Federal prosecutors appear to be indictment shopping in an effort to jail former New York City Police Commissioner and Bush Homeland Security nominee Bernard Kerik.
On Tuesday, the Justice Dept. announced it had successfully won an indictment – its third so far -- against the noted lawman – this time in a Washington, D.C. federal court, after similar indictments had failed to stick in New York.
Kerik was police commissioner under Mayor Rudolph Giuliani from August 2000 until December 2001, and won plaudits for his handling of the 9/11 terrorist attacks.
President George W. Bush nominated Kerik as homeland security in December 2004, but Kerik withdrew his nomination one week later, saying he had unknowingly employed an undocumented alien as a nanny.
Nevertheless, his nomination opened a Pandora’s box of problems.
Prosecutors began looking at a well-publicized incident involving renovations conducted on Kerik’s Bronx residence by a contractor who had done business with the city.
Though there was no evidence Kerik had sought to get free contracting services, in 2006 he agreed he had engaged in ethics violations and admitted to two misdemeanor charges after an investigation by the Bronx District Attorney's Office. He was ordered to pay $221,000.
During these proceedings, the assistant Bronx district attorney said that “although some may draw inferences from this plea, there is no direct evidence of an agreement between Kerik and the New Jersey construction firm."
Though the matter typically would have ended at the local level, federal prosecutors used the evidence from the local probe, and in November 2007 Kerik was indicted by a federal grand jury in New York on charges including wire fraud, mail fraud and making false statements.
Despite the indictment, federal prosecutors have been stymied as the judge overseeing the case has dismissed key charges and questioned the handling of the case by the Justice Department’s Southern District of New York office.
In March, Kerik won a victory when federal Judge Stephen Robinson cited the statute of limitations in dismissing a wire-fraud charge linked to Kerik’s alleged efforts to secure government work for the firm that provided renovations to his Bronx apartment.
Also in March, Robinson dismissed the charge that Kerik had lied to the White House when he denied having any secrets that could embarrass him or President Bush.
The judge also stated that at least two of the questions posed to Kerik at the time were too ambiguous for the answers to constitute deceit.
He also ordered that tax-fraud charges against Kerik would be tried separately from corruption charges.
In another ruling in May, Robinson found, among other things, that prosecutors improperly lumped the allegations into Kerik’s pending New York corruption case by indicting him on “a laundry list” of illegal schemes and false statements over the span of eight years.
“The lone common link is Kerik himself, like an unpleasant episode of ‘This is Your Life,’” the judge wrote in a scathing ruling criticizing federal prosecutors at that time.
The judge’s move apparently angered the federal prosecutors who decided to open up a new indictment against Kerik in Washington, including charging him with crimes already dismissed by Judge Robinson.
Kerik’s attorney Barry H. Berke, a partner in the prestigious New York firm of Kramer Levin Naftalis & Frankel LLP, told Newsmax Tuesday night in a phone interview that the latest government tactic was disappointing and upsetting in light of the earlier successes in partially derailing the federal prosecution juggernaut.
“We had a number of charges dismissed for venue issues and a lot severed,” Berke told Newsmax. “These are essentially the same allegations.”
Berke went on to lambast the apparent federal forum shopping.
“Today’s indictment of Mr. Kerik -- the third separate prosecution against him arising out of the same purported corruption allegations from 10 years ago -- is the latest example of the Department of Justice’s overzealous pursuit of high-profile public figures,” Berke said.
“Mr. Kerik looks forward to finally clearing his name of these corruption charges at his federal trial in New York set for October. The Justice Department’s own rules mandate that ‘the government bring as few charges as are necessary to ensure that justice is done.’
“The government has instead decided to take a third bite at the apple in Washington, apparently not confident in its ability to win the case in New York, which includes virtually identical charges,” he added.
“However many trials it takes, Mr. Kerik will vigorously defend himself against these unfounded accusations and is confident that he will be completely vindicated,” Berke concluded.
According to a CBS report, the new indictment charges that, among other things, Kerik: In 1999 and 2000 (when he was NYPD commissioner), spoke to city regulators on behalf of contractors who were seeking permits to do business in the city. Those same contractors then expended more than $255,000 renovating Kerik’s apartment in Riverdale. In 2004, when Kerik was being vetted by the White House for the Homeland Security position, he gave false and misleading answers to questions by White House officials about his dealings with the contractors. Kerik falsely denied that there was any basis for presidential concern about his relationship with the contractors. Kerik sent an e-mail to a White House official containing false and misleading statements concerning the renovations to the apartment in Riverdale.
But the unusual handling of Kerik’s case by federal prosecutors has drawn parallels to the recent acquittal of Republican Senator Ted Stevens of Alaska. Like Kerik, Stevens had been charged for not properly reporting renovations to his home residence.
In October, 2007 Stevens was found guilty of seven counts, including making misleading statements. In April 2009, federal judge Emmet G. Sullivan voided the verdict against Stevens and ordered a criminal probe of six prosecutors involved in the prosecution. The judge indicated the case was the worst case of prosecutorial misconduct he had witnessed.
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