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Court: Ex-NY Senate majority leader can face trial

Larry Neumeister, Associated Press

NEW YORK (AP) -- Former New York Senate Majority Leader Joseph Bruno may be tried on two counts of mail fraud despite his claims it would constitute double jeopardy, a federal appeals court said Tuesday, clearing the way for a retrial of a retired state senator who was once one of New York's most powerful politicians.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals said a lower court was right to deny a request to drop the charges against Bruno, an 84-year-old Rensselaer County Republican who was Senate majority leader for 13 years until he stepped down in 2008, six months before he was indicted.

The same appeals court previously tossed out Bruno's December 2009 conviction on honest services mail fraud charges after the U.S. Supreme Court had ruled in a separate case that the honest services fraud statute criminalizes only bribery and kickback schemes, not mere failures to disclose conflicts of interest. The trial jury had acquitted Bruno of five other counts and failed to reach a verdict on another.

After the 2nd Circuit tossed out the earlier conviction, the government filed new honest services mail fraud charges in federal court in Albany, N.Y., based on the same facts that had been used to convict him but this time specifying a bribery and kickback theory that would conform to the Supreme Court ruling. He is accused of receiving $360,000 in consulting fees in 2004 and 2005 and $80,000 for a worthless racehorse in return for favors in the Legislature.

Bruno's lawyers had argued that the counts on which he was acquitted reflect a finding by jurors that he did not intend to devise a scheme to defraud while serving as a state senator.

"We see no merit to Bruno's argument because ... Bruno was convicted of the offenses that are now the subject of the retrial," the appeals court wrote Tuesday. "These convictions are significant because they indicate that, notwithstanding the acquittals, the jury found that Bruno possessed the requisite intent to devise a scheme to defraud."

It added: "While Bruno argues that the now-vacated convictions should be considered a non-event and the jury's determinations on those counts should be ignored, there is no legal or factual support for this proposition."

A message left with a lawyer for Bruno was not immediately returned.