Arguments for dismissing the second federal indictment against former state Senate Majority Leader Joseph L. Bruno are without merit, prosecutors argued in court papers filed Tuesday.
Instead, the U.S. Attorney’s Office said the formerly powerful Republican should face a second federal trial on charges he accepted $300,000 in illegal payments from friend and business associate Jared Abbruzzese.
Bruno’s 2009 convictions on two charges of honest services fraud were dismissed on appeal, after the U.S. Supreme Court tightened the definition of that crime. Defense attorneys last month argued that Bruno shouldn’t be tried again under the new legal standard.
“Where there has been a reversal of a conviction because of a defective legal theory, double jeopardy does not bar retrial on the correct theory,” Assistant U.S. Attorney Elizabeth C. Coombe wrote in response papers filed in U.S. District Court.
The prosecution filing came in response to an October motion by Bruno attorneys William J. Dreyer and E. Stewart Jones to dismiss the indictment, in what Dreyer termed a “fatally flawed” prosecution.
The merits of the two arguments will now be weighed by U.S. District Court Judge Gary L. Sharpe, who will meet with the attorneys today in his Albany chambers. Trial is currently scheduled for Feb. 4.
Federal prosecutors in May re-indicted Bruno on two counts of felony honest services fraud, alleging the former power broker from Rensselaer County took bribes and kickbacks from Abbruzzese, who owned a technology company that received start-up funding through the state.
Bruno has pleaded innocent.
Bruno’s original 2009 federal trial convictions — which required only proof he had undisclosed conflicts of interest — were dismissed by a federal appeals court last November due to the Supreme Court ruling, which came after the convictions.
The new indictment, while using the updated legal definition of the crime, alleges the same facts as the original indictment, Coombe argued. The defense had argued that the second indictment couldn’t broaden the original charges.
“Both indictments allege that the defendant devised a scheme to defraud the state of New York and its citizens of the intangible right to his honest services,” Coombe wrote.
The new definition of honest services fraud requires prosecutors to show that fraud by public officials involved bribery or kickbacks.
In his motion for dismissal, Dreyer said prosecutors went too far in bringing up specific bribery allegations in the second indictment, because they weren’t explicit in the first indictment.
But in the prosecution response, Coombe said that even with that change, at trial the government would not be required to prove that official action was taken in return for the $20,000 a month “business consulting” payments Abbruzzese made to Bruno between 2004 and 2006.
“The crime is complete when payment is solicited or received,” Coombe argued.
Coombe said Sharpe should also reject a defense argument that the new indictment should have brought within 60 days of the appeals court overturning Bruno’s conviction, rather than the six-month deadline prosecutors used.
Bruno, now 83, was one of the most powerful Republicans in the state when he was in the Senate, and he steered hundreds of millions of state dollars into Capital Region economic development projects — leading him to have many local defenders.
But with reports of a three-year FBI investigation surfacing, 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.
In a jury trial that fall, Bruno was acquitted of five charges and convicted on two. The jury was hung on one charge.
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 but has never served any time behind bars. He remains free without bail.