New York Senator May Be Retried in Wake of Supreme Court's "Honest Services" Fraud Decision

New York Senator Joseph L. Bruno was indicted in January of 2009 on eight counts of fraud. A jury in the U.S. District Court for the Northern District of New York acquitted Bruno, who is now 81 years old and the former Republican Majority Leader of the New York State Senate, on five of the remaining charges and deadlocked on the sixth in December of 2009. The charges were based on allegations that Bruno allegedly took approximately $3 million in kickbacks from businesses seeking to do business in New York, as well as labor unions. In particular, Bruno s alleged to have accepted $280,000 in "consulting fees" from companies associated with Loudonville, New York, businessman Jared Abbruzzese. Bruno was sentenced to two years' imprisonment last May, but has remained free pending his appeal in the U.S. Court of Appeals for the Second Circuit.

Now the U.S. Attorney's Office has filed a brief with the Court of Appeals requesting that the dismiss the charges against Bruno and remand his case for a new trial, as reported in the Saratogan. The prosecution argued that Bruno's convictions under 18 United States Code Section 346--the honest services fraud statute--cannot stand following the U.S. Supreme Court's decision in U.S. v. Skilling, the case against former Enron executive Jeffrey Skilling, as the Blog has noted here. However, it maintains that it can obtain another indictment of Bruno under the statute, as amended by Skilling. The government contends that it will be able to prove a quid pro quo if Bruno is ordered retried. Bruno and his counsel have filed a brief with the Court of Appeals arguing that any retrial of Bruno would violate double jeopardy.

FBI Investigating "Pay for Play Plan" Allegations Surrounding Auburn Quarterback Cam Newton and Father

It is college football season, and appropriately the most notable news in an otherwise slow Federal criminal news day appears to be that the Federal Bureau of Investigation has interviewed John Bond, a former quarterback for the Mississippi State Bulldogs, regarding Auburn quarterback Cam Newton, according to the Atlanta Journal and Constitution.

Bond told Mississippi State officials in January that a former teammate had asked him for $180,000 in order to secure Newton's commitment to the Bulldogs. The teammate was subsequently revealed to be Kenny Rogers, another former player for the Bulldogs and owner of a company called Elite Football Preparation, which holds camps in Alabama, Chicago and Mississippi, and matches football prospects with colleges. Rogers, in turn, has publicly stated that he met with Newton's father, Cecil Newton, as well as assistant coaches for MSU, on November 27, 2009, in Starkville, Mississippi, and that Newton demanded between $100,000 and $180,000 in order to ensure that his son signed with the Bulldogs.

Newton originally signed a letter of intent with the University of Florida, where he spent the 2007-2008 season as a back-up quarterback to Heisman Trophy winner Tim Tebow. He subsequently transferred to Blinn College in Texas, where he led the Blinn Buccaneers to the NJCAA National Championship before signing with Auburn. According to ESPN, Cecil Newton told Rogers at the meeting that his son's transfer to Auburn was not going to be "free." Rogers was referred to Mississippi State booster and former Bulldogs offensive lineman Bill Bell. Bell confirmed to ESPN that Rogers did contact him to ask for money in exchange for Newton signing with Mississippi State. Rogers has stated that he doesn't know if Cam Newton knew about his father's demand for money. However, ESPN reported that recruiting sources for Mississippi State had disclosed that they had had telephone conversations with Cam Newton, as well as his father, that Newton's college choice would be based on a pay-for-play plan.

The allegations are further not limited to Newton's dealings with Mississippi State. One recruiter has reported that Cam Newton telephoned him after committing to Auburn and informed him that he had chosen Auburn over Mississippi State because "the money was too much."

Mississippi State compliance officials reported the allegations to Southeastern Conference compliance officials in January. The NCAA and the FBI are both conducting investigations into these allegations. The news has cast a shadow over Auburn's so-far undefeated season, and Newton himself, the current leading contender for the Heisman Trophy. Newton's reputation was already previously marred by charges of burglary, larceny and obstruction relating to an alleged stolen laptop while he was at the University of Florida.

The Federal investigation could result in criminal proceedings for conspiracy, fraud, bribery and other offenses. In a case which college football fans will have some familiarity with, U.S. v. Young, NO. 03-20400 BV, (W.D.Tenn. 2004), Tennessee businessman and University of Alabama booster Logan Young was indicted for structuring, in violation of 31 U.S.C. § 5324; Travel Act violations under 18 U.S.C. § 1952; and conspiracy, in violation of 18 U.S.C. § 371, for paying $150,000 to Lynn Lang, coach of Trezvant High School in Memphis, to ensure that high school defensive player Albert Means signed a letter of intent with Alabama. Young, Lang and Trezvant Assistant Coach Milton Kirk were subsequently convicted. Alabama was placed on probation for five years by the NCAA as a result of the conduct, and given a two year bowl ban. The University of Kentucky was given a one year bowl ban for a $6,000 payment by a booster to Lang in order to have Means visit the school. Similar misconduct was alleged against the University of Georgia, the University of Arkansas and the University of Memphis, however those schools were not sanctioned. An old Sports Illustrated article has more on the Means scandal.

