Former state Sen. Joseph Bruno intends to use all legal avenues to challenge the U.S. Court of Appeals ruling against his double jeopardy argument — something that is making a date for his trial on honest services fraud allegations a moving target.
Lawyers for the longtime Republican state Senate majority leader indicated they intend to petition the U.S. Supreme Court to hear their case, while simultaneously bringing it before all the justices of the 2nd Circuit of the Court of Appeals in an attempt to spur a review. If the full 2nd Circuit agrees to review the earlier ruling, Bruno’s lawyers said they’ll seek to stay Bruno’s trial in U.S. District Court for Northern New York, leaving Judge Gary Sharpe to question whether scheduling a trial makes any sense.
“I would really like to be in the position of having a sense of when we can go,” he told lawyers in the case during a status conference in his chambers Tuesday.
Sharpe ultimately set a tentative trial date for 60 days after the 2nd Circuit decides whether it will hear 84-year-old Bruno’s latest call for judicial review. That could place the trial — expected to be shorter than the first — sometime between Thanksgiving and Christmas — unless, of course, the 2nd Circuit takes up Bruno’s argument of double jeopardy again.
If the justices take up the case, the criminal proceedings could be stayed for months.
Last week, three judges from the 2nd Circuit rejected Bruno’s assertion that federal prosecutors “abandoned” their quid pro quo theory during his original 2009 trial and that his acquittal on five other charges reflected a finding by the jury that he did not scheme to defraud. Instead, the justices found the latest charges lodged by the government were based on new arguments stemming from Bruno being found guilty on two counts of honest services fraud — a pair of convictions vacated by the Court of Appeals in 2010.
After roughly four years of legal wrangling through the court system, prosecutors are now hoping to move the case along in short order. Assistant U.S. Attorney Elizabeth Coombe said there’s no sense in waiting.
“Your honor, the government would like you to set a trial date as soon as possible,” she said
Bruno attorneys William Dreyer and E. Stewart Jones indicated they will have their motion for review before the appeals court completed by September. Dreyer suggested the court allow their petition to be considered before a trial date is set.
“Let the court review it and make it’s own determination,” he said.
One issue is the extended period of time required to prepare for a trial. Sharpe said empaneling a jury involves sending out no less than 500 summonses to prospective jurors and then weeding through them with questionnaires —a process that takes upward of 60 days.
“I don’t want to pull the trigger on that process and then have the case stayed, so that we’re down for another extended period of time,” he said.
Sharpe also raised concerns about federal budget cuts aimed at curbing the federal deficit. Known as the sequester, the cuts have left federal courts with limited resources.
“This court is facing sequestration where they might come in and shut us down and there will be no trial,” he warned. “I cannot commit to spend money and resources that we don’t have unless there is certainty that it’s going to go forward.”
Bruno was found guilty by a jury on two charges of honest services fraud on allegations he had undisclosed conflicts of interest while serving in the Senate, including accepting money from friends who had business pending before state government. He was ordered to serve two years in prison but was allowed to remain free as he pursued his appeals.
The U.S. Supreme Court subsequently redefined the honest services fraud law to require proof of bribery or kickbacks. This allowed the 2nd Circuit to void Bruno’s convictions for not containing such proof.
But federal prosecutors obtained a new indictment in May 2012, alleging that Bruno received a total of $440,000 in payments from businessman Jared Abbruzzese between 2004 and 2006, including $80,000 he received in exchange for a “virtually worthless” horse. The government argues these payments — the same ones that led to Bruno’s conviction during his first trial — now meet the legal definition of a bribe or kickback.
Bruno’s defense team contends the case can’t be tried a second time using a different definition of the crime. Prosecutors maintain they can legitimately take Bruno to trial again using the redefined law, since his first convictions were overturned.