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Wednesday, November 30, 2011

Lawyer Sentenced in Attempted Sex with Seven-Year-Old

Lawyer sentenced to prison for attempted sex with minor
CBS-ATLANTA by Jennifer Banks - November 29, 2011

ATLANTA (CBS ATLANTA) - A 58-year-old New Jersey man was sentenced Tuesday in federal court to serve 12 years in federal prison for attempting to entice a minor to have sex with him. Tobin Nilsen who is a solo-practitioner lawyer, met a woman online and convinced her to let him have sexual access to her daughter. The woman Nilsen was speaking with was an undercover FBI agent. Nilsen was arrested in New Jersey after having purchased a ticket to fly to Atlanta to be with the young girl. According to police, Nilsen met the woman in an online chat room entitled "ChildSlaveSex." Nilsen explained to the agent that he was interested in introducing her daughter to the world of sexual exploration, according to reports. Nilsen was extradited to Georgia and pleaded guilty in September 2011.

-----FBI PRESS RELEASE:

New Jersey Lawyer Sentenced to 12 Years in Prison for Attempted Sex with Minor
Defendant Sought Sexual Rendezvous with 7-Year-Old Daughter of Online Paramour
U.S. Attorney’s Office  -  November 29, 2011  -  Northern District of Georgia  -   (404) 581-6000

ATLANTA, GA—TOBIN NILSEN, 58, of Buena, New Jersey, was sentenced today in federal court to serve 12 years in federal prison for attempting to entice a minor to have sex with him. NILSEN, a solo-practitioner lawyer, met a woman online and convinced her to let him have sexual access to her daughter, unaware that this woman was an undercover FBI agent. NILSEN was arrested in New Jersey after having purchased a ticket to fly to Atlanta to be with the young girl.  “This defendant provides another stark example of how pedophiles’ use of the Internet emboldens them to step from behind their computers and act on their impulses. It also shows how the Internet expands child predators’ universe of victims far beyond their local community. This defendant made concrete plans to fly nearly a thousand miles to sexually abuse a little girl,” said United States Attorney Sally Quillian Yates.  According to United States Attorney Yates, the charges, and other information presented in court: In May 2010, NILSEN met an undercover FBI agent in an online chatroom entitled “ChildSlaveSex.” The agent was posing as the mother of a 7-year-old girl. NILSEN explained to the agent that he was interested in introducing the agent’s “daughter” to the world of sexual exploration. For several weeks, NILSEN explained to the agent how to groom her daughter for their eventual sexual encounter. This process included exposing the daughter to images of child pornography that NILSEN instructed the agent to download from the Internet.  After NILSEN revealed his true identity to the agent and spoke with her on the phone to confirm that she was a real female and mother, he purchased a ticket to fly from New Jersey to Atlanta so he could have sex with the agent’s daughter. Several days before his flight, in June 2010, NILSEN was arrested in Bergen County, New Jersey, by local authorities when he sought to meet with another minor female as part of a local law enforcement investigation in that jurisdiction.  NILSEN was extradited to Georgia and pleaded guilty in September 2011. District Court Judge Julie E. Carnes sentenced NILSEN today to 12 years in prison, to be followed by a lifetime of supervised release. NILSEN will be required to register as a sex offender upon his release from custody.  This case was investigated by special agents and task force agents of the FBI, as well as officers from the Sandy Springs (Georgia) and Bergen County (New Jersey) Police Departments.  Assistant United States Attorney Robert McBurney prosecuted the case.  For further information, please contact Sally Q. Yates, United States Attorney, or Charysse L. Alexander, Executive Assistant United States Attorney, through Patrick Crosby, Public Affairs Officer, U.S. Attorney’s Office, at 404-581-6016. The Internet address for the HomePage for the U.S. Attorney’s Office for the Northern District of Georgia is www.justice.gov/usao/gan.

-----BACKGROUND STORY:

Ex-school trustee charged in Bergen County in alleged child sex case
The Bergen Record by William Lamb - June 16, 2010

A former board member from Atlantic County has been arrested on charges of driving to Bergen County for what he believed would be a sexual encounter with a 6-year-old girl, authorities say. Tobin G. Nilsen, 57, a self-employed attorney from Buena, arranged the encounter over the Internet with an undercover detective posing as the fictional girl’s mother, John L. Molinelli, the Bergen County prosecutor, said Wednesday. He was taken into custody at an undisclosed location in Bergen County on Tuesday, Molinelli said. Nilsen, a father of four, served three years on the board of the Buena Regional School District, losing a reelection bid in 2005, according to reports in The Press of Atlantic City. He was charged with attempting to endanger the welfare of a minor, attempted aggravated assault and luring. He was being held at the Bergen County Jail in Hackensack on Wednesday with bail set at $100,000.

Daughter Beating Judge Suspended

Texas Judge William Adams suspended after video surfaces of him beating his daughter
The Washington Post by Melissa Bell  -  November 23, 2011

Judge William Adams, who was seen in a video beating his daughter with a belt, has been suspended with pay from the bench.

Williams had been overseeing family case law, often determining whether or not parents are fit to raise their children. Pending an investigation into the video, Adams will not be allowed to weigh in on any court cases.  According to the Associated Press, Judge Adams “agreed to the commission’s recommended temporary suspension and waived the hearing and notice requirements, he does not admit ‘guilt, fault or wrongdoing’ regarding the allegations.”  Earlier this month, Adams and his daughter had a fight common to many American families. He wanted her to go back to college, and if she didn’t he would take away her car and cell phone, both of which he paid for. She offered to buy the car from him in a payment plan. He refused.  Here’s where the plot diverts: the daughter, Hillary Adams played what she thought would be a trump card. She threatened to publish a video she had been holding on to for seven years. William Adams, didn’t budge. So she uploaded the video to YouTube and over the weekend, the video went viral.  In the video, Adams is seen beating his then-16-year-old daughter with a belt, over and over again. It is a difficult seven minutes to watch, but it has been viewed more than 6 million times.  Hillary Adams spoke on the “Today Show” after the video went viral, saying she hoped it would help her father get the help he needed. Judge Adams, meanwhile, said the video made his punishment seem worse than it was, and that his daughter had been illegally downloading games off the Internet.  The video was submitted to Reddit, an online message board, which started a campaign to remove Judge Adams from the bench. The State Commission on Judicial Conduct opened an investigation into the judge after it was flooded with calls, e-mails and faxes.  Judge Adams was in court Monday for a separate legal matter. His wife sued to change their joint-custody agreement for their 10-year-old daughter. Earlier in the month, a judge placed a temporary restraining order on Judge Adams, barring him from being alone with his younger daughter. A ruling is expected Wednesday.  Since the video’s release, Hillary Adams has announced on Twitter that she is working to extend the statue of limitations on child abuse, which is typically around five years. Adams argues it is not fair when a victim is only 5 years old.

-----CLICK HERE TO SEE BACKGROUND STORY, "Judge Under Investigation, Video Shows Him Beating Disabled Daughter"

Tuesday, November 29, 2011

New Lawyer Corruption Term: "Solidify Some Attorneys"

New York State Assemblyman William F. Boyland, Jr. Charged with Bribery and Attempted Hobbs Act Extortion
Recordings Capture Boyland Soliciting More Than $250,000 in Bribes, Accepting Thousands in Bribes Solicited and Accepted Following Earlier Bribery Arrest

U.S. Attorney’s Office  -  November 29, 2011  -  Eastern District of New York  -  (718) 254-7000


Loretta E. Lynch, United States Attorney for the Eastern District of New York, and Janice K. Fedarcyk, Assistant Director in Charge of the New York Office of the Federal Bureau of Investigation, today announced the unsealing of a complaint charging New York State Assemblyman William F. Boyland, Jr. with soliciting more than $250,000 in bribes and accepting thousands of dollars of bribe money in exchange for performing official acts for the bribe payers.1 Boyland was arrested this morning and is scheduled to be arraigned this afternoon before United States Magistrate Judge Joan M. Azrack, at the U.S. Courthouse, 225 Cadman Plaza East, Brooklyn, New York.  The criminal complaint alleges the following:  Between August 2010 and June 2011, Boyland solicited and accepted a stream of bribes from a carnival promoter (“CW”) and two undercover FBI agents (“UC1” and “UC2”), whom Boyland believed to be out-of-state businessmen and real estate developers. In exchange, Boyland agreed to take official action to secure business opportunities for CW, UC1 and UC2.

Carnival Scheme: Boyland Takes Over $7,000 in Bribes

Starting in August 2010, Boyland, UC1 and CW met and discussed ways in which Boyland could assist CW and UC1 with CW’s carnival business.2 All the meetings were recorded. In explaining how he could help them secure carnival locations in his district, Boyland stated that he had the New York City Department of Housing Preservation and Development (“HPD”) “locked up,” and stated that “we got HPD . . . we’re there.” Boyland and UC1 also discussed ways to “compensate” Boyland for his assistance, including by funneling payments to Boyland through a non-profit organization controlled by Boyland or through payments disguised as fees to a consulting firm.  UC1 ultimately made payments to Boyland. The first was a $3,800 payment in the form of money orders to Boyland’s campaign account in October 2010. The second payment occurred in February 2011, in the form of a $3,000 check (where the payee line was left blank) and $600 cash. In that case, UC1 specifically told Boyland that he did not want the $3,000 check to be applied against the New York State campaign contribution limit of $3,800. Boyland replied, “Got it, got it, got it. Makes sense.” Despite this, the $3,000 check was ultimately made payable to and deposited into Boyland’s campaign account.  In return for these payments, Boyland told CW and UC1 that Boyland and his staff had engaged in discussions with governmental agencies to assist CW in obtaining leases and permits for his carnival business. In addition, at Boyland’s direction, Boyland’s staff provided UC1 with letters of support from Boyland, on his official State Assembly letterhead, on behalf of CW and the carnivals CW purported to be promoting.

