Sunday, August 18, 2013

2nd Circuit Decision in Bruno Case: Shameful

(The Saratoga meet has now passed midpoint. Princess of Sylmar, Palace Malice, Cross Traffic, Wise Dan, etc. As good as it gets!
But now, from the glorious to the ignominious....)
Yes, shameful and ignominious.
That's seems a fair characterization of the 2nd Circuit's decision in the Bruno case earlier this month.
According to that court: no double jeopardy problem; none in the slightest
(For those unfamiliar, the 2nd Circuit is the federal appeals court that reviews federal trial decisions from Connecticut, New York, and Vermont. Also, a summary of the Bruno case is set forth at the end of this post, as is a link to my interview on the subject last week on Live at the Capitol with Fred Dicker.)

This was a major double jeopardy appeal, decided in 4 paragraphs.
Actually, only 3 paragraphs addressed the merits; 1 recapped the facts.
And those 3 paragraphs? Extremely thin on substance and analysis.
A student who submitted something like this in my criminal procedure class would get a C-.
It's what you might expect from a 1st year law student in his 1st semester of legal writing.

But the Bruno appeal presented a fundamental constitutional question about the 5th Amendment right against double jeopardy.
More than that, double jeopardy is a difficult, complex, and currently very confused area of the law.
Attempting to unravel it takes more than 3 brusque, dismissive paragraphs.
But that's all the 2nd Circuit apparently thought it was worth.

And the court's opinion is even worse than that.
It's labelled a "Summary Order."
No judge is named as the author.
Yes, 3 judges are identified as having participated in the appeal; but none claimed credit--or blame--as the author.

And it's even worse than that.
Get this: "Rulings by summary order do not have precedential effect."
The court's words, not mine.
Meaning? Don't rely on this as a precedent.
How's that for acknowledging to lawyers and lower court judges that the decision is virtually worthless as a correct statement of the law.
Or that the court has little confidence that its decision is correct.

The ultimate result:
The 2nd Circuit rejected the claim that the federal government's re-prosecution of Bruno would constitute double jeopardy.
Hence, though the prosecutors got it wrong the first time, they get to try again--a do over.
They now get to try to convict Bruno on the theory of bribery or kickback.

Now, it is possible that the 2nd Circuit is "correct."
Meaning that the Supreme Court might agree--if it reviewed the case--that there is no double jeopardy violation with re-prosecuting Bruno.
The Supreme Court's precedents in the area are so incredibly confusing--even by the Court's own admission--that who knows how it might rule in this case.

In my view, the re-prosecution is a blatant, outrageous violation of the protection that the right against double jeopardy is intended to provide against government abuse, oppression, and persecution.
But forget my view--and by the way, that of everyone knowledgeable on the subject I've discussed this with.

Let's just consider briefly--and that's all you can do with this embarrassingly brief "summary order"--the 2nd Circuit's reasons for concluding that there is no double jeopardy problem.

The court gave 2 reasons:
1) No, the government did not abandon the theory of bribery or kickback, and it wouldn't matter anyway.
2) Yes, the government did prove the necessary criminal intent in the 1st trial, because Bruno "was convicted of the offenses that are now the subject of the retrial." [The court's words and italics.]

As for #1, the government in fact did more than abandon the theory of kickback and bribery. As the court itself notes--in support of its position!--the government "never charged" Bruno with such a theory in the 1st trial, even though it could have. More than that, the government argued in the 1st trial that bribery or kickback was not a necessary part of the crime, that the government didn't have to prove it, and that the government wouldn't try to prove it.

The trial judge agreed with the government's position in the 1st trial.
But, as discussed in previous posts, the Supreme Court in the Skilling case made its disagreement on the issue very clear.
Liberal and conservative Justices.
Democratic and Republican appointees.
Loose and strict constructionists.

In short, the government's strenuously argued position in its 1st prosecution of Bruno didn't even get 1 vote at the Supreme Court. Zero.
The convictions in the 1st trial, for concealing possible conflicts of interest, weren't supported by even 1 vote at the Supreme Court in Skilling. Zero.
Those convictions were invalid according to all 9 Justices.
AND, that was no surprise to anyone who followed what the Supreme Court had previously said about that so-called "honest services" law.

Only bribery or kickback constitute a crime under that law.
But the government had argued the opposite in the 1st trial.
The government had chosen not to prove bribery or kickback in the 1st trial.
Nothing stopped them from trying.

And yet, the 2nd Circuit, in its not-to-be-followed "summary order," insists that there's no problem letting the prosecutors have a do over.
Because, in the court's view, the prosecutors never really abandoned bribery or kickback in that 1st time around.
Beats me!

