Oklahoma Criminal Defense Blog

Bernard Kerik was on top of the world.  He had served gloriously as police commissioner of New York City for Mayor Rudolph Giuliani.  Bernie was famous in his own right, often on television screens, sporting his trademark mustache and shaved head.  He was sent by President George Bush to reorganize the police force in Iraq.  Finally, he was nominated to head the Department of Homeland Security.   After that, things went downhill.

Kerik was indicted in federal court with corruption for allegedly accepting unreported gifts of construction work on his home.   Kerik failed to report as income more than $200,000 in rent paid on his behalf to use a luxury apartment where he lived with his family when he left his city post, paid for by Steve Witkoff, a commercial real estate developer. Also, a construction company with alleged mob ties paid for the $165,000 in renovations on Kerik’s home in Riverdale, the Bronx, apparently in hopes of obtaining a city license. In 2006, Kerik plead guilty in the Bronx to state misdemeanor charges stemming from those renovations.

In 2004, after nomination by Rudy Giuliani, President George W. Bush nominated Kerik to head the Department of Homeland Security.  Seven days later, Kerik withdrew his name from consideration.  Then fell the avalanche of questions about Kerik.

Had Kerik inappropriately lobbied New York City on behalf of Interstate Industrial, a construction company with alleged links to organized crime?  At first, Giuliani denied he knew about Kerik’s ties to Interstate Industrial when he appointed Kerik as police commissioner. Then in 2006, Guiliani acknowledged that city investigations commissioner, Edward Kuriansky, said Kuriansky has stated he told Giuliani in at least one briefing about Kerik’s problems, but Giuliani said he did not remember any such briefing.

Kuriansky’s diaries confirm that one of those briefings did take place.  Additionally, Kuriansky stated, based on his recollections and his diaries, he also briefed Dennison Young, Jr., one of Mayor Giuliani’s closest aides, about Kerik’s ties to the construction company only days before Mayor Giuliani appointed Kerik police commissioner.  Giuliani is well-known for the premium he places on loyalty and his own loyalty to others.  Giuliani Partners, his consulting firm did employ Kerik and continues to employ Alan Placa, a high school friend, in spite of allegations he molested young men years ago.

By the time Giuliani recommended Kerik for the Homeland Security job, his administration knew Kerik had acted on behalf of Interstate Industrial and knew about other criticisms of Kerik, including sending detectives to look for his lover’s cell phone and using police officers to research his autobiography.

In 2000, more than half the mayor’s cabinet opposed Bernie Kerik’s appointment to police commissioner.  They had concerns that included the fact that Kerik did not have a college degree, a police department requirement at the time for captains and above.

Giuliani met Kerik in 1990 at a fund raiser in New Jersey honoring a slain new York City police officer. Kerik was a decorated undercover detective with a ponytail and earrings, big biceps. Kerik cultivated political connections, such as the sheriff of Passaic County, N.J., who had made Kerik five years earlier the youngest jail chief in the county’s history.   When Giuliani ran for mayor in 1993, Kerik organized Giuliani’s security detail of off-duty officers to reserve the weekend shift for Kerik himself.

A year after Giuliani became mayor, he appointed Kerik first deputy correction commissioner to include supervision of Riker’s Island.   One year after that, Kerik was appointed  correction commissioner, where he showed up for spot inspections at 2:00 a.m.  When violence in the jails dropped, public praise climbed.  Now reported are some of his questionable activities then, such as his dating a woman who was a correction officer and his getting close to the department’s inspector general, whose responsibilities required him to avoid such closeness with other city personnel.  Later, one of his top deputies was convicted of taking $142,000 from a Correction Department that Kerik headed.  Another deputy was convicted of forcing staff members to do political campaign work and dispatching officers to renovate his home.

Lawrence Ray was a friend of Kerik and served as best man at Kerik’s wedding.  Ray even paid for much of the wedding, and Kerik in turn recommended Ray for a $100,000 job at Interstate Industrials, a New Jersey construction company with tens of million dollars in contracts with New York City.

