government rebuttal
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, Case No. 10-CR-20403Hon. Nancy G. Edmunds
v.
D-1 KWAME M. KILPATRICK,D-2 BOBBY W. FERGUSON, andD-3 BERNARD N. KILPATRICK,
Defendants.______________________________/
EXCERPT OF JURY TRIALVOLUME 81
Detroit, Michigan - Friday, February 15, 2013
APPEARANCES:
For the Government:
Mark ChutkowR. Michael BullottaJennifer Leigh BlackwellEric DoehUnited States Attorney's Office211 W. Fort Street, Suite 2001Detroit, Michigan 48226
Counsel for Defendant Kwame M. Kilpatrick:
James C. ThomasMichael C. Naughton535 Griswold, Ste. 2500Detroit, MI 48226313-963-2420
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Appearances(continued):
Counsel for Defendant Bobby W. Ferguson:
Gerald K. Evelyn Susan W. Van Dusen535 Griswold Law Offices of Susan W. VanDusenSuite 1030 2701 S. Bayshore Dr., Ste 315Detroit, MI 48226 Miami, FL 33133313-962-9190 305-854-6449
Michael A. Rataj535 Griswold, Suite 1030Detroit, MI 48226313-962-3500
Counsel for Defendant Bernard N. Kilpatrick:
John A. SheaAlexandrea D. Brennan120 N. Fourth AvenueAnn Arbor, MI 48104734-995-4646
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S u z a n n e J a c q u e s , O f f i c i a l C o u r t R e p o r t e r email: [email protected]
Proceedings recorded by mechanical stenography.Transcript produced by computer-aided transcription.
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Excerpt of Jury Trial Volume 81
Friday, February 15, 2013
I N D E X- - -
Proceeding Page
Government's Rebuttal Closing Argument 4
10-CR-20403 USA v. Kwame Kilpatrick, et al
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4Excerpt of Jury Trial Volume 81Friday, February 15, 2013
Detroit, Michigan
Friday, February 15, 2013
9:01 a.m.
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(Jury in 9:05 a.m.)
THE COURT: Be seated. Good morning again,
everyone.
We're ready for the government to give its rebuttal
argument. Mr. Chutkow, you may proceed.
(9:05 a.m.)
MR. CHUTKOW: Thank you, Your Honor.
Good morning, ladies and gentlemen. In my opening
statement in this case, in the evidence that you saw at trial,
in my colleague's closing argument and in the indictment that
will be handed to you for your deliberations in this case, this
case has always been about bribery, extortion, and fraud.
Rather than meeting those allegations head on
through this case, the defense has often tried to justify their
actions as somehow driven by desire for the advancement of
minority business enterprises and Detroit-based businesses.
Now, these goals are obviously very important, but they are not
what drove the defendants to take the actions that they took in
this case.
Through the Kilpatrick years and again in this
trial, that agenda was a smokescreen for their real agenda
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5Government's Rebuttal Closing ArgumentFriday, February 15, 2013
which was helping themselves to the city's resources. In
reality, they were equal opportunity extortionists. They drove
out black and white contractors who got in their way. If
minority business enterprises got in their way, in Ferguson's
or Mr. Bernard Kilpatrick's way, they crushed them, and then
they laughed at these people when they came to the Kilpatrick
administration for help.
First, Odell Jones. As you recall, when he
confronted Mr. Ferguson about the fact that Mr. Ferguson had
not provided proper safety equipment to his own workers in the
Book Cadillac Hotel, Ferguson was offended that Jones had the
nerve to question him. You heard from Mr. Jones that after
that, invitations for bids for city business dried up. He went
to everybody in the administration, from Christine Beatty to
Derrick Miller to the mayor himself, to try to get relief.
Here is what Mr. Ferguson and Mr. Kilpatrick had to say about
Jones' plea to Mr. Kilpatrick's family members:
Ferguson, "Odell Jones called your mama, laugh out
loud."
Kilpatrick, "I know, and my sister."
Ferguson, "Okay, I thought it was funny, should have
followed my first mind. I know he wasn't" expletive.
Kilpatrick, "Yep."
And then Tom Hardiman of Lakeshore Enterprise, he
was completely shut out when he tried to find out what happened
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6Government's Rebuttal Closing ArgumentFriday, February 15, 2013
to those two contracts that were canceled. He went to
everyone, as well. When Hardiman reached out to
Mr. Kilpatrick's mother, the former congresswoman, this is what
the mayor and Mr. Ferguson had to say about it. They mocked
him just like they had done Odell Jones.
Ferguson, "Tom Hardiman, Lakeshore, they called your
mother's office on us. Zeke just called me."
Kilpatrick, "Laugh out loud."
Ferguson, "You got to talk to DeDan and Zeke. This"
expletive "is funny about the" expletive "the union and
Lakeshore is saying. Hey, I not know I would become the MF-ing
man of the real man, KMK."
Bernard Kilpatrick also did not hesitate to punish
minority business enterprises that got in his way. You will
recall the testimony where Jim Jenkins, who was a
minority-based enterprise and a Detroit-headquartered business
here in Detroit, he had the temerity of not hiring
Bernard Kilpatrick's client to haul waste from the Book
Cadillac Hotel. Bernard Kilpatrick asked Bobby Ferguson,
Bobby Ferguson, to see if he could find some city regulators to
run Jim Jenkins out of town.
And then there was Eric Simmons. Mr. Evelyn in his
closing argument made much of mentoring minority business
enterprises. The defense claims -- and the only example they
gave of that was Eric Simmons of E&T Trucking. Well, you heard
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7Government's Rebuttal Closing ArgumentFriday, February 15, 2013
the testimony of Tom Hardiman, that Bobby Ferguson asked them
to put E&T Trucking onto his bid for the 2014 contract, and
after that Lakeshore, in fact, won that contract, but once they
won that contract, they started giving work to E&T Trucking
directly. They cut Mr. Ferguson out and started working
directly with the person whose name was on the bid.
What did Bernard Parker tell you about that? He
said that Bobby Ferguson became furious. Why? Because E&T
Trucking, Eric Simmons, wasn't paying him a fee for the work
that he was receiving. And so what did Bobby Ferguson tell
Bernard Parker to do, who used to work at the human resources
department for the City of Detroit? He told him to "Go to your
snitches and see if you can yank Eric Simmons'
Detroit-headquartered business certification." This is not
mentoring. This is kneecapping somebody that was about to
stand on their own.
These sewer jobs that you've heard about in this
case, they may not have been glamorous, but it was valuable
work for those that did excavation in the city and those that
did engineering projects in the city. Now, Mr. Thomas in his
closing said that Mr. Ferguson was out there in the cold
digging sewers that no one else wanted to do.
Well, tell that to Avinash Rachmale. He told you
that he was home for days sick after they lost that first
contract because he didn't know what to do. Tell that to Eric
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8Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Simmons or to Billy Hayes, or to Willie McCormick, all of whom
did that kind of work and all of whom would have been happy to
be out there in the cold doing it.
Now I'd like to talk about Charlie Williams and
Inland Waters. When Mr. Kilpatrick came into office, the first
thing that he did was hold up that 1368 sewer lining contract.
Why? He held it up until Mr. Soave and Inland Waters dumped
their qualified minority business enterprise, their partner,
Charlie Williams, in favor of Bobby Ferguson.
