Sharpe Bruno Sentencing

1
1 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
2 ---------------------------------------------
UNITED STATES OF AMERICA
3
4 -versus- 09-CR-29
5 JOSEPH L. BRUNO
6 Defendant.
---------------------------------------------
7
8 TRANSCRIPT OF SENTENCING *EXCERPT*
9 held in and for the United States District Court,
10 Northern District of New York, James T. Foley United
11 States Courthouse, 445 Broadway, Albany, New York,
12 on THURSDAY, MAY 6, 2010, the HON. GARY L. SHARPE,
13 United States District Court Judge, Presiding.
14
15 APPEARANCES:
16
17 FOR THE GOVERNMENT:
18 United States Attorneys Office - NDNY
19 BY: ELIZABETH C. COOMBE, AUSA
20 BY: WILLIAM C. PERICAK, AUSA
21 FOR THE DEFENDANT:
22 Dreyer, Boyajian Law Firm
23 BY: WILLIAM J. DREYER, ESQ.
24 BY: APRIL M. WILSON, ESQ.
25
BONNIE J. BUCKLEY, RPR, CRR
UNITED STATES COURT REPORTER - NDNY
2
UNITED STATES v BRUNO 09-CR-29
1 (In open court.)
2 (Excerpt.)
3 THE COURT: Thank you. As a businessman,
4 Mr. Bruno, you won't understand this as well as the lawyers
5 will, but there's a certain part of the sentencing advocacy
6 that has to do with the law. And when it has to do with the
7 law, then I need to make a legal ruling that doesn't cut to
8 the chase, which I will do. So while you're entitled to
9 hear this, ignore it because it really doesn't deal with the
10 issue of sentencing, but it deals with issues of fairness
11 and it deals, not just with you, but it deals with all the
12 defendants who have appeared before me in the past and all
13 the defendants who will appear before me in the future.
14 I have often said about the subject of
15 sentencing, regardless of what you think about me in that
16 regard, whether you think I'm too lenient, whether you think
17 I'm too harsh, whether you think I'm just right, every
18 defendant has a right to expect me to treat him equally with
19 everyone who appears before me. So there are some legal
20 issues that are before me that I need to resolve so that the
21 parties understand why I reach the point that I do in the
22 sentencing process. And that has to do with the advisory
23 guidelines and the scoring issues that were raised early on.
24 I have long said that -- I now have been in
25 this business 30 some years, so I go back to the days before

3
1 there were a set of Sentencing Guidelines and I practiced
2 and judged during the days when there were a set of
3 Sentencing Guidelines. The difficulty is -- what goes on
4 from state to state is none of my business as a federal
5 judge. What Texas elects to do, what New York elects to do,
6 Rhode Island, Massachusetts. That's why we are a republic.
7 We got 50 sets of governments out there that are free to do
8 what they do. But people who appear in the federal system,
9 that's a unified system, it should make no difference
10 whether or not you rob a bank in Texas or you rob a bank in
11 Albany. That sentence that same federal robber receives in
12 Texas should bear some semblance to the sentence that the
13 robber in Albany receives. Congress recognized that there
14 was an extraordinary disparity out there between federal
15 judges in one part of the country or another. And their
16 reaction to that was to reign in the discretion of those
17 federal judges. Not to tell them they could or could not do
18 anything in a given case, but to put some guidelines out
19 there to try and orchestrate some consistency and some
20 fundamental fairness with defendants. And that's what the
21 guidelines are all about. I feared four or five years ago
22 now, I lose track, I'm getting old as well, it might have
23 been three or four, or four and five, that when the Supreme
24 Court, you had the perfect marriage between the right and
25 the left and constant complaints by judges under the cloak

4
1 of Article 3, that when they declared those guidelines, as
2 written, unconstitutional, so that they are now advisory, we
3 would end up in freefall back to where we were in the early
4 '80s and before. And in my view, that's exactly where we've
5 ended up. So we're back to, it depends on what judge you
6 draw on the wheel and where in the country you draw him or
7 her. And that has a significant impact on the sentence that
8 is at issue. I refuse to go back to those days. I do. In
9 my view, as I said, whether you think me too light, whether
10 you think me too harsh, it's important for me to be
11 consistent across the spectrum and explain what I'm doing,
12 and I'm not afraid to do that, and make a judgment, I'm not
13 afraid to make one, look somebody in the eye and tell them
14 what I'm doing and why I'm doing it. So let me take up the
15 legality issue of the guidelines. And it's more complicated
16 here than it is in the ordinary case that I confront.
17 Everybody has merit to the arguments that
18 they're making about the guidelines and the way in which
19 they apply. Fundamentally, though, my decision about the
20 guidelines bears on the burden of proof and that distinction
21 I made about what has to be proved beyond a reasonable doubt
22 versus what has to be proved by a preponderance of the
23 evidence. And that's at the heart what drives my decision
24 about what set of guidelines applies. I understand the
25 argument that, vocally, before trial, in response to the

