Kilpatrick Vol 80

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff, Case No. 10-CR-20403 Hon. Nancy G. Edmunds v. D-1 KWAME M. KILPATRICK, D-2 BOBBY W. FERGUSON, and D-3 BERNARD N. KILPATRICK, Defendants. ______________________________/

JURY TRIAL VOLUME 80

Detroit, Michigan - Thursday, February 14, 2013

APPEARANCES: For the Government: Mark Chutkow R. Michael Bullotta Jennifer Leigh Blackwell Eric Doeh United States Attorney's Office 211 W. Fort Street, Suite 2001 Detroit, Michigan 48226 Counsel for Defendant Kwame M. Kilpatrick: James C. Thomas Michael C. Naughton 535 Griswold, Ste. 2500 Detroit, MI 48226 313-963-2420

Appearances(continued): Counsel for Defendant Bobby W. Ferguson: Gerald K. Evelyn Susan W. Van Dusen 535 Griswold Law Offices of Susan W. VanDusen Suite 1030 2701 S. Bayshore Dr., Ste 315 Detroit, MI 48226 Miami, FL 33133 313-962-9190 305-854-6449 Michael A. Rataj 535 Griswold, Suite 1030 Detroit, MI 48226 313-962-3500 Counsel for Defendant Bernard N. Kilpatrick: John A. Shea Alexandrea D. Brennan 120 N. Fourth Avenue Ann Arbor, MI 48104 734-995-4646

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S u z a n n e J a c q u e s , O f f i c i a l C o u r t R e p o r t e r email: [email protected]

Proceedings recorded by mechanical stenography.

Transcript produced by computer-aided transcription.

_ _ _

Jury Trial Volume 80

Thursday, February 14, 2013

I N D E X _ _ _

Defendant's Closing Argument by Mr. Shea 5 Defendant's Closing Argument by Mr. Evelyn 74 Certification of Reporter 146

10-CR-20403 USA v. Kwame Kilpatrick, et al

4Jury Trial Volume 80


Detroit, Michigan


9:11 a.m.

- - -

THE COURT: Good morning. Before the jury comes in,

the additional jury instruction is not problematic at all.

I'll give it when I give the remaining instructions, and I

don't think it's necessary or even advisable to change the

verdict form to include special questions, as long as they have

the instruction, they know that they have to be unanimous with

respect to the two underlying findings, finding two underlying

acts and agree on what they are.

MS. VAN DUSEN: Just on behalf of the record, we

would object to that and request that the Court give a special

verdict form that sets forth the acts.

THE COURT: Okay.

MR. SHEA: Same.

THE COURT: I assume you all agree with --

MR. THOMAS: We do.

THE COURT: And, Mr. Shea, the jurors have asked if

you would start over, basically.

MR. SHEA: I'll basically start over, although it

will be a little condensed.

THE COURT: All right. And my plan would be then to

go straight through your entire argument and then take a break.


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5Jury Trial Volume 80


MR. SHEA: Very good.

(Jury in 9:07 a.m.)

THE COURT: Be seated. Good morning, everyone. I'm

glad everyone is feeling somewhat better, better enough to go

forward today. I've advised Mr. Shea that you requested that

he start over and he said he would do that, and we are ready to

go.

Mr. Shea.

(9:11 a.m.)

MR. SHEA: Good morning. In truth, I feel better

too, so it wasn't necessarily a bad thing. I am going to start

over but not going to start completely over. There were some

things I was talking to you about. You know how old

Bernard Kilpatrick is, how many kids he's got. You know what

his government experience was before he opened his consulting

business, and you know why he left government service to go

into consulting when his son was elected mayor. I don't have

to retread all of that ground.

I do want to correct a misstatement I made, though.

I explained to you that Bernard Kilpatrick, after

Kwame Kilpatrick was elected mayor, he was, of course, the

chief of staff to Ed McNamara, and there was -- it was felt

within county government that he needed to get out of there

because it was too problematic to have the father of the

incoming mayor working as the chief of staff for the county


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6Defendant's Closing Argument by Mr. Shea


executive.

The mistake I made was they would be in the same

building, and I was advised by various people, including my

client afterwards, that right around that time the county

executive offices had moved out of the CAYMAC Building and over

to the old City-County Building, so they wouldn't have been in

the same building, but the point is the same. It would have

been problematic to have the county executive as his right-hand

person, the father of the incoming mayor.

So with that correction, Bernard Kilpatrick, of

course, started a consulting business, Maestro Consulting. You

know about that, and we were talking about what consultants do,

and what they do is they act as representatives, as a

go-between, between the clients and people in government,

whether it's city government or county government or state

government or federal government, on issues that their client

has with the particular governmental entity that the consultant

is asked to deal with, and we were talking about how they do

it.

