Former state Sen. Wayne Bryant was acquitted on Aug. 10 of charges that his law firm was on retainer with a developer who really sought his influence as a legislator.
U.S. District Judge Freda Wolfson in Trenton threw out the charges after a bench trial, calling the government’s case “an unconvincing web of circumstantial evidence.”
In a decision that should give comfort to the more than 30 state legislators who are also lawyers, Wolfson held that although the retainer could have had a corrupt purpose, it could also have been an honest agreement to secure legal services.
Bryant faced 23 counts for honest services fraud, soliciting and accepting corrupt payments and extorting payments under color of official act.
The client, Cherokee Investment Properties of Raleigh, N.C., paid Bryant’s Cherry Hill firm, Zeller & Bryant, $8,000 a month for 24 months — a total of $192,000 — for the stated purpose of legal assistance with the EnCap project in the Meadowlands.
The government contended no legal services were provided and the company was really paying for Bryant’s actions and reputation as a legislator.
Charged with Bryant was Eric Wisler, a name partner at the firm now known as DeCotiis FitzPatrick & Cole, who was Cherokee’s lead counsel in New Jersey. Criminal charges against Wisler were dismissed after his death in August 2011.
Wisler enlisted Joseph Salema, a consultant who had managed Bryant’s first campaign, to garner support from Bryant and other elected officials for EnCap and two other New Jersey projects: one in Pennsauken and one in the Cramer Hill section of Camden, within Bryant’s district.
Following a June 8, 2004, meeting at Bryant’s firm, Wisler signed an agreement retaining Bryant’s firm for legal assistance with respect to EnCap, and the flow of $8,000 checks began.
The first was mailed Aug. 27, 2004, payable by the DeCotiis firm. The first five monthly invoices from Bryant’s firm were prepared by Wisler’s assistant while the rest were drawn up by Bryant’s assistant using block-billing language. Wolfson said it was undisputed that little or no work was done.
The DeCotiis firm was kept in the dark about the arrangement and canceled the contract when it learned about it in 2006, while complying with a state subpoena to Cherokee.
In the meantime, Bryant, the Senate Budget Committee chairman, allegedly took a series of actions that benefited Cherokee. The prosecution highlighted a July 2005 vote in support of transferring $37 million to the city of Camden to balance its $36 million deficit, with $1 million to be used to pay legal bills of the Camden Redevelopment Agency related to the Cramer Hill project.
Wolfson rejected the government argument that the retainer must have been a sham because no work was done. The projects covered by the agreement “never materialized to the stage where the … Firm’s expertise was needed,” she stated, also pointing out that the property covered by the retainer was not in Bryant’s district.
She also said “there is nothing illegal about a monthly retainer agreement” and called it “not surprising that state legislators, who are also attorneys, are hired or retained by municipalities, developers or high profile clients to provide legal representation, perhaps in part, for their political acumen.”
The government also contended that with the DeCotiis firm primarily responsible for legal work related to Cherokee’s projects in New Jersey, there was no need for assistance from Bryant’s firm nor evidence of any discussion between the two firms about work or potential work under the retainer. In addition, Salema had testified it was his impression that Wisler retained Bryant, not to seek legal assistance but to trade on Bryant’s reputation as a state senator.
Wolfson’s response was that such evidence went more to Wisler’s motivation than Bryant’s and Wisler’s intent could not be imputed to Bryant.
The same was true of Wisler’s successful effort to conceal the retainer from his DeCotiis colleagues.
On the other end, Bryant’s law partner, Allen Zeller, testified he was aware of the agreement, and there was no evidence that Bryant instructed him or anyone else to keep it a secret.
That Bryant told none of his fellow legislators about it did not matter since lawyer-legislators generally keep clients’ names confidential, said Wolfson.
To the extent that Bryant voted on matters that could impact Cherokee without disclosing the attorney-client relationship, “that would more appropriately point to Bryant failing to disclose a conflict of interest rather than concealment,” wrote Wolfson.
Another prosecution argument — that Bryant’s firm only did work in southern New Jersey and thus signing on for work in the Meadowlands was suspicious — similarly failed to convince Wolfson. Testimony by Zeller, that the firm was willing and able to take on work outside its usual geographical area and saw the Cherokee work as a wonderful business opportunity, was a “plausible explanation,” she said.
Wolfson further declined to find corrupt intent based on legislative actions by Bryant that furthered Cherokee’s interests.
The evidence included a series of emails in which Wisler instructed various Cherokee personnel, including Salema, to contact Bryant and other legislators about certain bills.
Wolfson said the messages could be construed as legitimate lobbying efforts on the part of Cherokee. “More crucially,” she said, there was nothing linking them to Bryant.
She also took note that various bills authorizing $224 million in infrastructure loans that benefited EnCap were passed unanimously, a fact that did “not lend any credence to the Government’s explanation that Bryant voted the way he did for an illegal purpose or that he had a corrupt intent when considering these bills.”
Further, Bryant’s silence on eminent domain bills impacting the Cramer Hill project was consistent with his support of the project even before the retainer and his record of supporting measures to benefit Camden, said Wolfson.
She called the innocent explanation more plausible and sufficient to create reasonable doubt.
Defense counsel Henry Klingeman, of Krovatin Klingeman in Newark, says the fact-based verdict precludes a retrial on the charges because it would violate the double jeopardy clause.
He says he opted for a bench trial in light of “this current public climate of hostility to politicians” that makes it “very hard to defend a public corruption case.”
He says Bryant is only the third New Jersey politician in recent years to beat corruption charges at trial. The others were Ridgefield mayor Anthony Suarez and former Hudson County Assemblyman L. Harvey Smith, both acquitted in 2010 on charges related to the Solomon Dwek sting.
The Bryant prosecution was handled by the U.S. Attorney’s Office for the Southern District of New York.
The New Jersey office recused from the investigation when Paul Fishman took control of the office in 2009. Fishman had represented EnCap in 2007, while at Friedman Kaplan Seiler Adelman in Newark, in connection with investigations of the company.
Ellen Davis, a spokeswoman for the Southern District office, declines comment on the outcome, as does Karen Kessler, on behalf of Cherokee Investment Properties.
DeCotiis firm spokesman Stephen Altobelli says, “As repeatedly determined by the U.S. Attorney’s Office, and now as well by Judge Wolfson in her opinion, no member of the DeCotiis law firm was involved in this matter, or had any knowledge of it.”
Bryant was convicted on corruption charges in 2010 for steering more than $10 million in state funding to the University of Medicine and Dentistry of New Jersey in Camden in return for a “low show” teaching job. He is serving a four-year sentence on the conviction, which was upheld on appeal last year.
He has been suspended from the practice of law since 2008, with final discipline pending.