Interstate Industrials hoped that Lawrence Ray could change relations with the City because, two years before, city investigators had found the company employed mob figures and denied the company an operating license. After hiring Ray, Interstate hired Kerik’s brother, and from then on, the then-correction commissioner began lobbying unofficially for Interstate. Kerik defended Interstate to the chief of enforcement for the city commission, a cousin of Giuliani who was reviewing Interstate’s license application.  Kerik telephoned an assistant commissioner at the Department of Investigation to say Interstate’s owners were clean of mob ties, so far as he knew.  He even had city detectives who were investigating Interstate meet Lawrence Ray in Kerik’s own city office, sending a strong signal to the detectives.  But the lobbying stopped in March, 2000, when Lawrence Ray and Edward Garafola, a mob soldier associated with Interstate, were indicted on a federal stock scheme not related to Interstate’s business.  New York City suspended Interstate’s $85 million in city contracts.

Three weeks later, Bernie Kerik interviewed for two hours with the Department of Investigation and talked about his relationship with Lawrence Ray, Interstate and its owners and his brother.  However, Kerik never mentioned that Interstate was paying for $165,000 worth of renovations on his new apartment in the Bronx.

That is when the police commissioner job came open.  Bernie Kerik was one of the candidates with his eight years experience as a police officer.  Edward Kuriansky, the city investigations commissioner, was assigned to oversee background investigations of Kerik and the other candidate, Joseph Dunne.    Kuriansky’s agency was supposed to be semi-independent, but Kerik had coopted it to some extent, appointing friends like Kuriansky to the commission and having them attend his morning meetings.  Kuriansky was a former prosecutor, and he knew Kerik had intervened on behalf of the company suspected of mob ties and that Kerik’s best friend and brother worked for that company.  Kuriansky, however, did not know Interstate was renovating Kerik’s apartment.

Giuliani selected Kurik as his police commissioner, and he served in that capacity for 16 months.  Crime fell, and Kerik enjoyed not only public approval during his tenure but celebrity.   Bernie Kerik adopted the persona of a steady figure after the World Trade Center attack on 911.  He continued to receive good press.  Three years later, after he had withdrawn his nomination as head of Homeland Security, it came to light that Kerik had used an apartment dedicated for weary rescue workers at ground zero for an extramarital affair with his book publisher, Judith Regan.

After Kerik’s three months in Iraq, he spoke at the Republican National Convention. But his candidacy to head Homeland Security lasted only a week.  He withdrew himself, saying he discovered his nanny was in the country illegally and he had not paid taxes on her.

Kerik couldn’t even stay out of trouble after he was indicted in federal court.  U.S. District Judge Stephen Robinson revoked Kerik’s bail when the judge found Bernie had, in apparent hopes of generating sympathy in his trial, leaked information the judge had ordered sealed.  Kerik ultimately pled guilty to eight counts in hopes of receiving a  two or three years sentence, as indicated by the Sentencing Guidelines and the expectations of the prosecutors.      Whoops. The judge gave him four years and said Kerik had violated the public trust immeasurably.   While waiting for his sentencing, Kerik complained that he had not heard from Rudy Giuliani.  Small wonder why.  The wonder is that he overlooked Kerik’s fleas so long.

William Jefferson, former Congressman from New Orleans, was sentenced to 13 years in federal prison for using his office to enrich himself and his family.  His sentence was less than the 27 years recommended by the U.S. Attorney.  He was convicted by a jury last August for bribery, racketeering and money laundering.  Some of his schemes involved business ventures in Africa.

Since Jefferson is 62 years old, his sentence could be a life sentence, since there is no parole in the federal prison system, although he could get 15 per cent of his sentence off for good behavior.

