This book was closed, some thought.A series of convictions — culminating in the recent prosecutions of former state Sen. Joe Bruno and former Assemblyman Anthony Seminerio — had finally cast light on Albany’s legislative underworld. Its most egregious players had faced justice. And new found federal scrutiny would surely deter those who would follow their unseemly path.
But a trio of cases before the U.S. Supreme Court could soon turn back the clock — setting the stage for pols like Bruno and Seminerio to escape the long prison terms that otherwise await them.
The court began hearing arguments against the government’s “honest services fraud” law last Tuesday. Enacted in 1988, the law criminalizes ethical lapses among public and private officials. Should the justices strike it down, thousands of white-collar offenders convicted under the statute, including Bruno and Seminerio, could be set free.
At question is whether the law adequately defines corruption by establishing a clear line between minor moral lapses and criminal activity. In the first of two hearings last week, the justices seemed to agree it did not.
“Perhaps there are 150 million workers in the United States,” Justice Stephen Breyer told government lawyers seeking to uphold the conviction of Conrad Black, a newspaper executive convicted of defrauding his company under the honest services statute. “I think possibly 140 [million] of them would flunk your test.”
The justices grilled U.S. Deputy Solicitor General Michael Dreeben during the hour-long hearing — asking him to explain how a number of hypothetical employees, including one who shirked his duty by going to a baseball game, depriving his boss of honest services, could avoid prosecution under the law.
But Dreeben could not answer, arguing only that bringing such frivolous charges against an individual would be unwise because a jury wouldn’t take them seriously.
“Now you see the problem? It may be you would never prosecute it. It may be a jury would never convict,” Breyer said. “But that isn’t the basis for having a statute that picks up 80 or 100 million people.”
With momentum seemingly building against the honest services law, lawyers are scrambling to prepare for repercussions should the statute be rejected.
“If the Supreme Court says this law is unconstitutional, anyone who is at any stage of their direct appeal, those folks are definitely going to win,” said Gino J. Singer, a Manhattan-based lawyer specializing in federal criminal law.
Singer said those who had waived their rights to appeal through a plea deal could technically still be held depending on the wording of the court’s decision — whether it was retroactive. Seminerio, who pleaded guilty to one count of honest services mail fraud earlier this year, may fall into that category if his sentence is delivered before a Supreme Court decision.
“The most interesting question here is if you’ve pleaded guilty with a waiver of appellate rights, but the statute you’ve pleaded under is found unconstitutional — is the waiver of your appellate rights unconstitutional? You might be the only person in jail, conceivably, on a statute that has been stricken down,” Singer said.
It was also unclear whether law enforcement officials could re-prosecute the honest services offenders should their sentences be vacated. According to Singer, charging someone for the same crime under a different statute could constitute double jeopardy, potentially barring repeat trials.
Seminerio, whose post-plea hearings were held in October, has not yet been sentenced. No decisions have been scheduled by the judge. It could not be confirmed whether sentencing was delayed pending a Supreme Court decision. He faces up to 14 years in prison.
Bruno was convicted on two counts of honest services mail fraud last Monday after a lengthy trial. The former senator faces up to 20 years in prison.
