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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------UNITED STATES OF AMERICA

-versusJOSEPH L. BRUNO

09-CR-29

Defendant. ---------------------------------------------

TRANSCRIPT OF SENTENCING *EXCERPT* held in and for the United States District Court, Northern District of New York, James T. Foley United States Courthouse, 445 Broadway, Albany, New York, on THURSDAY, MAY 6, 2010, the HON. GARY L. SHARPE, United States District Court Judge, Presiding.

APPEARANCES:

FOR THE GOVERNMENT: United States Attorneys Office - NDNY BY: BY: ELIZABETH C. COOMBE, AUSA WILLIAM C. PERICAK, AUSA

FOR THE DEFENDANT: Dreyer, Boyajian Law Firm BY: BY: WILLIAM J. DREYER, ESQ. APRIL M. WILSON, ESQ.

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

2 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (In open court.) (Excerpt.) THE COURT: Thank you. As a businessman, 09-CR-29

Mr. Bruno, you won't understand this as well as the lawyers will, but there's a certain part of the sentencing advocacy that has to do with the law. And when it has to do with the

law, then I need to make a legal ruling that doesn't cut to the chase, which I will do. So while you're entitled to

hear this, ignore it because it really doesn't deal with the issue of sentencing, but it deals with issues of fairness and it deals, not just with you, but it deals with all the defendants who have appeared before me in the past and all the defendants who will appear before me in the future. I have often said about the subject of sentencing, regardless of what you think about me in that regard, whether you think I'm too lenient, whether you think I'm too harsh, whether you think I'm just right, every defendant has a right to expect me to treat him equally with everyone who appears before me. So there are some legal

issues that are before me that I need to resolve so that the parties understand why I reach the point that I do in the sentencing process. And that has to do with the advisory

guidelines and the scoring issues that were raised early on. I have long said that -- I now have been in this business 30 some years, so I go back to the days before BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

3 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 09-CR-29

there were a set of Sentencing Guidelines and I practiced and judged during the days when there were a set of Sentencing Guidelines. The difficulty is -- what goes on

from state to state is none of my business as a federal judge. What Texas elects to do, what New York elects to do, That's why we are a republic.

Rhode Island, Massachusetts.

We got 50 sets of governments out there that are free to do what they do. But people who appear in the federal system,

that's a unified system, it should make no difference whether or not you rob a bank in Texas or you rob a bank in Albany. That sentence that same federal robber receives in

Texas should bear some semblance to the sentence that the robber in Albany receives. Congress recognized that there

was an extraordinary disparity out there between federal judges in one part of the country or another. And their

reaction to that was to reign in the discretion of those federal judges. Not to tell them they could or could not do

anything in a given case, but to put some guidelines out there to try and orchestrate some consistency and some fundamental fairness with defendants. guidelines are all about. And that's what the

I feared four or five years ago

now, I lose track, I'm getting old as well, it might have been three or four, or four and five, that when the Supreme Court, you had the perfect marriage between the right and the left and constant complaints by judges under the cloak BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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of Article 3, that when they declared those guidelines, as written, unconstitutional, so that they are now advisory, we would end up in freefall back to where we were in the early '80s and before. ended up. And in my view, that's exactly where we've

So we're back to, it depends on what judge you

draw on the wheel and where in the country you draw him or her. And that has a significant impact on the sentence that I refuse to go back to those days. I do. In

is at issue.

my view, as I said, whether you think me too light, whether you think me too harsh, it's important for me to be consistent across the spectrum and explain what I'm doing, and I'm not afraid to do that, and make a judgment, I'm not afraid to make one, look somebody in the eye and tell them what I'm doing and why I'm doing it. legality issue of the guidelines. So let me take up the

And it's more complicated

here than it is in the ordinary case that I confront. Everybody has merit to the arguments that they're making about the guidelines and the way in which they apply. Fundamentally, though, my decision about the

guidelines bears on the burden of proof and that distinction I made about what has to be proved beyond a reasonable doubt versus what has to be proved by a preponderance of the evidence. And that's at the heart what drives my decision I understand the

about what set of guidelines applies.

