06.20.2011

Day 11: ‘Smoke and mirrors’ prosecution or a ‘smokescreen’ from the defense?

BY BORYS KRAWCZENIUK  (STAFF WRITER)

Defense lawyers portrayed Lackawanna County Commissioner A.J. Munchak and  former Commissioner Robert C. Cordaro as victims of an overaggressive “smoke and  mirrors” prosecution, but federal prosecutors said the defense “smokescreen”  excused a criminal enterprise that cheated taxpayers out of an honest  performance.

The two sides wrapped up their cases Monday with closing statements as the  two-week-old trial headed toward its conclusion: the determination of whether  Mr. Munchak and Mr. Cordaro are guilty of the crimes in their federal  indictment.

Senior U.S. District Judge A. Richard Caputo spent more than three hours  instructing jurors on the fine points of applicable federal laws before sending  them home. The judge is expected to give more instructions today before allowing  the jury to deliberate the fate of Mr. Cordaro, 50, of Dunmore, and Mr. Munchak,  64, of Scranton.

In her closing arguments, Assistant U.S. Attorney Lorna Graham reserved her  harshest criticism for Mr. Cordaro, whom she called a “self-serving, arrogant  and controlling” witness who regularly ignored the judge’s orders to answer the  questions asked.

“Everybody’s lying but him,” Ms. Graham told the jury. “He’s trying to  distract you from the truth. Don’t let him.”

But Mr. Cordaro’s defense attorney, William C. Costopoulos, said prosecutors  were out to get Mr. Cordaro and allowed themselves to be “scammed by (witnesses)  Al Hughes and Don Kalina,” whose deceptions forced prosecutors to file dozens of  charges, “hoping something will stick.”

“That is a very bitter pill for the government to swallow,” Mr. Costopoulos  said.

In summary

The closing statements summarized nine days of trial testimony featuring  dozens of defense and prosecution witnesses and hundreds of government and  defense documents.

Mr. Cordaro and Mr. Munchak are charged with honest-services mail fraud and  mail fraud, conspiracy to commit honest-services mail fraud and mail fraud,  conspiracy, theft or bribery concerning programs receiving federal funds,  conspiracy to commit extortion under color of right, extortion under color of  right, racketeering, racketeering conspiracy, filing false tax returns and tax  evasion.

Mr. Cordaro also is charged with money laundering, conspiracy to commit money  laundering, engaging in monetary transactions in property derived from specified  unlawful activity and conspiracy to defraud the United States.

In all, Mr. Cordaro faces 39 counts, Mr. Munchak, 25.

As in the defense opening, Mr. Costopoulos highlighted the accomplishments of  the Munchak-Cordaro administration between 2004 and 2008: a new 911 center, the  arrival of the New York Yankees Triple-A baseball team and renovations at the  Wilkes-Barre/Scranton International Airport and the courthouse, which jurors see  daily when they leave for home.

“They did that,” he said.

He pointed to character witnesses who attested to Mr. Cordaro’s integrity,  honesty and truthfulness and compared them to the prosecution’s “corrupt  sources”  who “cut deals” and supported a case overloaded with criminal  charges.

“It’s one of the lowest forms of trial strategy to do that,” Mr. Costopoulos  told the jury. “You don’t do that if you have a good case.”

Questions raised

One by one, he raised questions about witness testimony. He called Mr. Hughes  – who testified to funneling $379,000 to Mr. Cordaro – “a degenerate gambler”  and “a consummate scam artist.” He said Dan Marion, owner of Marion Maintenance,  which won a courthouse cleaning contract, gave $1,000 to Charles A. “Chuckie”  Costanzo, Mr. Cordaro’s boyhood friend, not to Mr. Cordaro. Jerry Ferrario gave  $4,000 in cash contributions to Mr. Cordaro’s brother, Ron, not to Mr. Cordaro,  he said.

Amid $2.5 million in campaign contributions to Mr. Cordaro’s and Mr.  Munchak’s campaign, including $13,500 in cash, the prosecution is worried about  money that was used “for tipping waitresses and bartenders,” he said.

He questioned the suddenness of certain testimony by defense witness Marc  Boriosi, who said he trailed Mr. Cordaro into the men’s room at a fundraiser to  give him $2,000 in cash.

“We’ve been on this case for over a year and we were wondering where that  came from,” Mr. Costopoulos said.

But he and attorney Christopher T. Powell, Mr. Munchak’s defense lawyer,  reserved most of their attention for Mr. Kalina and Mr. Hughes.

Mr. Kalina acknowledged extramarital affairs only after repeated questioning,  used thousands of dollars to support his mistresses by paying their credit  cards, rent and other expenses, vacationed with one mistress at his family’s  Florida condominium and hid it all from his wife with a separate checking  account, Mr. Costopoulos said.