Real Estate Scheme: Boyland Takes $7,000 Cash Bribe

After Boyland was charged with bribery in a separate case in the Southern District of New York on March 10, 2011,3 Boyland and a member of his staff contacted UC1 seeking a direct, personal payment of $7,000. In a recorded telephone call, Boyland told UC1 that he needed the money to “solidify some attorneys.” Boyland stated that he was willing to travel to Philadelphia for the money and that he wanted the payment in cash.  On or about March 25, 2011, UC1 met Boyland at his district office in Brooklyn. During that meeting, which was recorded by UC1, Boyland and UC1 discussed real estate development projects in Boyland’s district that Boyland had previously discussed with UC1 and UC2. UC1 made clear that the money he was going to give Boyland was coming from both him and UC2, and in response, Boyland stated, “We’ll do business.” UC1 then told Boyland that he and UC2 wanted state grant monies to help finance the proposed development projects. Boyland assured UC1 that the money was there and stated that his support was a “no brainer” because the projects are “right here at home.”  At the end of meeting, UC1 gave Boyland the $7,000 in cash, and stated: “Knowing that if you think you want to bring someone else onboard or knowing that you’ll be there politically for us is all that we’re looking for.” In response, Boyland made a “thumbs up” sign and affirmed that “the political thing will be fine in terms of just where we need to go because I’m thinking environmental and I’m thinking the two houses of the state and city. You know, the relationships are there.”  Approximately one week after Boyland took the $7,000 cash bribe, he showed UC1 and UC2 different properties in his district. In a recorded conversation, Boyland assured UC1 and UC2 that certain zoning changes requested by UC1 and UC2 in connection with developing the sites were “not a problem.” He emphasized that all the properties he was showing UC1 and UC2 were in his district, which “we have control over.” Boyland later reiterated this point: “Everything we’ve seen I’m in control of. You know, I’m the politician. I’m the guy who can make that move over on this end, so we know the folks that can pull the sort of triggers we’re looking for.”

Hospital Buy-Back Scheme: Boyland Solicits $250,000 Bribe

On or about April 29, 2011, during a recorded conversation in a hotel suite in Atlantic City, New Jersey, Boyland solicited a $250,000 bribe from UC1 and UC2. Boyland proposed a scheme which called for UC1 and UC2 to purchase a former hospital in Boyland’s district for $8 million, obtain state grant money to renovate the hospital, and resell it to a non-profit organization that Boyland claimed to control for $15 million. In exchange for the $250,000, Boyland promised that he would, among other things, arrange for the sale and take official action and use his influence to secure state grant money to allow UC1 and UC2 to renovate the hospital so that it could be sold to Boyland’s organization for a profit.  During this meeting, Boyland promised that he would facilitate any needed state grants and also promised that he would arrange for one of UC2’s purported investors to be awarded any demolition contracts related to the project. Boyland stated that “zoning won’t be an issue,” because he had “tons of friends” and knew “everybody on the Board” of the New York City Board of Standards and Appeals, which handles zoning issues.  Boyland further explained his desire to conceal his involvement in the bribery scheme. He stated, “I got a middle guy by the way . . . I gotta stay clean . . . I got a bag man . . .” Boyland also explained to UC1 and UC2 that he did not want to talk on the telephone about these activities and that he preferred in-person meetings: “I stopped talking on the phone awhile ago . . . I’m just saying there is no real conversation that you can have that, you know, especially with what we’re talking about. You can’t do that.”  About one month later, Boyland, a member of his staff, and an individual whom Boyland described as a “developer” took UC2 on a site tour of the hospital.  On or about June 7, 2011, Boyland met with UC1 and UC2 in a hotel room in Manhattan. The meeting was recorded. Boyland reiterated that he wanted to be paid $250,000. UC2 offered to pay Boyland $5,000 for each introduction to another person who would accept bribes in connection with the development project. Boyland rejected the suggestion, stating that the people whom Boyland planned to introduce to UC1 and UC2 were worth more than $5,000: “I’m not talking about $5,000 folks. I’m talking about . . . people that can actually get these projects done and that’s where we started off with. We started off, we didn’t start off with, we can go with somebody who knows someone. We not talking about those folks . . . . We talking about the man.”

“As detailed in the criminal complaint, the extent of the charged corruption is staggering,” stated United States Attorney Lynch.” The defendant had a strong political legacy, the trust of his community, and the privilege of serving it. Not content with these many benefits, the defendant is alleged to have auctioned the power of his seat in the Assembly to the highest bidder, for his own personal gain and to the potential detriment of the voters who elected him to office. Fortunately for his constituents and the people of New York, in this instance the “bidders” were working for the FBI. The message of this case is clear – we will utilize all available resources to protect the public’s right to government free of corruption.” Ms. Lynch stated that the government’s investigation is continuing.  FBI Assistant Director in Charge Fedarcyk stated, “The charges announced today are all the more astonishing in light of the fact that Boyland allegedly committed much of the criminal conduct after he had already been charged in another bribery case. Boyland was unaware that it was two undercover FBI agents with whom he was arranging quid pro quo deals, and to whom he insisted on speaking in person to avoid the recording of incriminating phone calls. Recording phone calls is not the only method the FBI has available to fight public corruption.”  If convicted, Boyland faces a maximum sentence of 30 years in prison.  The government’s case is being prosecuted by Assistant United States Attorneys Roger Burlingame, Carolyn Pokorny and Lan Nguyen.

The Defendant:  WILLIAM F. BOYLAND, JR.  -  Age: 41

  • 1 The charges contained in the complaint are merely allegations, and the defendant is presumed innocent unless and until proven guilty.
  • 2 As detailed more fully in the complaint, to obtain the permissions and/or permits necessary to operate carnivals in New York City, carnival businesses must obtain the support of local community boards and elected officials.
  • 3 Boyland was acquitted of those charges on November 10, 2011.

Lawyers Sucking Dead Peoples Blood, Again

Family of reclusive NY heiress says lawyers 'plundered' millionaire's accounts
The New York Post by Dareh Gregorian  -  November 28, 2011

Reclusive copper heiress Huguette Clark apparently had a complete change of heart about who to leave her $400 million fortune just before she turned 99.  A newly discovered will — signed by Clark in March 2005 and revealed today —left $5 million to her nurse and the rest of her fortune to her 21 grand and great nieces and nephews.  But another previously known will, signed by the then-98-year-old heiress just six weeks later, left her nurse $35 million and her lawyer and accountant $500,000 and control of a multimillion foundation — while cutting her family out entirely.  Both the lawyer, Wallace Bock, and the accountant, Irving Kamsler, are now being investigated by the Manhattan DA’s office for their handling of Clark’s affairs. Clark died earlier this year at 104, after having spent the past 20 plus years living in hospitals.  Her family revealed the existence of the new will in papers filed in Manhattan Surrogate’s Court, accusing the pair of “plundering” Clark’s accounts.  “Before the court are substantial and gravely serious issues of alleged deceit, undue influence and exploitation of a very elderly and extraordinarily wealthy woman at the hands of two professionals who took control of her life, isolated her from her family and ultimately stripped her of her free will, as well as millions of dollars,'' says the filing, which was posted on msnbc.com.  The filing pointed to the lawyer and money man’s recent account of how they handled Clark’s money, which the papers said “provide a chilling report of the mishandling, misappropriation and mismanagement of Huguette’s assets over a period of ... 15 years.”  That includes $76 million in unexplained disbursementsfrom one accountand millions more in mysterious payments, the filing says.  The accounting also shows “a total of approximately $170 million in disbursements over the 15-year period from [an account controlled by the lawyer] and Huguette’s personal account, i.e., approximately $1 million a month while Huguette was in the hospital,” the papers charge.  The filing also takes aim at Bock and Kamstler’s claims that she had barely any contact with her family.  The relatives said they had plenty — until they were suddenly blocked from talking to her by Bock around 2004 and 2005.  Before that, Clark had “remained true to her family” by “remaining in contact with certain of her relatives over the years, sharing events in their lives,” the filing says. It seeks judicial permission for the relatives to challenge the will.  Bock and Kamsler have denied any wrongdoing and said they merely carried out Clark’s wishes. They were the ones who provided the family with the previously unseen will.  In both 2005 documents, Bock and Kamsler are named as executors of Clark’s estate, a job that could earn them millions in fees.  Clark had two other wills that she signed in the 1920s which left everything to her mother, who died in 1963.

-----CLICK HERE TO SEE RELATED STORY, "Surrogate's Court's Dastardly Deeds"

Connecticut High Court Considers Immunity for Attorney Malpractice

Suit Over Elderly Man's Care May Lead to New Standards
The Connecticut Law Tribune by Thomas B. Scheffey  -  October 31, 2011

Richard Roberts, of Cheshire’s Nuzzo & Roberts, made a vigorous case for extending broad judge-like immunity to probate court conservators, if acting within their statutory job description.  Carolyn Dee King is the plaintiff in her late father’s suit against the probate system. Sally Zanger, of the Connecticut Legal Rights Project, argued the case, and co-counsel Tom Behrendt worked on the briefs.
Supreme Court Weighs Lawyer Immunity Limits

Should court-appointed attorneys for society’s most vulnerable enjoy immunity from liability for their actions, and, if so, how much?  That was the question facing the Connecticut Supreme Court last week in the aftermath of a lawsuit filed by the estate of Daniel Gross, a New York resident whose visit to Connecticut ended in a 10-month stay in a locked nursing home when he became a ward of the state.  “Immunity is strong medicine,” argued the legal aid attorney representing the estate of Daniel Gross. “It should be used sparingly.”  Sally R. Zanger, of the Connecticut Legal Rights Project, contended that probate court-appointed lawyers for the elderly shouldn’t have, and don’t need, any more protection from malpractice suits than other lawyers have.  Advocates for Gross’s conservator and his court-appointed lawyer countered that, without judge-like immunity from suits for money damages, no one would want to represent the elderly and disabled, and the probate system’s oversight of 16,000 dependent people would simply break down.  Gross died in 2007, and his federal case against the system seeks redress for alleged elder abuse at the hands of the probate system. Connecticut’s highest court was asked, by the U.S. Court of Appeals for the Second Circuit, to clarify murky Connecticut case law. The Supreme Court is tasked with explaining just how much immunity from civil lawsuits that law gives these lawyers and conservators.  Starting in the summer of 2005, Gross was kept in a locked ward of Waterbury’s Grove Manor Nursing Home for 10 months, at the request of conservator Kathleen Donovan of Naugatuck, his probate court-appointed conservator. She obtained orders from Waterbury Probate Judge Thomas Brunnock to handle Gross’s personal and financial affairs, after Gross and his family disagreed over his care. Brunnock’s orders limited his daughter Carolyn’s visitation to one hour a day, and prohibited her from bringing a tape recorder or camera.

