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United States of America v. Wayne R. Bryant

August 10, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WAYNE R. BRYANT, DEFENDANT.



The opinion of the court was delivered by: Wolfson, District Judge:

*FOR PUBLICATION

BENCH MEMORANDUM

Between the relevant years of 2004 to 2006, Defendant Wayne Bryant ("Bryant") was a prominent state senator who represented the 5th Legislative District, which included the City of Camden. During those years, Bryant was also an equity partner at the law firm, Zeller & Bryant LLP (the "Zeller Firm"). In this criminal case, the indictment (the "Indictment") charges Bryant with honest services mail fraud, bribery and extortion.*fn1 Essentially, the Government accuses Bryant of taking, or failing to take, official action to benefit certain entities related to Cherokee Investment Partners*fn2 ("Cherokee") in exchange for a stream of bribe payments, disguised as a legal retainer agreement, negotiated and paid by co-defendant Eric Wisler, Cherokee's lead counsel in New Jersey. For nearly a month, the Court held a bench trial wherein I heard testimony from numerous witnesses and viewed voluminous exhibits admitted in evidence. However, based on all the evidence, I find that the Government has not proved beyond a reasonable doubt that Bryant intended to take certain official action at the behest of Wisler, a necessary element of all the charges against Bryant. Because of this failure, I find Bryant NOT GUILTY*fn3 of all counts lodged against him in the Indictment. The following are the Court's findings of fact and conclusions of law.*fn4

FINDINGS OF FACT

Prior to trial, Bryant waived his right to a jury; consequently, the Court conducted a bench trial, which began on January 31, 2012, and concluded on February 28, 2012. The relevant facts surrounding the relationship between Bryant, Wisler and Cherokee are detailed below.

From 1995 to 2008, Bryant served as a New Jersey State Senator, representing, among other towns in his districts, the City of Camden. During the relevant years, while serving as a Senator, Bryant sat on various state governmental committees.*fn5 In that respect, many regarded Bryant as one of the most influential public officials in southern New Jersey. (Primas Tr. at 43:1-3.) At the same time, Bryant was also one of two equity law partners at the Zeller Firm, located in Cherry Hill, New Jersey.

Cherokee was an investment company based in Raleigh, North Carolina, which specialized in investing in, and developing, brownfield sites*fn6 . (Tr. V.2, p. 166-167.) From 2004 to 2006, Cherokee invested in, and was responsible for overseeing, various redevelopment projects in New Jersey, including in the Cramer Hill neighborhood of Camden, in the town of Pennsauken, and in the Meadowlands region. (Id. at p. 148.) Cherokee created Cherokee Northeast to operate and manage Cherokee's brownfield redevelopment projects in New Jersey. (Tr. V.2, p. 166-167.)

Cherokee's Cramer Hill project was an estimated $1.2 billion redevelopment of the Cramer Hill neighborhood. (Primas Tr. at 59:12-13.) The project involved remediating a 120-acre landfill and converting a part of that landfill into a golf course, as well as erecting new housing and a commercial retail center. (Tr. V.2, p. 171.) In December 2003, Cherokee was selected by the Camden Redevelopment Agency ("CRA"), headed by Melvin Primas, Jr., as the lead developer for the redevelopment of Cramer Hill. (GX 2013.) Anselm Fusco, a senior vice-president at Cherokee Northeast, managed the Camden project.*fn7 (Id. at p. 173.)

The Pennsauken project involved the development of a golf course and a mix of residential, commercial, and retail property in Pennsauken Township, which was located outside of Bryant's legislative district. (Id. at p. 172.) Cherokee's role as the developer in Pennsauken was announced in May 2004, (GX 2051), and by June 2005, Cherokee had executed a redevelopment agreement with the township. (Tr. V.3, p. 41.)

Cherokee was also involved in redevelopment projects in the Meadowlands district, located in northern New Jersey. The plan for one of the projects, referred to as EnCap Phase I, was to acquire various parcels of land that made up the site, remediate the landfills on that site, and develop the land into a mixed use area, including a golf course. (Tr. V.2, p. 10.) The EnCap Phase II development, which was to occur in North Arlington, New Jersey, was a 100-acre proposed expansion of EnCap Phase I. (Id. at p. 111.) Phase II included a mix of residential, recreational and commercial uses. (Id.) However, by 2007, Phase II had stalled because of litigation over the redevelopment agreement that Cherokee had entered into with North Arlington. (Tr. V.4, p. 122.)