Jefferson was convicted after a six-week trial in Alexandria, Virginia. He was found guilty of 11 of 16 counts after he was indicted in June, 2007.  But his indictment followed highly publicized activity in the case.  Jefferson was videotaped by the FBI in July, 2005, receiving $100,000 of $100 bills in a briefcase in Arlington, Virginia.  Captured by a wire on one of the participants, Jefferson allegedly advised an informant to give Nigerian Vice President Atiku Abubakar $500,000 to make sure their business interests obtained contracts for their companies in Nigeria.

A few days later the FBI raided Jefferson’s home in Washington, D.C. and claimed to have found $90,000 of the cash in the freezer in $10,000 increments, wrapped in aluminum foil and stuffed inside frozen-food containers.”  The FBI claimed the serial numbers found on the bills in Jefferson’s home matched serial numbers of the money the FBI had given to their informant.

It was nine months later that the really big raid took place.  FBI agents executed a search warrant on Jefferson’s office in the House of Representatives, the Rayburn House Office Building.  Jefferson was a sitting Congressman at the time, and the FBI raid is believed to be the first time a raid was ever conducted on the office of member of Congress.

The separation of powers implications raised great concerns.  Members of Congress feared the precedent of law enforcement officers raiding legislators’ offices.   If legislators’ offices could be raided whenever agents of the executive branch claimed they were on the trail of criminal evidence, the legislative branch of government could be at the mercy of the executive branch.  These are the kinds of raids Russia’s Premier Putin has conducted to crush the formerly free press and private businessmen who challenged Putin.  These are the kinds of raids governments around the world have used as a pretext to force legislators to follow the command of the executive.

Congressional leaders immediately demanded the FBI return documents seized from the raid of Congressman Jefferson’s House office.  House Speaker Dennis Hastert and Minority Leader Nancy Pelosi spoke out together.  Reportedly Attorney General Alberto Gonzales and FBI Director Robert Mueller threatened to quit if the Justice Department had to return the documents.  Meanwhile, the House of Representatives was threatening to axe the Justice Department’s budget.  President Bush ultimately directed the Justice Department to seal all seized evidence for 45 days.

At the time, an ABC News poll in June, 2006 found 86% in the United States supported the FBI’s right to search congressional offices when they obtain a warrant.  This should be no surprise. The public’s support of law enforcement always outweighs support of Constitutional restraints.  At least the poll dealt with a search warrant.

As any criminal defense lawyer will tell you, members of the general public for the most part always will see the justification of unconstitutional actions in the results.  If the police acted without probable cause or a trumped up justification, the public does not often question the action.  There are significant exceptions, but for the most part, the safeguards of the Constitution are not appreciated by the general public when weighed against the value of “getting bad guys.”.

The public wants crimes solved, and the restraints on government placed by the Constitution are seen as speed bumps to be ignored only “a case at a time.”  The “case at a time,” of course, becomes the rule rather than the exception because in every case there is a “good reason” to go ahead with ignoring the restraints, to go ahead and get this guy because “this guy really needs getting” or “this crime really needs solving.”  The Constitution remains on the sidelines from little use until that member of the public or this person has an experience when they are surprised at how easy the rules have made it to convict someone innocent of a crime.

William Jefferson challenged the raid on his office to the District Court of the District of Columbia.  The Court held that the broad protections of the Speech or Debate Clause, which give absolute immunity from prosecution for legislative acts does not shield members of Congress from the execution of valid search warrants.  For those who fear executive overreach, it is noteworthy that search warrants would necessarily require approval from the judicial branch of government.  Oddly, Chief Hogan, who made this finding was the one who had approved the original search.

The decision of the District Court was appealed to a three-judge panel held that Department of Justice could not review Jefferson’s filed until Jefferson had seen what files had been taken from his office and which pertained to his legislative duties.

Thereafter the House of Representatives stripped Jefferson of his committee assignment in the House.  Jefferson was reelected in 2006, but after being indicted in 2007, he lost election in 2008, upset by a Republican in an overwhelmingly Democratic district.  Jefferson went to trial as an ex-Congressman.