The federal judge presiding over the honest services fraud case against former state Senate majority leader Joseph L. Bruno has rejected arguments to dismiss the second indictment against him.
The decision by U.S. District Court Judge Gary L. Sharpe sets a course for Bruno’s second trial to begin on Feb. 4, though at least part of the dismissal decision could be appealed before then.
In a 27-page decision dated Tuesday, Sharpe rejected arguments made by defense attorneys William J. Dreyer and E. Stewart Jones that the second indictment against Bruno, handed up by a grand jury last May, was impermissibly broadened from the first indictment in 2009.
Sharpe also denied a defense argument that a second trial for the 83-year-old former politician would constitute “double jeopardy” — the aspect of the decision that could be appealed before trial.
“It is beyond reproach ‘that the Double Jeopardy Clause does not preclude the government from retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction,’ ” Sharpe wrote, quoting from a precedent.
He gave Bruno’s lawyers 14 days from Tuesday to start an appeal of the double jeopardy decision, should they decide to do so.
Dreyer said Wednesday that Bruno’s lawyers would not comment.
The double jeopardy principle of the U.S. Constitution is that a person can’t be tried for the same crime twice.
Bruno was indicted on two counts of federal honest services fraud last May for allegedly accepting illegal payments from Jared Abbruzzese, a businessman and friend who had interests pending before state government while Bruno was in office and in a position of influence.
Bruno was tried before Sharpe on an eight-count honest services fraud indictment in 2009. While the indictment was wide-ranging and covered $3.2 million in income earned between 1994 and 2006, Bruno was convicted on only two counts related to Abbruzzese.
Bruno appealed those convictions and a federal court dismissed them in November 2011, because in the interim the U.S. Supreme Court, in an unrelated ruling, had narrowed what constitutes a crime under the federal “honest services” law.
The new definition requires proof that a public official took bribes or kickbacks, rather than just failure to disclose conflicts of interest. That’s what was alleged in the first indictment.
The new indictment alleges Abbruzzese’s $20,000-a-month payments to Bruno from 2004 to 2006 constituted a form of bribery. Bruno, who received about $300,000 in total from his friend, maintains they were legitimate payments for business consulting services. He has repeatedly proclaimed his innocence on all charges.
In their pretrial motion, Bruno’s lawyers argued that prosecutors couldn’t broaden the indictment beyond the charges made in the first trial.
Sharpe ruled against them.
“Although the indictments are not identical, the differences between the two are limited to ‘the legal theory stated and in the clarificatory language’ used to support it,” Sharpe wrote.
The judge also dismissed a defense argument that the new indictment should have been brought within 60 days of the appeals court decision, not within six months.
“None of the materials Bruno relies on squarely support his interpretation of the statute,” Sharpe wrote.
Bruno, of Brunswick, was a state senator representing Saratoga and Rensselaer counties from 1976 to 2008 and Republican leader of the Senate majority — and hence one of the most powerful politicians in the state — from 1994 until his resignation in 2008.
While in office, Bruno was widely credited with steering state money into economic development projects in the Capital Region, including the Luther Forest Technology Campus, Albany International Airport and the advanced research facilities at the College of Nanoscale Sciences and Engineering in Albany.
However, there were also allegations of influence-peddling that led to a three-year FBI investigation and Bruno’s eventual indictment.