Thursday, January 8, 2009
The Court Report
By Richard Blassberg
Kerik Returns To Federal Court
Former New York City Police Commissioner Arraigned On
“New And Improved” Indictment
United States District Court, White Plains
Judge Stephen C. Robinson Presiding
The pretrial hearing got underway in Judge Robinson’s Court at 10:10am last Monday morning, December 29th. Bernard Kerik, former Commissioner of Corrections and former Police Commissioner for the City of New York, was present with Attorney Eric Tirschwell, of Kramer,
Levin, New York City, as well as Assistant United States Attorney Elliott B. Jacobson, for the purpose of re-arraignment of Kerik on a superseding
indictment, one that would replace the original indictment handed up in November 2007.
Judge Robinson opened the proceedings with, “We have a bunch of matters to take care of today. My understanding is that since we were
last together, there has been a superseding indictment of Mr. Kerik.” The Judge then asked Defense counsel, “Mr. Tirschwell, is Mr. Kerik prepared to be arraigned?”
The Defense attorney responded in the affirmative, and Robinson began a direct inquiry of Kerik. The Judge quickly established that Kerik, who is 53, had achieved a Bachelor of Science degree, and was currently self-employed.
Robinson then asked, “Are you under the care of a doctor?” to which Kerik responded, “No, Sir.” The Judge asked about a possible psychiatrist, to which Kerik again said, “No, Sir.”
Kerik assured the Judge, when asked, that he was satisfied with Attorney Tirschwell’s and Attorney Burke’s representation. The Judge then asked, “Do you want to have the superseding indictment read in Court today, or would you prefer to waive the reading?”
Kerik responded, “I’ll waive it, Your Honor.”
Robinson then began questioning Kerik’s written conditional Waiver Of Venue, acknowledged by Kerik, ostensibly waiving his Constitutional right
to be prosecuted in the District of Columbia for Counts 14 and 15 of the new indictment, which involved his alleged lying to authorities when he was under consideration to be the head of Homeland Security in Washington, D.C.
Robinson then read the Waiver of Venue to the Defendant, detailing the Waiver of Counts 14 and 15 from having to be tried in Washington,
D.C. The Judge wanted to be absolutely certain that Kerik fully understood that Counts 14 and 15 could be tried separately from, orjointly with, the other counts of the new indictment, even though tried in New York. He went further, asking Kerik, “Were you pressured, or coerced, or threatened in any way?”
Kerik responded negatively. Assistant United States Attorney Jacobson then said, “Rule 18 specifi-cally provides the Government must prosecute the offense in the District where it is alleged the offense was committed.”
Then Attorney Tirschwell broke in with, “There is a scenario under which, if the Court does not agree to sever Counts 14 and 15, we could
opt to be tried in the District of Columbia.”
To that news, Robinson then responded, asking, incredulously, “If the Court does not agree to sever Counts 14 and 15 from the rest of the indictment, you then would have the ability to have those Counts tried in the District of Columbia?”
Tirschwell answered, “Yes, Your Honor.”
At that point, Robinson began to display his displeasure with the arrangement the Government had signed on to, turning to the Defense table and declaring, “What this, in effect, does, is grant the Defendant an advisory opinion. I am not going to agree to this.”
He went further, “I have no interest one way or the other. I have more things to do on my docket than to take the time to write a decision that
you can then play around with.”
Then, still speaking to Defense Attorney Tirschwell, he said, “You’re right, you have an absolute right to make your decision about waiving
venue. But, you will make that decision before I make any decisions.”
Robinson then turned to the Prosecution, asking, “Mr. Jacobson, separate from Counts 14 and 15, can you tell me what is new in the superseding indictment?”
Jacobson then proceeded to discuss Counts 7, 9, 11 and 12, detailing the charges as they involve false statements, the use of a BMW Sedan, rewording of a false statement charge, and the combining of some original Counts by way of consolidation to avoid duplication.
The Judge then asked, “Perhaps you and Mr. Tirschwell can give me some advice. The Defense had made an Omnibus Motion that does apply
to this new motion?”
Jacobson volunteered, “The only tactical effect this new indictment has, with respect to their Omnibus Motion, involves issues of duplicity. Back in July the Court asked what issues the Defense contemplated. It appeared duplicity might have been an issue.” Jacobson then changed gears, and apologetically alluded to “the large volume of material from the defense.”
Robinson then drew a laugh, quipping, “Perhaps your papers were so bad that it required a voluminous response.” Tirschwell jumped in with, “Our position was that with the exception of a tax issue, the charges were essentially the same.”
Robinson then instructed Tirschwell, “Please flag those arguments that pertain to the new issues, both for the Government and my own purposes.” He then turned to Kerik and said, “As the Waiver of Venue document is currently constituted, I do not accept it.”