Daughter Files Suit

That hardly kept Gross’s situation silent, or in the dark. The columns of a crusading Hartford Courant writer, Rick Green, stirred up volunteer lawyers John Peters of West Hartford and Veronica Halpern, of Greater Hartford Legal Aid. They used a writ of habeas corpus to spring Gross, after Waterbury Superior Court Judge Joseph Gormley found Brunnock didn’t even have jurisdiction over Gross, a New York resident.  After his death, Gross’ daughter Carolyn Dee King, of Waterbury, sued a host of state officials and court officers, as administrator of her father’s estate. Sovereign immunity and judicial immunity narrowed the defendants to Gross’s probate-court-appointed lawyer Jonathan Newman, conservator Donovan, and the nursing home. When all three claimed court-like “quasi-judicial” immunity, the U.S. Court of Appeals for the Second Circuit certified some pure questions of law to the state Supreme Court, for guidance. Are probate lawyers and conservators entitled to this judicial immunity under Connecticut law?  The leading Connecticut case on this topic actually arose from a divorce custody case in 2005. West Hartford lawyer Emily J. Moskowitz was sued by an angry father, Paul Carruba, for alleged malpractice in her role as a court-appointed lawyer for Carruba’s minor child. The Supreme Court concluded Moskowitz exercised a dual role, both as a guardian seeking the best interests of the child, and partly as an advocate for the child. The older the child is, the more the lawyer’s role becomes like adult representation.

The three-part test set out in Carruba asks whether the role has historically required immunity, and whether it is a magnet for harassing litigation. Third, it asks whether procedural safeguards exist to protect against improper conduct, if the officer can’t be sued for money damages. Prosecutors, with the dual role of assuring justice for the accused and the state, qualify. Public defenders, on the other hand, as true legal advocates, don’t get quasi-judicial immunity.  Before Zanger began arguing, she shared an observation from her intensive research. She conceded lawsuit immunity is needed for judges, who might otherwise be constantly sued by those they rule against. But for probate court- appointed lawyers? In reading every relevant Connecticut case, she said, “There were maybe a couple dozen in the past couple hundreds of years. I just don’t see the lightning rod here.”  Justice C. Ian McLachlan was eager to dive in. He knew that Connecticut’s legislature, prompted by Daniel Gross’s case, enacted reforms in 2007. These gave a “conserved person” in a nursing facility a right to a hearing three times a year, and to seek habeas corpus relief. Were these the type of “procedural safeguards” that might justify immunity for the defendant lawyers, under Carruba?  Zanger didn’t think so. Her view was that the lawyer for an adult, like Newman, had to be a true advocate for his client. If the client opposed having a conservator, the lawyer had to keep silent about incompetent answers in client interviews, and put on the best case for the client, letting the probate judge decide what’s best.  Conservators are not like a guardians ad litem, performing a court-mandated role to help reach a judicial decision, Zanger said. Instead, they were more like the winner in a custody battle, looking after the child once the court battle ended. Neither role, she said, deserved quasi-judicial immunity.  Chief Justice Chase T. Rogers wanted to know what alleged acts by conservator Donovan were done without a probate court order, and without subsequent court approval. Zanger answered, “taking Mr. Gross against medical advice out of the hospital in New York to bring him back to the nursing home in Connecticut, and limiting his access to courts and counsel.”  Rogers asked the same question of Donovan’s lawyer, Richard Roberts, of Nuzzo & Roberts in Cheshire. “Several things — placing the plaintiff in the locked ward of a nursing facility — there’s no order per se for that. There was an allegation about having a violent person in the room.”

Violent Roommate

(The “violent person” who was Gross’s roommate, according to Gross’s daughter Carolyn King, was Paul LeBlanc, a co-defendant in a notorious 1978 case in which two Woodbury men, Bruce Gilbert and Henry Kulesza, were stabbed to death in their antique shop home. LeBlanc allegedly tormented and assaulted Gross, a claim Donovan disputes.)  Rogers replied to Roberts that the main unauthorized act alleged was placing Gross in the locked ward for 10 months.  Roberts replied, “Sure. But that’s exactly what we should have immunity for. It’s a judgment call, to place him in a facility like that.”  Roberts conceded that conservators are fiduciaries, and in a line of cases, have been successfully sued for misdeeds. They can be required to post bond — another argument against immunity. “Let’s put that out there; let’s look the elephant in the eye,” he said. “But the issue of immunity was never raised in that whole line of cases. And you really don’t have to overturn those cases to find what we’re suggesting: that conservators should enjoy immunity for all of their statutory duties.”  Justices Lubbie Harper, Dennis Eveleigh and McLachlan wanted to know whether immunity should attach for acts where the conservator or lawyer is discharging a direct order of the court, or had been authorized afterwards on review, or simply done tasks listed in the conservator statute. Roberts argued for the broadest immunity, with liability only arising when the conservator acted completely outside his or her authority. That, arguably, squared with past cases awarding damages from conservators engaged in unauthorized gift-giving, embezzlement, making risky investments, and failing to pay nursing home bills.  “We’re not saying they shouldn’t be liable,” if acting beyond their legal powers, Roberts said.

Louis Blumenfeld, of Cooney, Scully & Dowling, argued for the probate court-appointed lawyer, Jonathan Newman. Unlike Roberts, he argued his client had a dual role, of both advocacy for client wishes and pursuing results in his best interests. Blumenfeld found his argument in the rules of professional conduct:  “When you get an attorney, you get someone who has to follow the rules of professional conduct, and has to answer to the court,” he said. “Those rules require that the attorney expressly treat any client that is impaired in a manner that is as close to normal ‘as is reasonably possible.’ That phrase acknowledges that an attorney may not be able to.”  McLachlan asked whether Blumenfeld thought a lawyer for allegedly incapable people can’t commit malpractice.  No, he replied, they can — they just don’t have to pay for it. “In point of fact, immunity, quasi-judicial immunity, says that if you commit malpractice, if you breach your duties, you’re immune from civil liability,” said Blumenfeld.  But where’s the redress for the malpractice victim? McLachlan asked. “I think the simple answer to that is, it does not provide redress,” Blumenfeld replied.  Zanger argued that the lack of redress would leave the state’s most vulnerable people powerless: “Conservatorships happen to frail, elderly people who have a harder time getting to court, contacting lawyers, and that’s the policy part of it. It’s important under judicial immunity that judges not have people looking over their shoulders and thinking every person who doesn’t win is going to sue them. But conservators, court appointed lawyers and nursing homes — the citizens of Connecticut should want them to be worried that they’re causing harm to someone.”

Federal Judge Signals End to Insider Political Whims

NYC judge rejects $285M SEC-Citigroup agreement
The New York Post -  The Associated Press  -  November 28, 2011

A federal judge on Monday used unusually harsh language to strike down a $285 million settlement between Citigroup and the Securities and Exchange Commission, saying he couldn’t tell whether the deal was fair and criticizing regulators for shielding the public from the details of what the firm did wrong.  U.S. District Judge Jed Rakoff said the public has a right to know what happens in cases that touch on “the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives.” In such cases, the SEC has a responsibility to ensure that the truth emerges, he wrote.  Rakoff said he had spent hours trying to assess the settlement but concluded that he had not been given “any proven or admitted facts upon which to exercise even a modest degree of independent judgment.” He called the settlement “neither fair, nor reasonable, nor adequate, nor in the public interest.”  The SEC shot back in a statement issued by Enforcement Director Robert Khuzami, saying the deal was “fair, adequate, reasonable, in the public interest, and reasonably reflects the scope of relief that would be obtained after a successful trial.”  The SEC had accused the bank of betting against a complex mortgage investment in 2007 — making $160 million in the process — while investors lost millions. The settlement would have imposed penalties on Citigroup but allowed it to deny allegations that it misled investors.  Citi said it was reviewing the decision and declined to comment.  The SEC’s consent judgment settling the case was filed the same day as its lawsuit against Citigroup, the judge noted.  “It is harder to discern from the limited information before the court what the SEC is getting from this settlement other than a quick headline,” the judge wrote.

“In much of the world, propaganda reigns, and truth is confined to secretive, fearful whispers,” Rakoff said. “Even in our nation, apologists for suppressing or obscuring the truth may always be found. But the SEC, of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if it fails to do so, this court must not, in the name of deference or convenience, grant judicial enforcement to the agency’s contrivances.”  He set a July 16 trial date for the case.  Khuzami said in the SEC statement that Rakoff made too much out of the fact that Citigroup did not have to admit wrongdoing. He said forcing Citigroup to give up profits, pay fines and face mandatory business reforms outweigh the absence of an admission “when that relief is obtained promptly and without the risks, delay and resources required at trial.”  Khuzami added: “Refusing an otherwise advantageous settlement solely because of the absence of an admission also would divert resources away from the investigation of other frauds and the recovery of losses suffered by other investors not before the court.”

Rakoff said the power of the judiciary was “not a free-roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated.”  He added: “If its deployment does not rest on facts — cold, hard, solid facts, established either by admissions or by trials — it serves no lawful or moral purpose and is simply an engine of oppression.”  In the civil lawsuit filed last month, the SEC said Citigroup Inc. traders discussed the possibility of buying financial instruments to essentially bet on the failure of the mortgage assets. Rating agencies downgraded most of the investments just as many troubled homeowners stopped paying their mortgages in late 2007. That pushed the investment into default and cost its buyers’ — hedge funds and investment managers — several hundred million dollars in losses.  Earlier this month, Rakoff staged a hearing in which he asked lawyers on both sides to defend the settlement.  At the hearing, Rakoff questioned whether freeing Citigroup of any admission of liability could undermine private claims by investors who stand to recover only $95 million in penalties on total losses of $700 million.  In his decision, he called the penalties “pocket change” to a company the size of Citigroup and said that, if the SEC allegations are true, then Citigroup got a “very good deal.” If they are untrue, the settlement would be “a mild and modest cost of doing business,” he said.  This wasn’t the first time that the judge struck down an SEC settlement with a bank, and Rakoff has made no secret of his disdain for settlements between the government agency and banks for paltry sums and no admission of guilt.  “The SEC’s longstanding policy — hallowed by history, but not by reason — of allowing defendants to enter into consent judgments without admitting or denying the underlying allegations, deprives the court of even the most minimal assurance that the substantial injunctive relief it is being asked to impose has any basis in fact,” he wrote in Monday’s decision.  In 2009, Rakoff rejected a $33 million settlement between the SEC and Bank of America Corp. calling it a breach of “justice and morality.” The deal was over civil charges accusing the bank of misleading shareholders when it acquired Merrill Lynch during the height of the financial crisis in 2008 by failing to disclose it was paying up to $5.8 billion in bonuses to employees even as it recorded a $27.6 billion yearly loss.  In February 2010, he approved an amended settlement for over four times the original amount, but was caustic in his comments about the $150 million pact, calling it “half-baked justice at best.” He said the court approved it “while shaking its head.”  Citigroup’s $285 million would represent the largest amount to be paid by a Wall Street firm accused of misleading investors since Goldman Sachs & Co. agreed to pay $550 million to settle similar charges last year. JPMorgan Chase & Co. resolved similar charges in June and paid $153.6 million.  All the cases have involved complex investments called collateralized debt obligations. Those are securities that are backed by pools of other assets, such as mortgages.  Rakoff’s ruling Monday was the latest in a series of setbacks for the SEC under the leadership of Chairman Mary Schapiro. Rakoff has said he doesn’t believe the agency has been sufficiently tough in its enforcement deals with Wall Street banks over their conduct prior to the financial crisis.  The SEC told Rakoff recently that $285 million was a fair penalty, which will go to investors harmed by Citigroup’s conduct, and that it was close to what the agency would have won in a trial.

