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1 DAY. 2 MISTRIALS. 3 ETHNICITIES. A BAD DAY FOR PROSECUTORS

A Jew, a Black and a Hispanic walked out of court yesterday. Sounds like the beginning of a joke, doesn't it? Well it isn't a joke. It actually happened on November 16, 2017 in New York and New Jersey. In the first case, Senator Bob Menendez, a Cuban walked out of Federal Court when a jury could not reach a verdict on an Honest Services case that took close to 10 weeks. In the second case, Norman Seabrook, an African American and Murray Huberfeld, a Jew, walked out of Federal Court in Manhattan when a jury could not reach a verdict on whether Huberfeld bribed Seabrook, the former head of the prison guard union in New York City, to invest union money in his hedge fund. I cannot remember a time in recent history, when the champagne was corked simultaneously with Hip Hop, Salsa and shouts of L'chaim! in the background. OK, maybe I am injecting a few racial stereotypes here, but you get the point. Yesterday was a bad day for the prosecutors. A very bad day.

I guess because I ultimately pled to similar charges, I have gotten quite a few phone calls for my opinion on both these cases. I did however get significantly more call on the Huberfeld-Seabrook case but that was for a host of other reasons that I will touch upon later. The real question that I asked myself last night if my opinion changed that for the most part defendants are better off taking a deal than going to trial. How is it that not one, but two juries were unable to convict in such high profile cases. Of course, I do not have enough information to answer those questions. I have no idea what plea deals, if any, were offered to any of these men. I have no idea  if they actually had to pay the legal fees out of personal funds. In other words, I don't have any of the information to give an educated answer. I do, however, have opinions on both of these cases as in my view, both avoided conviction (for now) for two entirely different reasons.

In the first case, that of Senator Menendez, it came down to Honest Services. Without going too much into detail, Honest Services fraud is where someone with a duty to others, for example am elected official, receives monies which may influence his action and therefore deprives his constituents to an intangible right of "Honest Services". In other words, if the mayor of the town receives an undisclosed payment from a  sanitation company  to hire them to pick up the city's trash, he has violated honest services. This applies even if the company hired was the best and the cheapest. The crime applies to payor the giver as well as the recipient of the money. Since this law was enacted it has been sort of a catch all for prosecutors and in 2010 the Supreme Court narrowed the scope. The Supreme Court further narrowed the scope in 2016 when it vacated Governor Bob McDonnell's conviction for Honest Services Fraud. This resulted in convictions for a few other politicians being overturned because the jury instructions did not conform to the current definition. In other words, it is much harder to prove a quid pro quo for purposes getting and Honest Services conviction.

Menendez had the good fortune of going to trial under the new narrow scope of Honest Services. The crux of the case was that he was accused of receiving cash and other benefits from a friend of his to arrange for visas and other benefits. The jury was left to determine if Menendez received gifts from a friend and also helped him out of if there was an explicit arrangement that the favors were in return for the cash and under benefits. Aside from the obvious problem that a jury has to be fairly sophisticated to understand all of these nuances, in the absence of a "smoking gun" it is hard to convict. So after 10 weeks of trial and $4.5 million in legal fees, the jury could not agree on the nature of these gifts and a mistrial was declared. There is no question, in my non lawyer opinion, that had this gone to trial two years ago, when the standard was much lower, he would have been convicted. However, based on what has happened elsewhere he would simply have had the verdict thrown out and would be awaiting a second trial anyway.

Huberfeld and Seabrook represent an entirely different scenario. FULL DISCLOSURE. While I have never met Murray in person, I have spoken to him on the phone. He is not one of my favorite people as it was his firm that got me into the situation that landed me in prison. I believed eight years ago as I do now that they deliberately withheld information from me. In my book, which will hopefully be out during 2018, I dedicate a few pages to Murray, his history, many facts that never made it into the press or into this case. My assessment of the man is not favorable. For all of the details you will all just have to wait for the book. However, with all that, I was rooting for Murray to avoid prison time. Perhaps it is because we share a faith or perhaps I don't think that prison itself serves much of a for all but the most egregious white collar crimes, or maybe it was just my overall distaste for the system, but I was rooting for him.

The case against Huberfeld and Seabrook was pretty simple. The alleged crime was that Huberfeld paid a cash bribe in the neighborhood of $60 thousand to Seabrook so that Seabrook would invest $20 million of pension fund money into Platinum Partners, a fund that Huberfeld sort of ran. Incidentally, Platinum has since gone bankrupt a three members of the firm  have been indicted in a case separate from Huberfled's. Clearly, if the money was paid to Seabrook then even under the new narrowed definition of Honest Services, a crime was certainly committed. Now I have no idea if this bribe actually took place. Based on my experience with Huberfeld as well as is less than stellar reputation, it would not surprise me but again, I wasn't there.

The case against Huberfeld and Seabrook essentially rested solely on the testimony of an amateur con man named Jona Rechnitz, another member of the tribe who claims to be a religious person. Well Jona tried to become a big man in New York and threw around a lot of money to buy influence. From what I have read, Jona was basically a rich kid from LA with little if any actual business intelligence. Jona is also a notorious liar. Well Jona got himself into quite a few difficult situations while in New York, all of which could and probably will land him in prison. Jona decided that rather than fight, he will simply snitch on everyone who he claims was involved in these crimes with him. It is quite possible that he decided to fabricate stories of illegal activities in the hopes that by securing convictions he will avoid prison time. Yes, Jona is a low life scumbag piece of garbage who would sell out his mother if it served a purpose. I really have no use for snitches, particularly those who testify in court against their own people. There is a special place in hell for people like Jona. He will probably have a space not far from Harvey Weinstein and Kevin Spacey.

The problem for a case the rests solely on the testimony of a liar is that the case ends of being about the witness and not about the defendants. And that is exactly what happened. Six days of testimony were dedicated to Jona, his illegal activities and many of the lies he told. From what I am told, it was a complete circus.  Whereas there are more professional liars and con men who are able to ingratiate themselves in the hearts of the jury and even convince the jury they are repentant, Jona is quite the opposite. It seems the jury hated him. The problem for the prosecution was that they needed to jury to take Jona at his world that Huberfeld asked Jona to deliver a cash bribe to Seabrook. Well the problem with cash is that it is untraceable so there really was no tangible proof that this actually happened. Sure there was some corroborating evidence, but in the end it came down to Rechnitz's testimony. As I was watching this case head to trial, it was unfathomable to me that any prosecutor would allow his case to be totally dependent on such a bad witness. I was sure they had other information to bolster their case. In the end, I was wrong. In the end the jury was unable to reach a verdict on either count simply because it really came down to whether a juror could believe what Rechnitz was spewing. The rule is simple, if you can't believe everything, you cant believe anything. It is interesting that on one count all but two jurors voted for conviction and on the other all but one voted for acquittal.

In the end all three of these men will be retried and how it pans out is anybody's guess. In spite of our history, I am still rooting for Huberfeld and hope his family does not have to go through what mine went through. I happen to think they will get Menendez on the next round, but I have been wrong before. For all I know all three of these men will take deals this time around. I do often ask myself if I would have gone to trial under the new definition of Honest Services, and with the benefit of knowing that I only did serve 11 months I still think I made the right decision. Aside from the cost that I would have incurred to actually go to trial, the amount of time I would have served in the event I was convicted would certainly have been longer even if I would have had it overturned on appeal. These men live to fight another day and that day will come. But for now, there is plenty of dancing to hip hop, salsa, and lots of l'chaims!

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