Mr. Kalina and his Highland Associates partners, Kevin Smith and Dominic  Provini, testified they pooled $10,000 each three times and Mr. Kalina gave two  $30,000 payments to Mr. Munchak and one to Mr. Cordaro.

Mr. Costopoulos suggested Mr. Kalina kept the money.

“To maintain multiple mistresses … takes cash and lots of it,” Mr.  Costopoulos said.

Mr. Powell called Mr. Kalina “a cagey, cagey devil” and said he “lied to his  wife for 10 years, … lied to his fellow Highland partners” and at first “lied  to the FBI at least one time.”

He questioned Mr. Kalina’s account of Mr. Munchak calling for cash.

“‘Hey, hello, Don Kalina.’ ‘This is A.J. Munchak, I need cash.’ Come on,” Mr.  Powell said.

If that happened, why did the prosecution, which produced many other records,  not produce records of calls between the commissioner or his office to Mr.  Kalina and a credit card receipt for the lunch Mr. Kalina bought before giving  Mr. Munchak the first payment? Mr. Powell asked.

“They didn’t show you because it didn’t happen,” he said.

He ticked off a long list of witnesses who testified they had little or no  interaction with Mr. Munchak and never gave him any bribes and never said they  were extorted.

He asked jurors to compare Mr. Kalina to Mr. Munchak’s 45 years of marriage  and years of community service.

“Compare that to a man who cheats, who vacations with his girlfriend in the  family condo in Florida,” Mr. Powell said.

Mr. Hughes testified he took $10,000 a month for three years from officials  of the now-defunct Acker Associates civil engineering firm and gave it to Mr.  Cordaro, but Mr. Costopoulos pointed out the prosecution never provided a  specific time and date for each payment.

He pointed out Mr. Hughes had monthly loan payments that totaled $10,000 and  often gambled in $10,000 increments.

“$10,000 was Al Hughes’ signature number,” he said.

Mr. Hughes also borrowed $200,000 from Acker co-owner P.J. McLaine and ended  up owing Mr. McLaine $35,000 after payments stopped in 2007, when Mr. Cordaro  lost the election, Mr. Costopoulos said.

He said $10,000 checks made out to Mr. Cordaro by Mr. Hughes were payoffs for  lost bets, for legal fees and to obtain cash for Mr. Hughes.

He argued Mr. Hughes’ testimony that Mr. Cordaro once claimed a payment from  Highland was too small and gave it to Mr. Munchak was “perjury” because Mr.  Hughes never made that statement to the FBI.

He contended prosecutors never looked deeply into Mr. Hughes’ gambling and  told defense lawyers to “look in the box” for copies of checks Mr. Hughes wrote  to casinos and his tax returns. The box referred to a box of records obtained by  the prosecution.

“They still haven’t produced them,” Mr. Costopoulos said. “They’re in the  box.”

‘Shame on them’

He also argued Mr. Cordaro had hoarded $353,000 in cash since 1986 as a  lawyer and businessman. Combined with his regular income, that was more than  enough to spend $701,000 in cash between 2004 and 2007. Because of fears of the  Great Depression and books he read recommending a cash-based lifestyle, Mr.  Cordaro had no savings account, no certificates of deposit, no boats, no  condominiums and no jewelry.

“The watch he was wearing in this courtroom was $100,” Mr. Costopoulos  said.

He accused the prosecution of offering immunity to witnesses, then coaching  their testimony in pretrial sessions.

“They aren’t getting prosecuted,” Mr. Costopoulos said. “They’re walking, all  of them.”

Mr. Powell defended Mr. Munchak’s acceptance of $500 in cash from car dealer  John Grow, who wanted a seat on the county stadium authority board. He called  the idea that the contribution and eventual appointment were connected  “cockypoo” and chastised prosecutors for embracing the connection.

“They can’t do it,” he said. “That’s unfortunate, and shame on them for doing  it.”

He said Mr. Munchak’s use of $2,500 for tips at the fundraiser was  necessary.

“You cannot go into a restaurant and write a check (for tips),” he said. “You  have to have cash … A.J. Munchak did not pocket a dime.”

But Ms. Graham reminded jurors of an envelope full of $30,000 in cash they  got to hold and examine.

“How many people can say they ever did that in their whole lives?” she asked.  “Not many, but in the world these two guys lived in, it happens every day.”

Mr. Powell had tried to show $30,000 would not fit in an envelope, but Ms.  Graham likened the money to the infamous glove in the O.J. Simpson trial.

“If it don’t fit, you must acquit. Well, the cash fits here, so you must not  acquit,” she said.