5
1 omnibus motions and at one point or another in the early
2 phases of the trial, the Government was advocating conflict
3 of interest, conflict of interest, conflict of interest. I
4 understand that. I also understood, because I was born at
5 night but not last night, precisely what they were doing
6 when I called them on it early on in the trial. I didn't
7 render that so-called -- I'm just going to call it that --
8 quid pro quo type evidence. I don't know that it meets
9 necessarily that absolute test, but I'll just use that for
10 phraseology's purposes. I understood what they were doing,
11 and all I was pointing out to them was that they were
12 opening a barn door to which I would then permit the defense
13 to respond if they went down that road. But if I thought
14 that evidence was irrelevant, I wouldn't have allowed it in
15 in the first place. So I pointed that out to them, they
16 went forward with that evidence, I admitted it because I
17 believed it was relevant, and then I in turn opened that
18 door and permitted the defense a good deal of latitude in
19 responding to that type of evidence. So the record is what
20 it is. But fundamental to the application of the
21 guidelines, regardless of the jury's view of the strength of
22 that evidence, in terms of whether it satisfied one element
23 or not of one charge or not -- and I'm mindful of the fact
24 that it doesn't just relate to the substantive charges in
25 the indictment, it also relates to the length, scope and

6
1 breath of the scheme to defraud. In other words, it relates
2 to many things other than just a particular mailing or a
3 particular use of the wires. I am persuaded that the way in
4 which Probation has calculated the Sentencing Guidelines and
5 the section they have used is correct because it's supported
6 by a preponderance of the credible evidence. And,
7 therefore, Mr. Bruno, who contends that 2C1.3 of the
8 guidelines which governs pure conflicts of interest should
9 control, the Court agrees with the Government that 2C1.1 is
10 the appropriate guideline to proceed under. As I've said,
11 as a threshold matter, the applicable 2009 version of the
12 guidelines which postdates the 2004 guideline amendments
13 positively dictates that 2C1.1 corresponds to the offense
14 Mr. Bruno was convicted of. I believe the guidelines direct
15 the application of 2C1.1 be applied to honest services mail
16 fraud, whether I look at the directions provided by the
17 general application principles under 1B1.1 and 1B1.2 or in
18 the statutory index of the appendix. And while 2C1.1 itself
19 refers to honest services mail fraud in its title, in its
20 commentary, and in its applicable statutory provisions and
21 background, 2C1.3 does not refer to honest services mail
22 fraud even once. Just as importantly, 2C1.1, not 2C1.3 best
23 accounts for the seriousness and scope of the crime for
24 which Mr. Bruno has been convicted, in light of my reliance
25 by a preponderance of the evidence on that evidence that

7
1 supports that conclusion. Therefore, the Government proved
2 that Mr. Bruno did more than failed to disclose a material
3 conflict of interest. The evidence demonstrates that
4 Mr. Bruno defrauded the People of New York of his honest
5 services by entering into contracts and agreements for which
6 he received personal compensation and benefits by
7 maintaining financial relationships with persons and
8 entities that had material business before and interests
9 being considered by the State's Legislature or agencies, and
10 by exploiting his official position for personal gain and
11 enrichment. A conclusion I know he disagrees with, as he
12 has vocally said here over the last hour or so. And then he
13 did not merely fail to disclose the existence of such
14 agreements, relationships, activities and exploits, but he
15 hid them by concealment, disguise and, in my view, fraud.
16 I, therefore, find that 2C1.1 is the most appropriate
17 section of the guidelines to calculate his sentence.
18 I understand the arguments to be made over
19 the dollar volumes as well.
20 Let me turn to another subject under the
21 guidelines and, again, before I get to the third part of the
22 analysis, which is the cogent part here. But, again, this
23 has to do exclusively with a legal conclusion about
24 departures under the advisory guidelines. As I said, a long
25 time ago now, at the very outset, I recognize that these

8
1 same arguments are pertinent to a 3553(a) analysis, which I
2 intend to take up. So currently I'm looking at them
3 exclusively for the purpose as to whether they warrant a
4 departure under the guidelines.
5 In that regard, Mr. Bruno argues under 5H1.5
6 that there should be a departure based upon his family ties
7 and responsibilities. I find that argument unpersuasive.
8 It's not that Mr. Bruno doesn't have family ties and
9 responsibilities. He does. It's that every criminal
10 defendant for the most part who has appeared before me in
11 the past and who will appear before me in the future has
12 similar family ties and circumstances or responsibilities.
13 And there is simply nothing unusual in this case about those
14 family ties and responsibilities that has warranted a
15 departure in the past, nor would it warrant a departure in
16 the future. So if I were to do it in this case, I would be
17 treating him specially, not in the same way I have treated
18 everyone else who has appeared before me.
19 He then argues under 5K2.0 of the advisory
20 guidelines that I should depart from those guidelines
21 because his conduct was aberrant. The difficulty I have
22 with that argument, again, is a legal proposition under the
23 guidelines is it's predicated on the notion that he has
24 lived an exemplary life for 81 years, together with
25 exemplary 32 years of public service. That focuses, in my

