ALBANY — Defense attorneys have filed a motion to dismiss the federal indictment against former state Senate Majority Leader Joseph Bruno, claiming that it was an “an indictment in desperate search of a crime.”
The motion, which was filed in U.S. District Court Friday along with a 40-page supporting memorandum, described how the indictment against the former senator sought to “create a crime where none exists” by not naming specific instances where Bruno had violated state law or matters before the state Legislature that had been directly affected by his alleged conflicts of interest.
An eight-count indictment handed up by a federal grand jury on Jan. 23 charged the 80-year-old Republican with carrying out a scheme to defraud the state and its citizens of their right to his honest services by using his position to steer money from entities with business before the Legislature to outside companies he worked for as a consultant.
The indictment came at the end of a three-year investigation by the FBI that was thought to have been nearly disbanded when the charges were filed.
“Indeed, the indictment does not even claim that Mr. Bruno engaged in any specific or identifiable official acts as a New York State Senator to reward himself, his friends, or his business associates,” wrote Bruno’s defense team, which includes Abbe D. Lowell, of Washington, D.C. and William Dreyer, of Albany.
During his first appearance in federal court, and for days thereafter, Bruno staunchly maintained his innocence, as he had throughout the investigation, and vowed to fight the charges.
The documents went on to explain how Title 18, Section 1346 of U.S. Code, which deals with depriving others of honest services, has been routinely criticized by various courts over the years for its vagueness and could even be considered unconstitutional.
“The statute outlaws ‘a scheme or artifice to deprive another of the intangible right of honest services,’ a phrase that is not defined in the United States Code, has divided the United States Courts as to its meaning, and has been repeatedly criticized as vague and overly ambiguous,” wrote the attorneys. “While the government seeks to define that phrase in its indictment against Mr. Bruno, its definition is far worse than the language of the statute itself — a requirement that every state legislator engage in ‘disinterested decision making’ and disclose ‘potential motivations’ or face a felony prosecution under Section 1346.”
The indictment alleged that Bruno had been paid $3.2 million from various entities between 1993 and 2006 for consulting fees but had never actually performed “legitimate work commensurate with the payments” he received. The U.S. Attorneys Office had also claimed Bruno had improperly filled out annual financial disclosure forms in an effort to hide the true source of his income.
However, Bruno’s attorneys disagreed, stating that the disclosure forms were completed adequately for the questions asked and the practice of his fellow legislators.
“All the government manages to assert is that Mr. Bruno, like so many other state governmental officials, has a part-time job, a wholly appropriate and legal endeavor in New York, and that even though Mr. Bruno disclosed that he worked as a consultant on various state ethical disclosure forms, his disclosures were somehow insufficient,” wrote the defense.
Furthermore, the supporting documents stated that section 1346 “unconstitutionally intrudes on state sovereignty” by bringing up issues of the Federal Government setting standards of disclosure and good government for local and state officials, raising “grave federalism concerns.”
Bruno’s attorneys also filed additional motions to strike government claims for the possible forfeiture of his property, disclosure of the instructions given to the grand jury which indicted him, and a separate motion to dismiss the indictment because the government is alleging conduct going back up to 16 years for offenses which, according to the defense, carry a five-year statute of limitations.
U.S. District Judge Gary Sharpe had previously imposed a May 1 deadline for motions in the case.
Bruno, who worked as a private businessman in the early 1970s, was first elected to the Senate to represent the 43rd district in 1976. He was elected to serve as the majority leader in 1995 and continued to hold that position until he resigned from the Legislature on June 24, 2008.
Bruno’s criminal trial is tentatively scheduled to begin in November.
Tom Caprood can be reached at 270-1278 or by e-mail at tcaprood@troyrecord.com.