High Crimes, Shrimp and Vodka: The Senate Trial of Judge Thomas Porteous

Very balanced pre-trial coverage and background of the U.S. Senate trial of Federal Judge Thomas Porteous can be found on, courtesy of a reader.

As reported at, during Judge Porteous' trial last week, the 12 member Senate committee heard testimony regarding allegations that a bonding company, Bail Bonds Unlimited, provided free vehicle repairs, buckets of shrimp and bottles of vodka to Judge Porteous while he was a State judge in Jefferson Parish Louisiana. Judge Porteous is alleged to have performed favors for the bonding company in return. Members of the House of Representatives serving as prosecutors also presented evidence that Judge Porteous allegedly omitted assets and gambling debts from bankruptcy filings, and used the false name "G.T. Ortous" in the filing.

There was also testimony that Judge Porteous asked Jefferson Parish attorney Jacob Amato in 1999 to help defray part of the cost of Judge Porteous' son's wedding at the same time that Judge Porteous was presiding over a multi-million dollar legal dispute between Lifemark Hospitals and Liljeberg Enterprises, in which Amato represented Liljeberg. Amato was alleged to have put $2,000 in an envelope for Judge Porteous' secretary.

Judge Porteous' attorneys argued that the bankruptcy false name was intended to prevent embarrassing publicity, and presented expert testimony that the omissions from the filings were not unusual. They also presented a Loyola University Law School Professor, who testified that, until last year, Louisiana's rules on gifts and meals for judges were fairly vague, and that State judges regularly received lunches and holiday gifts from lawyers practicing before them. Evidence was also presented that Lifemark retained attorney Donald Gardner in its dispute with Liljeberg for $100,000 solely based on Gardner's familiarity with the Judge. Gardner kicked back $30,000 of the fee to the attorney who recruited him. Judge Porteous' counsel argued to the committee that the allegations against Judge Porteous are not the sort of conduct which the Founding Fathers intended impeachment for--treason and high crimes and misdemeanors. Counsel emphasized that Judge Porteous was never charged with any crime relating to the alleged conduct, and that most of the conduct occurred before he was appointed to the Federal Bench.

The committee consists of six Democrats and six Republicans. The full Senate will determine whether Judge Porteous will be impeached during its lame duck session in November. If the Senate votes in favor of impeachment, Judge Porteous will become the eighth Federal judge to be removed from office in U.S. history.

Blagojevich Recap (Part II)

The recap of the trial thus far of former Illinois Governor Rod Blagojevich, from the coverage of the Chicago Tribune's "Blagojevich on Trial" Blog and the Springfield State Journal-Register's Blagojevich trial coverage continues.

Thursday, June 17, 2010: Former Democratic Party fundraiser Joseph Cari testifies that Blagojevich spoke with him about presidential ambitions and getting contributions from businesses in exchange for awarding state business. Cari states that Antoin “Tony” Rezko told him he made decisions as to who got state work. Cari also testifies that he pressured venture capital firm JER, which was seeking to gain an $80 million allocation from Illinois’ teacher’s pension panel, to hire a consultant designated by Rezko, who would be paid a large finder’s fee. The defense gets Cari to admit that Stuart Levine—not Blagojevich—told Cari that JER would not receive the pension investment business unless it hired the consultant. Cari does admit that JER received the allocation even though it did not ultimately hire the consultant. Blagojevich’s attorneys point out that Cari did not tell federal investigators about his alleged conversations with Blagojevich until 82 days after they first contacted him, and attempts to portray Cari as lying to prosecutors in order to obtain a plea deal. Former Illinois Director of Boards and Commissions Jill Hayden testifies that she gave the most weight to recommendations by Rezko and Chris Kelly in selecting candidates to fill State boards. Rezko and Kelly selected five of the nine member Illinois Finance Authority (IFA). Hayden testifies that Rezko also called her and told her Levine needed to be reappointed to the Illinois Teacher’s Retirement System Board. Blagojevich aid Alonzo “Lon” Monk subsequently contacted Hayden and told her not to take any more calls from Rezko because the FBI had tapped his phones. Ali Ata, former head of the IFA, testifies that, in August 2002, he met with Blagojevich, Rezko, Kelly and legislator Jay Hoffman and gave Blagojevich $25,000 in return for a position in the administration. He states that gave Blagojevich another $25,000 in 2003 at Rezko’s request, and that Blagojevich had thanked Ata and said that he knew he was considering a job with the administration and that it had better be a job where Ata could “make some money.” Ata testifies that Rezko also came to him while he was Chief of the IFA seeking $16 million to refinance his restaurant businesses, stating that he would get the Governor to approve it. Ata states that he did not support the plan. Ata testifies that Rezko promised him a job on the Capital Development Board, but that the position was given to someone else. He also states that Rezko became increasingly paranoid about being bugged by federal investigators. On cross-examination, the defense attempts to have Ata admit that Blagojevich himself never informed Ata that he was receiving a State post in exchange for his campaign contributions.

