Prosecutors seek retrial of Bruno

PHOTOGRAPHER: Stephen Williams

Federal prosecutors concede that former state Senate majority leader Joseph L. Bruno’s appeal of last year’s fraud convictions will probably be successful, but they intend to ask an appellate court for a retrial and say they can convict him.

Prosecutors expect the conviction will be overturned based on a subsequent U.S. Supreme Court ruling limiting the federal “honest services” fraud law. But they plan to ask the Second Circuit U.S. Court of Appeals to allow the case to be re-tried because of error in the instructions to the jury. Then they think they can win a conviction, even under the new, more-restrictive “honest services” fraud standard.

“Our position is there was a mistake in the jury instructions, but the evidence was clearly sufficient,” said Assistant U.S. Attorney William Pericak, lead prosecutor at Bruno’s trial.

Bruno’s lawyers maintain the conviction should be totally reversed for insufficient evidence, which would prohibit a second trial.

The Supreme Court ruling drastically limited the scope of the federal “honest services” fraud law under which Bruno was convicted.

In a letter late last month to Bruno’s attorney, U.S. Attorney for Northern New York Richard Hartunian conceded that the Supreme Court decision last June means Bruno’s December 2009 convictions should be reversed.

Bruno attorney William Dreyer of Albany had earlier written to Hartunian, asking for his position on the Supreme Court decision’s impact.

Responding to Dreyer, Hartunian conceded the appeal will be successful. But he suggested the appeals court will allow for a new trial and Bruno could agree to have the case re-tried now rather than go through the appeal process.

But that won’t happen, according to Dreyer. “Whatever proposals are set forth in the letter are going to be rejected,” he said Tuesday.

Dreyer expects to file a full appeal brief on Bruno’s behalf with the three-judge Court of Appeals in New York City next month. He will argue there was insufficient evidence to support the convictions, especially given the Supreme Court ruling.

The Supreme Court decision in June limited “honest services” fraud prosecutions to allegations of bribery or kickbacks, eliminating prosecutions for what Bruno was accused of — undisclosed conflicts of interest.

Bruno, now 81, was convicted by a jury of not disclosing some of his private business dealings while he represented Rensselaer and Saratoga counties in the state Senate. There was no testimony that Bruno sought to perform specific favors in return for money.

error in instructions

In his letter to Dreyer, Hartunian accepts that the instructions U.S. Court Judge Gary Sharpe gave the jury, using the conviction standards of the now-discredited law, means “reversal is appropriate as the result of instructional error.”

But Pericak said the Court of Appeals could allow a retrial, with the jury instruction updated to comply with the revised law.

Bruno was convicted after a four-week trial on two out of eight counts against him — that he accepted $3.2 million in undisclosed payments for consulting with businesses that had matters pending before state government.

He was actually convicted of charges relating only to his relationship with wealthy businessman Jared Abbruzzese.

Abbruzzese paid him a total of $280,000. At the time, prosecutors said Abbruzzese was an investor in a start-up company that was pursuing state funding.

Pericak contends that Abruzzese’s payments to Bruno, including one in 2006 for a “worthless” racehorse, were “a kickback, quid pro quo, or whatever term you want to use.”

Bruno has consistently maintained he was a part-time legislator with the right to earn outside income.

He did not testify at the trial, but regularly proclaimed his innocence at impromptu press conferences on the courthouse steps.

Bruno, of Brunswick, Renssealer County, served in the state Senate from 1976 until his resignation in 2009 after the federal charges were filed. He was the Senate’s powerful majority leader from 1993 to 2009.

Bruno was sentenced to two years in federal prison and ordered to pay $280,000 in restitution, but remains free without bail pending the outcome of the appeal.

Meanwhile, it has been reported that federal prosecutors met after the trial with representatives of Albany County District Attorney David Soares to discuss the possibility of state charges being brought against Bruno.

Such charges could be based on employees on Bruno’s state payroll also doing his personal businesses, as was common, according to several trial witnesses. Those witnesses testified with immunity from prosecution.

Soares did not respond to a request for comment.

Pericak said his office does not comment on such meetings.