Now, the defense claims that this was somehow
justified because Charlie Williams was a minority front. Well,
you've heard that Charlie Williams was the long-time director
of the Detroit Water and Sewerage Department. The defendants
indicated that mentoring of small companies is laudable if it's
real, and we agree with that completely. No one disputes that,
but look at what Tony Soave did with Charlie Williams. After
this incident with the 1368 sewer lining contract, he continued
to invest in Charlie Williams, and he's now the chairman of a
company that makes $35 million a year and employs numerous
Detroit employees. That wasn't a front, and that wasn't a
smokescreen by Mr. Soave.
Let's talk about the real minority fronts in this
case that were used by the defendants to line their own
pockets.
First, Akunna Olumba, you've heard tape,
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9Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Bernard Kilpatrick on tape trying to insert his ex-girlfriend,
Akunna Olumba, as a figurehead in a trucking business to haul
waste for the Synagro project. Where is the boots on the
ground, as the defense likes to say, in that case?
And then they considered putting another gentleman
who happened to be Bernard Kilpatrick's son-in-law, Daniel
Ferguson, as the trucker, and they were going to hide his last
name. They were going to use the name Leighton(sp) as
stenciled onto the doors of the truck. Where is the
transparency that the defendants like to claim is so important?
Let's talk about Archie Clark for a moment.
Bernard Kilpatrick was again caught on tape again telling
Karl Kado that he wanted to insert Archie Clark, his buddy,
into the food service contract at Cobo. Archie Clark had no
food service experience, so why give it to him? Because he was
paying Bernard Kilpatrick. Look at the records and see how
many payments National Media, Archie Clark's company, were
making to Bernard Kilpatrick.
I now want to talk about Amendment Number 4 to the
1368 lining contract. Mr. Kilpatrick's team claims that he was
too busy to sign that Amendment Number 4, which he did not sign
until December 23rd, 2005, yet you've heard testimony from two
witnesses, Bernard Parker and Derrick Miller, plus you've seen
emails that showed that contract was held up that whole summer,
not just in December but that whole summer, and they told
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10Government's Rebuttal Closing ArgumentFriday, February 15, 2013
you -- this was not speculation or inference -- they both said
they had face-to-face conversations with the former mayor where
he was saying that he was holding it up until Bobby Ferguson
got satisfied, until he got his payment on that sinkhole
contract.
Bernard Parker even told you about a meeting that he
had outside of Ferguson Enterprises' headquarters, in his
parking lot because he didn't want anyone to hear it, where he
confronted Mr. Parker, he said, "Why are you siding with Inland
Waters against me and the mayor on this issue?"
Think about that. That shows unquestionably the
partnership between the mayor and Bobby Ferguson here. "Why
are you siding with Inland against me and the mayor?"
You've also heard from Derrick Miller who told you
that, in a show of force, he went to a meeting on December 16
at a Detroit restaurant between a gentleman named Dennis Oszust
at Inland and Bobby Ferguson, said that Dennis Oszust knew who
had the backing of the administration. Mr. Miller said that he
went to the restaurant and pulled Mr. Ferguson out for half an
hour while they let Mr. Oszust just sit there. That was the
meeting where that $350,000 deal took place. That was the
meeting where Mr. Ferguson got his payment on that sinkhole
contract. And guess about timing? One week later is when
Kwame Kilpatrick signed that special administrator's order
giving the $12 million to Inland Waters.
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11Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Now, the defense claims that Bernard Parker is
somehow tethered to the government. I'm not sure exactly what
that means. Mr. Parker was subpoenaed to testify in this case,
just like everybody else. There is no benefit he is receiving
aside from the witness fee that every single witness who comes
into court receives.
I now want to talk briefly about the outfalls
contract, that's contract 849 and the $1.7 million no-show
payment that Ferguson received in that case. The defense
claims that somehow this no-show payment was a legitimate
claim, it was a legitimate settlement, a contract dispute
between parties. If that was true, why is there no paperwork?
Where is the settlement agreement? That's a lot of money if
you're going to settle a claim with somebody. And why did
Ferguson give a fake invoice for the first payment of $450,000
there? Why did he have an invoice with his wife's name on it
and with bogus descriptions of environmental work and
consulting work that he did not do? Because he knew this was
an extortion payment and he had to hide it.
Now I'd like to talk about Walbridge and the Patton
Park/Baby Creek project. The defense argues that that bid was
not held up, there was no delay, that it was, in fact, a patent
infringement suit that delayed it. We don't dispute that.
There's never been a suggestion that that bid was delayed for
any improper purpose. Where it became improper was after the
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12Government's Rebuttal Closing ArgumentFriday, February 15, 2013
bid was opened on February 6, 2003. That's where these guys
took their actions. That's when the extortion started. That's
when Mr. Miller told you that he had a meeting with
Bernard Parker where he said, look -- and Bernard Parker was
working for Walbridge at the time, he said, "You have to put
Mr. Ferguson in on this project." And what did Mr. Parker say?
"We already have somebody. We have an excavator on this
project," and Mr. Miller said, "No," told him that "You have to
go with Mr. Ferguson."
And that's why, and you've seen this contract, this
one page, hastily written, handwritten contract by Walbridge
and Ferguson Enterprises where they say that if, if they are
going to be awarded this contract, they will give Mr. Ferguson
$12.73 million worth of work. Think about that. Just look at
the terms of that contract and ask yourself, they've already
won this bid and the bids have been opened, and all of a
sudden, they have to cobble this together and make sure that
the administration sees it? The administration wanted to see
that they'd taken care of their buddy before they took action
on this project.
Now I wanted to jump back to Lakeshore and the
$10 million contract, the 1361 contract that you've heard that
was canceled. The defense argues that that was somehow -- that
was canceled somehow because it wasn't needed. Well, you've
heard from Darryl Latimer, the head of the Contracts and Grants
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13Government's Rebuttal Closing ArgumentFriday, February 15, 2013
group, that said that it was needed. They went through this
enormous process ending February 6, 2003, where Victor Mercado
himself got the Board of Water Commissioners to approve that
contract. Think of all the steps that had to take place to get
to that point, and then five months later he changes his mind
and he cancels it.
Why did that happen? Well, Mr. Latimer told you
that he always thought it was a good project and he never
understood that. Well, let's take a look at Exhibit LS1-11.
This is when Bobby Ferguson became interested in that 1361
project.
Ferguson, "Hello, Black, you haven't released that
contract, right?"
Kilpatrick, "Right. They know I'm holding it."
Ferguson, "Using your terms, it's still cool with
you. I need to hold it for a long time."
And then Mr. Ferguson texted Kwame Kilpatrick again.
He was weighing his options to see whether he should go with
Lakeshore, who had the 1361 contract, or Inland, who had the
1368 contract.
Ferguson, "1361 is the same contract. 1361 prices
may be less than the other one, but, hey, you know the rest."
Kilpatrick, "Cool."
Think to yourself, why is the mayor of a major
metropolitan -- major city in this country talking about the
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14Government's Rebuttal Closing ArgumentFriday, February 15, 2013
prices of a contract? Because he was going to share in the
prices of that contract.
You've heard from Mr. Miller. He said that
Bobby Ferguson wanted this contract canceled, and so
Kwame Kilpatrick told Victor Mercado to cancel it. You've
heard from Mr. Latimer who said that he wanted this contract
kept. He didn't understand why they couldn't keep it. And he
had actually told that to Victor Mercado, but on July 13, 2003,
Mr. Mercado comes into his office and tells him, "I want you to
write me an email saying that there is no need for this
contract."
