Westchester Guardian/The Court Report.

Thursday, February 12, 2009

The Court Report
By Richard Blassberg

Kerik Returns To Court
Seeking Dismissal
United States District Court, White Plains
Judge Stephen C. Robinson Presiding

Last Tuesday morning, February 3rd, found Bernard Kerik, former Corrections Commissioner, and Police Commissioner of New York
City, back in Federal District Court, White Plains, together with his attorney, Barry Berke, a partner in the law firm of Kramer, Levin,
Naftalis & Frankel, before Judge Stephen C. Robinson, for some three and a half hours of pre-trial hearings. Kerik, who was charged in a 16-count indictment with Public Corruption, (denying the public his honest services), Tax Fraud, and making false statements to federal officials in connection with his nomination to be Secretary of Homeland Security in 2004, had made two motions seeking dismissal of the charges.

Robinson opened the pre-trial hearing, asking Kerik’s attorney, “What are your strongest arguments for dismissal?” Attorney Berke responded, “The government has simply stretched too far in bringing an Honest Services indictment.” He continued, “We believe there are
clear laws that govern when the government may bring charges.”

Berke then specified, “The operative date is April 14, 2002. All of the alleged acts, and all of the alleged benefits, occurred before April 14,
2002. We have been unable to find any case in which Honest Services extend beyond one’s term in office.

Robinson responded, “Take me there. Can the statute be extended beyond the time because of concealment?”

Berke then cited Gruenwald, apparently relied upon by the government, attempting to distinguish it from his client’s circumstances. To bolster his position with respect to the Statute of Limitations, he declared, “Judge Rakoff, in Gabriel, ruled ‘someone doesn’t have to go to trial on stale charges.’ We need direct evidence of acts of agreement to conceal.”

Judge Robinson then asked, “Can it be that the acts of concealment... the allegations are that Mr. Kerik, in office, who received something for
vouching for the company.”The reference was to Interstate Industrial, a carting company owned by Peter and Frank DiTommaso, which was
seeking to do business with the City of New York.

Attorney Berke attempted to further distinguish his client with respect to the Statute of Limitations, prompting Robinson to remark, “I
get it. Mr. Kerik has already gotten whatever he was going to get.” Robinson went further, asking, “Wasn’t the value of Mr. Kerik’s participation in the crime that he would give the weight of his office, that would provide the benefits?” Turning to Berke, the Judge then asked, “When does the vouching end? Does it end when he does the vouching, or when they make the decision?”

Berke immediately answered, “When he left office, the vouching ends.” He cited Eppolito and the Continuity Of Purpose Theory. Changing gears, Robinson then stated, “Your argument is that the main objective was not concealment.” He then followed up with, “Let me ask a couple of questions. The goal of this conspiracy is get what you’re trying to get, and not get caught. He tries to get lulling letters, coverup letters.”

Robinson went on to ask, “Is it fair to say that Mr. Kerik is also still liable even though his participation has ended? Why is it that I would say that because his role has ended, but his co-conspirators continue to do what they were doing?”

Attorney Berke responded, “It’s doing the vouching, and receiving the benefits. The government is trying to put a square peg in a round
hole. The types of arguments that Your Honor raises are not appropriate here. If you dismiss the conspiracy, you must also dismiss the
substantive acts.”

Robinson simply answered, “I see what you mean.” Berke went on to discuss some cases he had cited in making his motions to dismiss; cases from the Second Circuit “where they used information obtained as the result of their relationship.”

Judge Robinson asked, “Why was the fact that they had access to insider information so significant? Didn’t Mr. Kerik use his influence
from his office? A jury could find that there was the wrongful use of his power; certainly his use of his power.”

Berke responded, “You need to be using the Sawyer Case to allow every misuse of office to be a fraud. If all you have is that a public...”
Berke continued, “You have to find whatever benefit you received impacted your performance of your official duties.”

At that point, Robinson stopped him with, “Ok, I got it. Take me to counts 12 and 13, the false statements.” Berke began, “Every year...” But Robinson cut him off, asking, “Is it your position that your question was so impermissibly vague that there was no answer that Mr. Kerik could give?”The Judge was referring to the question from federal investigators to Bernard Kerik, at the time he was being vetted for his appointment to be Secretary of Homeland Security in the Bush Administration, asking, “Is there anything in your past that might be embarrassing?”

Berke put off the question for consideration and followed by saying, “The vetting process is an imperfect one.” Robinson asked, “Doesn’t he
commit a crime?” Berke said, “It was an unsolicited misdemeanor.”

Robinson, growing a bit stern, responded, “Under any interpretation of the ambiguousness of the question, lying is not an appropriate answer.” Robinson next said, “Let me turn to the government.”

