anello’s attorneys with questions Monday about why he should consider ruling that a four-count federal indictment against Anello is insufficient.
McCarthy said that his focus at this point in the legal process is to determine whether the indictment meets legal standards and that some arguments raised by defense attorneys should be addressed at trial.
“It seems to me that a distinction has to be drawn of whether the government is going to be able to prove its case,” McCarthy said during an hourlong hearing in federal court.
Federal prosecutors have accused Anello of scheming to deprive the citizens of “the intangible right to honest services” of a public official when Anello asked for and received a no-interest loan worth $40,000 from businessman Joseph Anderson in 2003.
The indictment also alleges that Anello never disclosed the payments when in 2004, shortly after taking office as mayor, he recommended that the City Council approve a long-term vending lease for the city’s outdoor East Pedestrian Mall to a company controlled by Anderson. Anello has pleaded not guilty and has previously said the money was a loan for his electrical business.
Anello’s attorneys, Joel L. Daniels and Mark R. Uba, argue that because the indictment does not detail a quid pro quo — or a promise that Anello made in exchange for the money—it should be rejected.
A 13-page section of the indictment that outlines the facts of the case, Daniels said, “leaves out to us the most critical article of proof that’s required to establish this type of crime.”
Daniels also questioned where the line is drawn for public officials between “pay to play” lobbying efforts and criminal activity.
“Is every ethics violation by an elected official a federal crime?” Daniels asked. “The government could pick and choose.”
Assistant U. S. Attorney Paul J. Campana countered that the indictment does not need to establish an explicit promise to be valid.
Campana said he intends to prove at trial that Anello accepted the money “with the understanding that he would make Mr. Anderson an insider player” and that was the reason Anello did not disclose the payments until they appeared in the press in 2005.
“Mr. Anello was not operating in some kind of ethical vacuum here,” Campana said in response to Daniels’ contention that the law being applied in the case is vague.
He noted that there was little question about whether the loan to Anello neared unethical standards.
“When the amount of money is $40,000, which far exceeded the mayor’s salary at the time for the job of mayor, you’re not at the margin,” Campana said.
The judge appeared to have another reservation about the arguments laid out in legal papers submitted by Daniels and Uba. They rely on a previous ruling in the U. S. 3rd Circuit Court of Appeals — which covers Pennsylvania, New Jersey, Delaware and Maryland — rather than the 2nd Circuit, which includes Western New York.
“Is there any 2nd Circuit case that expressly followed that reasoning?” McCarthy asked Daniels.
Daniels, who argued that the case against Anello is “unconstitutional,” said he did not know, but noted, “This issue may not have been presented to the 2nd Circuit before.”
McCarthy said he would rule on the motion after Daniels and Uba have another week to respond to two legal arguments brought up by Campana at the hearing that were not addressed in written submissions.
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