Creative Public Corruption Defense: Lack of Notice

Bruno claims case tainted
Lawyers for ex-Senate leader want charges dropped, citing lack of fair warning in statute
The Albany Times Union by JAMES M. ODATO - May 2, 2009

ALBANY, NY — Attorneys for former state Sen. Joseph L. Bruno filed a motion Friday asking a federal judge to kill the criminal case against him. The federal statute central to the case never gave the Brunswick Republican fair warning that he might be breaking the law while in office, defense lawyers said. Filed a few minutes before the deadline to respond to the Jan. 23 federal indictment against Bruno, the motion to dismiss reads like an opening statement for trial. Bruno has emphatically stressed his innocence and has pledged to fight the felony charges before a jury. "The government has filed an indictment in desperate search of a crime," the motion states, noting that he is not accused of soliciting bribes, taking kickbacks or misappropriating funds. Bruno, 80, is accused of eight counts of honest services fraud, each punishable by up to 20 years in prison. The charges allege he denied the public their right to honest services because he used his office to enrich himself as a private businessman and never revealed what he was doing. Bruno ran a consulting business and represented investment firms seeking business from New York labor union pension and health funds. The indictment alleges Bruno gained from his elected job by pocketing at least $3.2 million in private consulting fees from clients who sought to use his influence. Defense lawyers contend Bruno broke no law because he disclosed his dealings as fully as the state ethics disclosure rules require. They say federal prosecutors are manufacturing charges by alleging Bruno denied the public of "disinterested decision making" and did not completely disclose and conflicts of interest. The conduct, the lawyers say, are "at worst . . . a state law misdemeanor" under circumstances that aren't even applicable in the Bruno case.

Lawyers familiar with the honest services statute say it can successfully be applied to wide variety of improper activities of public officers because it is so malleable. Bruno's lawyers say the statute is not applicable in a case of non-disclosure of business activities. They contend the honest services law is too vague to be constitutional. "It fails to provide Mr. Bruno with notice of what is a crime and what is not," the motion said. More than 100 other lawmakers held part-time jobs at the time Bruno was acting as a consultant and they all disclosed as much as required, which in New York is a modest level of information. Government reform groups have complained for years that the ethics forms lack detail. "If permitted to succeed, the government will outlaw conduct of nearly every New York legislator with part-time outside employment," the defense lawyers said. The indictment claims that from 1993 through 2005, all of Bruno's annual financial disclosures, required by the state's Ethics in Government law, contain false, misleading and incomplete information. Bruno, as leader of the Senate, controlled the legislative ethics panel which could step in if complaints arise.

Bruno quit the Senate in June after 32 years amid a lengthy probe of many of his private affairs as well as actions of some of his children. His exit came after serving as Senate majority leader since 1995. By July, he was reemployed as chief executive of CMA Consulting in Latham, a company serving many state agencies with computer software and applications services. Wayne State Law School Professor Peter Henning, who has studied more than 200 honest services cases, said the arguments by Bruno lawyers, led by Abbe D. Lowell in Washington, D.C, and William J. Dreyer in Albany, are similar to those he's seen in dozens of cases. They have never resulted in a dismissal from a trial court judge, he said, and could be aimed at the hope this case or a similar one arrives at the U.S. Supreme Court to test the constitutionality of the honest services statute. "He's covering himself in case of the one in a million shot that honest services is rendered unconstitutional," Henning said. "It's not a bad argument, it just hasn't won. He's got a good point." James M. Odato can be reached at 454-5083 or jodato@timesunion.com