In a last-ditch attempt to perhaps save their clients, the defense attorneys in the federal fraud and extortion trial of real estate developer/mortgage businessman Rene Abreu were unsuccessful in getting the presiding judge to throw out the case on a technicality last week.
They also failed to get the judge to dismiss any of the charges that remain against Abreu, a one-time political ally of Rep. Robert Menendez and West New York Mayor and State Assembly Speaker Albio Sires.
According to information from the U.S. Attorney’s Office, after all the pertinent testimony in the trial had been completed the week before last, a “Rule 29” hearing was held in the U.S. Federal Court room in Newark, where the Abreu trial has been ongoing since March.
U.S. District Court Judge Joseph Greenaway heard arguments from the defense attorneys, who made a case that each count faced by their respective clients should be dropped because the government prosecution had not achieved the burden of proof in the case.
However, Greenaway denied all requests and motions made by the defense and ordered that the trial continue as is. The judge also told the court that he fully well expected the case to go to the jury by the end of next week. Abreu has been charged with 30 counts of fraud and extortion, including taking money from illegal gambling operations in West New York, money laundering, check kiting, filing false loan applications, and structuring bank deposits to avoid paying income tax.
According to information provided by the U.S. Attorney’s Office, Abreu’s actions are directly tied to a series of alleged financial plots and deals Abreu managed through three businesses he still owns with his wife, Lourdes Adan-Abreu, including Mortgage Pros, Inc. and RLA Homes, located on Bergenline Avenue in Guttenberg. Abreu is being tried with his former employees Anna Martell and Kathy Giunta, both North Bergen residents, along with former employee Fernando Jimenez and former Hudson United Bank commercial loan officer Luis Nieves.
In all, 11 people were charged in the original 43-count indictment handed up in July, 2002. Six people charged in the original indictment have since pleaded guilty, including Abreu’s wife, who is awaiting sentence on the charges.
Closing arguments
Closing arguments began Wednesday morning, after a day of jury instructions from both sides.
Assistant U.S. Attorney Thomas Eicher started the closing argument segment, with the defense attorneys poised to make their final points after Eicher was completed.
After the closing arguments are finished, Judge Greenaway will read the instructions on the law to the jury. The 11-member jury will then convene and decide the fate of Abreu and his co-defendants.
Another interesting sidelight to the trial occurred Tuesday, when Assistant U.S. Attorney Matthew Boxer brought up a recent U.S. Supreme Court decision that could change the sentencing in federal cases like the Abreu trial. Boxer brought up the recent precedent case, Blakely v. Washington, which called into question the constitutionality of certain federal sentencing guidelines.
Because the ruling was made after the Abreu indictments were handed up, the decision causes serious sentencing issues in the Abreu case.
Blakely v. Washington determined that any fact that would increase the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
Under the current federal guidelines, a judge can consider such facts without presenting them to a jury.
In the Abreu case, that type of information could include further allegations that were not part of the indictment pertaining to the involvement of political figures, the amount of money taken during alleged crimes, and other issues.
Mandatory sentencing
It was suggested that the jury decide on either the guilt or innocence of Abreu and his co-defendants, then take a break of approximately three weeks to determine the sentencing stage.
Prosecutors hope that during that three-week respite, the inconsistencies between the Abreu trial and Blakely v. Washington might be remedied.
The defense opposed that remedy and Greenaway eventually told prosecutors to come up with a plan to deal with the situation and submit it to the defense in order to begin working out an agreement.
Boxer said one problem caused by Blakely v. Washington is that it came after the indictment but would apply to the sentencing. The types of aggravating factors that would be considered in calculating a sentence were not necessarily included in the indictment because at that time it had not been necessary to prove them to a jury. Blakely v. Washington involved the sentencing of Ralph Blakely Jr., who pleaded guilty to kidnapping his wife in the state of Washington.
The judge presiding over Blakely’s trial determined that had Blakely acted with “deliberate cruelty,” and raised Blakely’s sentence from the original 53 months to a total of 90 months.
Blakely appealed on the grounds of his right to a jury trial, but the Washington Court of Appeals affirmed the trial judge’s determination. With that decision, the Washington Supreme Court denied any review of the case. However, the U.S. Supreme Court reversed the Washington Court of Appeals June 24 and remanded Blakely’s sentence for a re-determination and reduction by the state of Washington.
The Supreme Court’s ruling also had the effect of invalidating sentencing guidelines such as the Washington Sentencing Reform Act, which give judges the power to increase sentences based on facts not confessed to nor found by a jury.
Whether that ruling applies to the Abreu trial remains to be seen, but it might alter the sentencing that Abreu would face if found guilty of any or all the 30 counts against him and his co-defendants.