Think about that. Why does the director of DWSD
have to tell a subordinate who doesn't agree with him to write
him an email? Because Mr. Mercado needed a cover story,
because he was uncomfortable with the decision, because just
five months before, he had gone through a big process to get
this thing approved in the first place. And so Mr. Latimer
said he did it, he felt uncomfortable. The next day, he gets a
memo back from Victor Mercado following Mr. Latimer's supposed
advice and canceling the contract.
Now I want to talk about Heilmann Recreation Center.
The defendants in their closings didn't say much about it and
I'm not going to say much about it either because you can look
at the text message between Christine Beatty and Bobby Ferguson
on the day that the contract was awarded. That's all you need
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15Government's Rebuttal Closing ArgumentFriday, February 15, 2013
to know. That bid was rigged.
All the defense did was attack LaJuan Wilks from the
recreation department, saying that she had an ax to grind. I'm
not sure really how to respond to that. You saw her. She was
a diligent career employee of the recreation department, and
the only reason that she got in trouble, because she was doing
her job. She was administering two different recreation
department projects, the Heilmann Recreation Center which had
been rigged unbeknownst to her, and the Patton Park, and guess
who was on both of those recreation center projects, Xcel
Construction, Ferguson's companies, and she knew that they were
double dipping, they couldn't possibly be at both places.
And so she made that known at a Board of Water
Commissioners meeting, and for that, what happens? She gets
berated and demeaned by Bobby Ferguson, with her own boss
sitting there doing nothing.
I'd now like to talk about Mr. Ferguson's influence
within the Kilpatrick administration. The defense said in
their closing that Mr. Ferguson had no pull on contracts.
Well, take a look at the internal communications between
Bobby Ferguson and the mayor, shows the complete opposite.
First, the Baby Creek Walbridge project, during bid
openings for award of subcontracts on that project for the Baby
Creek, this is what Ferguson instructed the mayor of the City
of Detroit:
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Ferguson, "Baby Creek, I told you when I would call
on you when I need help, help F-ing Victor. I don't need DWSD
to sit in on the bid opening."
Think about that. Who is the client here? The
water department. And he's telling the mayor that he doesn't
want the water department to sit in on a bid opening? Why do
you suppose that is? And why would the mayor listen to him?
Next, the sinkhole up in Sterling Heights, when
Ferguson wanted a piece of that project, this is what he told
the mayor:
Ferguson, "We need to meet how I move in. I got a
great idea, sir. Holla in the morning."
Now, the defense says that Mr. Soave is such a
bigshot that there is no way that a mayor could bully him.
Well, you've heard from Mr. Soave. He had business -- first of
all, he's centered in this city, he has businesses that can be
messed with by regulators all over the place, from his scrap
business to his sewer lining business, and if it was true that
he couldn't get bullied, then why did he dump his good friend
Charlie Williams and insert Bobby Ferguson in his place when
the mayor told him to do that? Why didn't he just say, "No,
Charlie Williams is my longtime friend and I don't know who
this guy Bobby Ferguson is"? He did it because the mayor told
him to.
And then, when Ferguson was causing problems on the
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17Government's Rebuttal Closing ArgumentFriday, February 15, 2013
job site, why did Mr. Soave go back to the mayor and say, "Is
Bobby still your guy?" Why didn't he just dump Mr. Ferguson
right there? He didn't need the mayor's permission. Or maybe
he did.
And let's talk a minute about Kathleen McCann who
used to work for Inland. She told you shortly after
Kwame Kilpatrick was reelected mayor of the City of Detroit and
Mr. Ferguson was back in the driver's seat again with contracts
that he paid a visit to Inland Waters, and at that time he told
Ms. McCann, "You act like Victor has ever made one decision
ever." She told you that "Working with Mr. Ferguson was like
having a sword dangling over our head."
Next, DLZ. Mr. Evelyn has told you that the 2012
downtown water main project, that Mr. Ferguson did a great job
on that, he came in under budget and on time, as well as the
previous pilot project that preceded that.
If you look at your notes of the testimony of the
head of DLZ, Pratap Rajadhyaksha, call him Mr. Pratap, he said
something quite different. Mr. Pratap refused to give
Mr. Ferguson more work because he wasn't completing his
previous projects. He said that he had set this up as a
competitive process so that each of the contractors could get a
new link to the sewer project if they completed their own ones,
but Mr. Ferguson wasn't finishing his.
And what did Mr. Ferguson tell him? "You don't need
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18Government's Rebuttal Closing ArgumentFriday, February 15, 2013
to worry about the director. You need to worry about me." The
director being Victor Mercado, the head of the water
department.
Unfortunately for DLZ, Pratap, Mr. Pratap didn't
listen to Mr. Ferguson. And so what happens to DLZ? They get
their Detroit-headquartered business certification yanked with
absolutely no notice to them so that they could respond. And
then somehow, mysteriously, it gets reinserted, also without
any notice to them. If they truly weren't a
Detroit-headquartered business, then who was it that advocated
on their behalf to get their certification back?
If you look at the timing of that yanking of the
certification and then the reinserting, the one thing that
comes in mind is that the contract that was awarded for 2012 is
what goes between those two.
Now, you've heard from the deputy director of the
Human Rights Department, Kim Harris, and he testified that he
was told by his boss to yank that certification and that he was
told it was on orders from the mayor.
Now, Mr. Evelyn has shown you an exhibit, it was one
of ours, in fact, LS3-9. It was a letter from Mr. Latimer of
the water department saying that he wanted an investigation to
be done of the Detroit-headquartered business certification of
DLZ. Well, what Mr. Evelyn didn't tell you about was the back
story of that letter. Shortly before that letter was written,
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19Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Mr. Latimer was summoned to the mayor's office for the first
and only time along with Mr. Mercado, and that's where they had
a discussion, and the mayor asked him about DLZ and asked him
about their Detroit-headquartered business.
When Mr. Latimer got back to the office after that
meeting, Mr. Mercado came into his office and told him to write
the letter that Mr. Evelyn showed you.
Next, the defense claims that Mr. Kilpatrick did not
use his power to help Mr. Ferguson in any way. Well, if that
was true, then ask yourself, why was it so important for
Mr. Ferguson to purposely lose a major city bid, in this case
the construction of the Detroit Police Department?
Christine Beatty, "Why not Bobby in this?"
Kilpatrick, "Bobby wanted to strategically lose a
major bid. He will be in this one at bid time."
Now, ask yourself, what contractor would spend the
time and the money to put in the bid only to lose it and lose
it on purpose? Somebody who didn't really have to bid because
they were partners with the mayor, the guy that made the
decisions, and someone that wanted to conceal that partnership.
In fact, the preference for Mr. Ferguson on city
contracts got so extreme that it even trumped family ties.
Mr. Kilpatrick's own sister, Ayanna Kilpatrick, couldn't get
into the action after awhile. You heard Mr. Miller testify
that Ayanna Kilpatrick complained to him when she wanted to get
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20Government's Rebuttal Closing ArgumentFriday, February 15, 2013
in on that Synagro sludge hauling trucking deal.
This is what she had to say:
Ayanna Kilpatrick, "Here we go with this Bobby bull
again. Tardif canceled meeting with my guys today. Just
stated Bobby wants to do the same thing, waste hauling. Great
if it's room for him, terrible if he's holding us up. Can we
make money too?"
Now, think about this, if Ayanna Kilpatrick couldn't
get business from the city, do you think Odell Jones had a
chance? But here's the rub, by putting Mr. Ferguson over his
own sister, Kwame Kilpatrick was really picking himself and his
own financial benefit over his own sister.
