It may be the most anticipated fifth day of cross examination a cooperating witness has faced in federal court.
Disgraced lobbyist Todd Howe returns to the witness stand Tuesday afternoon in Manhattan for the first time since his arrest following self-damaging testimony Thursday in the bribery trial of Joseph Percoco and three upstate executives.
Howe acknowledged violating his cooperation agreement with the government, particularly when he tried to get his credit card company to cancel a $600-plus bill from the Waldorf Astoria in 2016 by lying that he had not stayed there one night while in New York arranging the deal with prosecutors.
Percoco, of South Salem, is a longtime aide and confidant of Gov. Andrew Cuomo. He is accused of receiving more than $300,000 with Howe's help from Competitive Power Ventures and Cor Development in exchange for helping the companies in their dealings with the state.
Peter Galbraith Kelly Jr., a former CPV official, is accused of steering nearly $290,000 to Percoco's wife for a "low-show" job so the governor's aide would help the company win agreements from the state for its power plants in New York and New Jersey.
Cor Development's Steven Aiello and Joseph Gerardi are accused of passing $35,000 to Percoco through Howe for help with the company's redevelopment of Syracuse's Inner Harbor and for a raise for Aiello's son, who worked for the governor.
The prosecution has acknowledged that Howe, a longtime friend of Percoco's and also a former aide to both Cuomo and his father, Gov. Mario Cuomo, has credibility issues.
Suit, not jumpsuit in court
U.S. District Judge Valerie Caproni granted the prosecution's request that Howe be allowed to continue wearing a suit when he testifies, rather than the jail garb he has been forced to wear since the weekend.
But the judge held off on their request that she instruct jurors that Howe is incarcerated because his bail was revoked.
The defense took no position on Howe's attire.
But the defense did object to any instruction from the judge on why Howe is now in custody. Aiello's lawyer, Stephen Coffey, argued that he and the other defense lawyers should be allowed to elicit that information from Howe himself through cross examination. The instruction was a way prosecutors could limit the damage of Howe's lies, Coffey suggested.
He pleaded guilty to bank fraud in 2010; he spent more than six years diverting hundreds of thousands of dollars in client payments to his Albany law firm to a secret firm account he had set up for his own personal use; and he faced years of court judgments and wage garnishments for his failure to repay loans and mortgages or cover even routine expenses. He has pleaded guilty to eight felonies connected to the bribery scheme, his embezzlement from his firm and his failure to pay taxes on the stolen money.
But the defense has highlighted Howe's deception since he decided to start being honest.
While prosecutors have acknowledged Howe's baggage from the outset, they have evidence that they argue corroborates Howe's testimony on the bribery schemes so his lies and arrest aren't necessarily fatal to their case.
Unusual arrest of a witness
But the legal community was hard pressed to find a similar example of a cooperating witness getting arrested while still on the stand.
Anthony Siano, a White Plains criminal defense lawyer and former federal prosecutor, said he was initially stunned by the revelations late last week. But he also realized nothing should be surprising when it comes to prosecution witnesses trying to avoid lengthy prison terms.
Siano knows from unsavory cooperators, having used them and attacked them on the witness stand. He grilled a Westchester lawyer and political fixer, Anthony Mangone, in the federal corruption trial of Yonkers Councilwoman Sandy Annabi and Siano's client, former Yonkers GOP chairman Zehy Jereis.
Siano even thought he had a similar breakthrough as Howe's Waldorf-Astoria admission when he was able to reveal that the day Mangone claimed to have gotten bribe money from a Yonkers developer to pass along to Jereis the developer was actually out of the country.
Still, Jereis and Annabi were both convicted and sent to prison.
Howe's arrest showed just how aggravated prosecutors must have become with him. But Siano suspected it was also to send a message to the jury.
"It was a calculated attempt by prosecutors to show that (a cooperation agreement) has teeth," Siano said. "It's not just a Get out of Jail Free card."
The trial was also delayed a day and a half because Daniel Gitner, Kelly's lawyer who is in the middle of cross examining Howe, came down with the flu.
Once Gitner is finished with Howe, Coffey and Gerardi's lawyer, Milton Williams, will get their turns. That should be followed by a redirect in which prosecutors do what they can to rehabilitate their star witness in the eyes of jurors.