argument that, vocally, before trial, in response to the BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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omnibus motions and at one point or another in the early phases of the trial, the Government was advocating conflict of interest, conflict of interest, conflict of interest. understand that. I also understood, because I was born at I

night but not last night, precisely what they were doing when I called them on it early on in the trial. I didn't

render that so-called -- I'm just going to call it that -quid pro quo type evidence. I don't know that it meets

necessarily that absolute test, but I'll just use that for phraseology's purposes. I understood what they were doing,

and all I was pointing out to them was that they were opening a barn door to which I would then permit the defense to respond if they went down that road. But if I thought

that evidence was irrelevant, I wouldn't have allowed it in in the first place. So I pointed that out to them, they

went forward with that evidence, I admitted it because I believed it was relevant, and then I in turn opened that door and permitted the defense a good deal of latitude in responding to that type of evidence. it is. So the record is what

But fundamental to the application of the

guidelines, regardless of the jury's view of the strength of that evidence, in terms of whether it satisfied one element or not of one charge or not -- and I'm mindful of the fact that it doesn't just relate to the substantive charges in the indictment, it also relates to the length, scope and BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

6 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 breath of the scheme to defraud. 09-CR-29

In other words, it relates

to many things other than just a particular mailing or a particular use of the wires. I am persuaded that the way in

which Probation has calculated the Sentencing Guidelines and the section they have used is correct because it's supported by a preponderance of the credible evidence. And,

therefore, Mr. Bruno, who contends that 2C1.3 of the guidelines which governs pure conflicts of interest should control, the Court agrees with the Government that 2C1.1 is the appropriate guideline to proceed under. As I've said,

as a threshold matter, the applicable 2009 version of the guidelines which postdates the 2004 guideline amendments positively dictates that 2C1.1 corresponds to the offense Mr. Bruno was convicted of. I believe the guidelines direct

the application of 2C1.1 be applied to honest services mail fraud, whether I look at the directions provided by the general application principles under 1B1.1 and 1B1.2 or in the statutory index of the appendix. And while 2C1.1 itself

refers to honest services mail fraud in its title, in its commentary, and in its applicable statutory provisions and background, 2C1.3 does not refer to honest services mail fraud even once. Just as importantly, 2C1.1, not 2C1.3 best

accounts for the seriousness and scope of the crime for which Mr. Bruno has been convicted, in light of my reliance by a preponderance of the evidence on that evidence that BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

7 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 supports that conclusion. 09-CR-29

Therefore, the Government proved

that Mr. Bruno did more than failed to disclose a material conflict of interest. The evidence demonstrates that

Mr. Bruno defrauded the People of New York of his honest services by entering into contracts and agreements for which he received personal compensation and benefits by maintaining financial relationships with persons and entities that had material business before and interests being considered by the State's Legislature or agencies, and by exploiting his official position for personal gain and enrichment. A conclusion I know he disagrees with, as he And then he

has vocally said here over the last hour or so.

did not merely fail to disclose the existence of such agreements, relationships, activities and exploits, but he hid them by concealment, disguise and, in my view, fraud. I, therefore, find that 2C1.1 is the most appropriate section of the guidelines to calculate his sentence. I understand the arguments to be made over the dollar volumes as well. Let me turn to another subject under the guidelines and, again, before I get to the third part of the analysis, which is the cogent part here. But, again, this

has to do exclusively with a legal conclusion about departures under the advisory guidelines. As I said, a long

time ago now, at the very outset, I recognize that these BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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same arguments are pertinent to a 3553(a) analysis, which I intend to take up. So currently I'm looking at them

exclusively for the purpose as to whether they warrant a departure under the guidelines. In that regard, Mr. Bruno argues under 5H1.5 that there should be a departure based upon his family ties and responsibilities. I find that argument unpersuasive.

It's not that Mr. Bruno doesn't have family ties and responsibilities. He does. It's that every criminal

defendant for the most part who has appeared before me in the past and who will appear before me in the future has similar family ties and circumstances or responsibilities. And there is simply nothing unusual in this case about those family ties and responsibilities that has warranted a departure in the past, nor would it warrant a departure in the future. So if I were to do it in this case, I would be

treating him specially, not in the same way I have treated everyone else who has appeared before me. He then argues under 5K2.0 of the advisory guidelines that I should depart from those guidelines because his conduct was aberrant. The difficulty I have

with that argument, again, is a legal proposition under the guidelines is it's predicated on the notion that he has lived an exemplary life for 81 years, together with exemplary 32 years of public service. That focuses, in my

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

9 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 view, on the wrong time frame. 09-CR-29

