Ex-NYC top cop says charges against him too old

February 3, 2009 5:52:33 PM PST
Former New York City police Commissioner Bernard Kerik claimed Tuesday that three corruption charges against him should be dismissed because they date back more than five years, beyond the statute of limitations. The charges stem from Kerik's time as city corrections commissioner, before his stint as police commissioner and his aborted nomination to become national director of Homeland Security.

Federal prosecutors allege that Kerik conspired to deprive the city of his honest services by accepting apartment renovations from a construction company in exchange for recommending the company for city contracts.

Defense lawyer Barry Berke argued Tuesday that Kerik could illegally deprive the city of his services only while he was in office. Because he left office in 2000, Berke said, the five-year statute of limitations applies.

"In honest services fraud, the heart of the charge is that Mr. Kerik used the cloak of his office to obtain a benefit," he said. "Deprivation of honest services ends when he leaves office."

However, prosecutor Elliot Jacobson told U.S. District Judge Stephen Robinson that Kerik's alleged crimes continued at least until 2005, when the company was turned down by the city for a garbage-carting permit.

"A conspiracy continues until the conspirators receive their anticipated economic benefits," he said. He said a conspiracy charge "may well extend ad infinitum."

Berke is asking the judge to dismiss the three corruption charges as well as accusations that Kerik lied to the federal government when he was being vetted for Homeland Security. The charges are part of a wide-ranging 15-count indictment that also alleges he filed false tax returns. Kerik has pleaded not guilty.

Robinson said he hoped to rule within a month on the motion. He set March 3 for a conference.

At the defense table, Kerik followed the three hours of arguments closely, the lawyers' briefs on the table before him.

Robinson questioned the lawyers closely, seeming to side first with the prosecution, then the defense, then back again.

He asked Berke if Kerik shouldn't be "still liable" after leaving office if his co-conspirators were continuing the crime. He asked Jacobson if an officeholder who did something illegal with one second left in his term could be prosecuted for theft of services.

Berke said the counts that charge Kerik with lying to the federal government should be thrown out because the questions he answered were too vague.

But Jacobson noted that Kerik's answer did not mention any conduct that could result in criminal charges.

"He's being asked in the context of being considered for a Cabinet-level position," Jacobson said. "He didn't disclose that he committed a crime."