Now, Mr. Thomas in his closing argument said that
Kwame Kilpatrick and Bobby Ferguson never denied their
friendship. Well, that's not true. Here's what Mr. Kilpatrick
told Ferguson to tell reporters. Ferguson -- and this is Darci
McConnell who used to work for the Detroit News:
Ferguson, "Hey, Darci is asking me, are we friends
and do we travel together and do we talk on the phone."
Kilpatrick, "Don't confirm none of that. I am
someone you support. You think I'm doing a great job for the
city."
Why did they have to hide their relationship, their
partnership? Well, these last five months should tell you
that.
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21Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Now, I wanted to talk about money. Mr. Kilpatrick
lived way beyond the means of a public official. You've heard
evidence in this case that he stuffed a half a million dollars
into his bank accounts and his credit card accounts while he
was the mayor. None of this came from his salary as mayor,
none of this came from an identifiable, legitimate source.
Mr. Kilpatrick spent more than $840,000 more than he
had in his accounts. How did the defense explain all this cash
going into his accounts and Bernard Kilpatrick's accounts, all
the cash leaving Bobby Ferguson's business accounts, all of the
cash found in Ferguson's safes all over the city? Well,
Mr. Kilpatrick's attorney said that it all came from gifts.
First, Mr. Kilpatrick's wedding reception which
occurred six years before he was mayor. One thing that is
undisputed in this case, when it comes to Mr. Kilpatrick, is
that monetary gifts are preferred. The defendants claim that
this wedding was somehow a cash bonanza, that it allowed him to
have a cash hoard that would take him through his time as
mayor. Well, if that's true, then why did his banking activity
before he became mayor look so normal?
If you look at this, this timeline, these lines are
when he became mayor and when he left as mayor. Before he was
mayor, he was withdrawing cash from his bank accounts, not
depositing it. He was acting like a normal person who doesn't
get bribed.
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22Government's Rebuttal Closing ArgumentFriday, February 15, 2013
But that all changed when he became mayor of the
City of Detroit. Suddenly all the cash withdrawals become cash
deposits, and then he starts depositing regular round number
figures into his credit card account. It took a little while
to ramp it up, as you can see, he continued to behave like a
normal person for at least the first six months of his
administration, but after that, it's all green, and look at the
peak at the very end when he left office.
And you will see if you look at the bank records
that Mr. Kilpatrick was not depositing hundreds of thousands of
dollars at a time into his bank accounts. They were regular,
round number figures, just enough to pay his bills, just enough
to put into his bank account so that he could write checks or
wire money, but not enough to cause suspicion or alert
regulators, bank folks, that there was something wrong with his
accounts.
So how does the defense explain all that green, all
that money that was going into Mr. Kilpatrick's bank accounts
after he became mayor? It all comes down to what they called a
Splash of Red, birthday parties, allegedly awash in cash. All
we've seen in this case is checks like this one, a woman named
Mablene Rodgers for $10. In the memo line it says, "To our
mayor." This is someone that probably believed in him.
Agent Sauer has told you he didn't count any of
these checks when he came up with his monetary figures. He
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23Government's Rebuttal Closing ArgumentFriday, February 15, 2013
only looked at the cash. So the defense then attacked
Mr. Sauer and suggested, "Well, did you go to every check
cashing facility in the city?" There is no evidence that
Mr. Kilpatrick was going around with these checks and going to
check cashing facilities.
Look at the endorsement on the back of Mablene
Rodgers' check, "For deposit only," signed by the mayor
himself. The mayor apparently had the time and inclination to
sign a $10 check, and they're telling you that he didn't have
the time to sign a $12 million Amendment Number 4.
No, none of these checks account for the $840,000 in
unexplained expenditures by Mr. Kilpatrick during his time in
office.
That $10, by the way, that $10 figure from
Ms. Rodgers' check, is the same amount that William Tandy, the
head coach of the Westside Cubs said that he was comfortable
giving to Mr. Kilpatrick at one of those parties, but he felt
that he had to step it up and give $100. He said that he had
to eat ramen noodles for a week to afford to do that.
No check was turned down by the mayor, no matter how
big or small, no matter whether the person could afford to give
it. No one disputes that.
Then the defense talked about the lavish parties,
the lavish gifts that were given to the mayor at twice a year
office parties in his honor by his office staff. As you heard
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24Government's Rebuttal Closing ArgumentFriday, February 15, 2013
from Kizzi Montgomery, contributions were expected by these
office staffers. Remember what -- how much money
Ms. Montgomery made? $32,000 a year. That's five times less
than the mayor of the City of Detroit, and yet she was expected
to give him a present?
And bear in mind -- and remember what they said
about these presents. One of them included a $22,000 Rolex
watch or a golf getaway vacation. One thing to keep in mind
about Ms. Montgomery's testimony, she never said that there was
cash, let alone balls of cash, given to the mayor. They were
gifts. She just recalled the two that were presented to him
that day on two different occasions.
What these lavish parties show beyond any reasonable
doubt is the selfishness of the mayor. It was a one-way
street, all for him, nothing for anyone else, except his
partners over there.
And think about this, if Mr. Kilpatrick was willing
to shake down a modestly compensated staffer in his office, do
you think that he had any reservations shaking down a
businessman of means, a businessman who wanted something in
return from the mayor? The real money in this game came from
businessmen who needed something back from the mayor, and the
number one person on that list was Bobby Ferguson, and the cash
they gave to Mr. Kilpatrick in return for those official
actions was no splash of red. It was a tidal wave of green.
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25Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Now, Mr. Thomas in his closing argument tried to
explain away the money that Mr. Rutherford gave to the mayor as
a gift. They suggested that Mr. Kilpatrick asked
Mr. Rutherford to give him $10,000 in cash just before he went
to Dubai so he could buy him suits, and that Mr. Kilpatrick
asked him to give him another gift of several thousand dollars
when they were both in Las Vegas so that he could go and shop
and entertain.
Think about that. What type of public official asks
for a gift from someone that's looking for something in return,
let alone someone who is looking to land a casino in the same
city that the mayor governs? No, that's not a gift, that's a
bribe, just like the payments to Mr. Ferguson, from
Mr. Ferguson to the mayor, and just like the payments from
Karl Kado to the mayor.
Now, I'd next like to address the cash that was
coming out of Mr. Ferguson's accounts. As you've seen on
spreadsheets and other sorts of charts, during the time that
Kwame Kilpatrick was mayor, Mr. Ferguson took over $2.3 million
out of his various business accounts. The defense doesn't
really address this directly, but they suggest that we did not
show that there was a precise correlation between when
Mr. Ferguson made a withdrawal and when a deposit came into
Mr. Kilpatrick's account. You're not going to see a
correlation like that. You saw the safes stuffed with cash.
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26Government's Rebuttal Closing ArgumentFriday, February 15, 2013
He didn't need to go to the bank to make a withdrawal to pay
off the mayor.
Now, the defense also argues about that $2.3 million
in withdrawals saying, "Hey, some of it was legitimate business
expenses." Well, ask yourself, what normal business withdraws
$2.3 million in cash? So the defense showed you a bunch of
checks to cash with memo lines on them that said "Truck parts."
The problem was the truck parts don't always mean what they
say. You saw Agent Paszkiewicz show you checks that said
"Truck parts" that were sequential checks on the same day, just
under $10,000 that happened to be given to a jeweler, Golden
Sun, for jewelry.
No, Mr. Ferguson and Mr. Kilpatrick were in a
partnership together, and it involved cash and city business.