9
1 view, on the wrong time frame. Aberrant behavior as is
2 envisioned under 5K2.0 and as I have consistently applied it
3 in the past and will apply it in the future means that there
4 is an isolated episode of criminality that is
5 extraordinarily aberrant in terms of the length and breadth
6 and scope of a person's life and conduct. The problem with
7 this case is that the conduct I have credited by a
8 preponderance of the evidence is not isolated and aberrant.
9 Taking nothing more than the length and breadth of the
10 scheme to defraud and all of the conduct I have credited in
11 furtherance of that scheme, that's not isolated conduct
12 whatsoever. It's pervasive and persistent conduct. And,
13 therefore, it does not meet the legal test of aberrant
14 behavior.
15 He seeks a departure under 5H1.1 and 1.4 for
16 his age and medical condition. I understand his medical
17 condition, getting toward that age myself, those same kinds
18 of medical conditions I have, as does a hundred thousand
19 other people across the landscape in the United States.
20 There is nothing so unique about his medical condition that
21 can't be compensated for by proper medical care, nor nothing
22 about his age in the context of departure authority that has
23 induced in me in the past to depart on that basis nor would
24 it in the future. Not in light of the crime of conviction.
25 Under 5H1.11, he points to his good works and

10
1 charity as a basis for departure, and then under 5K2.0, he
2 argues a combination of all of those factors as a basis for
3 departure. Let me take up the good works and charity.
4 The things that have been said to me in the
5 sentencing memorandum, and many of these are included in the
6 letters as well -- in other words, I recognize as I said to
7 Mr. Dreyer earlier, that people develop opinions on the
8 basis of less than all the true facts. And when they
9 develop those kinds of opinions, you have to be very careful
10 about what you credit and what you don't and what
11 significance you attach to them and what you don't. As I
12 sit here, I think, in fairness, I can say I firmly believe
13 that Mr. Bruno has engaged in charitable and good works
14 during the course of his life. I'm not in a position to say
15 all of the things that are painted for me as charitable are
16 good works ought to be painted out of that same cloth. I'm
17 not unmindful that you could broadly base the favorable
18 letters in two categories. There are those from your
19 family. And there is no doubt that your family and you are
20 of the same mind. You firmly believe, you have articulated
21 that for the last hour or so, that you did nothing wrong
22 here. And you continue to believe that. That's not true,
23 Mr. Bruno. You committed a crime. The jury has told you
24 that. You can't accept it. You simply can't accept it. It
25 is your public persona that prevents you. You have blinders

11
1 on in that regard and you simply don't see it. Your family,
2 to their credit, support you one hundred percent, and they
3 don't see it either. Nor would I expect them to. And I
4 understand why you don't. But the bottom line is that some
5 of the conduct which is alleged to be charitable and good
6 works is conduct that, in some respects, also feathered your
7 own nest. But I want to be careful that people understand
8 what I'm saying about that. And it is this: That I attach
9 no significance to it. In other words, I don't credit it,
10 while I believe some of it occurred, it's simply not legally
11 credible for me to count it as a departure under the
12 advisory guidelines, but I do believe there were charitable
13 works and good deeds. I'm simply saying that not all of
14 them were.
15 If you were to step back and take a look at
16 another component of the letters I received on your behalf,
17 it was this person who had some special interests which you
18 were able to get them some money for, it was this
19 organization that got something for you out of a member
20 item. It was this, it was that. It was all your ability in
21 your position to get them something. I wonder how important
22 the citizens of Buffalo, the citizens of Syracuse, the
23 citizens of Binghamton, the citizens of Poughkeepsie --
24 maybe that's too close -- think Joe Bruno Stadium is to them
25 versus how important the citizens of Rensselaer who elected

12
1 you every year think it is to them. In other words, one of
2 the things that was consistently absent from this trial, but
3 it's of no moment, I'm simply pointing out why this is not
4 legally a matter to depart, is that I don't believe I ever
5 heard anybody talk about what was in the best interests of
6 the public good. It was always what's in the best interests
7 of this person, of this entity, of this organization, of
8 this union, of this business.
9 I don't know what has happened across the
10 board in the landscape of this state and in the landscape of
11 the United States, where there is some public debate about
12 the public good instead of the self-interests of some
13 constituent or the self-interests of one group or another.
14 But I don't hold you accountable for that either. I can't
15 very well hold you accountable for that unless I'm going to
16 look in the federal House and hold the federal Congress
17 accountable for the Nelson compromise and Nebraska to sell
18 health care to America. I know the Nelson compromise didn't
19 end up in the end package, so I'm not being critical of that
20 either. I'm simply pointing out that that's what's wrong
21 across the political landscape of America. The Nelson
22 compromise on the left is no different than the bridge to
23 nowhere on the right when you're talking about Alaska.
24 Neither of them take into account what's in the best
25 interests of the average American. Instead, it's everything