Kerik responded, “I understand.” Then, moving on with the proceeding, Robinson declared, “I am going to find that Mr. Kerik is capable
of entering a plea to Indictment 1027.
How do you plead, Mr. Kerik?”
Kerik responded, “Not guilty, Your Honor.”
Robinson then moved on, stating, “Let us deal with other issues. Let us now discuss modification of bail.” He asked, “Is it fair to say nothing
has occurred that would have implications?” He went on, “I have more confidence than the Government that Mr. Kerik understands
what the Court’s expectations of him are.”
Looking toward Defense Counsel, Robinson asked, “What is Mr. Kerik’s state of knowledge when he does what he does?” I don’t want to
craft an order that would allow Mr. Kerik to dance between the raindrops.”
He then concluded, “Very quickly, we will get an order in place.” Robinson gave the Defense till the 23rd of January to produce their papers in response to the new indictment, setting February 3rd at 10am for the next Court appearance. Kerik, who had rushed past reporters entering the Courthouse, now did the same as he emerged and departed without a word to waiting media.
Analysis:
Seated in the court room, one got the impression that the Government, by its superseding indictment, intended to refasten their accusations
to that which is left of Bernie Kerik, with longer nails than they had originally used. Yet, in that same effort, there remained a trace of celebrity worship, à la Marion Jones, a failure on the part of Assistant United States Attorney Elliott Jacobson & Co. to drive a hard-enough bargain over issues such as the Waiver Of Venue Agreement. That agreement so clearly favored Defendant Kerik, and so disappointed Judge Robinson that he strongly expressed his unwillingness to adopt it.
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For nearly one month now we have witnessed one Presidential cabinet nominee after another drop out of the running due to a host of problems and issues that have come to light during their vetting process.
Hilda Solis became the latest Cabinet nominee to face questions about unpaid taxes and the fact that her husband settled tax liens on his California auto-repair business that had been outstanding for as long as 16 years.
USA Today reported that Los Angeles County records showed 15 outstanding state and county tax liens totaling $7,630 against Sam Sayyad and his business.
Tom Daschle’s nomination unraveled because he hadn’t paid taxes — $128,000 — on a chauffeured limo provided by a wealthy friend, and Nancy Killefer withdrew from consideration to be the federal government's chief performance officer because of her failure to pay unemployment taxes for household help at her D.C. home.
At the insistence of the new President, Barack Obama, the United States Senate confirmed Timothy Geithner even though he failed to pay taxes for four years, and deducted his children’s summer camp as expenses. Now he’s running the Internal Revenue Service (IRS).
Based on Geithner’s failings, does the United States Justice Department and the IRS intend to initiate an investigation and if so, will he be indicted for ignoring the counsel of his accountants or for filing false deductions? Will Justice and the IRS investigate Mr. Daschle, Mr. Sayyad, Ms. Solis and Ms. Killefer as well? Will there be state investigations into Ms. Solis’ husband’s outstanding tax liens?
Are they prepared for what could happen as a result of their misfortune for agreeing to serve their country? Do they understand that their lives could be turned inside out by overreaching and overzealous prosecutors who will harass, intimidate, threaten and subpoena them, their colleagues, friends and family all in the name of justice? Are they prepared for the onslaught of personal and political attacks that will overshadow all the good they have ever done; that led them to be nominated for a cabinet post in the first place?
As I sat in the courtroom of U.S. Federal Judge Stephen C. Robinson in the White Plains Federal Courthouse and listened to oral arguments by attorneys for Bernard B. Kerik, the former New York City Police Commissioner who was nominated as Secretary for the Department of Homeland Security by President George W. Bush in 2004 seeking to dismiss part of the 15 count indictment against Mr. Kerik, I was reminded of the consequences that could befall each one of President Barack Obama’s cabinet nominees.
Although Mr. Kerik declined President Bush’s job offer citing tax related problems with a nanny or domestic servant much like President Obama’s cabinet nominees, Mr. Kerik’s troubles didn’t end there; his personal, professional and political critics drove the press and media, which in turn fed state and federal investigators.
The outcome was an unprecedented criminal indictment loaded with charges that should have never been brought, that didn’t meet elements of law and that violated the U.S. Justice Department’s own rules of criminal prosecution.
Perhaps noting the overreaching nature of the prosecution’s case, Judge Robinson stated that “it seems to me that it could fairly be said [that the complaint] is looking at the life of Mr. Kerik, and “throwing everything at him.” In other words, the prosecution’s case is really not about prosecuting crimes but more in the nature of “getting” Mr. Kerik. From my own perspective this case is a textbook case of a political prosecution, and I suspect Judge Robinson realizes it now if he did not before.
Assistant U.S. Attorney Elliott Jacobson’s arguments bordered on the ridiculous at times, and raise serious questions about the true motives behind the Kerik indictment.