Think about the evidence in this case. Mr. Kilpatrick went out
of his way to steer contracts to Mr. Ferguson. Mr. Kilpatrick
and Mr. Ferguson regularly met privately, and take a look at
some of those text messages and the coded communications about
their meetings.
Andre Cunningham, you remember his testimony, he
said that when Mr. Kilpatrick learned that Andre Cunningham's
phone had been tapped, they went and they talked behind the
Manoogian Mansion with their hands over their mouths, and then
Mr. Cunningham said that who bought new phones for the mayor?
Mr. Ferguson, a phone for Mr. Ferguson and a phone for the
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27Government's Rebuttal Closing ArgumentFriday, February 15, 2013
mayor. Why did they need their new phones? It was
Mr. Cunningham's phone that was tapped.
You've heard, as I said, Mr. Kilpatrick had hundreds
of thousands of dollars flowing through his accounts that don't
trace to any sort of legitimate source. You've heard that
Mr. Ferguson had access to millions of dollars of cash, much of
it coming from contractors that were extorted by him with the
help of the mayor. And Ferguson had lots of cash available to
him all over town. Now, the defense suggests to you that that
cash all basically came at the very end because he was chased
out of banks. Well, take a look at those cash withdrawals,
those charts. He was withdrawing cash from his accounts
throughout the entire time that Kilpatrick was mayor.
And we know from Mahlon Clift on at least one
occasion, and I say one occasion, Mr. Kilpatrick and
Mr. Ferguson were sharing in the spoils of their extortionate
scheme when $90,000 was transferred between the two of them.
Now, before I talk more about the evidence, I wanted
to explain to you some of the legal standards that have come up
in the closing argument and that you will need to use in
evaluating this case.
First of all, in your deliberations you're going to
get our indictment in this case, and look at it very closely.
It provides a structure to the allegations and the chapters
that you've heard in this case. You'll also be getting a
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28Government's Rebuttal Closing ArgumentFriday, February 15, 2013
glossary which gives all the exhibit numbers, and it correlates
to that structure, to that indictment. If you use those two
things together, you'll be able to look at the exhibits in an
orderly manner. And most of the chapters that you heard of are
in that indictment except for a couple, like the Heilmann
Recreation Center, but other than that, all of the rest of them
you'll see in the indictment.
The only count that I really want to talk about on
the instructions is the racketeering conspiracy, and that's
Count 1. Now, for you to find a racketeering conspiracy, you
must find that the defendants agreed that one of the members
would commit at least two types of listed crimes. Now, the
crimes don't need to be accomplished, they just need to be
agreed upon.
And I now want to show you that list of crimes. You
will see this in the indictment in Count 1, but it includes --
federal offenses include extortion, mail fraud, wire fraud,
obstruction of justice; and also state offenses, extortion and
bribery.
I want to first talk about the extortion offenses.
You can, when you're deciding whether there were two types of
activities that were agreed to by the defendants, pick any two
of these federal or state extortion offenses that are shown
here. Let me know if I'm going too fast. Or you could pick
any two of these state bribery offenses to satisfy the
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29Government's Rebuttal Closing ArgumentFriday, February 15, 2013
requirement, or you can pick any of these two mail or wire
fraud offenses. Or you can pick this obstruction offense.
Or you can select any two of these various chapters
that you've heard in this case, any of these extortion,
bribery, fraud or obstruction charges. All you need to do is
select two of them, but you all have to unanimously agree upon
which two you select, and again, none of them have to be
accomplished, but they have to have been agreed upon, and just
one member of the conspiracy had to commit it.
Now, I want to talk about the Kilpatrick Civic Fund
and the mail and the wire fraud offenses. Mr. Thomas in his
closing argument showed you a demonstrative exhibit which
suggested, it was a pie chart that suggested that
Mr. Kilpatrick had only misused $13,000 of his Civic Fund for
personal expenses, inappropriate personal expenses.
I must say that this chart is incredibly misleading.
You have heard in this case of over $200,000 in improper
personal expenses used by Mr. Kilpatrick himself. The chart
also that was presented to you by the defense didn't include
$200,000 that were given to family and friends, people like
Christine Beatty, people like Bernard Kilpatrick. None of
that's included in that chart. That chart also doesn't include
the $150,000 in campaign expenses that were used for
Mr. Kilpatrick's campaign, his campaign, nobody else's.
In all, the defendants' chart is missing over
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30Government's Rebuttal Closing ArgumentFriday, February 15, 2013
$550,000 in improper expenses. Nor does that chart include any
expenses for the year 2008. That's an important year because
that was the year that the Kilpatrick Civic Fund was unwinding.
That was the year when the mayor, Bernard Kilpatrick, Christine
Beatty and other associates of theirs drained the fund of
hundreds of thousands of dollars for their own use.
You recall the testimony of April Edgar who had the
checkbook for the Kilpatrick Civic Fund. Right up to 2008, she
told you who was write -- who was asking her, who was telling
her to write the checks. It was Mayor Kilpatrick, nobody else.
She told you that that last meeting, that board meeting, was
called by the mayor where they decided that they were going to
give all that money to him for moving expenses. There was no
discussion of apportioning expenses in that meeting.
And take a look at the IRS application, KCF-2. This
was the application that Mayor Kilpatrick -- well, he wasn't
mayor -- Kwame Kilpatrick signed himself and was filed with the
IRS to give them that tax-exempt status. And take a look at
what the requirement says that you're supposed to do when you
dissolve a non-for-profit like this. It's supposed to go to
another non-for-profit. It's not supposed to go to one of the
former founders.
And don't forget what the donors, the people who
actually gave to the Kilpatrick Civic Fund told you. They were
asked hypothetically by my colleagues, would they have given to
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31Government's Rebuttal Closing ArgumentFriday, February 15, 2013
the fund if they had known it had been used for improper
personal expenses like summer camp, golf, massages, things like
that. They all said no. That is fraud.
Next, the defense claims that Mr. Kilpatrick paid
back the Kilpatrick Civic Fund in 2009, that he had given it
back $13,000, which they claim is the sum total of his improper
personal expenses that he used from the fund. Well, first of
all, if they truly wanted to pay back the fund, they were going
to have to pay back over $500,000, not $13,000.
But, second, take a very close look at the timing of
that check that was written to the Kilpatrick Civic Fund,
paying it back that sliver of the amount of money that
Mr. Kilpatrick used. It only came after the government sent a
criminal grand jury subpoena to the Civic Fund asking for its
expenses.
This put Mr. Kilpatrick, if he didn't know before,
on notice that there was an investigation of the uses of that
fund, and it was only after that subpoena came out, after
almost a decade of using the fund for his own personal
expenses, that he pays back a sliver of what was owed.
Next I want to talk about Bernard Kilpatrick.
Mr. Shea in his closing argument spent a lot of time talking
about the credibility of Mr. Rosendall of Synagro. He said
that you can't trust Mr. Rosendall because he was stringing
along Bernard Kilpatrick, and he was also lying to his bosses
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32Government's Rebuttal Closing ArgumentFriday, February 15, 2013
at the headquarters of Synagro.
Well, I can tell you that Jim Rosendall was
certainly in a jam at that time. Why was he in that jam?
Because Bernard Kilpatrick, the mayor's hand-picked middleman
for the Synagro deal, had gotten into a financial dispute.
With who? Bernard Kilpatrick's hand-picked frontman for this
whole thing, Rayford Jackson, who had his own ethical problems.