Aberrant behavior as is

envisioned under 5K2.0 and as I have consistently applied it in the past and will apply it in the future means that there is an isolated episode of criminality that is extraordinarily aberrant in terms of the length and breadth and scope of a person's life and conduct. The problem with

this case is that the conduct I have credited by a preponderance of the evidence is not isolated and aberrant. Taking nothing more than the length and breadth of the scheme to defraud and all of the conduct I have credited in furtherance of that scheme, that's not isolated conduct whatsoever. It's pervasive and persistent conduct. And,

therefore, it does not meet the legal test of aberrant behavior. He seeks a departure under 5H1.1 and 1.4 for his age and medical condition. I understand his medical

condition, getting toward that age myself, those same kinds of medical conditions I have, as does a hundred thousand other people across the landscape in the United States. There is nothing so unique about his medical condition that can't be compensated for by proper medical care, nor nothing about his age in the context of departure authority that has induced in me in the past to depart on that basis nor would it in the future. Not in light of the crime of conviction.

Under 5H1.11, he points to his good works and BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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charity as a basis for departure, and then under 5K2.0, he argues a combination of all of those factors as a basis for departure. Let me take up the good works and charity. The things that have been said to me in the sentencing memorandum, and many of these are included in the letters as well -- in other words, I recognize as I said to Mr. Dreyer earlier, that people develop opinions on the basis of less than all the true facts. And when they

develop those kinds of opinions, you have to be very careful about what you credit and what you don't and what significance you attach to them and what you don't. As I

sit here, I think, in fairness, I can say I firmly believe that Mr. Bruno has engaged in charitable and good works during the course of his life. I'm not in a position to say

all of the things that are painted for me as charitable are good works ought to be painted out of that same cloth. not unmindful that you could broadly base the favorable letters in two categories. family. There are those from your I'm

And there is no doubt that your family and you are You firmly believe, you have articulated

of the same mind.

that for the last hour or so, that you did nothing wrong here. And you continue to believe that. You committed a crime. That's not true,

Mr. Bruno. that.

The jury has told you It

You can't accept it.

You simply can't accept it.

is your public persona that prevents you.

You have blinders

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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on in that regard and you simply don't see it.

to their credit, support you one hundred percent, and they don't see it either. Nor would I expect them to. And I

understand why you don't.

But the bottom line is that some

of the conduct which is alleged to be charitable and good works is conduct that, in some respects, also feathered your own nest. But I want to be careful that people understand And it is this: That I attach

what I'm saying about that. no significance to it.

In other words, I don't credit it,

while I believe some of it occurred, it's simply not legally credible for me to count it as a departure under the advisory guidelines, but I do believe there were charitable works and good deeds. them were. If you were to step back and take a look at another component of the letters I received on your behalf, it was this person who had some special interests which you were able to get them some money for, it was this organization that got something for you out of a member item. It was this, it was that. It was all your ability in I wonder how important I'm simply saying that not all of

your position to get them something.

the citizens of Buffalo, the citizens of Syracuse, the citizens of Binghamton, the citizens of Poughkeepsie -maybe that's too close -- think Joe Bruno Stadium is to them versus how important the citizens of Rensselaer who elected BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

12 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you every year think it is to them. 09-CR-29 In other words, one of

the things that was consistently absent from this trial, but it's of no moment, I'm simply pointing out why this is not legally a matter to depart, is that I don't believe I ever heard anybody talk about what was in the best interests of the public good. It was always what's in the best interests

of this person, of this entity, of this organization, of this union, of this business. I don't know what has happened across the board in the landscape of this state and in the landscape of the United States, where there is some public debate about the public good instead of the self-interests of some constituent or the self-interests of one group or another. But I don't hold you accountable for that either. I can't

very well hold you accountable for that unless I'm going to look in the federal House and hold the federal Congress accountable for the Nelson compromise and Nebraska to sell health care to America. I know the Nelson compromise didn't

end up in the end package, so I'm not being critical of that either. I'm simply pointing out that that's what's wrong The Nelson

across the political landscape of America.

compromise on the left is no different than the bridge to nowhere on the right when you're talking about Alaska. Neither of them take into account what's in the best interests of the average American. Instead, it's everything

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

13 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is promoting self-interest. 09-CR-29

And there is a kernel of that

in many of those letters I got where people think you're the most wonderful thing since ice cream because of what you got them. And what they got, took it out of the pocket of some But, again, I'm not holding

other taxpayer in New York. that adverse to you. departure.