In order to navigate the legal and political waters in New Jersey, Cherokee hired Eric Wisler, who was an equity partner at the law firm of DeCotiis, Fitzpartick, Cole & Wisler (the "DeCotiis Firm"). Wisler became the lead lawyer for Cherokee on the various New Jersey development projects. (Tr. V.1 p. 52.) Among his many functions, Wisler assisted Cherokee in forming strategies and important decisions, and was responsible for overseeing the projects' various governmental and state agency relationships. (Tr. V. 2, p. 179; Tr. V. 4, pp. 23; 87-88; Tr. V.5, pp. 17, 57.)

By spring of 2004, accordingly to Fusco, Cherokee sought out

Bryant's support, particularly for the Cramer Hill and Pennsauken projects, because Fusco believed that those projects must "be consistent with the desires of elected officials, local and state officials, in whose regions, in whose districts they fell." (Tr. V.2, pp. 188-189.) And, it was "impractical to try and advance projects that were not supported by elected officials where the projects were taking place." (Id. at pp. 189-190.) Moreover, Cherokee acknowledged that Bryant's support of the projects was crucial in the process of obtaining certain approvals from the Planning Boards and City Councils. (Tr. V.3, p. 94.) Also, Cherokee understood that elected officials, particularly Bryant, must support the proposed project in Cramer Hill to ensure its success. (Tr. V.4, p. 22.) In that connection, during the trial, the Government offered testimony regarding various efforts Wisler and the Cherokee team undertook to ensure that the Cherokee projects would be supported by New Jersey state legislators, and Cherokee spent tremendous resources to lobby for laws that would benefit those projects, e.g., state grants and funding. (See GX 2013; Tr. V.3, p. 25.) The pertinent aspects of such testimony will be discussed in further detail later in this Opinion.

To garner support from Bryant and other elected officials, Wisler enlisted Joseph Salema. Salema was a consultant who provided governmental, political, real estate and strategic advice. (Tr. V.9, p. 148.) Indeed, Salema was sought out to lobby elected officials because of his long history in southern New Jersey politics and government. (Tr. V.10, pp.22-23.) In particular, Salema had a relationship with Bryant which began when Salema managed Bryant's first campaign for public office in late 1970. (Tr. V.9, pp. 150-51.) Based on Salema's knowledge of the political climate in southern New Jersey, an important aspect of his duties was to serve as a liaison and lobbyist on behalf of Cherokee to elected officials, including Bryant. (Id. at pp. 155-158.) Wisler entrusted Salema with the responsibility to communicate with Bryant regarding the Cramer Hill and Pennsauken projects. (Tr. V.10, p.24.)

Due to the nature of the Cramer Hill project, it was estimated that hundreds of families were slated to be relocated, and by May 2005, the project faced significant public opposition centered around eminent domain and concerns over relocation of residents. (Tr. V.3, pp. 47, 57, 125.) Around that time, Wisler contacted Salema to arrange a meeting with Bryant. (Tr. V.10, p. 77.) According to Salema, Wisler only indicated that he wanted to touch base with Bryant and to familiarize the Senator with Cherokee. (Id. at p. 80.) Pursuant to that request, Salema called Bryant's office to schedule a meeting, which took place on June 8, 2004, at the Zeller Firm.

At that meeting, Bryant, Wisler and Salema were present. (Id. at p. 86.) Salema testified that prior to the meeting, Bryant and Wisler were unfamiliar with each other. The meeting began with "political small talk about what was going on politically in New Jersey." (Id. at 87.) Bryant and Wisler also discussed the general nature of their law firms and the types of work their respective firms handled. (Id. at 88.) Salema did not recall any specific conversations regarding Cramer Hill or the opposition that project was facing. (Id. at pp. 89, 96.) However, Salema recalled that Wisler informed Bryant that Cherokee's expertise in brownfield reclamation and redevelopment was known internationally, and based on that expertise, it was attempting to develop a "joint venture relationship" with the United States Conference of Mayors ("USCM"). (Id. at pp. 89-91.) Wisler went on to ask Bryant whether Bryant and his firm would be interested in assisting Cherokee in that venture. (Id. at p. 92.) In that connection, Wisler inquired as to the amount of fees the Zeller Firm would be interested in receiving for that type of work. According to Salema, Bryant discussed that the firm "would be interested in an $8,000 a-month-fee." (Id. at p. 94.) Wisler responded that he needed to speak with others before they could commit. (Id.)