Those two were in a financial dispute, and Mr. Rosendall got
caught in the middle. And Mr. Rosendall had Bernard Kilpatrick
breathing down his throat, telling him that he was going to get
this contract, this billion dollar contract, killed if he
didn't do anything about it.
Now, Mr. Shea conceded, as he must, that
Bernard Kilpatrick did threaten to blow up this deal, but he
defends that extortionate action by saying the threat was not
wrongful somehow because it was a legitimate debt that was owed
to Bernard Kilpatrick. If that was true, if this was a
legitimate debt, then why did Bernard Kilpatrick not do what a
normal person does when they have a legitimate debt? Why
didn't he go to court on a breach of contract or a collections?
Because courts don't enforce extortionate debts.
Can you imagine Bernard Kilpatrick going into a
court and asking the judge to order Mr. Rosendall to pay, not
Bernard Kilpatrick, but his ex-girlfriend, Akunna Olumba, and
her so-called trucking company so that Bernard Kilpatrick could
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33Government's Rebuttal Closing ArgumentFriday, February 15, 2013
get paid? No judge is going to do that. And why not? Because
this whole thing was illegal.
Now, Mr. Shea talks about checks that were written
between Mr. Rosendall and Mr. Kilpatrick supposedly for
consulting work. Those weren't corporate checks. Those checks
came from Mr. Rosendall's personal account. Here's one, look
at the memo line, it says "Loan." Doesn't sound like a
consulting relationship.
And Bernard Kilpatrick didn't have trouble taking
cash from people, let alone Mr. Rosendall. You recall at the
end there when Mr. Rosendall was now working with the
government undercover that Bernard Kilpatrick didn't take cash
in the restaurant, and he also told you why he didn't take that
cash. It was a public restaurant, and he didn't trust Akunna
who was there next to him to take that cash.
He said that there were only three people in this
city that were willing to go under the bus for him. Two of
them are sitting at that table over there. If that payment was
legal, why couldn't he take that in a public restaurant, why
did it matter? Cash or check?
Mr. Shea also asks, well, why couldn't the mayor
have expedited this Synagro project? After all, he had the
special administrator's powers. Well, keep in mind when
Mr. Kilpatrick lost that special administrator's power. That
was in January of 2006. Most of the bureaucratic steps in this
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34Government's Rebuttal Closing ArgumentFriday, February 15, 2013
very complicated billion dollar deal took place after 2006.
That's not to say that the mayor did not have power. He did.
He was still the boss of Victor Mercado, who was the head of
the DWSD, but there were more bureaucratic steps that had to be
taking place as a result of that.
Now, Mr. Shea asks, well, why was Mr. Rosendall
lying to his bosses? Well, he couldn't come clean to his
bosses because he was engaged in an illegal transaction with
Bernard Kilpatrick. He didn't tell them about that because
they would have never allowed him to do that. He was trying to
keep them at bay and he was trying to keep Bernard Kilpatrick
at bay and Rayford Jackson at bay. And he wasn't doing a very
good job at it. And we don't excuse that conduct by
Mr. Rosendall, but he paid the price for it. He went to jail
for that.
And rather than undermining Mr. Rosendall's
credibility, the fact that he was lying to his boss actually
proves that he believed these threats were real. He knew that
what he was doing was wrong, and it certainly does not
exonerate Bernard Kilpatrick of his conduct and behavior in
this case.
Now, the defense claims that Mr. Rosendall's
testimony was bought and paid for. Well, when he came into
court to testify before you, he had already served his jail
sentence. There was nothing more that he could get from the
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35Government's Rebuttal Closing ArgumentFriday, February 15, 2013
government.
Your Honor, I don't know when a proper time to break
would be.
THE COURT: You want to break?
MR. CHUTKOW: Yes.
THE COURT: All right. We'll take 15 minutes.
(Jury out 9:58 a.m.)
(Recess taken 9:58 a.m. until 10:16 a.m.)
(Jury in 10:16 a.m.)
THE COURT: Be seated. Mr. Chutkow.
MR. CHUTKOW: Thank you, Your Honor.
During the break, I was alerted to a mistake that I
made during my closing. When I was telling you about DLZ and
the certification that had been yanked, that related to a
contract 2014 and 2015, not to -- I said contract 2012.
Now, I wanted to talk for a little bit about
Karl Kado. Now, Mr. Shea in his closing argument acknowledged
that Karl Kado made regular payments to Bernard Kilpatrick. He
appeared to acknowledge that those payments totaled in the
hundreds of thousands, although wasn't precise on what it was.
He also appeared to acknowledge that Mr. Kado received a final,
one-time payment of $100,000, and that all of these payments
were in cash.
Now, ask yourself if Bernard Kilpatrick ran a
legitimate consulting business. Where are the invoices for the
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36Government's Rebuttal Closing ArgumentFriday, February 15, 2013
services he provided? Where is the contract to Mr. Kado?
Where are the receipts? Where are the Form 1099's that you're
supposed to keep track of these payments? Why didn't he ever
demand a check from Mr. Kado so that he could keep his own bank
ledgers in order? It's because he didn't want anyone to know
about those payments.
Now, Mr. Shea suggested to you that it was Kado that
wanted to pay Bernard Kilpatrick in cash because he was
skimming from his own company, but if Kado was paying a real
consultant as opposed to a bribe or extortion, he could just
write a check to him. As you've seen from this case, Mr. Kado
certainly -- he could have taken a deduction if he had written
a check, and as you've seen from this case, Mr. Kado certainly
could have used some help on his taxes.
Now, on the subject of taxes, ask yourself this, why
aren't the hundreds of thousands of dollars of cash that went
between Kado and Bernard Kilpatrick on Mr. Kilpatrick's tax
returns? Keep that in mind when you're considering the tax
counts in this case.
Now, Mr. Shea played you some tapes between Mr. Kado
and Bernard Kilpatrick, and in one of them they're talking
about money that is owed by the city to Mr. Kado for a
Department of Administrative Hearings, and in one of the tapes,
the mayor of the city is talking to Bernard Kilpatrick and
acknowledges that the city owes Mr. Kado, just a question of
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37Government's Rebuttal Closing ArgumentFriday, February 15, 2013
how much. Yet, on a later tape when Mr. Kado tells
Bernard Kilpatrick that he's not going to pay him, what does
Bernard Kilpatrick say? "You don't want to pay me? It could
take you two years to get paid."
Does that amount of time sound familiar? That's the
same amount of time that he told Mr. Rosendall that he could
delay their operations permits for Synagro if he didn't get
paid on that one. Like Mr. Ferguson, the mantra was no deal
without me.
Now, the defense, Mr. Thomas attacked Mr. Kado's
memory, and specifically, he cited to the -- he suggested that
Mr. Kado couldn't even keep his bribes straight, saying that at
one point, the mayor allegedly went to Mr. Kado's office in the
winter -- or in the summer, and yet he said there was eight
inches of snow. Well, you all took notes that day when
Mr. Kado was being cross examined by Mr. Thomas. He said that
there were two different bribes that took place, one in the
winter and one in the summer, and Mr. Thomas cut him off before
he could finish his explanation.
Now, Mr. Shea talked about Andre Cunningham who was
a former executive assistant to the mayor and he admits that
Mr. Cunningham paid cash to Bernard Kilpatrick and that it took
place in the basement of the City-County Building, and he said
that they did it there because it would look wrong to do it on
the 11th floor, where the mayor's office was. Well, ask
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38Government's Rebuttal Closing ArgumentFriday, February 15, 2013
yourself this, if it was legitimate, what does it matter what
floor of the City-County Building that payoff took place? It
does matter if it was a bribe or an extortion.