13
1 is promoting self-interest. And there is a kernel of that
2 in many of those letters I got where people think you're the
3 most wonderful thing since ice cream because of what you got
4 them. And what they got, took it out of the pocket of some
5 other taxpayer in New York. But, again, I'm not holding
6 that adverse to you. I'm simply saying it doesn't warrant a
7 departure. And just as none of those things warrant a
8 departure, then, in combination, they don't warrant a
9 departure. And, therefore, I believe what Probation has
10 done in the presentence report is that they have -- once I
11 find that the right guideline section has been utilized, I
12 believe, and I credit Probation's position, having looked at
13 it myself from the strength of the evidence, that in an
14 effort to accommodate the verdict which included acquitted
15 counts, Probation did not score and include all of the
16 information I find by a preponderance of the evidence that
17 they could have. In other words, I believe the evidence
18 would have warranted a higher score than the current
19 guideline is scored. But I accept Probation's scoring, I
20 credit the way it was scored, and I elect not to alter it.
21 Therefore, in my view, this is a total
22 offense level 30, criminal history category I, that calls
23 for an advisory guideline imprisonment range of 97 to 121
24 months.
25 Now, what's that mean? You go from there

14
1 over to, once you establish the advisory guideline range,
2 you ask yourself -- I must ask myself, is that the
3 reasonable sentence here, or is there some alteration to
4 that sentence that should be made. In other words, a
5 variance from the advisory guidelines. And in my view, that
6 range of 97 to 127 months is, in fact, too severe. I think
7 it's too severe because of the 3553(a) factors. I've taken
8 some care to try and outline the legality of that guideline
9 application. Again, because the next person who comes
10 before me should have the benefit of that same analysis.
11 And I have long said, because I believe there needs to be
12 some consistency in sentencing, that I'll score those
13 advisory guidelines as honestly as I can, and then we'll
14 work off an honest application of the guidelines. That's
15 how you promote consistency from one defendant to another.
16 So the question is, what is there, having calculated the
17 sentencing range where I have, that would warrant some
18 variance? That takes us back to the statutory factors in
19 3553(a) and brings back into consideration some of the
20 arguments that have been made that didn't warrant a
21 departure legally under the advisory guidelines.
22 The statutory factors are essentially eight
23 in number. The first requires me to evaluate the crime and
24 the defendant. The second requires me to evaluate the
25 seriousness of the crime and the respect for the law and
15
1 just punishment. The third requires me to evaluate the
2 deterrent affect of a sentence on a defendant who appears
3 before me. The fourth requires me to look at recidivism.
4 The fifth, rehabilitation and medical care. The sixth,
5 sentencing alternatives. The seventh, unwarranted disparity
6 from one defendant to another. And the eighth, the need for
7 restitution. Let me tackle that last one first so that I
8 don't forget it.
9 I sat down with the parties some time ago --
10 we had outstanding when the trial closed forfeiture
11 allegations that were never submitted to the jury. They,
12 instead, were reserved for my decision. There were issues
13 about restitution. The parties came to me with a proposal
14 that was in agreement between them. I have it in writing
15 here. I believe it's $280,000. I am satisfied with the
16 parties' agreement in that regard. I don't believe the
17 public demands nor could they demand nor could they insist
18 on any more. And I'm satisfied that the resolution the
19 parties have reached over that issue, as everyone
20 understands, it's my authority to reject it, and I elect not
21 to. That is a reasonable disposition of those issues, which
22 I adopt.
23 In terms of issues of deterrence and
24 recidivism, first of all, recidivism deals directly with
25 Mr. Bruno. There is absolutely no risk, in my view,

16
1 whatsoever, given the current state of his public life,
2 given the nature of this crime, that he will ever find
3 himself in a court of law again. Therefore, I think he is a
4 very low risk to recidivate.
5 Deterrence. Insofar as his conviction here
6 will deter him from future crimes, for the same reason he's
7 no risk to recidivate, there's no need to deter him. There
8 is an element of deterrence, however, that deals with your
9 brethren up on the hill. I don't know that they've got the
10 message yet. I do not elect to factor that into your
11 particular sentence, but I will tell you, it is something
12 that is on my mind. I mean I heard some of the most eye
13 popping testimony in my life when I heard and saw that the
14 Legislature is advocating to legislators that they walk
15 their financial disclosure forms over to the Ethics
16 Committee for fear that they'll be subject to federal
17 prosecution for mail and wire fraud. That testimony is
18 flabbergasting to me. If you haven't done anything wrong
19 and you've disclosed what you're supposed to disclose, what
20 are you worried about whether it goes in the mail or over
21 the wires? It really fundamentally is not a difficult
22 proposition. I don't want to hold New York State to my
23 obligations which I have under federal law. I don't know
24 that any of the local media has ever sought my financial
25 disclosure forms, but there are national publications that

