Defense attorney Benjamin Brafman launched his summation this week in the Dov Hikind federal corruption trial. One of his first targets was The Jewish Week. “The evidence is incontrovertible this case began with a series of articles in The Jewish Week,” he told the jury. “Are they fair? Or are they simply an organization that didn’t like chasidim, or an Orthodox organization?”
Noting that neither Hikind nor his codefendant, Rabbi Elimelech Naiman, was under any investigation before The Jewish Week stories began in September 1995, Brafman charged that the prosecution simply had adopted wholesale what he characterized as the premise of The Jewish Week’s articles.
“The premise is preposterous,” said Brafman, referring to the prosecution’s central contention — that numerous payments by the Council of Jewish Organizations of Boro Park to Hikind, his family, his staff, their relatives and various Hikind political projects were a payoff for Hikind’s help in getting COJO hundreds of thousands of dollars in state funds.
The opening salvo was part of a closing argument even his opponents acknowledged was masterful. Brafman extolled the charity work of his client, Naiman, as selfless. And he argued vigorously that a decision by Judge Charles Sifton Monday to throw out some of the more damaging charges against Hikind and Naiman had left the prosecution’s overall theory in shreds. Assistant U.S. Attorney Elisa Liang, meanwhile, summed up the prosecution’s case as a classic bribery story involving Hikind and what was then Brooklyn’s largest Jewish community council.
Hikind and Naiman had used the COJO of Boro Park and its affiliates “as their personal piggy bank,” she charged.
“This elected official and this leader of a prominent community organization allowed their friendship to corrode the boundaries that are supposed to stand as a bulwark” between charity on the one hand and personal benefit and politics on the other, she said.
Earlier, with the jury absent, Brafman charged that The Jewish Week stories were seized on by Mayor Rudolph Giuliani and an unnamed top aide to launch a probe of Hikind and COJO for purely political reasons.
They “openly spoke of this as the end of the reign of Dov Hikind and COJO,” said Brafman.
The mayor’s press secretary, Colleen Roche, later said in a published report that Brafman’s statements had “no basis in fact.”
After some five weeks of testimony from dozens of witnesses, Brafman and the government actually quibbled very little about the facts of the case. The crux of the matter, both agreed, revolves around the question of criminal intent.
Brafman concedes that COJO may not have followed all the government’s rules or complied strictly with its contracts. But he contends that Naiman, who helped run COJO and its finances, at no time intended to break the law. He was, instead, according to Brafman, simply responding to exploding demands on COJO for social services while trying, if sometimes inadequately, to handle huge increases in the flow of government funds to meet those needs.
But Liang urged jurors when considering intent to examine whether COJO had disclosed to government funders or the Internal Revenue Service its relationship to the two affiliates that received much of the money Hikind helped obtain. She cited testimony and documentary evidence that it had not.
The prosecutor also noted that Hikind had failed to disclose any of the thousands of dollars in gifts he had received from COJO on the financial disclosure forms he was required to file yearly as a state assemblyman. Nor, she noted, had Hikind reported donations by COJO-affiliated charities to his political action committees, as required.
“If there was nothing wrong from Mr. Hikind’s point of view with these payments, then why the secrecy?” she asked. “Why was there no disclosure?”
However the jury decides, the case itself shrunk in scope significantly when Sifton tossed out several of the charges.
After hearing the prosecution’s case, Sifton ruled that the jury would only be charged with deciding whether Hikind had solicited and accepted corrupt payoffs from COJO in exchange for helping the organization obtain state funds, and whether he had “misapplied” these funds.
The judge ruled there was not enough evidence to sustain the prosecution’s charges that Hikind had embezzled, stole or obtained by fraud the hundreds of thousands of government dollars at issue. Sifton also threw out for insufficient evidence conspiracy and mail fraud charges against Hikind. The charges were based on the contention that Hikind had used the U.S. mails to file false financial statements with the state Legislature and the state Board of Elections.
Sifton also dropped two tax-evasion counts against Naiman. As with Hikind, he also ruled there was not enough evidence to sustain the prosecution’s charges that Naiman had embezzled, stole or obtained by fraud the government funds at issue.
That left the jury to decide only whether Naiman, too, had “misapplied” these funds. But unlike Hikind, Naiman still also faces the original separate charges of conspiracy, corrupt payment of funds to obtain favors and mail fraud.
“It’s always a good sign from the defense point of view to have charges dismissed,” said Cheryl Reich, a New York attorney who has tried many white-collar crime cases.
But from a legal perspective, she added, Sifton’s decision to dismiss charges of embezzlement, fraud and theft of federal funds “is sort of a big to-do about nothing.”
Under case law for this circuit, Reich explained, embezzlement and theft apply when the evidence shows the defendants took restricted funds for their own use. “Misapplication” applies when the funds in question were used not for the defendants’ personal benefit but for purposes still forbidden under the terms accompanying the money.
“The prosecution still must show the misapplication was intentional,” said Reich. “And the defendants could have an easier time arguing it was not when the money did not go in their own pockets.” But the penalties for violation remained the same, she said.
Meanwhile, Reich noted, the separate bribery charge still facing Hikind on whether he had received personal benefits remained an issue. If found guilty of all charges, the defendants could still face up to 10 years in prison.
Hikind’s attorney, Gustav Newman, was to give his closing arguments Wednesday, followed by a rebuttal from the government. The case is expected to go to the jury on Thursday.