But then, as a back up, the 2nd Circuit says it wouldn't matter anyway.
Because, according to the 2nd Circuit, even though one federal appeals court found a double jeopardy violation where there was "abandonment," some other federal courts disagreed.
Sorry, the 2nd Circuit didn't bother to explain why it agrees with one position and not the other.
OK, who wrote this thing?

As for #2--i.e., that Bruno "was convicted of the offenses that are now the subject of the retrial."
No he wasn't!
He was NOT convicted of bribery or kickback or any other "quid pro quo."
He was convicted of concealing possible conflicts of interest. (Again, not even a crime.)
The jury in the 1st trial apparently did conclude that Bruno had an intent to conceal.
But that's hardly the same as an intent to commit bribery or to get a kickback.
The government didn't even try to prove that!

And those are the 2 reasons the 2nd Circuit gave for approving a re-prosecution.
That's the extent of the 2nd Circuit's analysis of double jeopardy in that shameful "summary order."
Again, who wrote this thing?

One final note.
The 2nd Circuit said nothing about so much that makes this re-prosecution such a gross injustice under double jeopardy principles.
As we've discussed in previous posts [See The Do-Over vs. Bruno , Apr 21, 2013; Double Jeopardy, Joe Bruno, and Basic Criminal Justice, Nov. 28, 2011.]:
  • The federal prosecutors [in the 1st trial] charged Bruno and obtained convictions for conduct that was not even a crime.
  • They chose to prosecute Bruno for that non-criminal conduct because that was easier than prosecuting him for conduct that was criminal.
  • The Supreme Court in the Skilling case then ruled that the conduct for which the prosecutors charged and convicted Bruno was not a crime, thereby requiring that those convictions be overturned.
  • That ruling should have been expected by the federal prosecutors, because it was no surprise to anyone who follows the Supreme Court.
  • This is the same government--the federal--re-prosecuting Bruno under the very same ("honest services") law.
  • It's re-prosecuting him for the very same conduct.
  • It's re-prosecuting under the very same facts, with the very same evidence.
  • AND, this re-prosecution is the federal prosecutors' own fault--no one else's--because they could have charged and tried to convict Bruno for something that actually is a crime the 1st time around--i.e., bribery or kickback--but, instead, they made a deliberate choice not to do so.
No, the 2nd Circuit didn't consider any of that
Well, maybe it did.
But none of that was addressed in its shameful "summary order."
Once more, who wrote that thing?

The 2nd Circuit is a fine court.
There are some truly fine judges on that court.
There are 23 judges in all: 13 active and 10 on senior status.
3 of them participated in the Bruno appeal.

It's very difficult to believe that the other judges on the 2nd Circuit would all be satisfied with the decision in this case or how it was rendered in the "summary order."

Hopefully, the full court will reverse the decision if Bruno's lawyers appeal to the court en banc.
Or the Supreme Court will do so--and clarify double jeopardy law at the same time--if Bruno's lawyers seek review by the Justices.
Hopefully that will happen, because the 2nd Circuit's decision via that "summary order" is shameful, and it permits a grossly unjust re-prosecution.

(For my August 13 interview about the 2nd Circuit's decision on Live at the Capitol with Fred Dicker, Link Here or [] at the 27:00 minute mark.

Background of the Bruno case:
As readers might recall, the U.S. Attorney's office for the Northern District of New York (based in Albany) prosecuted former State Senator Joe Bruno for so-called "theft of honest services" under the federal mail fraud statute. They did so on the theory that Bruno had concealed possible conflicts of interest resulting from his outside dealings while he was a state senator.
Out of several charges, the prosecution obtained 2 convictions.
But then, to virtually no one's surprise, the Supreme Court in the Skilling case held that the conduct charged was not even a crime.
The ruling was unanimous.
Some Justices voted to invalidate the law completely.
A majority upheld the law, but ruled that "theft of honest services" could be a crime only if it involved a bribery or kickback.
So, in light of the Supreme Court's decision, the 2nd Circuit was forced to overturn the 2 convictions against Bruno.
The U.S. Attorney's office decided to prosecute Bruno a second time, under the same law; this time under the theory that the same conduct amounted to a "quid-pro-quo"--i.e., bribery or kickback.
Bruno's lawyers argued that a re-prosecution would violate the constitutional prohibition against double jeopardy.
The federal trial judge disagreed, ruling that a re-prosecution was fine.
Bruno's lawyers then appealed to the 2nd Circuit.
Hence, the decision we have been discussing.)