Feds outline their trial plan vs. Fumo
Federal prosecutors said yesterday in a court filing that some of their own witnesses in the federal corruption case against state Sen. Vince Fumo may be "hostile" when they are questioned by the government next month at Fumo's trial.
Federal prosecutors said yesterday in a court filing that some of their own witnesses in the federal corruption case against state Sen. Vince Fumo may be "hostile" when they are questioned by the government next month at Fumo's trial.
The revelation came in a 59-page trial memorandum filed with the court in which prosecutors laid out a road map on how they intend to press their fraud-and-obstruction case against Fumo and co-defendant Ruth Arnao. Both have pleaded not guilty.
Prosecutors also said for the first time that Fumo and others bilked the state Senate, a charity and a museum of nearly $3.5 million - up from the original estimate of $2 million.
The amount is important if Fumo and Arnao are convicted and ordered to forfeit money. Arnao is a former top aide to Fumo and head of the charity, Citizens Alliance for Better Neighborhoods.
The feds' trial memorandum seeks to strengthen the hand of prosecutors and also blunt potential defense strategies by asking a federal judge to use his discretion when ruling on legal matters.
Prosecutors said they expect some of their witnesses - whom they did not identify - to "display surly dispositions, an unwillingness to respond directly to questions or feign forgetfulness" when called to testify.
If and when this occurs, prosecutors argue, they should be permitted to question hostile witnesses with leading questions as if on cross-examination, thus making it easier to impeach their testimony.
Prosecutors said that when a witness is identified as having a relationship with the defendant, the court has discretion to allow the government to ask leading questions on direct examination.
Prosecutors said some of the witnesses they may call to testify are still employed by Fumo or maintain close ties to him.
And several witnesses previously demonstrated hostility to federal agents and prosecutors during the grand-jury phase of the investigation, the court filing said.
Prosecutors said some witnesses continue to demonstrate the "same blind loyalty" that led them to perform illicit tasks on Fumo's behalf in the first place. (The feds said these witnesses were not criminally charged because their conduct was largely for Fumo's personal benefit.)
Fumo's attorney, Dennis J. Cogan, could not be reached for comment.
Prosecutors said that during their trial preparations at least two witnesses who previously testified before the grand jury under a grant of immunity refused to talk with or even meet with prosecutors to discuss their anticipated testimony.
Prosecutors, who did not identify the two witnesses, said the matter of potentially hostile witnesses needed to be addressed on a witness-by-witness basis.
The feds also want a judge to prevent defense lawyers from "unfairly attacking the character" of government witnesses in matters unrelated to their truthfulness or "present extrinsic evidence" unrelated to truthfulness that would undermine the character of certain witnesses.
Prosecutors also want the judge to limit the number of character witnesses the defendants may call and to set parameters on character-witness testimony. For example, prosecutors cited a 1985 Third Circuit decision that held that defendants were not permitted to establish their innocence by proof that they had not committed criminal acts on other occasions.
In another motion filed yesterday, prosecutors objected to many of the 908 defense exhibits filed with the court because they included numerous testimonials by others to Fumo's good works regarding activities not charged in the indictment. *