Mr. Eliot Jacobson, the Lead Assistant United States Attorney on the case, rose to his feet to declare, “I want to address the 1349 Conspiracy once it is conveyed continues into at least 2005 when the Department of Sanitation...”

Robinson then asked, “If the object of the conspiracy is to deny the public of his honest services while in office, that conspiracy must end
when he is no longer in office.” Jacobson responded, “Judge, let me talk about the subsidiary object of the conspiracy. He had a brother and
a best friend who were working for the company.” Jacobson then spoke of the briber and the bribee.

Jacobson said, “Where there is no overt act required, the effect of what he does continues after he leaves office. It would certainly continue
as the co-conspirators continue to reap benefits.” Prosecutor Jacobson went on to explain, “There is a presumption in a no-overt acts conspiracy that the defendant must prove disconnection from the conspiracy. There were a whole host of acts that were predicated on the conspiracy.”

Jacobson went on to cite Minuti and Eppolito, the former stating, “A conspiracy continues until the conspirators receive their anticipated
economic benefits,” the latter for the proposition “a briber and a bribee share a common purpose.” At that point, Judge Robinson asked, “So you are saying this is a hybrid case? An economic case, and a Deprivation of Honest Services case?”

Jacobson responded, “The whole purpose of the conferring of benefits upon Mr. Kerik was that XYZ Corporation would gain Trade Waste approvals.” He then went on to declare that the Defendant’s use of Gruenwald was totally wrong, and that there was no requirement that there be an express agreement.

Jacobson next introduced Assistant United States Attorney Bosworth, one of two other AUSAs at the Prosecution table. Attorney Bosworth told the Court, “He [Kerik] used his inside influence. He attended a meeting with people from the Department of Sanitation
as well as the Trade Waste Corporation. Middlemiss and Bush stand for Influence Peddling.”

Robinson then said, “So your answer would be Bush and Middlemiss.” Bosworth came back, “The Second Circuit typically casts a broad
net; using public office for private gain.”Robinson next turned to the part of the indictment that charges Kerik with Failing To Respond Honestly to federal probers who were questioning him by way of vetting him for appointment as Secretary of Homeland Security. Kerik’s attorney had earlier raised an objection to the use of the term ‘embarrassing’. Robinson said, “I am troubled by the use of the term ‘embarrassing.’ I believe it’s too vague.”

AUSA Jacobson was quick to respond, “This has got to be taken in context. If the White House knew he had committed crimes, even misdemeanors, it would’ve been considered serious.”

Robinson, directing his comments to Jacobson, then asked, “If I was to disclose that I find the use of the word ‘embarrassing’ to be very vague, how would you overcome that?” The Judge was moving into the area of his concerns over joinder issues, stating, “It could be fairly
said that the government is looking at the life of Mr. Kerik and including it in one indictment.” He then asked, “Why is all of this in one indictment?”

AUSA Bosworth responded, “What the Defendant is seeking is five separate trials. The Defendant says I had to beg, borrow, and steal to
get the apartment.” Mr. Berke then cited Ruiz from the Second Circuit, a move quickly shut down by the Judge, saying, “I got you.”

But Mr. Berke persisted, “They didn’t change anything, but deprivation of honest services.” Robinson came right back with, “Let’s just take the time he was the head of Corrections. Is it your position that all they are alleging here is that he had a Deprivation of Honest Services? He’s not meeting as a private citizen, he’s using his office as a commissioner.”

Defense Attorney Berke, straining to get his point across, said, “Judge, it’s not bribery, it’s not extortion, it’s not enough to use his office.
Mr. Jacobson said exactly the opposite of what Gruenwald stands for. There must be the original agreement to cover up. It must include an
agreement to cover up, to take steps to conceal.”

Attempting to reargue his original point, relative to the Statute of Limitations, Berke said, “The length of the conspiracy is determined by
the scope of the agreement; a continuation of purpose and continuation of acts.” Robinson then summarized, “Mr. Kerik gets work on his house, and, they get his influence at the table when their application was delayed.”

Analysis:

Bernard Kerik is obviously no garden variety defendant. He is an individual who would rise very quickly from a questionable background;
apparently cutting corners and showing little concern for formal protocol or possible consequences.

Unfortunately, he proved to be a serious embarrassment to the Bush Administration, which was prepared to elevate him to Cabinet
status, apparently on the endorsement of Rudy Giuliani, without a proper and complete vetting.

As a consequence, the government has thrown the book at him, seemingly attempting to join disconnected events in a single indictment.
Prosecutors would appear to be suggesting that when one exercises his Fifth Amendment right against self-incrimination, as Kerik obviously was doing without specifically stating so, when asked about any potentially embarrassing problems, his failure to reveal his criminal conspiracy was an additional crime.