Monday, November 28, 2011

Born-Again Officer-of-the-Court Finds Truth and Justice Matters

Editorial: Prosecutor John Bradley’s ‘lightning bolt’
The Dallas Morning News  -  EDITORIAL  -  November 25, 2011

Williamson County District Attorney John Bradley has been, for many people, the face of Texas justice with a hard edge. The image has been of an ultratough, uncompromising prosecutor. So when Bradley sets out to soften that image with a more reflective message and openness to the possibility of error, it’s a wake-up call. It should get the attention of those prone to marginalize reformers who sound the alarm about the nation-leading spate of DNA exonerations in Texas. In a recent interview with the online Texas Tribune, Bradley divulged that he developed a new perspective through his involvement in the recent exoneration of Michael Morton, who spent nearly 25 years in prison for a murder he didn’t commit. Now, as Bradley is quoted, the bywords for his office ought to be: “We are more than tough on crime.” In a follow-up interview with this newspaper, Bradley emphasized a prosecutor’s obligation to be open about the possibility of error and be respectful — not antagonistic — to defense lawyers who unearth exculpatory evidence years after a jury voted a guilty verdict. Instead of badmouthing, for example, the Innocence Project, Bradley told us, “Applaud their work and point out that if we work harder on disclosing information and being open-minded … then we will find that people’s opinion of our profession will change.” His reference to the Innocence Project was telling. He and the project’s torch-bearer, renowned New York attorney Barry Scheck, have tangled spectacularly the past few years. Now, Bradley said, he considers Scheck a friend. Last month, the Innocence Project succeeded in gaining Morton’s release. That case was prosecuted by Bradley’s predecessor, Ken Anderson, now a judge, whom defense lawyers accuse of hiding key evidence in violation of Morton’s rights. Still, Bradley spent years doggedly fighting DNA tests on physical evidence.  DNA tests were ultimately court-ordered, and the results came back this fall and hit Bradley, as he says, like a “lightning bolt.” The tests confirmed Morton’s innocence. Worse, DNA pointed to another man — one who went on to kill again. That means the state not only robbed a man of a quarter century, it may have blood on its hands. The tight focus on Morton, despite evidence that argued against it, let a dangerous man roam free. We’re relieved that Bradley testifies to a conversion moment, and we’re encouraged by his pledge to spread the word.  Still, veteran Bradley watchers are skeptical about his professed turn-about, and who can blame them? He is running for re-election. He was consistently acerbic and intransigent toward those critical of his chairmanship the past couple of years at the Texas Forensic Science Commission. Bradley’s critics will be watching whether his deeds in the future match the promise of his words. It’s the right approach. Bradley is always a man worth watching.

In his own words -  Excerpts from John Bradley’s remarks to The Dallas Morning News:


• “A prosecutor has this amazing responsibility to leave open the possibility that there are other avenues that need to be checked, that there are added tests that ought to be pursued for the sake of having even more confidence in the verdict.”
• “We need to leave the window open a little bit more.”
• “I finally decided that it was more important that I overcome my concerns about people’s opinions about my shifting of my personal opinions, because I saw that it has public value in helping other prosecutors, I hope, adjust their point of view.”
• “Disclosure is almost always the correct answer.”

----- RELATED STORY, Ethics Still Matter......

Ethics 'worse' in Albany, says watchdog David Grandeau
The New York Daily News by Joe Mahoney  -  September 9, 2007

ALBANY, NY - As New York's chief lobbying watchdog for 13 years, David Grandeau tangled with governors, legislative leaders, influence peddlers and Donald Trump.  He even tackled Joe Namath when the Jets legend bestowed on Joe Bruno, the state Senate majority leader, an autographed football that Grandeau reasoned violated a ban on gifts worth more than $75.  Now the state Temporary Commission on Lobbying is going out of business Sept. 21, with its remnants merged into a new Public Integrity Commission. Though good government advocates have often called him the only cop on the beat in Albany, Grandeau won't be at the helm. He didn't even make the team.  A beefy man who enjoys playing on a local curling team, Grandeau, 48, says he leaves state government keenly aware he has no friends in high places.  "I did my job, and I did it for 13 years without fear or favor, and I did it without pity or consideration to the political parties or the connections of the people we investigated," Grandeau said.  Assessing the current ethical climate in Albany - where news this summer was dominated by a scheme by Spitzer aides to damage Bruno and the senator's use of state aircraft - Grandeau said: "It's getting worse."  And having an integrity commission controlled by the governor, he reasoned, won't shake the public perception that misdeeds are papered over. "You're going to see that integrity [commission] investigations have serious partisan political overtones."  Amid the battles among state leaders, he wryly noted, "One of the few things they have been able to agree on is it's a good idea to get rid of me."  Over the years, Grandeau has embarrassed Democratic Assembly Speaker Sheldon Silver for getting a discount rate on a deluxe Las Vegas hotel room from a casino company looking to expand to New York. He also socked Trump with a $250,000 fine for secretly bankrolling ads attacking an Indian tribe looking to open a Catskills casino.  In his final weeks, he has taken on Bruno associate Jared Abbruzzese, who was involved in a group eying the state racing franchise while treating the senator to rides on his private plane.  Critics accuse Grandeau of being a headline-hunter who has carried out personal vendettas.  "He's unique and dramatic, and if someone could make ethics sing and dance, it's David Grandeau," said James Featherstonhaugh, a lobbyist for four decades. "But I don't think he wisely used his prosecutorial discretion. He didn't seem to distinguish between important wrongs and honest mistakes."  Grandeau plans to become a consultant to companies on how to comply with the state's complicated lobbying laws and ethics rules. "There is a competitive advantage to doing things the right way," he said. "Ethics matters."  jmahoney@nydailynews.com

Monday, November 21, 2011

Judge Thought It Was Good Idea to Hold Secret Court

Town Justice Is Chided Over Holding Court in Chambers
The New York Law Journal by Joel Stashenko  -  November 21, 2011

A non-attorney town court justice in St. Lawrence County should be admonished for holding court in his chambers between 2003 and 2010, as opposed to in his courtroom, the state Commission on Judicial Conduct has recommended. The commission held that the practice by Justice John W. Riordan in the town of Gouverneur ran counter to §4 of the Judicial Law, which requires that "the sitting of every court within the state shall be public, and every citizen may freely attend the same." While the commission said Mr. Riordan's courtroom is "spacious" with ample space for members of the public, his chambers in an adjoining room are much smaller, with only a few chairs. "Although respondent usually left this door open when he conducted proceedings in chambers, it was unlikely that anyone sitting in the courtroom could have heard the events and discussions occurring in chambers," the commission held. The panel noted that Mr. Riordan has been holding proceedings in his courtroom since July 2010 when a commission investigator visited his court.  The commission noted that under a stipulation with the state panel, Mr. Riordan agreed to hold proceedings in the future in his courtroom.

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STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT
In the Matter ofthe Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to
JOHN W. RIORDAN, a Justice of the Gouverneur Town Court, St. Lawrence County.
THE COMMISSION:
Honorable Thomas A. Klonick, Chair Honorable Terry Jane Ruderman, Vice Chair Honorable Rolando T. Acosta
Joseph W. Belluck, Esq.
Joel Cohen, Esq.
Richard D. Emery, Esq.
Paul B. Harding, Esq.
Nina M. Moore
Honorable Karen K. Peters
Richard A. Stoloff, Esq.
APPEARANCES: Robert H. Tembeckjian (S. Peter Pedrotty, Of Counsel) for the Commission Frederick E. Paddock for the Respondent


The respondent, John W. Riordan, a Justice ofthe Gouverneur Town Court, St. Lawrence County, was served with a Formal Written Complaint dated July 5, 2011, containing one charge. The Formal Written Complaint alleged that respondent regularly held court in his chambers for approximately seven years. Respondent filed a verified answer dated July 27,2011. On September 19, 2011, the Administrator, respondent's counsel and respondent entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5), stipulating that the Commission make its detennination based upon the agreed facts, recommending that respondent be admonished and waiving further submissions and oral argument. On November 3,2011, the Commission accepted the Agreed Statement and made the following detennination:

1. Respondent has been a Justice of the Gouverneur Town Court, St. Lawrence County, since January 1996. Respondent's current term expires December 31, 2013. He is not an attorney.
2. From fall 2003 until July 2010, as a matter of practice, respondent regularly held court proceedings in chambers as opposed to the courtroom.
3. Respondent held court proceedings in chambers for his personal convemence.
4. The courtroom, the court clerk's office and respondent's chambers (which is an office) are located on the second floor of a building complex in the Village of Gouverneur.
5. The courtroom is well-equipped and spacious. It can accommodate numerous members of the public who wish to observe court proceedings.
6. In contrast, respondent's office, which he uses as chambers, is much smaller. It is furnished with, inter alia, filing cabinets, respondent's desk and only a few chairs. When respondent, the parties and their attorneys were in chambers for court proceedings, no space remained for members of the public to observe the proceedings.
7. A doorway connects chambers to the rear of the courtroom. Although respondent usually left this door open when he conducted proceedings in chambers, it was unlikely that anyone sitting in the courtroom could have heard the events and discussions occurring in chambers.
8. On several occasions between fall 2003 and July 2010, Gouverneur Deputy Court Clerk Irma Ashley, Gouverneur Court Clerk Lauri Andrews and St. Lawrence County Conflict Defender Amy Dona each expressed to respondent their view that he should hold court in the courtroom.
9. In or about July 2009, respondent and the court clerks attended a training session sponsored by the Office of Court Administration. One of the instructors discussed the need to hold court proceedings in the courtroom. Shortly thereafter, respondent acknowledged to the court clerks that he should hold court in the courtroom, but nevertheless continued to hold court in his chambers until in or about July 2010.
10. In July 2010, after a Commission investigator visited respondent's court to observe where proceedings were being conducted, examine records and interview witnesses, respondent began to hold court proceedings in the courtroom.
11. Respondent acknowledges that Section 4 of the Judiciary Law requires that '"the sittings of every court within the state shall be public, and every citizen may freely attend the same."
12. Respondent agrees that he will regularly conduct future proceedings in the courtroom, in accordance with the Judiciary Law.
Mitigating Factors  -
13. Since July 2010, respondent has conducted and continues to conduct court proceedings in the courtroom.