Salema testified that his understanding from the meeting was that Wisler's request to hire the Zeller Firm was more about retaining Bryant as a liaison for Cherokee to urban areas; essentially, Salema's impression was that Wisler wanted to "trade" on Bryant's reputation. (Id. at p. 105.) However, importantly, Salema could not recollect any discussions during the meeting regarding whether the Zeller Firm would be interested in working with Cherokee's brownfield projects in New Jersey.*fn8 (Id. at p. 97.)

Salema testified that after the meeting, he did not have any conversations with Wisler regarding the subject matter discussed at the meeting, and Salema did not recall having any conversations with Bryant about the possibility of the Zeller Firm doing work for Cherokee. (Id. at p. 113.)

On August 27, 2004, a Retainer Agreement was executed by Wisler and sent to the Zeller Firm for Bryant's signature. (See GX 34A.) Other members on the Cherokee team, such as Fusco, were "cc'ed" on the Retainer Agreement. (GX 34.) After receiving the agreement at the firm, on September 7, 2004, Bryant, by phone, directed Allen Zeller, an equity partner of the Zeller Firm, to sign the agreement using Bryant's name. (Tr. V.2, pp. 11, 39, 62.) By cover letter dated September 21, 2004, the fully executed Retainer Agreement was returned to Wisler,(see GX 34), and a copy of the executed agreement was also sent to Fusco and Salema. (Tr. V.1, p. 65.)

Pursuant to the terms of the Retainer Agreement, the Zeller Firm agreed to provide, inter alia, legal assistance with respect to "real estate, condemnation, land use, bank finance and litigation matters on EnCap's Meadowlands Project - Phase II, as well as the [mixed-use] redevelopment project to be undertaken in the Borough of North Arlington." (GX 34, p. 2.) In addition, the agreement states that "Cherokee Northeast is managing projects in Asbury Park, Elizabeth and will, in the near future, be designated as the manager for a project in St. Mary's, Georgia. There may be similar opportunities to work" with the Zeller firm on those projects. (Id. at pp. 2-3.) Finally, the agreement provides that "[Cherokee] has recently executed a Partnership Agreement with the U.S. Conference of Mayors and, pursuant to such Agreement, has been designated as the exclusive brownfield redevelopment firm for projects that are facilitated through the U.S. Conference of Mayors." (Id. at p.3.) Wisler indicated on the agreement that there might be future legal opportunities for the Zeller Firm arising from that relationship with the USCM. (Id.) In connection with all of the above contemplated services, the agreement reflected a retainer fee of $8,000 payable to the Zeller Firm on a monthly interval. (Id.)

Wisler requisitioned the first $8,000 payment to Bryant, payable by the DeCotiis Firm, on August 24, 2004, three days before Wisler purportedly drafted and sent out the Retainer Agreement to the Zeller Firm. It appears that this particular check was attached to the Retainer Agreement that was mailed to the Zeller Firm on August 27, 2004. (See GX 1201; 34A, 1200) The Government points out that, while on their face the invoices for August through December 2004 appear to be from the Zeller Firm to the DeCotiis Firm, they were actually drafted by Wisler's assistant and those invoices were never sent to the Zeller Firm. (Tr. V.1, pp. 69, 71, 73, 170.) Subsequent invoices -- until the termination of the agreement in 2006 -- were prepared by Bryant's assistant at the Zeller Firm, which invoices contained standard block-billing language used by the firm. (Tr. V.1, pp. 143-144.)

Following the execution of the Retainer Agreement, Bryant and Wisler did not communicate directly and no substantial services were requested of or rendered by the Zeller Firm. Indeed, there is no dispute that the Zeller Firm did little or no work for Cherokee pursuant to the Retainer Agreement. The Zeller Firm received the $8,000 retainer fee for twenty-five months, for a total of $192,000. (Tr. V.1, p.155; GX1200.) Those funds were deposited into the Zeller Firm's business account. (Id. at p. 167.)

At trial, the Government detailed a series of official acts that were purportedly requested by Wisler, mostly through Salema, of Bryant, to benefit Cherokee. The Government contends that those requests had nothing to do with any legitimate work pursuant to the Retainer Agreement. Without delving into the details at this juncture, generally, those requests dealt with various pending bills, or proposed bills, in the state legislature that would affect Cherokee. According to the Government, Wisler intended to reach out to Bryant to persuade him to vote in favor of or support certain bills, and take actions against those that would negatively affect Cherokee's projects, particularly Cramer Hill.*fn9 The Government also outlined a series of official acts allegedly taken by Bryant to benefit Cherokee that it argues were performed in exchange for the stream of payments paid pursuant to the Retainer Agreement. For example, in mid 2005, Bryant voted on several occasions in favor of bills, which were unanimously ...


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