I'm simply saying it doesn't warrant a

And just as none of those things warrant a

departure, then, in combination, they don't warrant a departure. And, therefore, I believe what Probation has

done in the presentence report is that they have -- once I find that the right guideline section has been utilized, I believe, and I credit Probation's position, having looked at it myself from the strength of the evidence, that in an effort to accommodate the verdict which included acquitted counts, Probation did not score and include all of the information I find by a preponderance of the evidence that they could have. In other words, I believe the evidence

would have warranted a higher score than the current guideline is scored. But I accept Probation's scoring, I

credit the way it was scored, and I elect not to alter it. Therefore, in my view, this is a total offense level 30, criminal history category I, that calls for an advisory guideline imprisonment range of 97 to 121 months. Now, what's that mean? You go from there

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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over to, once you establish the advisory guideline range, you ask yourself -- I must ask myself, is that the reasonable sentence here, or is there some alteration to that sentence that should be made. In other words, a And in my view, that I think

variance from the advisory guidelines.

range of 97 to 127 months is, in fact, too severe. it's too severe because of the 3553(a) factors.

I've taken

some care to try and outline the legality of that guideline application. Again, because the next person who comes

before me should have the benefit of that same analysis. And I have long said, because I believe there needs to be some consistency in sentencing, that I'll score those advisory guidelines as honestly as I can, and then we'll work off an honest application of the guidelines. That's

how you promote consistency from one defendant to another. So the question is, what is there, having calculated the sentencing range where I have, that would warrant some variance? That takes us back to the statutory factors in

3553(a) and brings back into consideration some of the arguments that have been made that didn't warrant a departure legally under the advisory guidelines. The statutory factors are essentially eight The first requires me to evaluate the crime and The second requires me to evaluate the

the defendant.

seriousness of the crime and the respect for the law and BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

15 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just punishment. 09-CR-29

The third requires me to evaluate the

deterrent affect of a sentence on a defendant who appears before me. The fourth requires me to look at recidivism. The sixth,

The fifth, rehabilitation and medical care. sentencing alternatives.

The seventh, unwarranted disparity And the eighth, the need for

from one defendant to another. restitution.

Let me tackle that last one first so that I

don't forget it. I sat down with the parties some time ago -we had outstanding when the trial closed forfeiture allegations that were never submitted to the jury. instead, were reserved for my decision. about restitution. They,

There were issues

The parties came to me with a proposal I have it in writing

that was in agreement between them. here. I believe it's $280,000.

I am satisfied with the I don't believe the

parties' agreement in that regard.

public demands nor could they demand nor could they insist on any more. And I'm satisfied that the resolution the

parties have reached over that issue, as everyone understands, it's my authority to reject it, and I elect not to. That is a reasonable disposition of those issues, which

I adopt. In terms of issues of deterrence and recidivism, first of all, recidivism deals directly with Mr. Bruno. There is absolutely no risk, in my view, BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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whatsoever, given the current state of his public life, given the nature of this crime, that he will ever find himself in a court of law again. very low risk to recidivate. Deterrence. Insofar as his conviction here Therefore, I think he is a

will deter him from future crimes, for the same reason he's no risk to recidivate, there's no need to deter him. There

is an element of deterrence, however, that deals with your brethren up on the hill. message yet. I don't know that they've got the

I do not elect to factor that into your

particular sentence, but I will tell you, it is something that is on my mind. I mean I heard some of the most eye

popping testimony in my life when I heard and saw that the Legislature is advocating to legislators that they walk their financial disclosure forms over to the Ethics Committee for fear that they'll be subject to federal prosecution for mail and wire fraud. flabbergasting to me. That testimony is

If you haven't done anything wrong

and you've disclosed what you're supposed to disclose, what are you worried about whether it goes in the mail or over the wires? proposition. It really fundamentally is not a difficult I don't want to hold New York State to my I don't know

obligations which I have under federal law.

that any of the local media has ever sought my financial disclosure forms, but there are national publications that BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

17 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 09-CR-29 They make a

routinely go get them every single year.

freedom of information act request and you go get my financial disclosure forms. it's on the form. on the form. If I've invested in something,

If I have some outside employment, it's Why is anybody

Everything is on the form.

worried about disclosure? problem of conflict. disclosed?

Disclosure gets rid of the entire

How can there be a conflict if you've

Some of the lawyers waxed eloquent early on in this prosecution about the fact that I was suffering from a conflict because my son works for the U.S. Attorney's Office. That's just plain idiocy on their part. Why?

