At Menendez trial, a pivotal battle over evidence

In the background of the corruption trial of U.S. Sen. Robert Menendez, a potentially pivotal battle is brewing over the type of evidence that can be shown to the jury.

Defense attorneys want to show that Menendez, a Democrat from Paramus, has helped "hundreds" of people in ways that are similar to how he is alleged to have corruptly helped co-defendant Salomon Melgen, a Florida eye doctor and longtime friend. They want to ask the jury: Why would Menendez need to be bribed to do things he does all the time?

But prosecutors are adamant that that type of evidence is inadmissible.

"Just as the fact that someone did not rob a bank on one day is irrelevant to determining whether he robbed a bank on another," they wrote in a court filing last month, "whether Menendez did not act corruptly on one day is irrelevant to determining whether he deprived the citizens of New Jersey of his honest services on another."

Judge William H. Walls has yet to rule on the motion but could do so this week. The outcome of the dispute could be critical in a case in which Menendez, New Jersey's senior senator, stands accused of doing official favors for Melgen in exchange for luxury vacations, flights on his private jet and hundreds of thousands of dollars in political contributions.

Both men deny the govenment's allegations.

Prosecutors spent hours in court last week laying the groundwork for their argument that Menendez was bribed to intervene in the visa applications of four of Melgen's foreign girlfriends who had plans to visit the doctor in Florida.

Menendez also stands accused of improperly lobbying Obama administration officials about Melgen's dispute with the government over $8.9 million in Medicare reimbursements and about port security in the Dominican Republic, an issue in which Melgen had a financial stake.

Prosecutors must prove that the men acted with corrupt intent. But defense attorneys have said that Menendez routinely helped people with their visa applications — context, they say, that will give the jury an alternative, lawful motive to ascribe to the senator when he helped Melgen's girlfriends.

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As for reaching out to executive branch officials, “that is Congress’ job” when members have policy concerns, as Menendez did, defense attorney Abbe Lowell told jurors in his opening statement earlier this month.

As with Menendez's routine actions, defense attorneys wrote in a court filing that they want to show that Melgen “routinely invited friends to fly on his plane and stay at his house, and that he and his wife routinely made significant political contributions to people unrelated to the senator or New Jersey.”

Walls now must decide whether the evidence is relevant to the case.

Last week, Walls offered a window into his thinking during a lengthy back-and-forth with attorneys while jurors waited in an anteroom out of earshot.

To show that Menendez and his office were routinely involved in visa applications, the senator's attorneys wanted to tell the jury about a 2010 dispute involving a "Miss Doshi," whose 10-year visa was denied. Menendez wrote a letter to the ambassador of India on her behalf, just as he did for Melgen's visitors.

In this instance, Walls would not allow that letter to be introduced as evidence because it happened after 2008, when Melgen sought Menendez's support for visitors.

"I am not quite sure evidentially you can deal with subsequent conduct as being indicative of what was done earlier," Walls said. He later added that the same type of conduct can be "perfectly proper" at one point but later can become "contaminated by a bribe" — an argument similar to that made by prosecutors.

Walls did, however, allow the defense to show the jury a 2008 letter in which Menendez wrote to the ambassador of Colombia in support of a family seeking a visa.

"That's more interesting in a relative sense than what he did or did not do in 2010," Walls said.

Justin Walder, a former prosecutor at the Hackensack-based law firm Pashman, Stein, Walder, Hayden, said judges often have to weigh the usefulness of evidence against other factors, including the time of everyone involved in a trial.

"If somebody's going through a red light, you don't want to show how many times he went through a green light before he got caught," Walder said. "It's too attenuated and will unduly lengthen the trial."

Ultimately, he said, it is a "discretionary call" by judges as to what boundaries to set for the admissibility of evidence.

Walls is expected to hear arguments on the matter this week. The trial resumes Monday and could last through Thanksgiving.

Email: pugliese@northjersey.com and racioppi@northjersey.com