Joseph Bruno sat confidently in the grand neoclassical courtroom of the 2nd Circuit Court of Appeals in Foley Square, awaiting vindication. After serving for over 30 years in the New York State Senate, the last 14 as majority leader—one of Albany’s storied “three men in a room”—Bruno had spent the last five years embroiled in a corruption investigation, which had led to his conviction, a prison sentence, and wiped out most of his once considerable financial resources.
Ever dapper in a pinstripe suit that accentuated the angles of his tall, powerful frame, Bruno, his posture relaxed, his white hair sculpted into place, nodded his head throughout the court proceedings, so certain of their outcome that he even allowed himself to smile at times. His ordeal would soon be over—or so he thought.
The day was June 17, 2011. A year and a half earlier, in December of 2009, the United States government had convicted Bruno on two of the eight counts for which he had been tried—the guilty verdicts handed down on the charges that he had deprived his constituents of “honest services” by using his might as majority leader to reap hundreds of thousands of dollars in consulting fees from an Albany businessman in exchange for work prosecutors contended he had not actually performed. For his crime Bruno was sentenced to two years in prison, no mere slap on the wrist for an octogenarian.
In the wake of his conviction, the New York Daily News dubbed Bruno the “symbol of New York’s clubby political culture”—the epitome of the rampant corruption in Albany that had earned the Legislature the title of most dysfunctional in the nation. The New York Times wrote that the “conviction marked a humiliating fall for Mr. Bruno, a Korean War veteran and a former boxer, whose jovial manner masked the iron hand he used to rule the Senate.”
But then, in a turn of events that took political observers by surprise and upended Bruno’s conviction, the U.S. Supreme Court ruled in June 2010 to limit the scope of the “honest services” law used to convict him, with six of the justices ruling that the statute, which allowed the government to try individuals for “depriv[ing] another of the intangible right of honest services” was too broad, and the remaining three justices dissenting on the basis that they would have gone farther than the majority and rather than narrowing the application of the law to cases involving bribes and kickbacks, would have struck it down altogether.
In short, the crime for which Bruno had been convicted had been found by the country’s highest court not necessarily to be a crime after all.
Thus Bruno, who had avoided jail pending appeal, had returned to court this day, triumphant, to ask that his conviction be vacated and that he be allowed “to go on with my life”—a free man, at long last.
A few months later, in November 2011, the three-judge appeals panel concluded that indeed Bruno’s conviction should be vacated. At the same time the judges ruled that Bruno could be retried for receiving bribes or kickbacks under the new standard set by the Supreme Court, thereby paving the way for a new trial, and ensuring that another chapter would be written in the ongoing saga of the United States v. Joseph L. Bruno.
The day of the Appeals Court’s decision, the U.S. Attorney for New York’s Northern District, Richard Hartunian, issued a statement vowing that he would swiftly seek a second grand jury indictment. Months later the government followed through on this promise, and in May of this year a federal court judge set February 4, 2013 as the date of Bruno’s retrial.
For many individuals who have spent as much time and money as Bruno defending their innocence, particularly a person of his age—Bruno is 83 now—these new charges would have been a withering blow—a likely precursor to a plea bargain. Not Joe Bruno.
Earlier this month Bruno’s defense attorneys filed a motion to dismiss the new indictment.
Though Bruno declined to be interviewed for this article, citing the continuing nature of his legal battle, he did appear on New York Post columnist Fred Dicker’s radio show on the day the motion was filed.
“[The U.S. Attorney’s office has] seen fit to indict me and re-indict me on some of the charges that I now believe are seven years old, on exactly some of the charges that they have indicated—after a three-year investigation spending over $25 million of taxpayers’ money—that they weren’t charging me with,” Bruno told Dicker.
In the motion, William Dreyer, Bruno’s co-counsel, argues for dismissal on the grounds that the second indictment was filed well beyond the statute of limitations period of 60 days, that the new indictment “impermissibly” broadens the scope of the prior one, and that it “presents a theory of prosecution that the government abandoned.”
Additionally, some legal observers have suggested that by allowing the prosecution a new trial, the case comes dangerously close to violating Bruno’s constitutional protection against double jeopardy—a “second bite of the apple,” in the words of the motion filed by Bruno’s team.
Vincent Bonventre, a professor at Albany Law School and a former Army prosecutor, said it was not surprising that the Supreme Court would limit the scope of the honest services law, and that the ruling should have precluded the government from retrying Bruno’s case.
“It’s a much more difficult case to prove bribery and kickbacks, and they probably figured if they lost on appeal they might be able to retry on the bribery and kickback [charges], so they get two chances,” Bonventre said. “When we think about one of the protections that we have in our criminal justice system, one of the fundamental ones is that the government’s got to prosecute you once. It doesn’t keep getting another try until they get it right.”
The contention that the government violated the statute of limitations in the case—an argument Bruno’s defense team also made when seeking dismissal in his 2009 trial—hinges upon the fact that the prosecution waited nearly six months after Bruno’s conviction was vacated before filing the superseding indictment, even though federal law requires an indictment for a new trial to be filed within 60 days.