And I explained to you they do it by having personal

relationships with people, contacts with people within the

governmental units which permits them to pick up a phone,

perhaps, and call somebody and have a conversation or schedule

a meeting, or make a complaint or advocate for their client,

and that personal relationship gives them some credibility,


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gives them some access. So that's one way they do it.

The other way they do it is by having knowledge of

how governmental processes work, because if you don't have

knowledge about how government processes work, you don't even

know who to call in order to get something done for your

client. So we're talking about that, and we're talking about

how Bernard Kilpatrick in particular was valuable as a

consultant. And I said the more -- the stronger, the more

extensive the personal relationship network a consultant has,

and the more experience a consultant has with how governmental

entities work, the more valuable that consultant is, and

Bernard had both in spades.

There's nothing illegal about using consultants. We

heard about lots of consultants being used in this case. It's

a normal, common practice, and there's nothing illegal about

Bernard Kilpatrick in particular being a consultant, even if he

were going to represent clients' interests to the City of

Detroit where his son was the mayor. No more illegal for him

to act in that capacity because of his relationship to the

mayor, than for Curtis Hertel to act in that capacity, who we

heard acted in that capacity, who also had a relationship with

the mayor from when they served in the legislature together in

Lansing. No more than Conrad Mallett, who we heard acted as a

consultant, no more would it be illegal for him to be a

consultant because he had a personal relationship with the


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mayor, and we heard he did, he acted in a fairly high capacity

in Kwame Kilpatrick's first campaign.

So there's nothing improper or illegal about

Bernard Kilpatrick or any of these other people being

consultants just because they happen to have a relationship

with the mayor.

Now, notwithstanding the fact that

Bernard Kilpatrick had a relationship with the mayor, he wasn't

always successful as a consultant, and we heard examples of

that, we'll talk more about that later, but the basic point is

he didn't get what he wanted all the time.

We heard from Derrick Miller and from others that

it's a competitive business and Bernard took his lumps just

like other people did. Now, the government doesn't really, I

don't believe, dispute any of this. Their argument with

respect to Bernard Kilpatrick, as I understand it, is that they

claim as a businessman he used his business relationships and

his personal relationships to extort money from people, to get

money that he was not entitled to in return for doing no work.

That's what I understand their contention to be, and

they presented five chapters in this case regarding Bernard and

his business relationships in an attempt to illustrate that

point of theirs, and I think they have failed utterly to do

that.

Three of those chapters they discussed in closing


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argument. They discussed Marc Andre Cunningham, they discussed

Karl Kado, and they discussed James Rosendall in Synagro. Two

they did not discuss, Jon Rutherford, Mr. Bernard Kilpatrick's

relationship to him, and Capital Waste and Bernard Kilpatrick's

representation of Capital Waste in connection with the Book

Cadillac project. Because I think all of those chapters are

relevant to my contention that they haven't proved their case,

I'm going to talk about all of them, and we'll start with Jon

Rutherford.

We know that Jon Rutherford knew Bernard Kilpatrick

for some years prior to Kwame Kilpatrick becoming mayor. He

testified that he had met Bernard in some capacity, he could

not exactly remember what capacity, back in the mid '90s.

Jon Rutherford testified that shortly after

Kwame Kilpatrick was elected mayor, Cassandra Smith-Gray, who

was a mutual friend of Jon Rutherford's and

Bernard Kilpatrick's, approached Jon Rutherford and said,

"Listen, Bernard's got to leave county government, do you think

you have a position for him as a contractor to you?" And he

said, "Sure."

He actually testified that he helped Bernard set up

his business, advised him about how to set up an LLC, helped

him get a bank account, doing things that Bernard Kilpatrick

hadn't had to do prior to this.

He described why he thought Bernard Kilpatrick could


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be valuable to him or would be valuable to him. One was he

said because he had relationships with people, including the

mayor. Didn't shy away from that and neither do we, but he had

relationships with other people as well. He had relationships

in county government, state government, even federal

government, so he had relationships. That was one reason that

he described gave Bernard Kilpatrick value to him.

But, second, he said, "Bernard Kilpatrick had an

extensive career in government that deals with the private

sector every day. Someone with that experience is someone who

knows the bureaucrats who get things done. That's of value to

me."