Because they weren't present in the pretrial conference a year ago April when, number one, the U.S. Attorney's Office knows my son is employed there, Mr. Dreyer knows my son and works with him from time to time, and that issue was fully disclosed and waived on your behalf. conflict. That's why there's no

Everybody knows if they wanted to make an issue That's the Let

of it, they can, and we would have ruled on it. whole function of disclosure. everybody know. they will.

Let the public know.

And then they can make their judgments as

You're never going to stop them from making the

judgments, but at least they have the facts upon which to make the judgment. So I don't understand the Legislature's view BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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And I heard you in the media as the

trial was going on, and before, that you believe you were singled out because you are a businessman and that lawyers are somehow exempt from these obligations. that to be true whatsoever. I don't know

It may be true that there are

some protections for clients, but I'm not at all certain that there are protections there when I read those state ethics law for the failure to disclose conflicts of interest. Regardless... And I don't want to paint too

broadly there either.

I'm not suggesting, and I know that

you wouldn't either, Mr. Bruno, that every member of the State Legislature is somehow dishonest. not true. me. That's just flat

And in any event, none of their conduct is before

But yours is. Rehabilitation and medical care. There's

nothing in your life to be rehabilitated.

Medical care is

not an issue because that which you suffer from is treatable. Unwarranted disparity I have addressed by reference to the guidelines. Sentencing alternatives are The alternative

argued on your behalf and by your attorney.

they think I should elect is not to incarcerate you, to put you on probation, which would be a deviation of some 97 months at the -- it would be a variance of 97 months from the guidelines that I think should apply. BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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Let me just comment on several other things that are at play here. I know you say that everything you

did was in the best interests of the people of the State of New York. And let me say, I listened to you this afternoon. I've always listened to you. I listened

I listened to you.

to you throughout the trial.

You were conducting a press I didn't hold you

conference every day out front.

accountable for that because you were not included in my gag order. Mr. Lowell was. And, as you know, I held him

accountable the first day he ignored it and conducted a press conference out front. for. Which I didn't haul you in here

That's because you have First Amendment speech rights He's subject to my control. You were I

that he doesn't have. not. do.

But I firmly believe what you told me here today. I believe that you have and have had a life long I know you come from hard

interest in public interest. scrabble. do.

You don't know it, but many of us do.

Many of us I

I know that you devoted a lifetime to the public.

know those things are true.

And I know you don't believe

you did anything wrong, which is why I didn't hear one word of contrition from you here today. I sat here listening,

waiting for you to turn to the citizens of the State of New York and say "I'm sorry." You didn't do it. You didn't do

it because you're not sorry.

You're not sorry because you One follows in

don't believe you did anything wrong.

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

20 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 logical order from the other. weren't your lawyers. they disgusted me. 09-CR-29 You did. Those But

But you did.

I don't want to lambaste them. I

They prostituted themselves.

understand, I understand people can be under the pressure of somebody of power where their livelihood and their lives are in somebody else's hands. But I look at what's gone on up

on that hill and I listened to them and I just shook my head. If you are in power, majority counsel is making

$150,000 a year, if you're in the minority, they lose their office, and they're making $60,000 a year. picking numbers. heard. I mean I'm just

But that's the gist of what it was I

So whether they were intentionally assisting you in

hiding the interests you had or whether they were doing it because they felt compelled to do it to collect their paycheck and earn whatever promotions might come to them in a lifetime, Court of Claims Judge or otherwise, I didn't have a lot of patience for the testimony of those lawyers I heard because, despite what you think, they were not your lawyers. They belong to me, they belong to everybody

sitting in this courtroom, and they belong to every citizen of the State of New York. And they owed their allegiance to They should not have They should not To say that

the citizens of the State of New York. been negotiating your private contracts.

have been negotiating your private interests.

they didn't have some allegiance to some committee like the BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

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Ethics Committee; they did; but they failed miserably in that too. When a lawyer sits here and tells me a

partnership is not a partnership, and I know Mr. Lowell had some exotic legal argument he wanted to make as to, judge, a joint venture is not a partnership... joint venture is a partnership. Every definition of a

And they've got to jump

through convoluted hoops to tell you, you know, you don't have to disclose because this is technically not a partnership, you don't have to be a road scholar to know that the obligation is to disclose. obligation is. That's what the

They weren't your lawyers. The view that you expressed here today that

you did nothing wrong is the same view you expressed daily during the trial and you have always expressed. you believe it. And I know

In the end, when I look at the 3553(a)

factors, while they don't warrant a departure, they do warrant a variance from 97 months. You are 81 years old.

