The revised second federal fraud indictment against Joseph L. Bruno should be dismissed on several grounds, attorneys for the former state Senate majority leader argue in new court papers.
“This is round two of a prosecution that was fatally flawed from its inception,” attorney William J. Dreyer wrote in a motion filed Thursday in U.S. District Court.
Federal prosecutors in May re-indicted the former Republican power broker from Rensselaer County on two counts of felony honest services fraud, this time alleging Bruno took bribes and kickbacks from an Albany businessman who wanted to influence state business. Bruno has pleaded innocent.
Bruno’s original 2009 federal convictions for having undisclosed conflicts of interest were dismissed on appeal due to changed legal standards, but prosecutors re-indicted him.
In the motion to dismiss the superseding indictment, Dreyer — along with prominent Troy attorney E. Stewart Jones — said the indictment was brought too late after the appeals court decision, which “impermissibly and significantly broadens the scope of the original indictment” and unconstitutionally raises bribery allegations the government didn’t pursue at the first trial.
The U.S. Attorney’s Office has until Nov. 5 to give a written response. U.S. District Judge Gary L. Sharpe, who also presided at Bruno’s first trial, has set a hearing on the defense motion for Nov. 15.
Currently, Bruno’s second trial is slated to start Feb. 4 in U.S. District Court.
Bruno, now 83, was one of the most powerful Republicans in the state when he was in the Senate, and he steered substantial sums of state money into Capital Region economic development projects, including the $1.3 billion package that attracted GlobalFoundries.
But with reports of an FBI investigation swirling around him, Bruno resigned in 2008 from the Senate seat he had held for 32 years. In early 2009, he was indicted on eight charges of honest services fraud alleging he had undisclosed business dealings that enriched him by $3.2 million over a 14-year period.
At trial that fall, Bruno was acquitted of five charges and convicted on two. The jury was hung on one charge.
The convictions were overturned by an appeals court in November 2011, after the U.S. Supreme Court ruled in another case that “honest services fraud” cases against public officials require proof of bribes or kickbacks. But the Second Circuit Court of Appeals ruling said Bruno’s case could be re-tried.
Prosecutors immediately said they would seek a superseding indictment based on the same set of facts and try Bruno again.
The new indictment, like the earlier one, alleged that Bruno received $440,000 from Albany businessman Jared Abbruzzese between 2004 and 2006, while Abbruzzese had business pending before state government. But the new indictment, unlike the previous one, says those payments constituted “bribes and kickbacks.”
The payments from Abbruzzese were from $20,000-per-month “consulting” fees from various companies he owned, and in one case prosecutors said a payment was hidden as the $80,000 sale price of a “virtually worthless” racehorse.
Prosecutors said the payments bought Abbruzzese undue influence with Bruno and unjustly enriched the senator. The second indictment — unlike the first — tries to tie the payments to funding an Abbruzzese-backed company received from the state government and the appointment of an Abbruzzese associate to the board of the New York Racing Association.
But Dreyer’s motion said prosecutors went too far in bringing up the specific bribery allegations in the second indictment because they weren’t explicit in the first indictment.
“The government could have charged and prosecuted Mr. Bruno with crimes of kickback and bribery; it simply chose not to,” Dreyer wrote. “The government must now live with that choice.”
Dreyer also contends that under the legal circumstances, the new indictment should have been brought within 60 days of the appeals court decision. Prosecutors contended that they had six months to act and brought the new indictment within that time frame.
Bruno served in the state Senate from 1976 to 2008 and was its leader from 1994 to 2008.
The Brunswick resident was sentenced to two years in federal prison on the earlier convictions but has never served any time behind bars. He remains free without bail.