Monday, June 21, 2010: John Johnston, owner of the Maywood and Balmoral race tracks, testifies that Lon Monk came to see in December of 2008 and asked him for a contribution right before the Governor signed legislation extending subsidies for race tracks. E-mails are introduced indicating that former U.S. Representative and White House Chief of Staff Rahm Emanuel supported Blagojevich in 2006 in exchange for the State authorizing a $2 million grant for construction of athletic fields for the Academy for Urban School Leadership, a school in Emanuel’s district. Former Deputy Governor Bradley Tusk testifies that Emanuel contacted him when the grant money for the school was held up, and that Blagojevich’s advisors said that the Governor wanted Emanuel’s brother, a wealthy Hollywood agent, to hold a fundraiser for the Governor. Tusk requested that Emanuel write a letter to the Chicago Tribune in support of the Governor’s programs. He also testifies that he met frequently with Rezko and Kelly during his tenure as Deputy Governor, and that he signed checks for Blagojevich when the Governor was not present. John Harris, Blagojevich’s Chief of Staff, testifies that Blagojevich had stated to him that he wanted to run for President. Harris testifies that Blagojevich directed him to block two investment firms from getting any State business on the grounds that the firms had failed to hire the Governor’s wife, Patti Blagojevich. Harris also testifies that Blagojevich was interested in finding a State position for his wife, including on the Illinois Pollution Control Board.

Tuesday, June 22, 2010: Harris testifies that Blagojevich became increasingly worried about his finances, including his legal bills of approximately $1.7 million from the law firm of Winston & Strawn. Blagojevich paid his legal expenses from his campaign funds. Harris testifies that Blagojevich considered appointing Illinois Senate President Emil Jones, and even himself, to the U.S. Senate seat vacated by President Barack Obama. However, when Jones caused an ethics bill which Blagojevich opposed to pass the Senate, Blagojevich allegedly told Harris that there was no way Jones would get the seat. Harris testified that he had conversations with Blagojevich regarding “how much” he could get for the Senate seat, including from wealthy businessmen Blair Hull and J.B. Pritzker. Harris testified that he and General Counsel Bill Quinlan told Blagojevich not to consider such ideas. Harris testified that Rahm Emanuel telephoned him and told him that President Obama was interested in having Valerie Jarrett, former Chairman of the Chicago Transit Authority, appointed to fill the seat. The prosecution plays an audio recording of a conversation between Blagojevich and Harris regarding Emanuel’s suggestion of Jarrett. Blagojevich asks Harris on tape what he can get for appointing Jarrett, including a potential appointment as Secretary of the U.S. Department of Health and Human Services.

Congress Considers Over-Criminalization and Over-Federalization of Criminal Law

As noted at White Collar Criminal Prof Blog and The Justice Fellowship, the U.S. House of Representatives Subcommittee on Crime, Terrorism and Homeland Security held a hearing last week on "Over-criminalization of Conduct and Over-federalization of Criminal Law." Organizations which addressed the Subcommittee on issues of over-criminalization and over-federalization included the American Bar Association, the American Civil Liberties Union, the National Association of Criminal Defense Attorneys, the Heritage Foundation and the Federalist Society.

The hearing considered the lack of distinction between federal criminal and civil offenses, as well as over-federalization of criminal law where federal criminal laws have been enacted to cover offenses already subject to state criminal laws, usually providing for harsher penalties. The Subcommittee noted the existence of approximately 4,500 federal criminal laws, with approximately 50 new criminal laws enacted by Congress each year.

The hearing should be welcome news to most federal criminal defense practitioners. Reform in these areas is badly needed. In some cases, certain prosecutions of alleged federal crimes would be more equitably, and less expensively, handled through the imposition of civil fines and penalties. Furthermore, in many cases, State prosecutorial entities are as capable as Federal entities to prosecute offenders in areas where State and Federal criminal law overlaps. The Blog looks forward to the proposals for reform which result from the hearing.