Prior Cautions  -  
14. Respondent was cautioned in 2002 and 2005 for conduct unrelated to the subject matter herein.
Upon the foregoing findings of fact, the Commission concludes as a matter oflaw that respondent violated Sections 100.1, 100.2(A) and 100.3(B)(l) ofthe Rules Governing Judicial Conduct ("Rules") and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision a, of the New York State Constitution and Section 44, subdivision 1, of the Judiciary Law. Charge I of the Formal Written Complaint is sustained, and respondent's misconduct is established. With limited exceptions not applicable here, Section 4 ofthe Judiciary Law requires that the '"sittings ofevery court within this state shall be public, and every citizen may freely attend the same." Section 214.2(a) ofthe Uniform Civil Rules for the Justice Courts provides: It is the policy that the public is best served by justice courts which function in facilities provided by the municipality .... When facilities are provided by the municipality, the sessions of the court shall be held therein.


Notwithstanding the clear language of these mandates, which require that court proceedings be held at a location that is readily accessible by members of the public, respondent, for reasons of personal convenience, regularly held court proceedings in his chambers, rather than in the adjoining courtroom, for a period of approximately seven years. The judge's chambers contained no space for members of the public to observe the proceedings, and although the connecting door between the judge's chambers and the courtroom was "usually" kept open, it has been stipulated that anyone sitting in the courtroom was likely unable to hear the events and discussions occurring in chambers. The totality ofthese circumstances establishes that by conducting court proceedings in his chambers, respondent effectively excluded members of the public and thereby violated the statutory mandate (Jud. Law §4) and his ethical obligation to be faithful to the law (Rules, §100.3[8][ ID. At the very least, the public nature of court proceedings was severely compromised, which impairs public confidence in the fair and proper administration ofjustice.
Compounding his misconduct, respondent inexplicably continued to hold court in his chambers even after: (i) his court clerks and an attorney advised him on several occasions that court proceedings should take place in the courtroom; (ii) he attended an OCA training session in 2009 where the issue was addressed; and (iii) he acknowledged to his court clerks that court proceedings should take place in the courtroom. Not until a Commission investigator visited respondent's court in July 2010 did he discontinue his improper practice and begin to conduct court proceedings in the courtroom. The Commission notes that respondent has agreed that in the future he will hold court proceedings in the courtroom, as required by law. The Commission also notes that respondent was cautioned in 2002 and 2005 for conduct unrelated to the misconduct described herein. By reason of the foregoing, the Commission determines that the appropriate disposition is admonition.  Judge Klonick, Judge Ruderman, Judge Acosta, Mr. Cohen, Mr. Emery, Mr. Harding, Ms. Moore, Judge Peters and Mr. Stoloff concur. Mr. Belluck was not present.  -  CERTIFICATIONIt is certified that the foregoing is the determination ofthe State Commission on Judicial Conduct.  -  Dated: November 9,2011 - Jean M. Savanyu, Esq., Clerk of the Commission, New York State, Commission on Judicial Conduct

Sunday, November 20, 2011

State Courts Will Attempt to Follow the Law

State Judge Assures Family Courts Will Be Open to All
The New York Times by William Glaberson  -  November 18, 2011

New York State’s chief judge said Friday that he was taking steps to assure that the state’s family courts are open to the public, after a report was published showing wide disregard for the open-courts policy in the city’s family courts.  The chief judge, Jonathan Lippman, reaffirmed the importance of a rule adopted in 1997 by the court system that officially opened the family courts to the public after decades when cases involving families and children had been largely conducted in secret.  “The transparency and integrity of the court process is vital to ensuring public trust and confidence,’’ Judge Lippman wrote in a memorandum to state’s family court judges. He said he had directed top state court administrators “to make sure that both the letter and the spirit of our long-standing rule is complied with now and in the future.”  In the letter, Judge Lippman, wrote that he was acting in response to a New York Times article on Friday that described court officials and officers across the city barring entry to courtrooms and declaring that court policy did not permit free access to proceedings. The Times article also said courtrooms were locked and that public attendance was discouraged with signs saying “do not enter” and, in the Bronx courthouse, “only persons having official business will be admitted.”  The Times’ report focused only on family courts in the city. But a court monitoring group, the Fund for Modern Courts, also found that many family court proceedings were closed in Suffolk County on Long Island and in upstate Washington County.  Judge Lippman, who was the chief administrator of the courts when the open-courts rule was adopted 14 years ago, wrote Friday that he was disturbed by The Times’s report and said that, “our rule, if anything, is being honored in the breach.”  In adopting the rule opening the state’s family courts, court officials presented it as part of an effort to reform courts that have long been described as starved of resources by the state and overwhelmed with cases that often stem from families in the grip of poverty.  In his letter to the family court judges, Judge Lippman returned to that theme. “We can never achieve the recognition and the resources that the Family Court so greatly needs, and deserves,’’ he wrote, “without the public being able to see the critical work that the Court does each and every day.”

CLICK HERE TO SEE BACKGROUND STORY, "New York Family Courts Say Keep Out, Despite Order."

Saturday, November 19, 2011

Stench of Sewer Service Lingers

Coble v. Cohen and Slamowitz LLP
U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
The New York Law Journal  -  November 8, 2011
Creditors/Debtors  -  Judge Vincent L. Briccetti

Law firm Cohen & Slamowitz (CS) collects defaulted credit card debts using supporting affidavits of service from Midlantic Service Inc. It sued Coble and her coplaintiffs between 2002 and 2005. It was not until October 2006—in a federal case—that C& S learned of the Vega Affidavit in which a former Midlantic process server stated that Midlantic falsified thousands of affidavits of service between 1995 and 2006. Despite knowledge of Midlantics' fraudulently prepared affidavits since 2006 C&S continued to assert their accuracy in collection default judgment enforcement proceedings. Plaintiffs learned of the Vega Affidavit in 2010. The court denied dismissal of their 2011 suit for Fair Debt Collection Practices Act (FDCPA) violations. Coble's action was timely filed within the FDCPA's one-year statute of limitations, and equitable tolling applied to her coplaintiffs' claims. Because plaintiffs had no reason to doubt the authenticity of Midlantic's affidavits until they discovered the Vega Affidavit, C& S's conduct prevented them from timely discovering their FDCPA claims. Further, by continuing to enforce collection actions based on Midlantic's affidavits, C& S intentionally kept plaintiffs ignorant of information essential to pursuit of their claims.

DECISION
Elizabeth Coble, Milagros Harper, and Dennis Harper, on behalf of themselves and others similarly situated, Plaintiffs v. Cohen & Slamowitz, LLP, David Cohen, Esq., Mitchell Slamowitz, Esq., Leandre John, Esq., and Crystal S.A. Scott, Esq., Defendants, 11 CV 1037 (VB)
U.S. District Court, Southern District  11 CV 1037 (VB)  -  New York Law Journal November 8, 2011
Cite as: Coble v. Cohen & Slamowitz, LLP, 11 CV 1037 (VB), NYLJ 1202524715212, at *1 (SDNY, Decided October 31, 2011)  -  District Judge Vincent L. Briccetti  -  Decided: October 31, 2011

MEMORANDUM DECISION  -  Plaintiffs Elizabeth Coble, Milagros Harper, and Dennis Harper bring this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §§1692 et seq. ("FDCPA"). Now pending is defendants' motion to dismiss the complaint (Doc. #9), which, for the following reasons, is denied. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §1331.

BACKGROUND -  For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true. Defendant Cohen & Slamowitz, LLP ("C& S") is a large consumer collection law firm. C& S collects defaulted credit card debts in New York State courts using affidavits of service provided by Midlantic Service, Inc. ("Midlantic") in support of applications for default judgments.  Plaintiffs sue on behalf of themselves and all others similarly situated. Plaintiffs were sued by defendants in state debt collection actions commenced between 2002 and 2005. Defendants filed Midlantic affidavits of service in each action and obtained default judgments against each of the plaintiffs.  Plaintiff Elizabeth Coble had a default judgment entered against her in 2005. Ms. Coble learned about this default judgment for the first time in mid-2009.

Plaintiff Milagros Harper also had a default judgment entered against her in 2005. Plaintiff Dennis Harper had a default judgment entered against him in 2002. The complaint does not state when the Harpers learned of the default judgments against them.  On October 15, 2005, C& S was sued in the Eastern District of New York for violating the FDCPA. See Caprino et al v. Cohen & Slamowitz, LLP et al., No. 05 Civ. 04814 (E.D.N.Y.). During the course of that lawsuit in October, 2006, C& S became aware of a sworn affidavit of a former Midlantic process server, Kenneth Vega, stating that Midlantic had falsified thousands of affidavits of service between 1995 and 2006 ("Vega Affidavit"). Vega explained that Midlantic followed an illegal but streamlined practice aimed at producing as many affidavits as possible in order to maintain its business relationship with C& S. This practice included no attempts at service before making effective service by the "nail & mail" method; making false references to neighbors; and forgery and false notarization of the process server's signature.  The Vega Affidavit states that the practice of fraudulent service was a company-wide policy implemented with regard to all affidavits submitted on behalf of C& S. Although C& S has had knowledge of the fraudulently prepared affidavits of service since 2006, it continues to enforce the collection actions relating to those judgments. C& S has not reviewed the judgments it obtained based on Midlantic's service and has not informed the courts or consumers that it did not have good faith bases to assert the veracity of the Midlantic affidavits on file.  Nonetheless, defendants have continued to affirmatively assert the veracity of the Midlantic affidavits in the course of enforcing the default judgments. When consumers have raised lack of service as a defense to collection, C&S has filed sworn affirmations by its attorneys citing the Midlantic affidavits as proof of service. Plaintiff Coble filed an order to show cause on September 7, 2010, alleging she had never been served, and C&S responded with such an affirmation.1  Plaintiffs first became aware of the Vega Affidavit in the middle of 2010. They filed this action on February 15, 2011.

DISCUSSION -  The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Ilishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Asheroft v. Iqbal, 129 S. Ct. 1937 (2009).  The FDCPA prohibits debt collectors from engaging in unfair collection practices, including making a "false, deceptive, or misleading representation," 15 U.S.C. §1692e, and using "unfair or unconscionable means" to attempt to collect a debt, 15 U.S.C. §1692f.