At its core, the federal indictment seeks to prosecute Mr. Kerik for crimes that were the subject of a prior state court prosecution and plea. I wonder if Judge Robinson is aware of the federal lawsuit filed by Inspector General Michael Caruso, an Assistant Commissioner with the New York City Department of Investigations (DOI). Caruso has filed a federal civil rights action against the DOI, in the Southern District, complaining that he was directed by Rose Gil-Hearn, the Commissioner of the New York City Department of Investigations and her First Deputy Commissioner at the time, Walter Arsenault, to lie under oath (fabricate testimony) to get an indictment against Kerik. According to the federal complaint filed by Mr. Caruso in the Southern District (docket no. 06-5997), Gill-Hearn's First Deputy, Walter Arsenault told Caruso to testify falsely to a Bronx Grand Jury, stating, “Remember Kerik vouched for Larry Ray at the Walker’s meeting and everything will be O.K.”) In fact, both Caruso and the trade waste official, Ray Casey have said that Kerik did not vouch for Larry Ray of Interstate. Caruso says in papers he filed in federal court that he informed Arsenault on March 20, 2006, that he could not truthfully testify that Kerik vouched for Larry Ray at the Walker’s meeting. (Complaint, ¶¶ 21-22). Caruso was ordered to say that when he and a NYC Trade Waste Commissioner met a Walker’s Pub in Manhattan, Kerik vouched for a friend who worked for a company attempting to obtain permits from the City. What’s ironic is that the Trade Waster Commissioner is on record in the New York Times saying that Kerik did not “vouch,” and obviously Caruso said that Kerik didn’t “vouch” but in court before the judge this week, the prosecutors were insistent that Kerik “vouched” for this friend or his company.
Indeed, echoing Mr. Caruso’s own words, Bronx prosecutor, Stephen Bookin, said at Mr. Kerik’s plea hearing that: ‘
“Although some may draw inference (sic) from these facts, there is no direct evidence of an agreement between Kerik and the owners of the Interstate Companies, Frank and Peter DiTommaso, that the renovations to Mr. Kerik’s apartment were given in return for Mr. Kerik’s assistance with the New York City regulators.” See Transcript of Plea/Sentencing dated June 30, 2006 at page 8/14-20. Exhibit “B” to Declaration of Robin Wilcox, dated September 22, 2008 in support of Mrik’s motion to dismiss the indictment. 07 Cr. 1027 (SCR).
The fact is, a simple review of various public court records and newspaper reports clearly raise questions as to why and how this case has gotten this far.
Judge Robinson has already bought the prosecution’s argument in a prior prosecution motion in which Jacobson successfully removed Kerik’s former lawyer from representing him. There, Jacobson stated that Kerik’s attorney could be a witness to a conversation between another one of Kerik’s former attorneys and an attorney from the DOI. That attorney is Walter Arsenault - the same lawyer that ordered Caruso to lie under oath.
I doubt that Jacobson informed Judge Robinson that Arsenault was accused by the DOI Assistant Commissioner and Inspector General of suborning perjury before the state Grand Jury. That raises another question – how are Arsenault and Gil-Hearn still conducting investigations for the City? They themselves have committed a felony and should at minimum be disbarred for suborning perjury.
Mr. Jacobson’s attempts to embarrass and criminalize Kerik in front of Judge Robinson and a courtroom full of reporters, was preposterous - summarizing the charges against Kerik as a “crime spree.” If Kerik was on a “crime spree,” as suggested by the prosecutor, then he should be seeking an indictment of our new Treasury Secretary and Larchmont resident, Timothy Geithner. But alas, the prosecution of Kerik was a political act, and it would be impolitic to indict President Obama’s personal pick for Treasury Secretary. Not so Bernard Kerik.
The solution here is to dismiss the case against Kerik on the merits. Defense counsel, Barry Berke demonstrated in oral argument why the counts charging Kerik with deprivation of honest services are time-barred, and the claims that Kerik lied in response to a question in the application to be Homeland Secretary submitted to the White House as to whether Kerik had ever done anything that “embarrassed him,” as vague, and likewise should be dismissed. As the Judge noted during the oral argument of the defense motion, the question as to whether a person has ever been embarrassed is “more rhetorical” than anything else. Kerik of course withdrew his nomination in any case and the government could not say it relied upon the application.
As for the tax counts in the Kerik indictment, the resolution is simple. Treat Kerik the same way anyone else with the same mistakes or errors would be treated and have Mr. Geithner’s IRS handle those issues civilly in the ordinary course.
This case demonstrates why the law is ill equipped to adjudicate “political” matters and why cases such as this poorly conceived attempt to criminalize conduct on purely partisan grounds is improper. Clearly Judge Robinson recognizes the problems in the government’s indictment and I am confident that he will strike the stale, improvidently conceived criminal claims.
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