Panel Says Ex-Senate Leader Bruno Can Face Retrial

The Associated Press

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Former New York Senate Majority Leader Joseph Bruno may be tried on two counts of mail fraud despite his claims it would constitute double jeopardy, the U.S. Court of Appeals for the Second Circuit said Tuesday, clearing the way for a retrial. A circuit panel of Judges Ralph Winter (See Profile), Jose Cabranes (See Profile) and Barrington Parker Jr. (See Profile) said Northern District Judge Gary Sharpe (See Profile) was right to deny a request to drop the charges against Bruno, an 84-year-old Rensselaer County Republican who was Senate majority leader for 13 years until he stepped down in 2008, six months before he was indicted.

The circuit previously tossed out Bruno's 2009 conviction on honest services mail fraud charges after the U.S. Supreme Court ruled in a separate case that the honest services fraud statute criminalizes only bribery and kickback schemes, not mere failures to disclose conflicts of interest. A jury acquitted Bruno of five other counts and failed to reach a verdict on another.

After the circuit tossed out the earlier conviction, the government filed new honest services mail fraud charges based on the same facts that had been used to convict him but this time specifying a bribery and kickback theory that would conform to the high court ruling. He is accused of receiving $360,000 in consulting fees in 2004 and 2005 and $80,000 for a worthless racehorse in return for favors in the Legislature.

Bruno's lawyers had argued that the counts on which he was acquitted reflect a finding that he did not intend to devise a scheme to defraud while serving as a senator. "We see no merit to Bruno's argument because…Bruno was convicted of the offenses that are now the subject of the retrial," the panel said in its unsigned summary order in United States v. Bruno, 13-152-cr. "These convictions are significant because they indicate that, notwithstanding the acquittals, the jury found that Bruno possessed the requisite intent to devise a scheme to defraud."

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