Defense attorneys for three former banking executives accused of rigging municipal bond bids sought a mistrial Monday on the grounds that one government witness did not return to continue cross-examination.
Judge Harold Baer of the U.S. District Court for the Southern District of New York rejected the motions by lawyers for Steven Goldberg, Dominick Carollo and Peter Grimm. The three former executives with General Electric affiliates were indicted in July 2010 on 12 counts, including wire fraud and conspiracy, in connection with the fixing of bids between 1999 and 2006.
Late last week, former broker Adrian Scott-Jones of Morriston, Fla., testified about a dinner he told prosecutors he had with Goldberg at a Japanese restaurant in midtown Manhattan in 1999, to finalize swap agreements.
But John Siffert of Lankler Siffert & Wohl LLP, Goldberg’s lead attorney, played tapes in which an associate told Goldberg that Scott-Jones never attended the dinner because the latter was out drinking.
“His condition appears not to be likely to bring him back to the witness stand,” Baer said Monday without elaborating. He called the development “disturbing and sad.”
Baer told jurors that he would advise the jury later about how to handle Scott-Jones’ testimony, which straddled parts of two days. “I will regale you at the time I give my charge, or maybe earlier,” he said.
“The government agrees that Mr. Scott-Jones is not returning,” U.S. Justice Department antitrust prosecutor Antonia Hill added, also without elaborating. A spokeswoman in Washington said late Monday afternoon that the department declined comment.
Defense attorneys all said they were denied time to present a suitable cross-examination. Siffert said that he and Mark Racanelli of O’Melveny & Myers LLP, the lead attorney for Grimm, had intended to divide their interrogation of Scott-Jones.
Also on Monday, former UBS broker Mark Zaino — who pleaded guilty in May 2010 to one count each of conspiracy to restrain trade, conspiracy and wire fraud — continued his testimony on the government’s behalf. Zaino, who lives in Connecticut, faces a maximum of 35 years in prison and more than $1 million in fines.
Zaino, who said he pleaded guilty “because I was,” told the court he helped fix bids by providing “indications” of where others were bidding, so-called last looks at other bids, and courtesy, or losing bids, all in exchange for back-end swap fees.
Zaino also said he conspired to keep more aggressive banks off the bid list, thereby minimizing competition and allowing a GE affiliate, FGIC Capital Market Services Inc., to win with the lowest possible bid.
The government said this process cost cities and towns, and the Internal Revenue Service, millions of dollars.
After Zaino testified that he and UBS co-workers colluded on Rhode Island housing and Massachusetts education bond deals, the court played audio tapes of a conversation between Grimm and Michael Welty, another UBS broker scheduled to go on trial July 9.
“I’m not throwing MBIA in because they’re pricks,” Welty said, according to the audio. The same conversation recorded Grimm as saying, “I would rather not have BLB [Germany’s Bayerische Landesbank] in there because they might go wild over that $50 million piece.”
On cross-examination, Racanelli sought to elicit from Zaino that indications were often variables, because the markets are subject to change, and that in one deal, the Massachusetts Educational Financing Authority was not interested in obtaining the highest possible rate.
Racanelli also quoted Grimm as saying that had MEFA structured the deal differently, he, Grimm could have bid more aggressively.