|Bribery defense hinges on risky tack|
by Bruce Alpert, The Times-Picayune
Thursday July 03, 2008, 9:04 PM
WASHINGTON -- In the almost three years since the first details of a federal investigation of Rep. William Jefferson became public, the key issue has always been how the New Orleans Democrat would explain two pieces of evidence: the $90,000 FBI agents found wrapped in his freezer and the secretly taped conversations in which complicated bribery schemes are allegedly discussed.
Jefferson has promised an "honorable explanation" will be provided at his trial, which is scheduled for Dec. 2, and has so far declined to elaborate.
In the meantime, recent court filings by his legal team, led by prominent Washington lawyer Robert Trout, provide some possible clues about how the defense team plans to counter the material.
For starters, the briefs suggest, the fact that the money was found in Jefferson's freezer instead of in the possession of Nigeria's then-vice president, Atiku Abubakar, as FBI agents had expected, exposes a huge flaw in the prosecution's theory of the case.
Instead of proving that the frozen cash is evidence of illegal activity, the fact that "Mr. Jefferson took it (the money) home and secured it in his freezer" indicates that it most certainly was not a bribe, the attorneys say. What the money was for and why it was hidden in soy burger boxes is not addressed.
As for the secretly taped conversations between Jefferson and government witness Lori Mody, a Virginia businesswoman, the defense says Jefferson wasn't being truthful when he laid out elaborate plans to bribe Nigerian officials.
"The objective and undisputed evidence that, contrary to what he said to the cooperating witness, the defendant did not pass any money to the Nigerian vice president when he had an opportunity to do so is inconsistent with the government's allegation of a Foreign Corrupt Practices Act conspiracy, " the Jefferson defense says.
The strategy isn't without risk. If the defense concedes that Jefferson was being less than honest with Mody, prosecutors can ask jurors to consider whether he is lying about his innocence in all matters.
At issue is the government's contention in the first of its 16-count indictment that Jefferson conspired to violate the Foreign Corrupt Practices Act through payment of bribes to Abubakar and other Nigerian officials.
The government says its wiretaps show Jefferson told Mody that Abubakar demanded a share of the profits from a telecommunications project Mody had invested in and would also need an upfront payment "as a motivating factor" to move the project forward.
In a 2005 transaction videotaped by the FBI, Mody handed Jefferson a briefcase with $100,000 in marked $100 bills for delivery to the vice president. A few days later, Jefferson told her that he had delivered the "African art" and that the vice president was satisfied. Investigators say that was code for the bribe, which is why they raided Abubakar's Maryland home in hopes of recovering the money that wasn't there.
Why would Jefferson mislead Mody? Another brief suggests he was only trying to convince her he was doing what she wanted him to do.
"It appears that the government's Foreign Corrupt Practices Act case is based solely on uncorroborated tape-recorded statements made by Mr. Jefferson to cooperating witness Lori Mody, a government agent, in which he appears to accede to her desires to make payments to the Nigerian official, " the filing says. That raises the possibility that Jefferson's attorneys, in addition to arguing that he didn't do what he told her he did, could raise a defense that the government, through Mody, was trying to entrap him into illegal activity.
Jonathan Turley, a law professor at George Washington University who has been following the case, said a less than honorable explanation could carry more weight with jurors than trying to claim complete innocence.
It's better to say, according to Turley, that Jefferson was just trying to bilk a rich businesswoman out of money, which is a crime but not one the congressman is accused of in the indictment, than suggesting he was going to use the money to help mankind.
"No one is likely to think that he hid the money in his freezer so he could help starving children in Africa, " Turley said. "You can actually have a client who gains credibility if he makes self-incriminating statements."
In their filings, prosecutors maintain that no matter how Jefferson portrays the money in the freezer, it doesn't mean he didn't intend to bribe the vice president and other Nigerian officials.
And the attempt to bribe the vice president and other Nigerian officials, the prosecutors say, is just one of 11 alleged schemes in which Jefferson demanded payments to family-owned businesses for helping businesses advance projects in western Africa.
Not subject to rules?
On those charges, Jefferson's attorneys have already signaled their strategy.
In order to convict Jefferson of bribery, they have said, the government must prove he performed official duties in return for demanded payments. Helping businesses from outside his district get foreign contracts, they say, is not part of a congressman's official duties, such as casting votes in Congress, and therefore not subject to the bribery statutes.
The Justice Department, not surprisingly, disputes the legal interpretation by Jefferson's attorneys. In its legal briefs, and in the 95-page indictment of Jefferson filed June 4, 2007, the Justice Departments says the congressman sent letters on official congressional stationery and made official visits to western Africa to promote the businesses and proposed loans from the quasi-public Export-Import Bank to finance one of the projects. All these activities, it said, constitute official duties.
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Bruce Alpert can be reached at email@example.com or 202.383.7861.