MANHATTAN (CN) – The 2nd Circuit lambasted the idea that “constitutionally protected conduct” had anything to do with the extra-heavy sentencing imposed on Bernard Kerik, a former New York City police commissioner who was being considered for appointment to the Department of Homeland Security before he was indicted and later convicted for corruption.
Kerik appealed his four-year sentence, which was 15 months longer than his plea agreement had recommended. He claimed that U.S. District Judge Stephen Robinson retaliated against him for soliciting The Washington Times to publish criticisms of his prosecutors.
At the sentencing hearing, Robinson said Kerik “maligned the prosecutors” by suggesting that they were seeking “personal aggrandizement,” the appeals ruling states.
Having pleaded guilty to tax fraud, submitting a false loan application, lying to federal officials and obstructing justice, Kerik now says his public allegations are constitutionally protected.
In office, Kerik was known less for a civil libertarian philosophy than his resolute stance on crime. “Political criticism is our enemies’ best friend,” the police commissioner had reportedly once said with regard to Iraq War protestors.
A three-judge appellate panel declined to find a First Amendment issue in the sentencing.
The court ruled that Kerik’s disobedience of a gag order justified the above-guidelines sentence – not the substance of his statements.
“As we have already explained, the District Court discussed these articles as background to Kerik’s violation of court orders,” the unsigned opinion states. “To be sure, the District Court noted the irony in Kerik (or his supporters) leveling baseless accusations of corruption against the prosecutors when it was he who had ‘used his [official] position for his own personal gain.'” (Parentheses and emphasis in original.)
In a November 2009 plea hearing, Kerik admitted that, 10 years earlier, he had used a city contractor with alleged mob ties to renovate his Bronx apartment in the tony Riverdale section. New Jersey-based Interstate Industrial, which had tens of millions of dollars in city contracts, accepted about 7 percent of the $255,000 cost of the project, prosecutors showed.
The government noted in a sentencing memo that “there is no allegation, nor is one made, that the defendant associated with individuals he knew in fact to be affiliated with organized crime.” (Courthouse News reported on the 15-count indictment filed in 2009, and the 16-count indictment in 2007.)
During his plea allocution, Kerik said that he interfered with an investigation into Interstate because he believed the company was “clean.”
Kerik also lied repeatedly to the White House when he was up for the position of U.S. Department of Homeland Security secretary, prosecutors say.
At sentencing, Judge Robinson had criticized Kerik for taking $80,000 in revenue deductions for false charitable contributions in connection with speeches made about Sept. 11.
Kerik complained that the judge showed bias in saying that such exploitation of Sept. 11 “for personal gain and aggrandizement is a dark place in his soul.”
The appellate panel, composed of Judges Joseph McLaughlin, Guido Calabresi and Reena Raggi, disagreed that the remark reflected bias since there is evidence that Kerik took the money.