“It’s not like they sent this out on the 61st day, or the mailroom didn’t mail it on a Friday and they waited until Monday morning,” said Judge Andrew P. Napolitano, a former New Jersey Superior Court judge and current Fox News judicial analyst. “This is a rule of substance, meaning on the 61st day they are without the authority to indict. This is not some judge-made rule. This is a statute enacted by the Congress.”
In counter to Bruno’s motion, the prosecution, led by Hartunian, cites a federal statute that allows for a new trial in the event of an indictment being dismissed on any “error, defect, insufficiency, or irregularity.” Additionally, it maintains that the double jeopardy clause does not prohibit a retrial because the conviction was overturned not because of insufficient evidence but rather because of an “error in trial.”
Both the prosecutors and Bruno’s defense team declined to be interviewed for this article, citing a gag order imposed upon them by U.S. District Court Judge Gary Sharpe, who said at the time he issued it that “this trial is going to get tried in the courtroom, not the press.”
The gag order does not extend to Bruno, who declined to testify in his first trial.
Perhaps emboldened by what he believes is a weak case—a persecution rather than a prosecution—Bruno seemed to betray no anxiety when speaking publicly for the first time about his pending retrial on Dicker’s show.
“I believe in equal justice for all and I still believe in the United States of America and the justice system. I’m confident that it will all play out in the near future,” Bruno said.
Depending on the outcome of the motion to dismiss filed by Bruno’s lawyers, Bruno will once again have a chance to test his faith in the system come February.
A question of fairness lies at the heart of the ongoing effort to convict Joe Bruno. While there are some who believe that Bruno abused his office and as a result will once again be convicted—this time for good—there are others within the legal community who hold up the Bruno case as a glaring example of unfettered prosecutorial discretion—where the government has the authority and wherewithal to try cases as it pleases with little oversight.
A hallmark of the American justice system is that the prosecution is afforded virtually unlimited resources in marquee cases, especially ones with high-profile defendants. In the view of both detractors and supporters of the former senator, Bruno has become like Moby Dick to the U.S. Attorney’s Ahab, the leviathan Hartunian will hunt to the ends of the earth, either because of the prosecution’s unwavering commitment to justice or its prideful refusal to admit failure.
Central to whether the hero in this case is the harpooner or the whale—or perhaps neither—is the issue of whether Bruno’s consulting job merely took advantage of the notoriously permissive ethics laws of Albany, or constituted a clear example of a quid pro quo in which Bruno took money from an interested party in exchange for his influence on legislation.
In the eyes of the U.S. Attorney, Bruno violated the separation of his legislative duties and his job as a business consultant. But in Albany, where by law senators and Assembly members serve as part-time employees, the question is whether Bruno was merely exploiting the Legislature’s lenient rules to earn outside income, like so many of his colleagues did—and continue to do regularly—without scrutiny or repercussion.
Certainly, though there is ambiguity as to what constitutes wrongdoing in an area the Legislature has kept deliberately gray, there is also unquestionably a demarcation between what is legal and what is a crime—a line that has frequently been crossed by elected officials in recent years. The unlawful intermingling of special interests and politicians who have accepted money to do their bidding has led to the downfall of a parade of Albany’s elite, among them ex–state Comptroller Alan Hevesi and former Brooklyn Sen. Carl Kruger.
“Up until now, our ethics oversight has been far too relaxed,” said Susan Lerner, the executive director of Common Cause New York, a good government group. “There are legislators who are very careful with their outside conduct. Then there are legislators who think that because of the power of the office that they hold, they don’t have to be that careful.”
The fulcrum of the Bruno case is a gruff multimillionaire from Loudonville named Jared Abbruzzese, who by his own admission in court had struggled to ingratiate himself with potential business partners because of his pronounced lack of social grace.
After meeting Bruno at a country club, Abbruzzese developed a close personal and business relationship with the charismatic majority leader, hiring him as a consultant for several of his ventures. The prosecution has characterized this relationship as mutually beneficial—
Abbruzzese needed Bruno to navigate the byzantine network that is Albany, and Bruno received substantial payments in return.
In the second indictment, which Bruno’s defenders argue offers virtually no evidence that was not already introduced in the prior trial, the prosecution lists a litany of accusations intended to show that the Bruno–Abbruzzese relationship was based on the exchange of bribes and kickbacks. The government alleges, for instance, that Bruno “did not perform legitimate work” to earn his consulting payments through one of Abbruzzese’s businesses and that Bruno utilized state employees to perform administrative, clerical, bookkeeping and legal work related to his outside interests. In one of the more pointed accusations, the prosecution details a transaction where Abbruzzese, who had terminated Bruno’s consulting agreement with one of his businesses, TerreStar, at the behest of its new CEO, paid off the money that Bruno would have been owed by buying a horse from Bruno’s farm.
Since Bruno was acquitted in his 2009 trial on five counts of mail and wire fraud—the jury was hung on a sixth fraud charge—the government’s new indictment focuses exclusively on the honest services law.