Absent from the public discourse, federal and state, around the country is what I call balance. In the main, most

Americans are not way right and they're not way left. They're balanced in their views. The majority recognizes

that they need to respect the views of others, they need to balance competing views, and they need to come to some compromise to reach solutions to serious problems. comes to sentencing, fundamentally, that's what my BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY When it

22 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 roots. 09-CR-29

obligation is, to try and bring some balance to this process. So I've got to throw it all in a hopper and come

up with a balance. You have raised yourself from hardscrabbled You have done good for the community and for people You have promoted business and other You

who are around you.

interests that have benefited the State of New York.

are 81 years of age, and a prison sentence will impact you more harshly than it would impact somebody who was much younger. treated. You do have medical conditions that do need to be So in the end, when I try to lend some balance to

this, while I say 97 months is too much, probation is too little. The problem with probation is it doesn't send the

message to the public that your criminal conduct here is serious. You trampled on the integrity of the State

Legislature and people who put their trust in you and others, and there has to be a penalty to pay for that. reaching a balance, I fix that penalty at two years. It is, therefore, my finding that, based upon the jury's verdict on Counts Four and Eight, I hereby commit you to the custody of the Bureau of Prisons to be imprisoned for a term of two years on each count to run concurrently. Upon your release from imprisonment, I place you on supervised release for three years on each count, those sentences to run concurrent. BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY In

23 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 09-CR-29

While on supervised release, you are not to commit another federal, state or local crime, you must comply with the general conditions that have been adopted by this Court, and you must comply with the three special conditions I've shared with the parties in the Court exhibit I've supplied. I see no reason to read those into the I waive

record since I've supplied them to you in writing. any substance abuse drug testing conditions. unnecessary in your case. It's

Because I have agreed, as I said,

with the parties' resolution of the forfeiture and restitution issue, and the restitution is to be repaid to the taxpayers of the State of New York, I see no need to compound further financial obligations by way of a fine, and I order none. I believe it was the parties' intention, in

any event, subject to their waiver of appeal on this issue, to encompass all financial obligations in the $280,000 order. I agree to the terms of the payment of restitution

and forfeiture as are outlined in the Court exhibit and the parties' stipulation that's been filed with me, and I'll incorporate that into the judgment of conviction. the $200 special assessment, as I must. As the parties recognize, and as Mr. Dreyer will advise you, Mr. Bruno, you absolutely have a right to appeal this sentence and your conviction. to do that. I know you intend I order

He will file a notice of appeal on your behalf BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

24 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well. 09-CR-29

within ten days of the date of the judgment to make sure that you preserve your right to appeal. I intend to impose a surrender requirement as In other words, there's no need to further burden the

taxpayers by having the Marshals transport you to a prison facility to be designated by them. I would prefer to save As to a

the taxpayers the money and have you self-report. self report date, there is an issue we have not yet

discussed, and I bring it up now, and that is the three decisions that are pending before the Supreme Court. Let me tell you what I am proposing to do, and then I will hear arguments from either side as to whether or not you agree or disagree with my proposed resolution. I have always been cognizant of the national debate about the honest services mail fraud statute. Everybody has. I am cognizant that there are three cases

pending before the Supreme Court which could have a bearing on the conviction in this case. I said more than a year ago

I could not put this case on hold, waiting to see what the Supreme Court would or would not do. you never know what's going to happen. The lawyers all know, I have seen cases

pending in the Supreme Court where they have withdrawn the petition for cert. and sent the thing back. manner of things that have happened. I've seen all

In this particular

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

25 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case, they have not done that. and a decision is impending. 09-CR-29

The arguments have been held When? Who knows. It depends

on what majority they can work to reach.

I don't know what For all And

impact Justice Stevens has on that whole process.

you know, they can come out four-four and do nothing. then, again, maybe they'll come out with something that

would have a significant bearing on the conviction here.

