|Jefferson motion attacks federal case|
Posted by Washington bureau September 07, 2007
By Bruce Alpert and Bill Walsh
Washington bureau - NOLA.com
WASHINGTON - Accusing the Bush Justice Department of mounting a bogus bribery case and using tainted evidence, attorneys for Rep. William Jefferson, D-New Orleans, asked a federal judge Friday to throw out 14 of the 16 charges against the nine-term congressman and to move the trial on the two remaining counts to Washington, D.C., from northern Virginia.
In hundreds of pages of motions, Jefferson's legal team, led by Washington lawyer Robert Trout, argue that the government choreographed events, including changing the locale of a 2005 meeting in which a government informant gave Jefferson a briefcase with $100,000, to justify bringing the case in a jurisdiction friendlier to the prosecution. The brief said that the government wants to try the case in northern Virginia because the judicial district has a lower percentage of African-Americans than Washington, D.C does, and therefore violates the Constitution's guarantee of equal protection. Jefferson is African-American.
Jefferson's motions, filed with U.S. District Court Judge T.S. Ellis III, also argue that FBI agents who raided Jefferson's New Orleans home Aug. 3, 2005, rousing him from sleep at 7 a.m., photographed records, including some discovered in the congressman's briefcase and others on a night table, not listed on a court-obtained search warrant. The congressman's attorneys also argue that the Justice Department side-stepped statute of limitations deadlines and evidence problems by lumping some charges under "vague" conspiracy allegations.
But the biggest problem with the government's case, Jefferson's legal team said, is that the thrust of the government's case centers on accusations that Jefferson accepted and solicited bribes. They contend that what Jefferson is accused of doing, including accepting payments to help U.S. firms obtain contracts in Western Africa, doesn't meet the definition of the federal bribery statute.
There was no immediate comment from the Justice Department, which has three weeks to respond to the motions. Some legal experts believe the motions are so voluminous they could delay the scheduled Jan. 16 start for the trial.
Quoting from a 1999 Supreme Court decision, Jefferson's legal team said that to win a bribery conviction, the government must show that a public official accepted something of value in return for an official act. But, they argue, none of Jefferson's alleged actions, including funneling $367,000 from the Kentucky company iGate Inc., to a business owned by the Jefferson family in return for the congressman's help winning contracts in Western Africa, are "official acts" of a member of the House of Representatives.
The government's contention that some letters to African officials were written on congressional stationary, arrangements for some his trips to Africa were made by his congressional staff and some meetings with officials at the Export-Import Bank, for example, listed Jefferson as a member of Congress, doesn't take away the major deficiency of the government's case: Helping American businesses with transactions in Africa isn't part of a member's official duties, Jefferson's motion says.
Nowhere, the Jefferson brief says, does the government accuse the congressman of casting a vote, introducing a bill, proposing a hearing or getting an appropriation - the activities that full within a member's official duties.
"Vast resources have been brought to bear upon one man's career, but after the wiretap, the consensual recordings, the subpoenas, and the search warrants, and despite the depth and expansive scope of the investigation and the 280 paragraphs amassed in the charging document, DOJ has failed to allege an essential element of (the bribery statute): The offer or solicitation of something of value in exchange for an official act," the motion says.
Jefferson is seeking to remove numerous charges against him, including conspiracy to solicit bribes and deprive citizens of honest services; schemes to deprive citizens of honest services by wire fraud; money laundering and racketeering. Those remaining would be alleged violations of the Foreign Corrupt Practices Act and obstruction of justice.
Even if Jefferson's efforts to throw out most of the charges were successful, he wouldn't be totally off the hook. Congress has regulations about outside income - it is limited to 15 percent of a member's salary - and some of his efforts in Africa on behalf of American businesses could run afoul of the House ethics rules and lead to sanctions, including possible removal from office.
In their motion, the Jefferson attorneys accuse FBI agents who raided the congressman's New Orleans home photographing documents not on the court-issued search warrant, and then seeking copies elsewhere to bring charges related to transactions in Western Africa that the Justice Department wouldn't have known about otherwise. The agents also photographed the family's address book, which contained the names, addresses and phone numbers of the family's relatives and friends.
As a matter of law, the Jefferson team said, the agents were required to "ignore or set aside" material that was not listed in the search warrant. After the documents were photographed, the Jefferson brief said, a lobbyist for two of the businesses mentioned in the photographed documents wore a wire to assist the investigation.
As a result of what Jefferson's team labels a clear abuse of the government's authority, charges related to several transactions, including Jefferson's alleged solicitation of payments to family members for helping Arkel Sugar of Baton Rouge with a sugar plant in Nigeria, and Procura Financial Interest retain the right to develop oil resources off the small Western African nation of Sao Tome and Principe, should be thrown out.
In asking for a change of venue, the Jefferson attorneys said that the prosecution appeared intent to have the case tried in northern Virginia, where African-Americans make up 11.6 of the population, compared to 57 percent in Washington D.C.
"The overwhelming majority of the events took place in the District of Columbia, and one of the key events that did take place in Virginia was obviously orchestrated by the FBI for the purpose of securing venue in Virginia," the motion says. "Just as prosecutors may not employ their preemptory challenges to exclude members of the defendant's race from the jury, they should not be permitted to exercise their discretion to select the forum to accomplish the same result."
According to one of Jefferson's motions, a government informant, who has been identified as a Virginia businesswoman Lori Mody, insisted that the July 2005 meeting in which the congressman accepted a briefcase with $100,000 in cash, take place at the Ritz Carlton Hotel in Virginia. That is the same hotel where Linda Tripp secretly recorded conversations with Monica Lewinsky about Lewinsky's relationship with President Clinton. Usually, the Jefferson lawyers said, Mody and the congressman had most of their meetings at a Washington hotel.
The Jefferson motion also made note of the criminal indictment's observation that on one of his trips to Western Africa, the congressman flew from Dulles International Airport, which is in Virginia. That argument shouldn't be taken seriously, the Jefferson lawyers said, because it was the FBI, secretly working with the trip's listed sponsor, Mody and her educational foundation, that had made the airline bookings.
However, some legal experts doubt Jefferson will be successful in getting the trial moved.
Thomas McConville, a former federal prosecutor in Ohio and California, said Jefferson would have to demonstrate "affirmative misconduct" on the part of the government. He said that urging Jefferson to attend meetings in Virginia doesn't amount to misconduct.
"Even if they said we manufactured venue in Virginia, that wouldn't necessarily mean that venue was wrong," McConville said. "He will still get a trial by a jury of his peers."