April 16 (Bloomberg) -- Five ex-Bernard Madoff employees found guilty last month of aiding his $17.5 billion fraud asked the judge in the case for an acquittal or a new trial, alleging misconduct by prosecutors and a lack of evidence.
Jurors who deliberated for about three days after a trial that lasted more than five months were swayed by “inflammatory and improper remarks” by the government during opening and closing statements, Gordon Mehler, one of the defense lawyers, said in a filing yesterday in Manhattan federal court.
“In the face of the overwhelming evidence in this case, this argument is going nowhere,” Richard Scheff, a former prosecutor who wasn’t involved in the case, said of the claims in a phone interview. “It’s an act of desperation.”
The claims follow a sweeping victory for the government in the first criminal trial stemming from the biggest Ponzi scheme in U.S. history. The 11-person jury on March 24 found the five guilty on all counts, including conspiring to create fake trade confirmations and account statements for thousands of clients of Madoff’s investment advisory unit, where no trading took place.
The defense singled out Assistant U.S. Attorney Randall Jackson, who drew objections from lawyers for raising his voice and whose performance was later praised by some jurors.
“Mr. Jackson’s rebuttal summation contained a virtual laundry list of almost every impropriety and improper argument on which federal courts have granted new trials,” Larry Krantz, another defense lawyer, said in his court filing.
The defense lawyers have already said they will seek to overturn the convictions in a federal appeals court. The group, scheduled to be sentenced in July by U.S. District Judge Laura Taylor Swain, who oversaw the trial, face prison terms ranging from 58 years to about 200 years. They are free on bail and were ordered by Swain to wear electronic monitors.
The defendants are Annette Bongiorno, 66, who ran the investment advisory unit at the center of the fraud; Joann Crupi, 53, who managed large accounts; Daniel Bonventre, 67, the ex-operations chief of Madoff’s broker-dealer; and computer programmers George Perez, 48, and Jerome O’Hara, 51, accused of automating the scam as it grew rapidly in the 1990s.
Madoff, 75, who hatched the fraud in the 1970s, targeted thousands of wealthy investors, Jewish charities, celebrities and retirees. The scam unraveled in 2008 when the economic crisis led to more withdrawals than he could afford to pay. Madoff pleaded guilty in 2009 and is serving a 150-year term.
In the filings yesterday, lawyers accused Jackson and other prosecutors of intentionally going too far in the way they characterized the testimony and evidence in closing arguments, breaking rules to cement a victory.
“The government’s misconduct stems from the cynical decision that it is better to be in a position of defending a conviction from prosecutorial misconduct than run the risk of obtaining no conviction whatsoever,” Andrew Frisch, Bonventre’s attorney, said in his filing.
Krantz, Perez’s lawyer, accused Jackson of making false analogies in his closing arguments when he compared the group to drug dealers and the evidence against them to shell casings left behind by murderers. He also criticized Jackson’s comparison of the former colleagues to restaurant staff who served cat meat instead of the beef on the menu.
“This bizarre, violent and disturbing analogy was highly inflammatory, and it is nothing short of shocking that Mr. Jackson believed it to be appropriate at trial,” Krantz wrote. “Madoff Securities was not selling anything akin to cat burgers.”
Jackson was also being inflammatory when he compared Madoff to an imaginary “Bernie Claus” and the defendants to children who pretended to believe in him to get presents, Frisch wrote. He said Jackson evoked a “veiled innuendo” to Bonventre’s Italian-American heritage by making references to the behavior of criminals in the “The Godfather” and “The Sopranos.”
Jerika Richardson, a spokeswoman for Manhattan U.S. Attorney Preet Bharara, declined to comment on the motions.
Some of the defense lawyers attacked the jurors’ behavior, saying they weren’t thorough or objective because they reached their verdicts too quickly.
“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,” wrote Mehler, O’Hara’s lawyer.
The length of deliberations gave the jury about 20 minutes for a decision on each claim for each defendant, Mehler wrote. Some of the jurors’ comments to the media suggest the process was rushed and improperly influenced by “ethnic or socio-economic status,” he wrote.
One juror, Nancy Goldberg, told the New York Post after the trial, “I’m Jewish, and I know a lot of the victims were Jewish, so I feel good” about the verdict, according to the lawyer’s filing. Goldberg told the Wall Street Journal the defendants “deserved to be punished,” suggesting she hadn’t taken the evidence into account, Mehler wrote.
“While Ms. Goldberg’s comment seems a bit misplaced, it does not suggest that either she or the jury relied on evidence or information that was improper,” said Scheff. “I do not take her comment as meaning that she convicted the defendants because the victims of the crime were Jewish.”
Mehler wrote that juror Craig Parise told Bloomberg News he would “like to get a beer” with the government’s key witness, Frank DiPascali, Madoff’s chief financial officer, who pleaded guilty and testified 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 wrote.
The lawyers claimed the government failed to produce enough evidence against individual defendants, instead relying on Madoff’s reputation as a criminal and grouping the defendants together in broad statements.
Attorney Eric Breslin argued that the case against Crupi appears to be based on her role tracking the daily balance in a single account used to carry out the fraud, a few notes scrawled on a calendar and the word of DiPascali, whom the defense attorney described as a convicted perjurer and serial liar.
The prosecutors gave jurors a “warped and misleading” perspective on how the fraud could have lasted so long, improperly suggesting that O’Hara’s salary and bonus somehow proved he was in on the scheme, according to Mehler’s 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,” the lawyer wrote.
The case is U.S. v. O’Hara, 10-cr-00228, U.S. District Court, Southern District of New York (Manhattan).
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