Now, Mr. Shea in his closing argument emphasized all
the alleged work that Bernard Kilpatrick did for those various
people, for Mr. Rosendall, for Mr. Kado, for Mr. Cunningham,
for Mr. Rutherford, for the Civic Fund. Now, Mr. Shea is a
fine lawyer, and I would submit to you that most of the work
that was being done was by Mr. Shea trying to come up with an
explanation why all of these people are paying
Bernard Kilpatrick in the first place.
Now, Mr. Shea also talked about the 2004 tax year,
which is one of the counts in this case, and he argues that
Bernard Kilpatrick cannot be guilty of a tax crime because
there is no authorization form for the filing of that
particular tax return. This isn't a serious defense. Are they
suggesting that Bernard Kilpatrick's tax preparers went rogue
on him? They were simply preparing returns for him without his
knowledge?
And when you think about that count, here's a funny
coincidence, these supposed rogue preparers who sent the IRS
the returns for Mr. Kilpatrick, they sent it in October, and
they said that he owed $91,000 to the IRS. That very same day,
take a look at the check Mr. Kilpatrick happened to pay the IRS
that same day $91,000. Ask yourself, how did
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39Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Bernard Kilpatrick guess the amount of money that he was
supposed to pay the IRS? It's because he authorized the
filing, of course.
Now I want to talk about the, in general, the
government witnesses and the defense attack on their
credibility, particularly the ones that have pled guilty in
this case. Defense claims that you can't believe them because
they pled guilty. Well, the defense seems quite willing to
condemn officials like Andre Cunningham and Derrick Miller for
taking bribes, and Karl Kado for bribing city officials, like
Lou Pavledes, or Jim Rosendall for bribing people on the
Synagro deal, and we don't disagree with their criticism.
That's why these people have all been convicted. But it seems
odd that all of these people who are running around city hall,
either working there or paying people off in city hall, are
doing all this corrupt activity but never with any of these
defendants.
Now, Mr. Kilpatrick's attorney came up with an
analogy for how you should determine whether somebody is
telling the truth, had to do with, I guess, caring for your
house; would you let these people housesit for you, or
something like that. It's a ridiculous analogy. The proper
way to look at it, if you want to use their analogy, is that if
your spouse was in an accident and someone came to your door
and told you that, and then another witness came to your door
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40Government's Rebuttal Closing ArgumentFriday, February 15, 2013
and told you the same thing, and then you received a text
message telling you that your spouse was in an accident, and
maybe other financial records, I don't know how that would
work, but that confirm that, would you go to the hospital? Of
course you would.
Now, the defendants don't tell you -- what they
don't tell you is about the government -- what the defendants
don't tell you about the government witnesses, including those
who have pled guilty in this case, is that they all support
each other. Their testimony is consistent. They tell you
about a consistent pattern of behavior by the defendants.
These people didn't get together to concoct their stories
together, and yet the stories are the same.
As I said in my opening statement, this case does
not depend on the testimony of a single witness. There are
just too many witnesses saying the same thing. The defendants
spend so much time attacking a few of the government witnesses
because they want to avoid two facts that they can't attack and
they know they can't; the cash and the text messages.
First, let me just make a quick mention of the cash.
That is essentially the smoking gun in the hand of the
defendant. There is no way to explain why a public servant has
that kind of money like Mr. Kilpatrick did except that he was
getting paid off.
And the text messages, these are the thoughts and
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41Government's Rebuttal Closing ArgumentFriday, February 15, 2013
the words, without any filter, by the defendants, thinking that
no one would ever see those things. As was said by somebody
else in their opening statement, the text messages are like
going from your brain to your thumbs to the send button to the
receiver. It's like a crime scene frozen in time for you to
review at any angle you want.
If there's anything that you want to scrutinize when
you're doing your deliberations, look at the text messages.
You don't have to believe our interpretations of them, and you
won't get any better evidence in a corruption case than the
text messages in this case because corruption, by its very
nature, happens with winks and nods, and the payoffs happen in
the shadows when nobody is looking.
Now, the defendants base their whole defense on an
argument that you can't trust the government witnesses, but who
are the government witnesses? Who picked these witnesses?
Bernard Kilpatrick, Kwame Kilpatrick and Bobby Ferguson picked
these people. These are the people that they worked with, that
they were the long-time friends with, not us.
Take Mahlon Clift. He did absolutely nothing wrong
other than to show too much loyalty to his friend,
Kwame Kilpatrick. And what was his reward for that loyalty?
The defendants attacked his character, his business, because he
was loyal to Mr. Kilpatrick, but he was not willing to commit a
crime for him of perjury.
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42Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Now, the defendants question why Mr. Clift stopped
his testimony when he was in the grand jury testifying about
his relationship with Mr. Kilpatrick, and then he called his
mother. Well, that's fairly obvious. He was under oath and
you have an obligation to tell the truth, and he had come to a
moment where he was going to have to disclose that
Bobby Ferguson had given him $90,000 in cash that he was going
to deliver to the mayor. He knew that prosecutors didn't know
this, and he didn't know what to do.
So he stopped and he asked if he could call his mom,
who happens to be a lawyer. The defendants would have you
think that his mom told him to go lie under oath, to make up a
story about the fact that this $90,000 was transferred between
the two of them. That is just preposterous. What mom, least
of all a lawyer, is going to counsel her son to lie in a
federal grand jury? That's not what she told him. She told
him to tell the truth.
And if Clift wasn't actually carrying that money
that day, that $90,000 from Mr. Ferguson to Mr. Kilpatrick, ask
yourself, what possible motive would he have to make all this
up?
You saw the video of Agent Jensen who went through
the airport 100 times with cash. Not once did that alarm go
off. That video completely shot down what the defense promised
to you in their opening statement, telling you that there were
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43Government's Rebuttal Closing ArgumentFriday, February 15, 2013
metal strips in the cash that would have set off the alarms.
Now, the defense argues that the government didn't
want you to see that video. That's not true. The defense
played that video with the TSA Detroit security officer before
we had a chance to. That video was going to be played with
Mr. Jensen. We didn't think you needed to see that video
twice.
Now, ask yourself this. Why are the defendants
fighting so hard to make you believe that Mahlon Clift is
making all of this up? Because they know that if you believe
that what he said was true then they are guilty of committing
bribery. They're guilty of, in exchange for all those city
contracts, Mr. Ferguson paying off the mayor.
Next, I wanted to talk about Derrick Miller. Miller
told you that he was a friend since high school with the mayor.
He asked the mayor to be his best man at his wedding. He was a
reluctant witness. And what does he get in return from the
defense? He was attacked by them. Why did they do this?
Because he came into this courtroom, and, the evidence showed,
told the truth about himself and about them. And his testimony
was completely supported by Bernard Parker, by Kathleen McCann,
by Tom Hardiman and by Karl Kado, and by every text message
that you're going to see that he is on.
Next, Emma Bell, a longtime family friend of the
Kilpatricks, the defense took aim at her. They called her an
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44Government's Rebuttal Closing ArgumentFriday, February 15, 2013
alcoholic and a gambling junkie, another longtime family friend
thrown on the scrap heap.
And, finally, the defense took aim at Andre
Cunningham, a friend of the mayor's since college, a fraternity
brother. Why? Because Mr. Cunningham admitted to you that he
was paying kickbacks to the mayor's father at the request of
his friend, the mayor.
So who did the defendants spare from their fire?