I. Statute of Limitations -  A claim for violations of the FDCPA may be brought "within one year from the date on which the violation occurs." 15 U.S.C. §1692k(d).  Defendants argue that plaintiffs' allegations fall outside of this time period because the default judgments in the underlying state court cases were entered between 2002 and 2005.  Plaintiffs plausibly allege defendants violated the FDCPA when they applied for default judgments against plaintiffs. See, e.g., Gargiulo v. Forster & Garbus Esqs., 651 F. Supp. 2d 188, 191-92 (S.D.N.Y. 2009) (FDCPA applies to statements in affidavits submitted by law firm in default judgment application); Hasbrouck v. Arrow Fin. Servs. LLC, 2010 WL 1257885, at *1-3 (N.D.N.Y. Mar. 26, 2010) (FDCPA applies to statements in affidavits submitted by debt collector in default judgment application). If defendants' last violations of the FDCPA occurred when they obtained default judgments against plaintiffs—in 2005 at the latest—they are time-barred absent equitable tolling.  However, plaintiffs argue that their cause of action includes the continuing acts and omissions of C&S in connection with the invalid Midlantic affidavits. Plaintiffs claim defendants violated the FDCPA within the last year by affirmatively misrepresenting the Midlantic affidavits as true and proper, concealing their knowledge of the falseness of the affidavits, and continuing to collect on the underlying judgments. Although plaintiffs claim in their opposition papers that these violations occurred within the one-year statute of limitations with respect to each plaintiff, the complaint alleges a specific action on the part of C&S within the one-year statute of limitations only with respect to Ms. Coble. Therefore, Ms. Coble's action is not time-barred.  However, because the complaint does not specifically allege defendants violated the FDCPA with respect to Milagros and Dennis Harper within a year of the commencement of this action, their claims will be barred by the statute of limitations unless equitable tolling applies.

II. Equitable Tolling- Equitable tolling applies in extraordinary circumstances where plaintiffs show: (1) defendant concealed the existence of plaintiffs' cause of action; (2) plaintiffs remained ignorant of that cause of action until some point within the limitations period; and (3) plaintiffs' continuing ignorance was not due to lack of diligence. Sykes v. Mel Harris and Assoc., LLC, 757 F. Supp. 2d 413, 422 (S.D.N.Y. 2010) (citing New York v. Hendrickson Bros, Inc., 840 F.2d 1065, 1083 (2d Cir. 1988)). Equitable tolling applies to FDCPA claims in appropriate circumstances. Somin v. Total Cmty. Mgmt. Corp., 494 F. Supp. 2d 153, 158 (E.D.N.Y. 2007).  The concealment element is met when plaintiffs show either that the affirmative acts of defendant prevented discovery of plaintiffs' claim or that the wrong itself was self-concealing. New York v. Hendrickson Bros, Inc., 840 F.2d at 1083.  Plaintiffs first argue defendants actively and knowingly concealed the fact that the Midlantic affidavits and attorney affirmations referencing them were false and improper.2 In those instances where a consumer raised lack of service as a defense, defendants affirmatively re-asserted the validity of the Midlantic affidavits they knew to be false.  Moreover, defendants are still attempting to collect on the default judgments. Continued collection potentially legitimizes those judgments and conceals the fact that C&S can no longer maintain a good faith belief in their validity. Because plaintiffs had no reason to doubt the authenticity of the Midlantic affidavits until they discovered the Vega Affidavit, defendants' conduct prevented plaintiffs from discovering their claims under the FDCPA in a timely manner.  Defendants dispute plaintiffs' allegations of fraudulent concealment in two ways. Defendants first argue that they were not on notice that the Midlantic affidavits were falsified with respect to the named plaintiffs because the Vega Affidavit does not specifically reference those plaintiffs. They characterize the affidavit as a fabrication by a lone process server seeking to avoid personal liability in an unrelated case. This argument is irrelevant at this stage, where the Court accepts plaintiffs' allegations as true. The Vega Affidavit clearly states that Midlantic's illegal practices were pervasive, and defendants were on notice of these practices as of 2006.  Defendants next argue they have not engaged in fraudulent concealment because they have done nothing to conceal the Vega Affidavit and the prior litigation against them is public knowledge.3 However, plaintiffs claim the Vega Affidavit was not available on PACER until this lawsuit was filed, nor is there any reference on the Caprino v. Cohen & Slamowitz docket that would provide a consumer with knowledge of the Vega Affidavit's contents. Plaintiffs argue they had no reason to suspect that the Midlantic affidavits were fraudulent and could not have discovered such information until they became aware of the Vega Affidavit in 2010. Thus, they could not have discovered, even upon reasonable exercise of diligence, that the affidavits were false and improper. By continuing to enforce the collections actions based on those affidavits, defendants intentionally kept plaintiffs ignorant of information essential to the pursuit of their claims.

Plaintiffs have sufficiently alleged that defendants were on notice that any default judgments based on the Midlantic affidavits were potentially fraudulent as of 2006. They have also plausibly alleged that by failing to investigate the fraudulent practices of its process service company and continuing to enforce those judgments, defendants violated the FDCPA and concealed that violation in the process.  In addition to showing that defendants concealed plaintiffs' cause of action, plaintiffs must also show that their continuing ignorance was not due to a lack of diligence. Plaintiffs argue that because they had no way of knowing that the Midlantic affidavits were falsified, they could not have engaged in due diligence until they became aware of the Vega Affidavit after meeting with counsel in 2010.  Defendants argue that plaintiffs could have learned of their injury if they had inquired into whether any default judgments had been entered against them prior to 2010. This argument does not reflect the practices of a reasonably diligent consumer. See, e.g., Thompson v. Metro. Life Ins. Co., 149 F. Supp. 2d 38, 52 (S.D.N.Y. 2001) (media coverage and prior lawsuits are not sufficient to establish that plaintiffs should have known of their injuries).  Plaintiffs allege that neither the Vega Affidavit nor any other public disclosure of Midlantic's fraudulent practices were available on the court's electronic databases until the commencement of this action. Thus, no amount of diligence, even with knowledge of the default judgments and supporting affidavits of service, would reveal the FDCPA violations alleged in the complaint.  Because the purpose of a motion to dismiss is merely to assess the legal sufficiency of the complaint, the Court will not weigh the factual evidence at this time. The complaint contains specific allegations that defendants were on notice of the falsity of the Midlantic affidavits and continued to enforce those collections actions despite this knowledge. Plaintiffs have thus plausibly alleged a violation of the FDCPA. Because plaintiffs have also alleged that defendants' conduct concealed plaintiffs' cause of action, equitable tolling applies and dismissal is unwarranted.

CONCLUSION-  For the foregoing reasons, the Court DENIES defendants' motion to dismiss the complaint (Doc. #9).  The Clerk is instructed to terminate this motion.

  • 1. Plaintiffs Milagros and Dennis Harper do not allege that C&S affirmatively cited Midlantic affidavits in relation to their collections actions.
  • 2. Claims of fraudulent concealment are subject to the requirements of Rule 9(b), which provides that plaintiffs claiming fraud must allege the fraud or mistake with particularity. Fed. R. Civ. P. 9(b). Plaintiffs' complaint contains detailed allegations of defendants' fraud sufficient to satisfy the pleading standards of that rule.
  • 3. Defendants do not argue that plaintiffs' claims are identical to those asserted by the plaintiffs in Caprino v. Cohen & Slamowitz. Thus, they do not argue that plaintiffs were on inquiry notice as of the filing of that suit and the Court will not address that argument. See Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 381 F. Supp. 2d 334, 337-39 (S.D.N.Y. 2005).

Friday, November 18, 2011

New York Family Courts Say Keep Out, Despite Order

New York Family Courts Say Keep Out, Despite Order
The New York Times by William Glaberson  -  November 17, 2011

New York State’s Family Courts were ordered to be opened to the public with much fanfare in 1997, supposedly allowing anyone to witness the cases of domestic violence, foster care and child neglect that inch through by the hundreds of thousands every year. But now, 14 years later, the Family Courts remain essentially, almost defiantly, closed to the general public.  Recent visits to the courts across New York City revealed officials and security officers routinely disregarding the open-courts rule in ways both large and small, direct and implied, insistent and even hostile.  Some courtrooms were locked, and many were marked with “stop” and “do not enter” signs. Court officers stationed at courtroom doors repeatedly barred a visitor, sometimes with sarcasm or ridicule, frequently demanding to know who he was and what he was doing. Armed court officers at times appeared so rattled by a visitor’s efforts to enter courtrooms that, in several instances, a group of them nervously confronted the visitor, their holsters in easy reach.  On the fifth floor of Family Court in Downtown Brooklyn, where people waited in bleak assembly areas for their cases to be called, an officer was asked whether a member of the public could attend — as is permitted in other New York courts. “Not allowed, not in Family Court,” he said flatly. Outside Judge Susan Larabee’s courtroom in Manhattan Family Court, an officer flashed his badge and said disdainfully, “You don’t just walk in.” In Staten Island Family Court, three officers challenged a visitor even as they stood beneath a sign that took official note of the 1997 rule:  “The court is open to the public.”

During one week in particular, a reporter tried to enter 40 courtrooms in the city’s five Family Courts as a member of the public or a civic group monitoring the courts would. Entry was permitted to only five of the courtrooms, some where no case was under way — a closing rate of nearly 90 percent. In those cases, the reporter did not identify himself. In other instances, officials insisted that, even for reporters, free access to courtrooms was not permitted.  In Brooklyn, a judge, Michael Katz, was quickly alerted to a visitor who had managed to slip briefly into a seat. “These proceedings are generally confidential,” the judge said.  But they are not, according to the law.  On Thursday, Edwina G. Richardson-Mendelson, the administrative judge of the New York City Family Courts, was told of the many blocked attempts to enter courtrooms. She said she was troubled to hear that courts around the city had not been open and said she planned a review. It was an opinion echoed by several other court officials apprised of the reporter’s efforts.  “We don’t have policies or rules for them to be ignored,” Judge Richardson-Mendelson said. “We’re a court of law, and law matters.”  American legal principles have long favored open courts as a check on government, and New York law has specifically said for more than a century that “the sittings of every court within the state shall be public.”  But by 1997, the Family Courts had been closed for decades, with rare exceptions. Critics said the chaos of the courts was amplified by their secrecy — a veil that had grown over the years with the support of many of the courts’ judges, lawyers and social-agency representatives. Closed courtrooms, critics argued, kept hidden the courts’ struggles, as well as the sometimes controversial ways they dealt with those who ended up in the resource-starved system plagued by delays.