17
1 routinely go get them every single year. They make a
2 freedom of information act request and you go get my
3 financial disclosure forms. If I've invested in something,
4 it's on the form. If I have some outside employment, it's
5 on the form. Everything is on the form. Why is anybody
6 worried about disclosure? Disclosure gets rid of the entire
7 problem of conflict. How can there be a conflict if you've
8 disclosed?
9 Some of the lawyers waxed eloquent early on
10 in this prosecution about the fact that I was suffering from
11 a conflict because my son works for the U.S. Attorney's
12 Office. That's just plain idiocy on their part. Why?
13 Because they weren't present in the pretrial conference a
14 year ago April when, number one, the U.S. Attorney's Office
15 knows my son is employed there, Mr. Dreyer knows my son and
16 works with him from time to time, and that issue was fully
17 disclosed and waived on your behalf. That's why there's no
18 conflict. Everybody knows if they wanted to make an issue
19 of it, they can, and we would have ruled on it. That's the
20 whole function of disclosure. Let the public know. Let
21 everybody know. And then they can make their judgments as
22 they will. You're never going to stop them from making the
23 judgments, but at least they have the facts upon which to
24 make the judgment.
25 So I don't understand the Legislature's view

18
1 there. I heard you. And I heard you in the media as the
2 trial was going on, and before, that you believe you were
3 singled out because you are a businessman and that lawyers
4 are somehow exempt from these obligations. I don't know
5 that to be true whatsoever. It may be true that there are
6 some protections for clients, but I'm not at all certain
7 that there are protections there when I read those state
8 ethics law for the failure to disclose conflicts of
9 interest. Regardless... And I don't want to paint too
10 broadly there either. I'm not suggesting, and I know that
11 you wouldn't either, Mr. Bruno, that every member of the
12 State Legislature is somehow dishonest. That's just flat
13 not true. And in any event, none of their conduct is before
14 me. But yours is.
15 Rehabilitation and medical care. There's
16 nothing in your life to be rehabilitated. Medical care is
17 not an issue because that which you suffer from is
18 treatable.
19 Unwarranted disparity I have addressed by
20 reference to the guidelines. Sentencing alternatives are
21 argued on your behalf and by your attorney. The alternative
22 they think I should elect is not to incarcerate you, to put
23 you on probation, which would be a deviation of some 97
24 months at the -- it would be a variance of 97 months from
25 the guidelines that I think should apply.

19
1 Let me just comment on several other things
2 that are at play here. I know you say that everything you
3 did was in the best interests of the people of the State of
4 New York. And let me say, I listened to you this afternoon.
5 I listened to you. I've always listened to you. I listened
6 to you throughout the trial. You were conducting a press
7 conference every day out front. I didn't hold you
8 accountable for that because you were not included in my gag
9 order. Mr. Lowell was. And, as you know, I held him
10 accountable the first day he ignored it and conducted a
11 press conference out front. Which I didn't haul you in here
12 for. That's because you have First Amendment speech rights
13 that he doesn't have. He's subject to my control. You were
14 not. But I firmly believe what you told me here today. I
15 do. I believe that you have and have had a life long
16 interest in public interest. I know you come from hard
17 scrabble. You don't know it, but many of us do. Many of us
18 do. I know that you devoted a lifetime to the public. I
19 know those things are true. And I know you don't believe
20 you did anything wrong, which is why I didn't hear one word
21 of contrition from you here today. I sat here listening,
22 waiting for you to turn to the citizens of the State of New
23 York and say "I'm sorry." You didn't do it. You didn't do
24 it because you're not sorry. You're not sorry because you
25 don't believe you did anything wrong. One follows in