Ms. Graham scoffed at Mr. Munchak’s testimony that he was ignorant of the law  in failing to report cash campaign contributions and used a $2,500 cash  contribution to tip waitresses, bartenders, meat carvers and others at a 2007  campaign fundraiser.

Mr. Munchak signed inaccurate campaign finance reports and did not report the  cash contributions, she said.

“It wasn’t a lie, it’s just wrong,” she said sarcastically of the way Mr.  Munchak described what happened.

Actually, it was a crime, and Mr. Munchak knew it, she said.

“This man’s an accountant,” Ms. Graham reminded jurors.

Ms. Graham pointed to Mr. Cordaro’s claims that he cashed most of his  commissioner paychecks and that helped him come up with cash.

Evidence showed, according to a chart she used, that almost three quarters of  his commissioner paychecks were deposited.

‘Classic pay-to-play’

Later, Assistant U.S. Attorney Bruce D. Brandler had an opportunity to rebut  the defense closing and called the case “a classic pay-to-play scheme.”

Point by point, he tried to take apart the defense, breaking its arguments  into the “silly,” “the not supported by evidence” and “the outrageous.”

He accused defense lawyers of “character assassination” and a “desperate and  pathetic act” in attacking Mr. Kalina, whose 10-year affair ended in 2002, two  years before Mr. Munchak and Mr. Cordaro even became the majority in the  commissioners office.

That was one of the “silly” arguments, he said.

Federal witnesses were not told or threatened to testify the way prosecutors  wanted, but were “prepared” as any good lawyer would do, he said. Only seven  received actual immunity and have less incentive to lie than Mr. Munchak and Mr.  Cordaro, who are already on trial, he said.

Any lying immunized witness could face prosecution, he said as he urged the  jury not to let the defendants escape justice just because immunized witnesses  might have.

“They are more culpable than the bribe-givers. They’re the bribe-takers,” he  said.

He said Mr. Hughes testified to no longer gambling after 2004, which was  before the Acker and Highland bribes were paid, Mr. Brandler said.

“Another smokescreen,” he said.

Mr. Brandler said the prosecution did not produce phone records because they  show nothing about the nature of conversations.

He then focused on “the six smoking guns,” the $10,000 payments from Mr.  Hughes to Mr. Cordaro in the form of checks.

Mr. Brandler said one check supposedly for legal fees to help refinance a  $60,000 loan for Mr. Hughes ended up in Mr. Cordaro’s real estate account.

Separate checks from Mr. Hughes for $6,500 and $3,500 were cashed on the same  day at different banks by Mr. Cordaro, even though Mr. Cordaro said the money  was actually for Mr. Hughes, who supposedly was having trouble getting checks  cashed at his bank, Mr. Brandler said. He suggested Mr. Cordaro was trying to  avoid the automatic bank reporting of the transaction to the Internal Revenue  Service, which tracks payments of $10,000 or more.

Another check to pay off a fall college football game bet was paid the  following spring, Mr. Brandler said.

Still another alleged bet by Mr. Hughes, against the sale of the Montage Ski  Resort, means Mr. Hughes took part in “a sucker’s bet” because Mr. Cordaro  controlled whether the sale happened.

“The thing doesn’t even make sense,” he said.

‘It has to stop’

He questioned Mr. Cordaro’s alleged hoarding of $353,000 in cash in the last  25 years, saying “you don’t get rich quick keeping large amounts of money in  cash.”

“False in one (statement), false in all,” he said in a remark he used  repeatedly to question Mr. Cordaro’s truthfulness.

Mr. Brandler pointed to 1998 and 1999 applications for bank loans when Mr.  Cordaro told the banks he had no cash, another in 2002 when he said he had  $25,000. On a 2004 loan application, Mr. Cordaro reported having $135,000 in  cash.

“That’s kind of interesting” because it was the end of Mr. Cordaro’s first  year in office, Mr. Brandler said.

He pointed to a summary that showed Mr. Cordaro’s use of cash more than  quintupled from 2004 to 2005 and doubled again in 2006 when the bribes were  being paid. He questioned why Mr. Cordaro borrowed $200,000 in 2003 and 2007 to  finance his election campaigns instead of just using his “cash hoard.”

Cash is “the way criminals deal because they know it’s very difficult to  determine the source of cash,” Mr. Brandler said.

Noting one witness who used the phrase “just politics as usual,” Mr. Brandler  likened that explanation to children who did something wrong using the excuse  that everyone does it.

“But that excuse doesn’t even work with your kids,” he said. “It has to  stop.”

Contact the writer:  bkrawczeniuk @timesshamrock.com

Read more: http://thetimes-tribune.com/news/day-11-smoke-and-mirrors-prosecution-or-a-smokescreen-from-the-defense-1.1164558#ixzz1QbmcA69Z

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