Citing a need for accountability, the officials who issued the open-courts rule presented it as the centerpiece of an effort to reform Family Courts that were perennially in crisis. The rule was announced by Judith S. Kaye, the state’s chief judge at the time, and the chief administrative judge, Jonathan Lippman, now the chief judge. It stated bluntly, “The Family Court is open to the public,” and assured access to all courtrooms, lobbies and waiting areas. The only exceptions were to be after “case-by-case” decisions by judges after the presentation of “supporting evidence,” like a “compelling” privacy concern.  Not everyone wanted the courts open. Some judges and lawyers argued that Family Court should routinely shield the privacy of families in crisis and young people, including those charged with what would be criminal acts if they were adults.  Today, the culture of secrecy has hardly budged. Leah A. Hill, a Fordham Law School professor who has written about and practiced in New York Family Courts, said the courts were largely as unaccountable today as they had ever been, even though they can hold a central place in the lives of poor New Yorkers.  “There hasn’t really been a public discourse about what goes on in Family Court, and part of the reason is that it is a closed institution,” Professor Hill said.  Several lawyers who practice in the Family Courts said they had generally been opened only for the rare cases that drew wide public interest.

“The courtroom is pretty much closed,” said Susan Jacobs, the executive director of the Center for Family Representation, which has lawyers who handle cases in Manhattan and Queens. She said visitors would be shocked if they saw some of the routine proceedings in Family Court, like one in which, she said, the final decision to permanently strip a mother of her rights to her children took seven minutes.  The reporter’s recent visits were only to Family Courts in the five boroughs. But over the last year, the Fund for Modern Courts, a court-reform advocacy group, has suggested in two reports that Family Courts statewide may also have routinely ignored the open-courts rule.  The Modern Courts group sent court monitors to Family Courts in Suffolk County on Long Island and Washington County in northern New York. In both cases, they found the public was not often welcome.  “The public has a right to know how courts deal with children and families,” one of the group’s reports said. “It is no longer discretionary when closing the courtroom to the public is done 100 percent of the time.”  The reporter who made recent visits in New York City often declined to identify himself. But even when he identified himself as a reporter, there were difficulties. At the gray Family Court building on Sheridan Avenue in the Bronx, a large sign did not seem to allow for public access: “Only persons having official business will be admitted.”  Inside, hundreds of people milled about in dark waiting rooms watched over by uniformed officers and lined by closed courtroom doors. Babies cried. Case names were shouted.  In her courtroom, Judge Carol Sherman immediately called the reporter to the bench and said he had to present his credentials to the court clerk on another floor. An hour later, the first deputy clerk, Nicholas Rapallo, said he had to get approval from the office of the state’s chief administrative judge. When that was granted, Mr. Rapallo first instructed that access was allowed only to Judge Sherman’s courtroom. After another wait, he authorized entry to other courtrooms but said, “You have to let it be known who you are.”

During the week that the reporter tried to enter courtrooms as a member of the public would, some officials and officers were antagonistic, with several saying explicitly that court policy was that the public was excluded.  In Queens, a uniformed captain, who declined to give his full name, mocked a visitor who presented a copy of the open-court rule. “The rule here is different,” the man, Captain Beneri, said. “I know the rule a little better than you do.”  On Staten Island, after the confrontation with the three officers, the visitor was directed to wait for the chief court clerk, William J. Quirk, to ask for permission. An hour and 20 minutes later, Mr. Quirk appeared at the clerk’s window. He seemed startled when the visitor said he wanted to watch court proceedings.  “You have to answer my questions,” Mr. Quirk shouted after a brief conversation, saying, “The court is not public in the sense that you just walk in.”  The reporter’s visits occurred early this month and late last month. On Thursday, judges and officials in some of the courts, including some of those who had barred entry, were asked for comment. Several of them acknowledged errors or misunderstandings of the open-courts policy.   Monica Drinane, the supervising judge of Bronx Family Court, said she had in response sent judges a new copy of a two-year-old memorandum reminding them that the court was to be open.  Carol Stokinger, the supervising judge of Queens Family Court, said staff members had been wrong in claiming a member of the public could not observe judicial proceedings. Fourteen years after the announcement that New York’s Family Courts were open to the public, she was asked why there still seemed to be resistance to the idea. “I think it’s a culture that has to be changed,” she said.

Thursday, November 17, 2011

Mumbo Jumbo Over, Focus Finally on Corruption Again

Bruno trials continue
U.S. prosecutors will seek a second indictment alleging the ex-state Senate majority leader took illegal kickbacks
The Albany Times Union by Brendan J. Lyons  -  November 16, 2011

ALBANY, NY -- The Justice Department will seek a new indictment of former state Senate Majority Leader Joseph L. Bruno after a federal appeals court on Wednesday rejected Bruno's request that he not face a second trial.  The 2nd U.S. Circuit Court of Appeals, citing a U.S. Supreme Court ruling made last year, vacated Bruno's conviction on two counts of theft of honest services. But the panel of judges, pointing to the strength of the evidence, said the government may prosecute Bruno on allegations he received kickbacks from people who had an interest in his legislative influence.  In a statement issued Wednesday afternoon, U.S. Attorney Richard Hartunian of New York's Northern District said his office would swiftly seek a second grand jury indictment. That's expected to take place early next year.  A federal jury convicted Bruno in 2009 on two felonies related to his dealings with a Loudonville businessman, Jared E. Abbruzzese. Bruno's use of private jets supplied by Abbruzzese, who flew the senator to Kentucky horse country and exclusive Florida golf resorts, triggered the FBI investigation in late 2005.

Federal prosecutors had already conceded Bruno's conviction should be vacated under the U.S. Supreme Court's decision that said a federal honest services prosecution must include allegations of a bribe or kickback. Prosecutors had charged Bruno only with failing to publicly disclose material conflicts of interest between his Senate duties and private business interests.  The Justice Department did not oppose vacating Bruno's conviction but they argued he should face a new trial because their evidence was strong enough to support a conviction under the new standards set by the Supreme Court. The 2nd Circuit agreed in a unanimous decision.  Bruno's defense lawyers had argued before and after Bruno's trial that the Supreme Court ruling would unravel his conviction. They were right, but their assertion that it would be unfair for Bruno to face a new trial was shot down Wednesday.  Bruno's attorneys, Abbe D. Lowell and William Dreyer, said the court "had to agree with favorable inferences of the government's case -- but a jury hearing real evidence is a whole different and much more difficult test."  "We hope the U.S. Attorney will now let go of its pursuit of this 82-year-old man who has given so much to New York state and suffered for six years under wrongful charges," they said.  The government now has six months to seek a new indictment. Bruno's case was on appeal so the five-year statute of limitations for prosecuting his alleged crimes is tethered to the date of his January 2009 indictment, as long as he's indicted within six months.  The outcome of Wednesday's ruling had been proposed by federal prosecutors in an October 2010 letter to Bruno's defense team. That month, the Justice Department said they would not oppose vacating Bruno's conviction if Bruno agreed to a new trial. He rejected the idea and pursued an appeal. "The government's evidence would permit a reasonable jury to find that Bruno performed virtually non-existent consulting work for substantial payments," states the ruling, handed down Wednesday. "Bruno argues that the government failed to provide sufficient proof of a quid pro quo, an essential element of a bribery theory of honest services fraud. We disagree."  The jury concluded Bruno, who was Abbruzzese's horse-breeding partner, failed to disclose that he was on Abbruzzese's payroll as a "consultant" when Bruno steered $250,000 in state grants to a private company, Evident Technologies, bankrolled by Abbruzzese.  Bruno then accepted $200,000 in payments from two companies controlled by Abbruzzese, Communication Technology Advisors, LLC, and Capital & Technology Advisors, LLC.  Bruno's consulting company, Capital Business Consultants, existed primarily on paper and much of the firm's work was done from Bruno's Senate offices by state employees, including Senate lawyers and Bruno's secretaries.

"(T)he government's evidence showed that Bruno attempted to cover up the extent of his relationship with Abbruzzese, including the exorbitant consulting fees that Bruno was receiving from his companies," the ruling states. "Furthermore, when asked by (a Senate lawyer) whether Abbruzzese had any business before New York state, Bruno replied that he was not aware of any even though Bruno knew Abbruzzese was seeking funding on behalf of Evident."  The second conviction stemmed from Bruno's dealings in an undisclosed horse-breeding partnership with Abbruzzese and Jerry Bilinski, a Columbia County veterinarian. Abbruzzese conceded on the witness stand at Bruno's trial that he agreed to pay Bruno $80,000 for a horse the government characterized as "virtually worthless."  The payment, Abbruzzese said, was intended as his "global solution" to the fact a telecommunications company once controlled by Abbruzzese, TerreStar Networks, had terminated a $20,000-a-month consulting contract with Bruno after executives questioned whether Bruno was doing anything to earn the money. The early termination cost Bruno $80,000. Abbruzzese admitted he bought the overpriced horse to make up the difference, and at a time when he was seeking the state's NYRA franchise.  The horse was later given away for free to a child in Florida.

Prosecutors have argued that while they did not charge Bruno with receiving a bribe or kickback, they proved it. They said the evidence at his first trial two years ago would support a second conviction under the Supreme Court's decision.  Wednesday's unanimous ruling states "there is sufficient evidence of a quid pro quo for a reasonable jury to convict Bruno."  Bruno, 82, of Brunswick, was a state senator for more than three decades and Senate majority leader for 13 years before stepping down in 2008 as an FBI investigation of his private business dealings intensified.  A jury acquitted Bruno on five counts and reached no verdict on another. He was sentenced last year to 24 months in prison but U.S. District Judge Gary L. Sharpe stayed the punishment pending the outcome of Bruno's appeal.  If Bruno faces a new trial the government's case will stay within the framework of the two counts on which he was convicted and the third count that resulted in no verdict. The jury deadlocked on a charge alleging Bruno was paid $468,000 in consulting fees from a Westchester County businessman, Leonard J. Fassler, who was seeking state government contracts for his telecommunications companies.  Bruno was acquitted of the top count in the indictment, which centered on his receipt of $1.37 million from Wright Investors' Service and another $632,116 from an Albany investment banker. Wright, a Connecticut investment firm, had won hundreds of millions of dollars of pension investments from New York labor union leaders and fiduciaries who were solicited with Bruno's help.  Two prominent area attorneys who have been staunch supporters of Bruno, Stephen Coffey and E. Stewart Jones Jr., held a news conference Wednesday to criticize the government's decision to move forward in its prosecution of the Brunswick Republican, who was once one of New York's most powerful lawmakers.  "The right thing is to move on," Jones said. "Allow this man who has done so much to enjoy his life."  They said Bruno is financially drained now faces the prospect of a second trial.  "He's told me emphatically 'I'm not guilty ... and I will defend myself until the day I die,'" Coffey said. "Is it really moral to force him to walk the plank?"  Reach Lyons at 454-5547 or by e-mail at blyons@timesunion.com.