20
1 logical order from the other. But you did. You did. Those
2 weren't your lawyers. I don't want to lambaste them. But
3 they disgusted me. They prostituted themselves. I
4 understand, I understand people can be under the pressure of
5 somebody of power where their livelihood and their lives are
6 in somebody else's hands. But I look at what's gone on up
7 on that hill and I listened to them and I just shook my
8 head. If you are in power, majority counsel is making
9 $150,000 a year, if you're in the minority, they lose their
10 office, and they're making $60,000 a year. I mean I'm just
11 picking numbers. But that's the gist of what it was I
12 heard. So whether they were intentionally assisting you in
13 hiding the interests you had or whether they were doing it
14 because they felt compelled to do it to collect their
15 paycheck and earn whatever promotions might come to them in
16 a lifetime, Court of Claims Judge or otherwise, I didn't
17 have a lot of patience for the testimony of those lawyers I
18 heard because, despite what you think, they were not your
19 lawyers. They belong to me, they belong to everybody
20 sitting in this courtroom, and they belong to every citizen
21 of the State of New York. And they owed their allegiance to
22 the citizens of the State of New York. They should not have
23 been negotiating your private contracts. They should not
24 have been negotiating your private interests. To say that
25 they didn't have some allegiance to some committee like the

21
1 Ethics Committee; they did; but they failed miserably in
2 that too. When a lawyer sits here and tells me a
3 partnership is not a partnership, and I know Mr. Lowell had
4 some exotic legal argument he wanted to make as to, judge, a
5 joint venture is not a partnership... Every definition of a
6 joint venture is a partnership. And they've got to jump
7 through convoluted hoops to tell you, you know, you don't
8 have to disclose because this is technically not a
9 partnership, you don't have to be a road scholar to know
10 that the obligation is to disclose. That's what the
11 obligation is. They weren't your lawyers.
12 The view that you expressed here today that
13 you did nothing wrong is the same view you expressed daily
14 during the trial and you have always expressed. And I know
15 you believe it. In the end, when I look at the 3553(a)
16 factors, while they don't warrant a departure, they do
17 warrant a variance from 97 months. You are 81 years old.
18 Absent from the public discourse, federal and state, around
19 the country is what I call balance. In the main, most
20 Americans are not way right and they're not way left.
21 They're balanced in their views. The majority recognizes
22 that they need to respect the views of others, they need to
23 balance competing views, and they need to come to some
24 compromise to reach solutions to serious problems. When it
25 comes to sentencing, fundamentally, that's what my

22
1 obligation is, to try and bring some balance to this
2 process. So I've got to throw it all in a hopper and come
3 up with a balance.
4 You have raised yourself from hardscrabbled
5 roots. You have done good for the community and for people
6 who are around you. You have promoted business and other
7 interests that have benefited the State of New York. You
8 are 81 years of age, and a prison sentence will impact you
9 more harshly than it would impact somebody who was much
10 younger. You do have medical conditions that do need to be
11 treated. So in the end, when I try to lend some balance to
12 this, while I say 97 months is too much, probation is too
13 little. The problem with probation is it doesn't send the
14 message to the public that your criminal conduct here is
15 serious. You trampled on the integrity of the State
16 Legislature and people who put their trust in you and
17 others, and there has to be a penalty to pay for that. In
18 reaching a balance, I fix that penalty at two years.
19 It is, therefore, my finding that, based upon
20 the jury's verdict on Counts Four and Eight, I hereby commit
21 you to the custody of the Bureau of Prisons to be imprisoned
22 for a term of two years on each count to run concurrently.
23 Upon your release from imprisonment, I place you on
24 supervised release for three years on each count, those
25 sentences to run concurrent.

23
1 While on supervised release, you are not to
2 commit another federal, state or local crime, you must
3 comply with the general conditions that have been adopted by
4 this Court, and you must comply with the three special
5 conditions I've shared with the parties in the Court exhibit
6 I've supplied. I see no reason to read those into the
7 record since I've supplied them to you in writing. I waive
8 any substance abuse drug testing conditions. It's
9 unnecessary in your case. Because I have agreed, as I said,
10 with the parties' resolution of the forfeiture and
11 restitution issue, and the restitution is to be repaid to
12 the taxpayers of the State of New York, I see no need to
13 compound further financial obligations by way of a fine, and
14 I order none. I believe it was the parties' intention, in
15 any event, subject to their waiver of appeal on this issue,
16 to encompass all financial obligations in the $280,000
17 order. I agree to the terms of the payment of restitution
18 and forfeiture as are outlined in the Court exhibit and the
19 parties' stipulation that's been filed with me, and I'll
20 incorporate that into the judgment of conviction. I order
21 the $200 special assessment, as I must.
22 As the parties recognize, and as Mr. Dreyer
23 will advise you, Mr. Bruno, you absolutely have a right to
24 appeal this sentence and your conviction. I know you intend
25 to do that. He will file a notice of appeal on your behalf