In

my view, it would be inequitable for me to give Mr. Bruno a report date and send him off, in light of the fact that I believe those decisions from the Supreme Court are imminent. I have the authority under the bail statute, as does the Second Circuit, to leave Mr. Bruno out on bail. I have the authority, in my view, under the bail statute to set the terms and conditions of that release in any fashion that I deem to be just and reasonable. leave him out on bail. I am unwilling to

Instead, that's a decision the

Second Circuit will have to make if there is nothing in the Supreme Court's decision that would alter the conviction here. In other words, the Circuit has the right to make an

independent bail decision about his release pending decision by them and the Circuit under the bail statute. I'm

unwilling to leave him out pending resolution of the appeal before the Circuit. But I am proposing to leave him out on And as soon

bail pending the decision by the Supreme Court.

as I have received that decision, I will evaluate it, will BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

26 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. my proposal? MS. COOMBE: Your Honor, do you envision 09-CR-29

give the parties an opportunity, short and brief, to evaluate that decision in terms of its impact on this conviction. And if, in my view, there is no impact on this

conviction, I would then provide Mr. Bruno with a report date and he would report to prison consistent with the sentence I've just imposed. What's the Government want to tell me about

setting some sort of control date, report date, or just waiting to set a report date until after? Because what I,

what I would -- would it be a possibility to set a control date, and the Government would not oppose a continuation of that control date if the Supreme Court has not yet ruled at that time. THE COURT: Why do you say that? Well, that's another way to do That's idle curiosity on my part.

What's the concern you're expressing with a control date? MS. COOMBE: I just think then there's a

control date on the record instead of there being no date at all. Just from years of being a prosecutor, it's better to

have a date than not to have one. THE COURT: You sound like the administrative

office of the United States Courts who likes to see a control date on every docket of mine on every case I have. BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

27 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mine. MR. DREYER: Okay. Court. MS. COOMBE: I don't believe the Bureau of So proposal. MS. COOMBE: compliment, your Honor. THE COURT: MS. COOMBE: THE COURT: Mr. Dreyer? MR. DREYER: We agree to the Court's 09-CR-29

I'm not sure that's a

But that's my -It was not negative, Miss Coombe. I'm sorry, your Honor? It was not negative.

The control date isn't necessary because we have

a control date, the Supreme Court decision. THE COURT: The decision of the Supreme

Prisons would make a designation without a control date. there would just be an additional period of delay. MR. DREYER: Well, as I understand it, once

the Supreme Court decision comes down, if this Court determines that it doesn't impact this case, then you're going to set a reporting date, and then the Bureau of Prisons can designate. And then we can appeal -- or not

appeal, excuse me -- make an application de novo to the Second Circuit for bail pending appeal. take our application. They are. That's kind of what I had in You don't want to

THE COURT:

BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY

28 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: 09-CR-29

In other words, here's the

understanding I have and here's why I crafted that in the way I did. In general, when I provide a control date, I That's the

provide it six weeks from the date of sentence.

date -- that's the period of time that the Bureau of Prisons has asked for in order to make a process and in order to designate and provide the defendant with an opportunity to report after notification from the Marshal. operating on a six week window. control dates. So what I'm envisioning is, once the Supreme Court rules, and I review that decision, if I'm not satisfied that it in any way alters the underlying conviction here, I then intend to kick in that process and provide Mr. Bruno with a report date. MS. COOMBE: MR. DREYER: THE COURT: MS. COOMBE: THE COURT: part of the Government? MS. COOMBE: Government, your Honor. THE COURT: Mr. Bruno's behalf. BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY Anything further, Mr. Dreyer, on Nothing further from the I understand, your Honor. That's acceptable, your Honor. Does the Government object? No, your Honor. Is there anything further on the So I'm

That's where I come from on

29 UNITED STATES v BRUNO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BONNIE J. BUCKLEY, RPR, CRR UNITED STATES COURT REPORTER - NDNY DATED: MAY 7, 2010 __________________________________ BONNIE J. BUCKLEY, RPR, CRR United States Court Reporter - NDNY I, BONNIE J. BUCKLEY, RPR, CRR, Official Court Reporter in and for the United States District Court, Northern District of New York, do hereby certify that I attended at the time and place set forth in the heading hereof; that I did make a stenographic record of the proceedings held in this matter and caused the same to be transcribed; that the foregoing is a true and correct transcript of the same and wholethereof. C E R T I F I C A T I O N MR. DREYER: THE COURT: 09-CR-29

No, your Honor. Mr. Bruno, I wish you well. Thank you, Judge.

THE DEFENDANT:

(Court adjourned at 5:50 PM.) * * * * *

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