Live Blog: Kwame Kilpatrick Trial Day 68 - FOX 29 News Philadelphia | WTXF-TV

Live Blog: Kwame Kilpatrick Trial Day 68


The lawyers are packing up. And it's all over but the shouting... in chambers. Not that anyone is going to shout, but it's an apropos cliche. No cliches tonight on Fox 2 News. M.L. Elrick with have the score card on who got what in jury instructions, plus he'll have another takeaway on MyFoxDetroit.Com. We'll all be back Monday morning for closing arguments. Talks to you all then.


Judge Edmunds says she'll give the government's RICO instructions that say an enterprise must be proved, she's going with the 6th Circuit case.

Takes out some phrases each have proposed on other instructions.

Givers the government a tax instruction but removes another that's not substantiated by case law.

Says that takes care of the issues we've been arguing about, well, that you've been arguing about, I don't argue, I just rule. More chuckles from the attorney. Edmunds is very business like but impish in her humor. Says there's more they can talk about in chambers.

Asks for anything further for the record. No, okay, she stands, everyone else stands. And Judge Edmunds has left the court room.


Just so you know, the lawyers are using a lot of chapter and verse designations of the law and numbers and names of arguments. I'm paraphrasing so any mistakes here are mine, and not the lawyers. How's that for a disclaimer.

Judge Edmunds is now looking impartiality instructions.

Says she will not give an alcohol abuse instruction relating to Emma Bell, there was no evidence she was using at the time, so that instruction is gone.

Color of official right. Judge Edmunds says the question about using Kwame's name is okay since he was the "official" in government.

Says she going to add the defendants line about fear of economical harm, that fear must be reasonable under the circumstances.

On the next bribery issue she's going to drop Kwame's name.

On the next Bribery issue she will allow the government instruction to uses Bobby's name.

Judge Edmunds says regarding the Civic Fund that Kwame used the money for personal expenses and for expenses relating to his political campaign.


Van Dusen says the instruction is over broad and vague. Judge Edmunds asks which elements she objects to. Van Dusen says she would have to go back and look if they want to revisit it. Judge Edmunds says she'd be happy to revisit if, if Van Dusen has specific objections. But says she'll talk to them about it in chambers.

Blackwell says whether an enterprise exists or not the government believes they simply need to prove it could exist, or would exist. Says they've met their burden.

Judge Edmund says as it stands at the moment, since she angered everyone, she must be right and will go with what they've got. The lawyers chuckle.


Judge Edmunds takes up jury instructions. Says let's do the subscription instruction first then move to the RICO instruction.

Shea says he submitted an appropriate instruction concerning taxpayers, says he found no pattern instruction so he wrote one himself. Says authorization for a tax preparer to file is not the same as signing a return so the pattern instruction is not fair. Says what he got from the court yesterday is fine with him. ( we didn't get that so I can't tell you what it says.)

Shea says he objected to language the government wanted . This deal with the definition of Subscription dealing with electronic returns.

Blackwell is saying subscribing to electronic filing is the same as a signature. Judge Edmunds says she's going to leave the government language out because it's even more confusing.

Judge Edmunds moves to RICO. Van Dusen objects to the entirety of the RICO instructions submitted by the government. Says when they last met the position was they objected to the government and thought the court's use of another case, the Highwaymen's case, and that this was an appropriate solution. Says when they got the new instructions they found them go be confusing. Van Dusen says she stands there.... Judge Edmunds says Perplexed? Van Dusen says she wanted but was talked out of using firmer words.

Judge Edmunds has a brief chat with her law clerk. Says the Highway Men was both a conspiracy and RICO and that the government didn't have to prove a conspiracy, didn't have to prove there was an enterprise. Says they went back to look again and that now the government does have to prove there was an enterprise. Says the government instruction clearly lays out the proofs needed. Says she modified it to show that they have to prove there was an enterprise. That it wasn't the state of the law at this time. It lays out the elements in a more logical manner than the defense instruction.


Judge Edmunds says she'll take the matter under advisement and because there is enough circumstantial evidence that Bernard knew he was under penalty of perjury because to the testimony of the tax prepares.

Susan Van Dusen is up now. Starts up and is almost immediately interrupted by a phone ringing. Van Dusen gripes about the interruption until she realizes it's her phone.

She says the Aiding and Abetting Bribery should be thrown out because there was no evidence money changed hands.

Jennifer Blackwell says you don't have to prove money was changing hands only that there's circumstantial evidence they were helping each other by rigging contracts.

Judge Edmunds says she's denying the motion on Ferguson's behalf to toss out counts 2, 3 ,7, 8, and 10. Those are RICO and Extortion charges.

Jim Thomas is up, talking about mail fraud and wire fraud. Says there's no direct testimony that Kwame directly solicited funds, says testimony fro the witnesses who gave money all said other people talked to them, the letters asking for money came from others. He didn't sign them so those counts should be tossed.

Blackwell says there plenty of evidence that the Mayor was directing the Civic Fund and getting benefit from the fund like trips and golf clubs. That he had to know money was going into the fund, that he was at the fund raising events. Says they certainly can should intent to defraud through the circumstantial evidence, that his press guy Matt Allen testified about covering up use of the fund....

Judge Edmunds denies that motion as well. Says this can be raised again after trial if there are convictions.


All rise, John Shea is up first and is talking about tax issues and filing returns under oath. He says an essential element is that the tax payer subscribe the return under penalty of perjury and there's only circumstantial evidence he did so. He says that's it, that's all they've got as evidence. That Bernard didn't sign his tax returns so he shouldn't be held liable for his tax returns.

Shea says the tax preparers were supposed to have signed declarations and they didn't keep them.

Judge Edmunds asks him to tell her about the implications that a PIN was used to file. Who gets it, who files it.

Shea says it means nothing if Bernard doesn't give it to them under penalty of perjury. Says the taxpayer has to sign under oath. Says the taxpayer has to know he's signing under oath and the PIN is not the same as a signature.

Judge Edmunds says does that mean he authorized the electronic filing but isn't swearing an oath.

Shea says the PIN is no synonymous with a signature.

Judge Edmunds says it's different from him saying he didn't know what was in the return and it wasn't accurate in some way.

Shea says for the purpose of this argument you can concede the return was materially false but you can't authorize someone to commit perjury on your behalf and then be penalized for perjury. Shea says the preparer has the obligation to get the authorization so we can avoid this problem otherwise everyone could get away with perjury on there tax returns.

Judge Edmunds says there is some credence to the government's argument that a taxpayer knows what is in their tax return and would know it's substantially false.


The picture is up and the lawyers are starting to file into the room Gerald Evelyn and Mike Rataj just walked through the galley up the center aisle and turned left to the defense table. John Shea, Bernard's attorney, and Susan Van Dusen, for Bobby Ferguson, have been sitting and chatting for a few minutes now. There are no defendants in the court room this morning. The Judge is going to hammer out differences the two sides have with jury instructions


Good Morning from the Theodore J. Levin Federal Court House in snowy downtown Detroit.

Ken Martinek is Senior Producer-Investigations for Fox 2 News. You can contact him at


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