24
1 within ten days of the date of the judgment to make sure
2 that you preserve your right to appeal.
3 I intend to impose a surrender requirement as
4 well. In other words, there's no need to further burden the
5 taxpayers by having the Marshals transport you to a prison
6 facility to be designated by them. I would prefer to save
7 the taxpayers the money and have you self-report. As to a
8 self report date, there is an issue we have not yet
9 discussed, and I bring it up now, and that is the three
10 decisions that are pending before the Supreme Court.
11 Let me tell you what I am proposing to do,
12 and then I will hear arguments from either side as to
13 whether or not you agree or disagree with my proposed
14 resolution.
15 I have always been cognizant of the national
16 debate about the honest services mail fraud statute.
17 Everybody has. I am cognizant that there are three cases
18 pending before the Supreme Court which could have a bearing
19 on the conviction in this case. I said more than a year ago
20 I could not put this case on hold, waiting to see what the
21 Supreme Court would or would not do. The lawyers all know,
22 you never know what's going to happen. I have seen cases
23 pending in the Supreme Court where they have withdrawn the
24 petition for cert. and sent the thing back. I've seen all
25 manner of things that have happened. In this particular

25
1 case, they have not done that. The arguments have been held
2 and a decision is impending. When? Who knows. It depends
3 on what majority they can work to reach. I don't know what
4 impact Justice Stevens has on that whole process. For all
5 you know, they can come out four-four and do nothing. And
6 then, again, maybe they'll come out with something that
7 would have a significant bearing on the conviction here. In
8 my view, it would be inequitable for me to give Mr. Bruno a
9 report date and send him off, in light of the fact that I
10 believe those decisions from the Supreme Court are imminent.
11 I have the authority under the bail statute,
12 as does the Second Circuit, to leave Mr. Bruno out on bail.
13 I have the authority, in my view, under the bail statute to
14 set the terms and conditions of that release in any fashion
15 that I deem to be just and reasonable. I am unwilling to
16 leave him out on bail. Instead, that's a decision the
17 Second Circuit will have to make if there is nothing in the
18 Supreme Court's decision that would alter the conviction
19 here. In other words, the Circuit has the right to make an
20 independent bail decision about his release pending decision
21 by them and the Circuit under the bail statute. I'm
22 unwilling to leave him out pending resolution of the appeal
23 before the Circuit. But I am proposing to leave him out on
24 bail pending the decision by the Supreme Court. And as soon
25 as I have received that decision, I will evaluate it, will

26
1 give the parties an opportunity, short and brief, to
2 evaluate that decision in terms of its impact on this
3 conviction. And if, in my view, there is no impact on this
4 conviction, I would then provide Mr. Bruno with a report
5 date and he would report to prison consistent with the
6 sentence I've just imposed.
7 What's the Government want to tell me about
8 my proposal?
9 MS. COOMBE: Your Honor, do you envision
10 setting some sort of control date, report date, or just
11 waiting to set a report date until after? Because what I,
12 what I would -- would it be a possibility to set a control
13 date, and the Government would not oppose a continuation of
14 that control date if the Supreme Court has not yet ruled at
15 that time.
16 THE COURT: Well, that's another way to do
17 it. Why do you say that? That's idle curiosity on my part.
18 What's the concern you're expressing with a control date?
19 MS. COOMBE: I just think then there's a
20 control date on the record instead of there being no date at
21 all. Just from years of being a prosecutor, it's better to
22 have a date than not to have one.
23 THE COURT: You sound like the administrative
24 office of the United States Courts who likes to see a
25 control date on every docket of mine on every case I have.

27
1 MS. COOMBE: I'm not sure that's a
2 compliment, your Honor. But that's my --
3 THE COURT: It was not negative, Miss Coombe.
4 MS. COOMBE: I'm sorry, your Honor?
5 THE COURT: It was not negative.
6 Mr. Dreyer?
7 MR. DREYER: We agree to the Court's
8 proposal. The control date isn't necessary because we have
9 a control date, the Supreme Court decision.
10 THE COURT: The decision of the Supreme
11 Court.
12 MS. COOMBE: I don't believe the Bureau of
13 Prisons would make a designation without a control date. So
14 there would just be an additional period of delay.
15 MR. DREYER: Well, as I understand it, once
16 the Supreme Court decision comes down, if this Court
17 determines that it doesn't impact this case, then you're
18 going to set a reporting date, and then the Bureau of
19 Prisons can designate. And then we can appeal -- or not
20 appeal, excuse me -- make an application de novo to the
21 Second Circuit for bail pending appeal. You don't want to
22 take our application. They are.
23 THE COURT: That's kind of what I had in
24 mine.
25 MR. DREYER: Okay.