  • December 2005: FBI opens investigation of Joseph L. Bruno related to his use of private jets
  • June 2008: Bruno resigns from the state Senate as probe intensifies into his public duties/private dealings
  • January 2009: Federal grand jury indicts Bruno on eight counts of honest services fraud
  • December 2009: Bruno convicted of two felonies, pledges to appeal
  • June 2010: U.S. Supreme Court revamps honest services statute in ruling on former Enron CEO Jeff Skilling. Court finds bribery and kickback must be part of honest services prosecution.  November 16, 2011: U.S. Second Circuit Court of Appeals grants government's request to seek a new indictment against Bruno. Bruno's conviction is vacated.

-----RELATED STORY:

Appeals Court Allows New Trial for Bruno
The New York Times by William Glaberson  -  November 16, 2011

A federal appeals court on Wednesday overturned, as was expected, the corruption conviction of Joseph L. Bruno, the upstate Republican who was once one of the most powerful men in New York State government.  But the three-judge court rejected Mr. Bruno’s effort to avoid a new trial on charges that he committed fraud by taking bribes or kickbacks totaling at least $240,000 from a businessman seeking his help in the Legislature. Mr. Bruno, who had been the Republican majority leader in the State Senate, resigned in 2008 while he was under investigation.  Federal prosecutors conceded during his appeal that his 2009 conviction should be overturned because of a ruling last year by the United States Supreme Court that undermined the government’s legal claims against him.

But the federal prosecutors in Albany have long said that they planned to retry Mr. Bruno, and they said Wednesday that they would seek a new indictment. In its unanimous ruling, a panel of the United States Court of Appeals for the Second Circuit, in New York, rebuffed Mr. Bruno’s claim that a new trial would violate his right to avoid double jeopardy.  In unvarnished language, the panel said the prosecutors had presented evidence from which a new jury could conclude that Mr. Bruno violated a federal law that makes it a crime to deprive people of “honest services.”  “The government’s evidence,” the ruling said, “would permit a reasonable jury to find that Bruno performed virtually nonexistent consulting work for substantial payments” and “attempted to cover up” his dealings.  The court said a new jury could conclude, for example, that one $40,000 payment was “an illegitimate gift” disguised as payment for a racehorse, Christy’s Night Out, that was not worth much.  Mr. Bruno has insisted that the case reflected nothing more than the fact that New York’s legislators often have other jobs. But the case was widely seen as a test of whether the courts could limit what have often been seen as lax ethical standards in Albany. The case highlighted how Mr. Bruno mixed private and government duties and, the appeals court said, showed that he used state employees to help him collect “exorbitant consulting fees.”  Mr. Bruno was sentenced to two years, but he has remained free during the appeal.  In a statement on Wednesday, Mr. Bruno’s lawyer, Abbe David Lowell, asserted that he and Mr. Bruno were “delighted” that the court had agreed Mr. Bruno “was charged with something that was not a crime.”  But the statement also appeared to seek negotiations with federal prosecutors to try to bring an end to the case. “We hope,” the statement said, “the U.S. attorney will now let go of its pursuit of this 82-year-old man who has given so much to New York State and suffered for six years under wrongful charges.”  In their initial case, the federal prosecutors charged that Mr. Bruno committed fraud by failing to disclose conflicts of interest when he took money in exchange for help on government matters.  But in a decision on an unrelated case in 2010, the Supreme Court ruled that the federal honest-services law could not be used to prosecute defendants for hiding conflicts of interest. The court left open, however, the possibility of prosecution based on kickbacks and bribery.  The decision on Mr. Bruno’s case was written by Circuit Judge Barrington D. Parker, and was joined in by Circuit Judge Denny Chin and District Judge Edward R. Korman, who was sitting on the panel by designation.

-----RELATED STORY:
Bruno Faces Retrial After Panel Vacates Corruption Convictions
The New York Law Journal by Mark Hamblett  -  November 17, 2011

Former New York State Senate Majority Leader Joseph L. Bruno is entitled to a retrial on political corruption charges following a decision yesterday by the U.S. Court of Appeals for the Second Circuit.  As expected in light of the U.S. Supreme Court's 2010 decision in United States v. Skilling, 130 S.Ct. 2896 (2010), the circuit vacated two convictions for theft of honest services delivered by a federal jury in Albany in 2009, convictions based on Mr. Bruno's failure to disclose alleged conflicts of interest.  But the court's unanimous ruling did not leave the former Republican leader off the hook, as it found there was sufficient evidence for the government to try Mr. Bruno on an honest services theory alleging actual bribery or kickbacks. The panel also held that Mr. Bruno can be retried on a single count of honest services fraud on which the jury was hung and Northern District Judge Gary L. Sharpe declared a mistrial.  "We are delighted that the court of appeals agreed with us that Senator Bruno was charged with something that was not a crime and his case has to be dismissed," Mr. Bruno's attorneys, Abbe D. Lowell of Chadbourne & Parke and William Dreyer of Dreyer Boyajian, said in a statement.  They added, "We hope the U.S. attorney will now let go of its pursuit of this 82-year-old man who has given so much to New York state and suffered for six years under wrongful charges."

However, Northern District U.S. Attorney Richard S. Hartunian said in a statement that his office would move "expeditiously" to present a superseding indictment against Mr. Bruno.  In Skilling, the Supreme Court held that the honest services statute, 18 U.S.C. §1346, criminalizes only fraudulent schemes involving bribes or kickbacks, not the failure to disclose conflicts of interest.  Mr. Bruno was convicted on Count Four of an eight-count indictment of accepting $200,000 disguised as payments for consulting services from his friend and close business associate, Jared E. Abbruzzese, who then received favorable treatment from the state government for his companies.  He was also convicted on Count Eight of disguising that he had accepted a $40,000 payment from Mr. Abbruzzese for a horse, Christy's Night Out, a payment that the jury found was an illegitimate gift.  Citing the acknowledgment by the government that Skilling changed the legal landscape, the Second Circuit vacated the two convictions, but rejected Mr. Bruno's claim under the double jeopardy clause.  "Although we hold that Skilling requires us to vacate the convictions on Counts Four and Eight, because our review of the record convinces us that the government adduced sufficient evidence under the Skilling standard, double jeopardy does not bar retrial on those two counts," Judge Barrington D. Parker (See Profile) wrote for the panel in United States v. Bruno, 10-1885.  The court's 21-page decision follows oral arguments held on June 17 before Judges Parker and Denny Chin (See Profile) and, sitting by designation, Eastern District Judge Edward R. Korman (See Profile) (NYLJ, June 20).  At the trial of Mr. Bruno, who served as state Senate majority leader from 1995 to 2008, prosecutors argued that the veteran politician enriched himself to the tune of some $3.2 million from 1993 through 2006 through income as a consultant.  The defense claimed that Mr. Bruno's disclosure forms had been thoroughly vetted by Senate attorneys because Mr. Bruno insisted on full disclosure of his business dealings outside the Senate. Moreover, it contended that, with state legislator being a part-time job, he was entitled to earn income outside the Senate.  The trial ended on Dec. 7, 2009, with the jury, after seven days of deliberation, deciding to convict Mr. Bruno on the two counts, acquit him of five counts and deadlocking on the single count of theft of honest services. He declined to testify at trial (NYLJ, Dec. 8, 2009).  Mr. Bruno was unapologetic as he was sentenced to two years in prison by Judge Sharpe on May 6, 2010, telling reporters afterward, "I am proud of my public service, and I don't believe that I have anything to apologize for" (NYLJ, May 7, 2010).  Given the pending Skilling case before the Supreme Court, Judge Sharpe allowed him to remain free on bail pending appeal.

Incorrect Jury Instructions

Yesterday, in light of Skilling, Judge Parker said, Judge Sharpe erred in his jury instructions.  Judge Sharpe had told the jury that Mr. Bruno was accused of committing honest services wire fraud by failing to disclose material conflicts of interest, and a conflict exists when the public's interest "in the proper administration of the official's office" and "the official's interest in his private economic affairs…clash or appear to clash."  Judge Sharpe's failure to require the jury to find that Mr. Bruno accepted bribes or kickbacks was the error, Judge Parker said.  The government, he said, now contends "the indictment can also be read as charging a bribery or kickback theory."  Judge Parker said that "it would be preferable and fairer, of course, for the government to proceed on explicit rather than implicit charges."  In arguing he was facing double jeopardy, Mr. Bruno told the Second Circuit that the court must review the sufficiency of the evidence under Skilling. The government countered that there should be no review of the sufficiency of the evidence where there is an intervening change in the law.  Mr. Bruno had argued the whole case was built on the honest services fraud as applied to conflict of interest, and as invalidated by Skilling, so he was entitled to a judgment of acquittal if there was insufficient evidence in the record to support conviction on bribery or kickback honest services fraud that Skilling required, even though it was not charged in the indictment.  "This distinction is important because although we have previously held that sufficiency of the evidence review is appropriate when a conviction has been reversed for trial error," Judge Parker said, "we have not previously considered whether such a review is appropriate where, as here, the error is due to an intervening change in the law."  In the end, the circuit decided it was appropriate "to accept Bruno's invitation to evaluate the sufficiency of the evidence."  Mr. Bruno had argued prosecutors had failed to present proof of a quid pro quo that is necessary to win a conviction on a bribery theory of honest services fraud.  The panel disagreed.  On the count involving the $200,000 payment, Judge Parker said, "the government's evidence would permit a reasonable jury to find that Bruno performed virtually non-existent consulting work for substantial payments."  Second, a jury could find the government's "evidence showed that Bruno attempted to cover up the extent of his relationship with Abbruzzese, including the exorbitant consulting fees that Bruno was receiving from his companies."  On the payment for the horse, Judge Parker said that "a jury could find that Abbruzzese's $40,000 payment for Christy's Night Out was an illegitimate gift disguised as a horse payment" and "the government provided credible evidence that the horse was not worth anything like the $80,000 that Abbruzzese promised Bruno or the $40,000 that Abbruzzese ultimately paid."  Northern District Assistant U.S. Attorney Elizabeth Coombe argued for the government.  Mark Hamblett can be contacted at mhamblett@alm.com.

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
         
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2