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How the Brizzi public-corruption case unraveled

Cory Schouten
November 5, 2013
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SOUTH BEND—Federal authorities suffered a near-complete defeat in their efforts to prosecute the players in an unusual real estate deal in Elkhart, a setback that ultimately doomed an ambitious public-corruption case targeting former Marion County Prosecutor Carl Brizzi.

U.S. District Court Judge Robert Miller Jr. sentenced Indianapolis defense attorney Paul J. Page to probation on Monday, nine months after a South Bend jury returned not-guilty verdicts against two co-defendants. Page pleaded guilty before trial.

Federal prosecutors and an FBI-led task force had hoped to use the Northern District of Indiana case—and a Marion County case against a former deputy prosecutor—to turn defendants they believed could help convict the former prosecutor for accepting bribes.

But the three-year-old case unraveled when the government's best hope for providing information implicating Brizzi, the real estate broker John M. Bales, beat the 13 felony charges he was facing. And Page and a former Brizzi leutenant who also struck a deal in exchange for cooperation maintained they had no evidence to suggest Brizzi took bribes.

Newly filed court documents detail for the first time the government's strategy as investigators built a case against Brizzi that never made it to a courtroom.

Most notably, Brizzi is alleged to have pocketed more than $48,000 in distributions from his ownership of the state-leased office building in Elkhart, even though he was never officially listed as an owner. Prosecutors had hoped to prove the ownership interest was a bribe from Page, a defense attorney who received favorable treatment from the Marion County Prosecutor's Office.

Of particular interest was a drug case involving a Page client, Joseph Mobareki. Brizzi personally ordered a lenient plea deal for Mobareki and for the return of $10,000 of seized drug money to Page for attorney's fees.

Eight days after the plea agreement and 14 days after the Prosecutor's Office had returned the cash, Brizzi and Page each received $25,000 from their interest in the Elkhart property. Brizzi didn't put up any cash or co-sign a loan on the bulding.

Brizzi and Page each went on to receive an additional $23,300 in distributions from the Elkhart property in 2010 and 2011. The cash distributions to Brizzi were revealed for the first time in a Nov. 1 court filing in a case involving former deputy prosecutor David Wyser.

But Page insisted in interviews with investigators that he gave the equity to Brizzi as a "finder's fee" for bringing him the deal, not as a bribe. Brizzi had heard about the deal through Bales, a friend and business partner who floated the down payment Page used to buy the building.

Page did not disclose to his lender the $362,000 down payment he had received—and would have to repay to Bales—which led to Page's wire fraud conviction. He'll spend two years on probation and pay a $10,000 fine for the crime.

Prosecutors argued the deal violated an agreement between Bales' firm, Venture Cos., and the state that barred the company from direct or indirect ownership of properties where state agencies leased space. Venture had a contract to handle the state's leasing.

But the jury in Elkhart didn't hear anything about Brizzi, leaving a fraud case that seemed to hang on technicalities and lacked an identifiable victim. They acquitted both Bales and busines partner William E. Spencer.

Separately, prosecutors believed Brizzi accepted $25,000 in campaign contributions from the father of a convicted murderer, Paula Willoughby, as a bribe to modify her prison sentence.

But David Wyser, Brizzi's top deputy, told authorities it was he who approved the sentence modification that set Willoughby free.

Wyser agreed to plead guilty to a single bribery charge—for a $2,500 donation toward his run for Hamilton County prosecutor—and cooperate with the government in exchange for leniency. He's facing up to two years in prison and is scheduled for sentencing Nov. 25.

In a Nov. 1 filing, the government described how Wyser accepted the bribe and approved the release of Willoughby, who wound up serving less than 20 years on a 70-year prison sentence.

The early release in July 2009 was the result of a lobbying campaign by local attorney Jennifer Lukemeyer, who has not been charged in the case. She exchanged several emails with Wyser with the subject line "Free Paula!" according to a sentencing memorandum.

In emails, Wyser was hardly veiled about his interest in collecting campaign funds from Willoughby's father.

“What will Paula do to make me feel warm and fuzzy?" he wrote in one email.

“You should convince him to write me a check on behalf of the whales," Wyser wrote in another, referencing the movie Free Willy.

But it was a phone call on the morning of May 29, 2009, that likely sealed Wyser's fate. Based on testimony from Lukemeyer, Wyser called her that morning and said: “I want him [Willoughby’s Father] to give and you can tell him.”

Willoughby's father, Harrison Epperly, wrote the $2,500 check the same day. It was the largest direct contribution to Wyser's campaign during the 2009 reporting period.

Wyser cashed it on June 22, and he filed the sentence-modification agreement the next day. A few months later, Lukemeyer hosted a fundraiser for Wyser at her home, where she says Wyser sought another campaign contribution from Epperly.

Wyser has maintained that he did not solicit the donation but "corruptly accepted it as a reward."

Investigators discovered Wyser had deleted about 60 emails, including incriminating messages between he and Lukemeyer, from his Prosecutor's Office account.

Epperly and Lukemeyer also met on more than one occasion with Brizzi, who is referred to as "The Prosecutor" in Wyser's sentencing memorandum, but investigators failed to turn up any direct evidence implicating the two-term prosecutor.

Federal prosecutors led by U.S. Attorney Joe Hogsett feared the mostly circumstantial case against Brizzi would not hold up in front of a jury or on appeal. So they opted against charging him despite convictions of his business partner Page and former deputy Wyser.

Hogsett in October announced he would not pursue charges but described Brizzi's actions as "unacceptable." In a statement, Brizzi said "Hogsett's baseless aspersions ... are a continuation of his disregard for the boundaries of his office."

Brizzi has maintained his innocence and says the lack of criminal charges supports his position that he conducted his business affairs "both ethically and legally."

Monday's sentencing hearing for Page in South Bend was another setback for prosecutors.

They had argued Page should serve a 14-month prison sentence for a wire fraud count. But the judge scoffed at the sentencing request, noting the crime resulted in no losses to either the lender or the state.

Page's attorney, Robert W. Hammerle, described the offense as an "isolated technical violation" that is actually quite common. The judge seemed to agree, noting that he hadn't seen "many or any" cases with "less aggravating circumstances."

Without a conviction to give Bales strong incentive to cooperate against Brizzi, prosecutors feared a similar ending to a trial of the former prosecutor.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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