Use of Lori Mody tapes iat issue in William Jefferson corruption trial
by Jonathan Tilove
and Bruce Alpert, The Times-Picayune
Monday June 22, 2009, 9:54 PM
ALEXANDRIA, VA. -- Attorneys for former Rep. William Jefferson, D-New Orleans, filed a motion Monday asking the judge in his corruption trial to bar the prosecution from introducing into evidence tapes secretly recorded by Virginia businesswoman Lori Mody, unless the defense also is able to introduce other excerpts.
"This case cannot be fairly tried, and defendant's rights under the Fifth and Sixth Amendments will be violated, if the government is permitted to introduce excerpts from the recorded conversations but the defense is not, " attorney Robert Trout and his co-counsels wrote in their motion to Judge T.S. Ellis III.
"A trial where the defense is bound by the government's evidence, and prohibited from putting on any evidence of its own, is not a fair trial in any sense, " they said.
Ellis is presiding over the trial of the former New Orleans congressman. It is in its second week at the federal District Court in Alexandria, Va.
The judge expressed some impatience Monday with the pace of the proceedings, as former iGate CEO Vernon Jackson began his fourth day of testimony in the case. Jefferson, a Democrat, is facing a 16-count indictment that accuses him of seeking and sometimes receiving bribes in exchange for his help in brokering deals in West Africa.
"If this case lasts six weeks it will certainly be contrary to my intentions, " said Ellis, who admonished both sides against getting bogged down in "minutiae."
In a motion last week, defense lawyers asked the judge to let them play for the jury some 20 taped excerpts of FBI wiretaps of Jackson's phone, not introduced into evidence by the prosecution, as part of their cross-examination of the former Kentucky businessman. Jackson is hoping his testimony will help shorten a seven-year sentence he is serving after pleading guilty to bribing Jefferson.
Ellis said he would allow the defense to play only three or four of those excerpts when it continues its cross-examination of Jackson today, though the defense could use information it gleaned from the other excerpts in questioning Jackson. But Ellis ruled against allowing the defense to use most of the excerpts, including one in which Jackson referred to Mody as "a crazy person" whose erratic behavior was leading him to want out of the Africa deal, in which Mody was iGate's key investor. The allowable excerpts are conversations between Jefferson and Jackson about iGate's financial problems and could support the contention of Jefferson's attorneys that he was acting as a business consultant and not in his official capacity as a member of Congress.
The defense argues that the extent to which Jefferson brokered deals in Africa did not involve "official acts" covered by the federal bribery statute.
According to prosecutors, one of the indicators that Jefferson was indeed engaged in official business when he traveled to Africa to help grease the deals is that he traveled with a member of his congressional staff. To that end, Monday's defense motion notes that "the government intends to show that Angelle Kwemo, a staff person, accompanied (Jefferson) on a trip to Ghana in July 2005."
But in their motion, defense attorneys released the transcript of a June 17, 2005, conversation between Mody and Jefferson. They write, "as the recorded conversations show, Lori Mody suggested that Mr. Jefferson bring a female staff member, not for official purposes, but simply to keep Mody from being uncomfortable about being the only woman on the trip."
In the transcript, Mody asks Jefferson "just from a comfort standpoint, just being out of the country and traveling, " if he could bring along a female member of his staff she knows and likes. "I hope this request doesn't sound strange, " Mody says.
"Uh huh, " replies Jefferson, saying that he just hired a woman from Cameroon named Angelle Kwemo as a staffer on international affairs who could accompany them.
"So you won't look like you're going with a bunch of guys?" Jefferson asked.
"Exactly, " Mody said.
"That's not comfort; that's appearance, " Jefferson said.
The prosecution does not plan to call Mody as a witness.
On Monday, Trout sought to enter into evidence a personal services contract between Jackson and Brett Pfeffer, a former Jefferson aide who was advising Mody. Trout said that when Mody originally went to the FBI it was to complain she was being defrauded by Jackson and Pfeffer, not Jefferson. "So what?" the judge said after the jury had been dismissed for lunch, noting that what Mody believed to be potentially illegal activity was not relevant to the jurors.
The defense is prepared to argue that once Jefferson became the FBI's target, Mody, carefully coached by the FBI, manipulated Jefferson in ways that would make a selective hearing of their taped conversations appear most incriminating. In their motion they note how closely Mody worked with FBI agents in preparing for secretly taping her interactions with Jefferson.
"The FBI agents invested weeks in training the woman they called their 'star, ' and the lead case agent met with her before and after every recorded session with Mr. Jefferson, " the attorneys write in their motion. "Not only was Mody provided with topics and agendas for her meetings with Mr. Jefferson by the FBI, e-mails turned over by the government in discovery show that Mody was in constant contact with the FBI and carefully advised by them about what to say and how to say it."
As an example, the defense team released an April 2005 e-mail message in which Timothy Thibault, the lead FBI agent on the case, sent Mody a suggested script for an e-mail message to send to Jefferson thanking him for the good time she had at the New Orleans Jazz and Heritage Festival in New Orleans and suggesting that they have dinner in Washington the following week.
"Feel free to add your own special touch, " Thibault advises Mody, while reminding her that in making a dinner reservation "we want a semi-private room if possible, " presumably for purposes of tape clarity.
On the transcript of the June 17, 2005, conversation, the back-and-forth about bringing along a female aide is preceded by an exchange in which Mody inquires about whether she can legally pay for their travel. Jefferson replies that it is legal as long as she is not a registered lobbyist, "which you are not, are you?"
Mody "No . . . I would know if I was now, wouldn't I?"
Jefferson: "You would know. You'd have to sign some papers, and you'd probably have alligator shoes too. You don't have those, do you?"
Mody: "Um, I have a Louisiana crocodile purse."
Jefferson: "Now somebody sold you a pig in a poke if you've got a crocodile purse."
Mody: "They did?"
Jefferson: "Because we don't have crocodile purses in Louisiana. It's an alligator purse."
Mody: "Maybe they used the wrong word."
Mody concludes by saying that whether it was crocodile or alligator, the purse was either a Prada or Gucci.
"It better be right, " she said.
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Jonathan Tilove can be reached at email@example.com or 202.383.7827.