Jon Rutherford, homeless shelter tycoon, a guy who pulled
$650,000 a year from his publicly-financed homeless shelter and
adult foster care services. Then bankrolled, used that money
to bankroll the likes of Mr. Kilpatrick so that Rutherford
could land a casino on the Detroit Riverfront. That is the one
guy that these guys chose to remain loyal to.
The defense, the defendants in this case have
engaged in a pattern of deception from the very beginning of
their partnership, and it continues to this very day. First,
the State Arts Grant. The defendants lied to the state to
justify hundreds of thousands of dollars of state grant monies
saying that it was going to be used for runaways and for
seniors and vocational training and peer mediation.
Mr. Evelyn in his argument said that the entire
thing was transparent. If that was true, then why did
Mr. Ferguson have to doctor the invoices that he gave to the
state? If the expenses were legitimate, just send in the real
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45Government's Rebuttal Closing ArgumentFriday, February 15, 2013
ones. Now, Mr. Thomas said that this chapter, the State Art
Grants, was overkill. Stealing public money is not overkill.
It's wrong and it's illegal.
Then Mr. Ferguson told two sisters to lie to a
federal grand jury under oath, to say that straw donations that
they received from Mr. Ferguson to hide his relationship with
the mayor and that were given to the mayor's campaign, say it
was from them. Now, Mr. Evelyn in his argument appears to
acknowledge that he did counsel them to lie, but only that he
wanted them to lie to a separate regulatory body, Michigan
Gambling Commission, rather than the federal grand jury. Ask
yourself, where is the transparency in that?
Now, the defense in their closing jumped quickly
over that sinkhole. Why? Well, it might have to do with the
evidence that they presented to you at trial. This exhibit,
DIN1-60 which is on the right, is what they presented to you at
trial. The government presented to you the left one, IN1-72.
Mr. Ferguson passed off an altered document to you.
They needed a document to make it appear that Mr. Ferguson had
been at the scene of that sinkhole in late August of 2004. Why
did they need that? To try to undermine the text messages that
occurred in early September where Mr. Ferguson and
Mr. Kilpatrick are talking about how they're going to, how they
want to meet and how Mr. Ferguson can move in. If they could
only show that Mr. Ferguson was doing all that work at the
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46Government's Rebuttal Closing ArgumentFriday, February 15, 2013
sinkhole, then I suppose their theory was, why does he have to
get the mayor's help?
But this was a lie to you, and the truth is that
Ferguson didn't get to work at the site in late August. He got
there in mid September, September 14th, to be precise, and
Agent Paszkiewicz showed you that, she showed you the daily
field records from the DWSD when Ferguson first mobilized and
came to that site. And that was all three weeks after the
sinkhole first emerged.
But the defense presented you an alternative theory
with an altered document to make it seem like he was there
first. Now, take a look. The top document here is the
government's exhibit, is the real exhibit, and the defense
exhibit, the fake, the altered exhibit, is on the bottom. And
take a look at that tail right there, that tail where the four
is, and watch what happens. Somebody removed that date because
they didn't want you to see it.
THE COURT: Yes?
A JUROR: Can I see that again? I can't really see
in front of you.
MR. CHUTKOW: Oh, I'm sorry.
Everything lined up, but the date was missing.
Somebody made a mistake, though. They let that four hang over
the edge.
Next, somebody had to remove the ticket number from
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47Government's Rebuttal Closing ArgumentFriday, February 15, 2013
the real exhibit because they knew that if it wasn't removed,
someone like Agent Paszkiewicz or maybe the Inland folks would
be able to find it.
And, finally, there was one other thing that needed
to be altered to make it look like Mr. Ferguson had been there
when he claimed he did. The three on the top document, which
is the true document, you heard from Mr. Rozycki,
Walter Rozycki from Inland, he said that that date must have
been wrong, it says 3/23/04, March 23rd, '04, and that the
sinkhole hadn't happened until August, and so that was
obviously some sort of typo by somebody.
Look what happens when she moves it, the three
becomes an eight. So we're moving that top, that September,
the true date, September of 2004, and then just looping that
three into an eight, that fit their theory, and that's what
they passed off to you, and that would have been the evidence,
that would have been the record in this case if
Agent Paszkiewicz hadn't left the stand and known that there
was something wrong and hunted for the truth that she presented
to you later.
Now, you've heard from a number of convicted
businessmen and city officials who have told you about their
crimes with these defendants, and you've heard from others who
have not committed crimes but were compromised because of their
dealings with these defendants. That's the problem when you
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48Government's Rebuttal Closing ArgumentFriday, February 15, 2013
have a pay-to-play system. It corrupts the system. Everyone
gets compromised. None of this would have happened, none of
this pay-to-play would have happened if Mr. Kilpatrick hadn't
set it in motion, if he hadn't let Mr. Ferguson run rampage
through the contracting community with his endorsement and
support.
Now, as Mr. Thomas said, he talked about Lakeshore
and the fact that they got more city contracts over time. Did
their share of city contracts grow during the Kilpatrick years?
Yes. But ask yourself, when did it happen? It was only after
they agreed to Mr. Ferguson's extortionate demands, it was only
after they gave him $1.7 million in no-show payments. It was
only after they gave him $800,000 in bogus management fees.
Now, Lakeshore, it's a good company, but they paid a heavy
price for dealing with these defendants to get to the table.
They paid a price both financially and ethically.
Contractors who did not want to play the game in
this city, they stayed away. Honest businessmen like Odell
Jones did not have a chance or they went out of business.
This isn't about protecting the contractors. Who
are the real victims of this whole pay-to-play system? It's
the citizens, the people who pay the taxes, the people who pay
the water utility bills, the people who put Mr. Kilpatrick in
office. They're the ones who didn't get the best goods and
services for the lowest price, who didn't get honest
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49Government's Rebuttal Closing ArgumentFriday, February 15, 2013
government.
Now, you've been together for five months now and
you all come from different backgrounds, but you share a common
goal, to see justice done and to achieve a verdict. You were
selected together and you represent the community. You've sat
together, you've listened to the evidence, you've taken notes
and you've been very patient. It's now your time to work
together toward a verdict.
In your deliberations, keep an open mind, listen
thoughtfully to what each other has to say, be willing to be
persuaded. If you work together in good faith, you can reach a
decision that is wiser than any single person in this room.
You together represent the community and you together can do
what's right.
Throughout this trial it has become completely clear
that Mayor Kilpatrick and his accomplices, his partners, used
the public that he was elected to serve. Mr. Kilpatrick was
elected by the citizens of Detroit to represent their
interests, not the defendants', to look out for their welfare,
not his own wallet. He was not elected so that he could
quietly stuff a half a million dollars into his bank accounts,
so that he could make sure that Bobby Ferguson got $83 million
in city revenues, so that he could make sure that his father
was a middleman for deals with the city. He was entrusted to
act for the people of Detroit.
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50Government's Rebuttal Closing ArgumentFriday, February 15, 2013
Now, this isn't the first case of corruption in this
country, and it's not going to be the last. Mr. Evelyn, during
his closing, read from the Profiles of Courage, a wonderful
book by then Senator John F. Kennedy, who back in 1973,
President Kennedy's sister, Eunice Kennedy Shriver, spoke
eloquently about the corrosive effects of corruption in a
commencement address that she gave at a women's college outside
Boston. Ms. Shriver had her own moral standing to speak on
these issues because of her commitment to public service,
exemplified by her founding of the Special Olympics.
Unlike Mr. Ferguson and his Detroit Three
Dimensional and Mr. Kilpatrick and his Kilpatrick Civi