28
1 THE COURT: In other words, here's the
2 understanding I have and here's why I crafted that in the
3 way I did. In general, when I provide a control date, I
4 provide it six weeks from the date of sentence. That's the
5 date -- that's the period of time that the Bureau of Prisons
6 has asked for in order to make a process and in order to
7 designate and provide the defendant with an opportunity to
8 report after notification from the Marshal. So I'm
9 operating on a six week window. That's where I come from on
10 control dates.
11 So what I'm envisioning is, once the Supreme
12 Court rules, and I review that decision, if I'm not
13 satisfied that it in any way alters the underlying
14 conviction here, I then intend to kick in that process and
15 provide Mr. Bruno with a report date.
16 MS. COOMBE: I understand, your Honor.
17 MR. DREYER: That's acceptable, your Honor.
18 THE COURT: Does the Government object?
19 MS. COOMBE: No, your Honor.
20 THE COURT: Is there anything further on the
21 part of the Government?
22 MS. COOMBE: Nothing further from the
23 Government, your Honor.
24 THE COURT: Anything further, Mr. Dreyer, on
25 Mr. Bruno's behalf.

29
1 MR. DREYER: No, your Honor.
2 THE COURT: Mr. Bruno, I wish you well.
3 THE DEFENDANT: Thank you, Judge.
4 (Court adjourned at 5:50 PM.)
5 * * * * *
7 C E R T I F I C A T I O N
9 I, BONNIE J. BUCKLEY, RPR, CRR, Official Court
10 Reporter in and for the United States District Court,
11 Northern District of New York, do hereby certify that I
12 attended at the time and place set forth in the heading
13 hereof; that I did make a stenographic record of the
14 proceedings held in this matter and caused the same to be
15 transcribed; that the foregoing is a true and correct
16 transcript of the same and wholethereof.
17
18
19
20 __________________________________
21 BONNIE J. BUCKLEY, RPR, CRR
22 United States Court Reporter - NDNY
23
24 DATED: MAY 7, 2010
25

Sharpe Bruno Sentencing

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Sharpe Bruno Sentencing

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1

1 UNITED STATES DISTRICT COURT

8 TRANSCRIPT OF SENTENCING *EXCERPT*

9 held in and for the United States District Court,

10 Northern District of New York, James T. Foley United

11 States Courthouse, 445 Broadway, Albany, New York,

12 on THURSDAY, MAY 6, 2010, the HON. GARY L. SHARPE,

13 United States District Court Judge, Presiding.

17 FOR THE GOVERNMENT:

18 United States Attorneys Office - NDNY

19 BY: ELIZABETH C. COOMBE, AUSA

20 BY: WILLIAM C. PERICAK, AUSA

21 FOR THE DEFENDANT:

22 Dreyer, Boyajian Law Firm

23 BY: WILLIAM J. DREYER, ESQ.

24 BY: APRIL M. WILSON, ESQ.

1 (In open court.)

3 THE COURT: Thank you. As a businessman,

4 Mr. Bruno, you won't understand this as well as the lawyers

5 will, but there's a certain part of the sentencing advocacy

7 law, then I need to make a legal ruling that doesn't cut to

8 the chase, which I will do. So while you're entitled to

9 hear this, ignore it because it really doesn't deal with the

10 issue of sentencing, but it deals with issues of fairness

12 defendants who have appeared before me in the past and all

13 the defendants who will appear before me in the future.

14 I have often said about the subject of

15 sentencing, regardless of what you think about me in that

18 defendant has a right to expect me to treat him equally with

19 everyone who appears before me. So there are some legal

20 issues that are before me that I need to resolve so that the

21 parties understand why I reach the point that I do in the

22 sentencing process. And that has to do with the advisory

24 I have long said that -- I now have been in

25 this business 30 some years, so I go back to the days before

1 there were a set of Sentencing Guidelines and I practiced

2 and judged during the days when there were a set of

3 Sentencing Guidelines. The difficulty is -- what goes on

4 from state to state is none of my business as a federal

6 Rhode Island, Massachusetts. That's why we are a republic.

7 We got 50 sets of governments out there that are free to do

9 that's a unified system, it should make no difference

10 whether or not you rob a bank in Texas or you rob a bank in

11 Albany. That sentence that same federal robber receives in

12 Texas should bear some semblance to the sentence that the

13 robber in Albany receives. Congress recognized that there

14 was an extraordinary disparity out there between federal

15 judges in one part of the country or another. And their

16 reaction to that was to reign in the discretion of those

17 federal judges. Not to tell them they could or could not do

18 anything in a given case, but to put some guidelines out

19 there to try and orchestrate some consistency and some

20 fundamental fairness with defendants. And that's what the

21 guidelines are all about. I feared four or five years ago

22 now, I lose track, I'm getting old as well, it might have

25 the left and constant complaints by judges under the cloak

1 of Article 3, that when they declared those guidelines, as

2 written, unconstitutional, so that they are now advisory, we

3 would end up in freefall back to where we were in the early

4 '80s and before. And in my view, that's exactly where we've

5 ended up. So we're back to, it depends on what judge you

7 her. And that has a significant impact on the sentence that

8 is at issue. I refuse to go back to those days. I do. In

8 TRANSCRIPT OF SENTENCING EXCERPT