Even before the Supreme Court’s May 2010 decision in Skilling v. United States—the suit brought by former Enron CEO Jeff Skilling that collaterally affected Bruno’s own conviction—the honest services statute had long been criticized by legal experts as too broad in its application. Judge Napolitano characterizes the law as “the favorite of the prosecution’s garden,” because of its low bar of requisite evidence and high conviction rate.
In essence, the honest services law charges that a person can commit fraud not by the theft of money but by robbing others of their right to the services they deserve. The government claims that Bruno’s business relationship with Abbruzzese demonstrates that as a legislator Bruno was not completely devoted to his work on behalf of the state, and thus his constituents were denied his honest services—a somewhat curious contention, given that Bruno was so successful at bringing home the bacon to his district as a senator that there is at least one building named for him in each of the 14 towns and two cities that comprise Rensselaer County, including Joseph L. Bruno Stadium, the home of the Tri-City ValleyCats minor league baseball team.
“If the definition of crime is harm, if that is the standard definition for 600 years of Anglo-American jurisprudence, where is the harm here?” Napolitano asked rhetorically. “Nobody was harmed by Joe Bruno’s efforts to serve the needs of a constituent who just happened to be in the horse business.”
Following the Supreme Court’s decision to limit the scope of the honest services law solely to cases involving bribery or kickbacks, prosecutors have made those offenses the focal point of their new case. This emphasis constitutes a marked change from the 2009 indictment, which never once mentioned the words “bribery” or “kickbacks” in the entire 35-page document.
In fact, in Bruno’s first trial, the government explicitly aimed to draw a distinction between fraud and bribery within the honest services law, contending that fraud is based on a public official’s failure to disclose a material conflict of interest, and bribery is based on a public official’s acceptance of a bribe.
According to multiple impartial sources familiar with the case, before the 2009 trial the FBI privately expressed doubt that the U.S. Attorney’s Office had enough evidence to convict Bruno. This time around there has been more public debate over whether the prosecution has presented enough evidence to warrant retrying Bruno, particularly given the senator’s age.
During Bruno’s appeals hearing, the judges admonished the prosecution for a lack of new evidence and questioned the government’s motives for putting Bruno through another lengthy trial when they could have brought him up on bribery charges from the outset.
“Isn’t it monstrously unfair to Mr. Bruno that he would have to go through another trial?” Judge Barrington Parker Jr. asked one of the prosecutors at the June 2011 hearing.
One former state official, an expert in legal affairs who asked not to be identified so as not to offend the prosecution, pointed out that there is a tradition in the Department of Justice of making an honest assessment of the strength of the case. When a case is reversed, he said, a prosecutor has to take a deep breath and ask, “Is this worth the resources if we go forward?”
“You have a defendant who is 83 years old whose conduct, frankly, within the world of Albany, was not particularly egregious, and this has now dragged on for five years,” said the official. “Part of being a prosecutor is exercising discretion. I think the general sentiment among the defense bar and within the legal community is this is not a reprosecution that makes much sense.”
But now that the case appears to be moving forward once again, pending the outcome of Bruno’s recent motion, a former prosecutor who spoke on the condition of anonymity believes that even without a conviction under the initial indictment, Bruno should seriously consider taking a plea if any such bargain is on the table.
“I’m confident that there were and perhaps still are plea negotiations given the age of the case, the age of the defendant, and the complications of a retrial. For the same reasons, one might reasonably assume that the government offered a nonjail sentence. If that’s the case, and Bruno turned it down, it’s hard to blame the government for going forward.”
Former Gov. David Paterson has made the case that while every agency in the state has inspector generals who hold them accountable, U.S. Attorneys, since they are under federal jurisdiction, are subject to less oversight and as a result violations from their offices can more easily go overlooked. Paterson believes that a prosecutor can have tunnel vision when it comes to cases that have been investigated and tried for a number of years, and that some oversight is necessary in order to at least present the appearance of equal justice for defendants.
“I see it as is a battle of egos. It becomes winning and losing, more than right and wrong,” Paterson said. “I get the feeling that some honest people tried long and hard to convict Senator Bruno, and when he was convicted they thought they won, and so did I. But when the Supreme Court ruled that those types of violations were not illegal or criminal, I don’t think that sat well with the prosecutors, so their response is, ‘Let’s find something else to charge him with.’ ”
For his part, sources close to Bruno say the former senator has come to regard himself as a victim of prosecutorial misconduct. He has even been approached by at least one prominent defendants’ advocate about becoming a spokesman for greater protections against prosecutorial overreach—a cause Bruno’s friends say he is eager to take up once his ordeal is finally over. If he does so, it will mark quite a change for Bruno, who was a fierce proponent of law and order in the Senate and one of the key forces with Gov. Pataki in successfully resurrecting the state’s death penalty in 1995, before the law was effectively struck down by the New York Court of Appeals.
Ultimately, whether Bruno is the subject of a prosecution or a persecution will likely be decided by a small sampling of the citizens the government alleges Bruno denied his honest services as an elected official. Only then will the saga of Joe Bruno finally be at end.
That is, if there isn’t a conviction and another appeal.