A federal appeals court in New York City soon will hear oral arguments in former state Senate Majority Leader Joseph L. Bruno’s effort to avoid a second trial on corruption charges.
The Second Circuit Court of Appeals will hear 10 minutes of arguments by each side at the Thurgood Marshall Federal Courthouse on May 8, according to an order filed by the judges.
Bruno, who turned 84 earlier this month, is arguing in his appeal that prosecutors’ efforts to try him again using a new interpretation of the evidence amount to unconstitutional double jeopardy — being tried for the same crime twice.
In pretrial motions, the defense made a double-jeopardy argument to U.S. District Court Judge Gary L. Sharpe, who rejected it. Sharpe’s decision is what is now being appealed.
The Court of Appeals earlier agreed to a prosecution request to “expedite” its hearing of the case, so that a new trial can be scheduled quickly if prosecutors win.
Bruno, of Rensselaer County, served in the state Senate from 1976 to 2008 and was the powerful Republican majority leader from 1994 until his resignation while under federal investigation in 2008. He is credited for steering state money to the Capital Region during his tenure, laying the groundwork for much of the high-tech development that has happened in recent years.
In 2009, Bruno was found guilty of two charges of honest services fraud following a jury trial presided over by Sharpe. He was acquitted on five other charges, and the jury reached no verdict on a sixth charge.
The trial was based on allegations Bruno had undisclosed conflicts of interest while serving in the Senate, including accepting money from friends who had business pending before state government.
The U.S. Supreme Court subsequently declared the “honest services” fraud law unconstitutionally vague, and redefined the law to require proof of bribery or kickbacks, rather than just undisclosed conflicts. The Second Circuit Court of Appeals in 2011 voided Bruno’s convictions, based on the redefinition of the law.
The government, however, obtained a new indictment in May 2012, in which it alleged that $300,000 in payments to Bruno from businessman Jared Abbruzzese between 2004 and 2006 — the charges on which he was convicted in the first trial — met the legal definition of a bribe or kickback.
The defense contends that the case, having been tried once, shouldn’t be retried a second time using the same facts but a different definition of the crime.
“In this case, the facts and circumstances surrounding the entirety of this prosecution cry out for the application of double jeopardy in order to check the government’s power and preserve the finality of the jury’s acquittals in the first trial,” defense lawyer William J. Dreyer of Albany wrote in appeals papers.
Prosecutors contend that since the first convictions were overturned due to a change in the law, they can legitimately take Bruno to trial again, using the redefined law.
“The protection of the Double Jeopardy Clause applies only if there has been some event, such as an acquittal, which terminates the original jeopardy,” Assistant U.S. Attorney Elizabeth C. Coombe argues in appeals papers. “Here, because of the reversal of Bruno’s convictions due to [legal] instructional error, he is in continued jeopardy, and there is no double jeopardy bar to retrial.”
After the first trial, Sharpe sentenced Bruno to two years in federal prison on the two convictions, but he has been allowed to remain free as he pursued his appeals, and has served no time behind bars.