One of five people found guilty last month of aiding Bernard Madoff’s $17.5 billion Ponzi scheme asked the judge in the case for an acquittal or a new trial, citing a lack of evidence and flawed jury deliberations.
The jury, which deliberated for a total of about three days after a trial that lasted more than five months, wasn’t thorough or objective, and was swayed by a prosecutor’s “inflammatory and improper remarks” during questioning of witnesses, Jerome O’Hara, 51, a former computer programmer for Madoff’s securities firm, said in a filing today in Manhattan federal court.
“It is difficult to imagine how, in no more than three full days’ time, the jurors could have been able to thoroughly review and carefully consider the specific exhibits and transcripts they requested –- let alone all the evidence in this case presented over five months,” O’Hara’s lawyer, Gordon Mehler, wrote in the filing.
An 11-person jury on March 24 found the five former colleagues guilty on all counts, including claims they conspired to create fake trade confirmations and false customer account statements for thousands of clients of Madoff’s investment advisory unit. No trading took place in the business.
Hatched in the 1970s, Madoff’s fraud targeted thousands of wealthy investors, Jewish charities, celebrities and retirees. It unraveled in 2008 when the economic crisis led to more withdrawals than Madoff could afford to pay. In addition to $17.5 billion in principal, the scheme erased about $47 billion in fake profit that customers thought was being held in their accounts.
O’Hara, hired by Madoff in 1990, was also tainted by the actions of his co-defendants, who worked at the firm for decades longer and had direct contact with customers, according to the filing. Mehler lost a bid to have O’Hara tried separately.
The length of deliberations in the case gave the jury about 20 minutes for each individual decision on each claim for each defendant, Mehler said. Some of the jurors’ comments to the press suggest the process was rushed and improperly influenced by “ethnic or socio-economic status,” he said.
Mehler complained that juror Nancy Goldberg told the New York Post after trial, “I’m Jewish, and I know a lot of the victims were Jewish, so I feel good about [the verdict],” according to the filing. Goldberg also told the Wall Street Journal the five defendants “deserved to be punished,” Mehler said, suggesting she hadn’t taken evidence into account.
The lawyer also complained that juror Craig Parise told Bloomberg News he would “like to get a beer” with the government’s key witness, Frank DiPascali, who was Madoff’s chief financial officer and pleaded guilty in the case. DiPascali was on the witness stand for more than two weeks.
“While it is impossible to know how the jury conducted its review or reached its conclusions, it appears likely that the jury applied a very broad brush in its deliberations, injected preconceived notions into the process, and did not objectively and thoroughly analyze the evidence individually as to each defendant,” Mehler said.
Prosecutors said O’Hara and fellow computer programmer George Perez, 48, who was also found guilty, extorted salary increases and higher bonuses from Madoff after discovering in 2006 that their skills were central to keeping the fraud going, at one point seeking payment in diamonds to keep quiet.
By contrast, Mehler described O’Hara as a “functionary” who was “expected to do what he was tasked to do; he was not in a position to discover all the relevant facts, much less analyze the details or understand their ramifications,” according to the filing.
“At most, what he was able to understand made him ‘uncomfortable,’” Mehler said of O’Hara.
Jerika Richardson, a spokeswoman for Manhattan U.S. Attorney Preet Bharara, declined to comment on O’Hara’s motion.
The other defendants are Annette Bongiorno, 66, who ran the investment advisory unit at the center of the fraud; Joann Crupi, 53, who managed large accounts; and Daniel Bonventre, 67, the ex-operations chief of Madoff’s broker-dealer.
Madoff’s fraud was already in “full swing” by the time O’Hara joined the firm, and the computer code he worked with to provide documents required for audits was developed in the 1970s and 1980s, before he worked there, according to the filing.
Witness testimony during the trial showed that neither O’Hara nor Perez attended high-level meetings with Madoff regarding how to respond to U.S. Securities and Exchange Commission audits in the 2000s that were focal points of the trial, according to the filing.
DiPascali and Madoff’s former controller, Enrica Cotellessa-Pitz, who also pleaded guilty in the case and agreed to cooperate, testified they kept the programmers in the dark about meetings where the fraud was discussed and didn’t share the details with the men, Mehler said in the filing.
“Mr. DiPascali testified on direct that he did not tell the truth to Mr. O’Hara and Mr. Perez when he enlisted their help in creating the computer programs needed to produce the records that were sent to the SEC,” Mehler said.
The prosecutors also gave jurors a “warped and misleading” perspective on how the fraud could have lasted so long, improperly suggesting O’Hara’s salary and bonus were somehow proof that he was in on the scheme, according to the filing.
“If anyone got rich from the Madoff fraud, it was the Madoff family and Madoff’s inner circle of extremely wealthy investors, not Mr. O’Hara,” Mehler said.
The case is U.S. v. O’Hara, 10-cr-00228, U.S. District Court, Southern District of New York (Manhattan).
To contact the reporter on this story: Erik Larson in New York at email@example.com