Reporting Irene Cornell
NEW YORK (CBSNewYork/AP) — A federal appeals court upheld the conviction and four-year prison sentence given to former New York police commissioner who nearly became head of the Department of Homeland Security.
Bernard Kerik was treated fairly by a judge who gave him a year longer in prison than the three-year term called for by federal sentencing guidelines, the 2nd U.S. Circuit Court of Appeals ruled Thursday.
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Kerik, 55, pleaded guilty in late 2009 to charges that included tax fraud, making a false statement on a loan application and lying to the White House while he was being vetted for the Homeland Security post in 2004. He began serving his sentence last May.
The sentencing judge, Stephen Robinson in White Plains, N.Y., had said Kerik made “a conscious decision to essentially lie to the President of the United States to get a Cabinet position.”
A protege of former Mayor Rudolph Giulani, Kerik had been nominated to the post after he was declared a hero for his work as commissioner after the 2001 terrorist attacks.
Andrew Shapiro, who argued the appeal, said: “We’re very disappointed by the ruling and considering our next steps.” A message left with a representative from the prosecutor’s office was not immediately returned.
A three-judge appeals panel ruled that the sentence was not unreasonable since Kerik had adequate notice that his failure to distance himself from published reports accusing prosecutors of misconduct was an aggravating factor at his sentencing.
The appeals court noted that the sentencing judge had cited the articles charging prosecutorial misconduct early in sentencing proceedings, inviting defense lawyers to comment on their “apparent incongruity with the defense’s portrayal of Kerik as a heroic figure worthy of sentencing consideration.”
The judges quoted Robinson to show how upset he was that Kerik had ignored orders of the court, which it said “had caused the court to take the extraordinary action of revoking bail for a former police commissioner of the city of New York because it could no longer trust him to comply with court orders intended to ensure a fair and impartial jury.”
At sentencing, Robinson went above the recommended sentencing guideline range because of Kerik’s failure to follow court orders, because he pleaded guilty to a large number and variety of crimes, because they occurred over a lengthy period from 1999 through his prosecution, because he committed crimes as police commissioner, because he was willing to lie to the White House and because he used the Sept. 11, 2001 tragedy for personal gain.
The appeals court also rejected defense claims that the sentencing judge was impartial, saying its review of the record “revealed no cause for serious doubt on this subject.”
It said it did not detect bias in Robinson’s statement that Kerik’s use of the Sept. 11 tragedy “for personal gain and aggrandizement is a dark place in his soul.”
The appeals court wrote that the judge’s observation found support in Kerik’s efforts to take $80,000 in revenue deductions for false charitable contributions in connection with speeches made about Sept. 11.