Remember, Jon Rutherford ran nonprofits that

provided shelter, homeless shelter and other types of services

to people without homes and other people who were poor, mental

health services, too. He had to, he had contracts with

governmental entities. He had to deal with governmental

entities because he was regulated by them. He thought it

valuable to have somebody with Bernard Kilpatrick's level of

experience on the inside of government to assist him in dealing

with those governmental relationships. Absolutely nothing

wrong with that, totally normal.

Examples of work that Bernard performed in the 13

months of his contract with Jon Rutherford.

He obtained real estate records along the riverfront


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to inform Jon Rutherford about ownership status of, of those

real properties because you heard Jon say that he was, had some

interest and design in terms of trying to get a convention

center located on the riverfront.

He collected information regarding zoning for cell

phone tower placements, he testified.

These are just examples.

Jon Rutherford, more along the lines of his

nonprofit business, Jon Rutherford was owed a bunch of money by

the county for, for his, for some mental health services that

he was providing through his nonprofits, and he asked Bernard

to help him in terms of collecting that money.

So Bernard was doing things for Jon Rutherford, and

remember, this was back in 2002, so Jon Rutherford testifying

to that in 2012, from ten years earlier memory, you can't

expect him to be able to give you a litany of everything that

Bernard did for him every day or even every week or even every

month, but he gave you some concrete examples.

Bernard was paid monthly for 13 months. Typically,

it was $10,000 a month. Couple times toward the end, one was

15 and one was 5, and it was because there was some catch-up.

One month he only paid five, I think, Jon did, so he was five

behind and then the next month he paid 15 to catch it up, he

explained.

Jon Rutherford paid other consultants as well,


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similarly, monthly. Curtis Hertel was on -- was a contractor

to him. There was a communications firm called Six

Communications out of Lansing that he also paid monthly that

was a consultant to him. And you know, the most interesting

thing about this relationship that Bernard had, to me anyway,

with Jon Rutherford is how it ended.

Now, here's a guy who the government is trying to

paint as only in it for himself, that being Bernard Kilpatrick,

making ten grand a month, which is pretty good change, and he

leaves the contract with Jon Rutherford to take what is

essentially a volunteer position on the Wayne County-Detroit

Mental Health Board.

There was nothing illegal about this relationship

when it started, there was nothing illegal about this

relationship during it, and there was nothing illegal about

this relationship when it ended. There was nothing

extortionate in the least about it, and there's no contact with

Kwame Kilpatrick at all in connection with that relationship.

That's probably why this chapter wasn't mentioned, or at least

this aspect of the chapter wasn't mentioned in the government's

closing argument.

Let's move on to Karl Kado. Karl Kado is someone

whom Mr. Chutkow in opening statement said Bernard Kilpatrick

extorted for no work, no work. Got over 180 to $300,000,

depending on what day it is Mr. Kado is remembering what he


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paid, for no work.

Mr. Kado was, in this trial, the single most

difficult witness to get a straight story out of. We got used

to hearing different stories between the government's

examination of a witness on direct examination and the defense

examination of a witness on cross examination. But Karl Kado

would flip-flop from one sentence to the next, no matter who it

was was asking him the questions, and there were examples where

he simply refused to have his recollections interfered with by

reality.

Recall toward the end of my cross examination of him

when I was asking him to read a section of transcript of a

meeting that had been recorded between him and

Bernard Kilpatrick, and he could not read the words without

inserting his own additional words, insisting that those

additional words should be in there because that's how he

recalled it. Of course, he wanted to insert those additional

words because it changed the meaning of what the real words

were and it made it closer to what he wanted you to think the

meaning was, but it was complete theater.

Karl Kado also knew Bernard Kilpatrick before

Kwame Kilpatrick was elected mayor. He also met

Bernard Kilpatrick back in the '90s when Bernard Kilpatrick was

working for the county. They were friends, they became

friends, because Bernard Kilpatrick went to his store all the


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time, bought stuff, bought lottery tickets. He saw him so

frequently and he was such a regular customer he gave him a

line of credit at the store, which he testified Bernard paid

off every week.

Now, Karl Kado didn't acknowledge that the first

time I asked him. He had to be shown reports that refreshed

his recollection about what he had said earlier, but he finally

ultimately acknowledged, yes, he and Bernard were friends,

they'd known each other a long time, and he was such a regular

guy to him that he allowed him to buy stuff on credit at his

store and he paid it off every week.

Karl Kado had business interests at Cobo Hall. He

had a food service contract where he was partnered with a

national company called Ogden, and he had that in the Archer

administration.

As Kwame Kilpatrick is being elected mayor and sworn

in as mayor, there was another contract coming up that he had

an opportunity to get and that was the cleaning contract, the

janitorial services contract. He wanted that. And then

shortly after that, there was an electrical contract that the

opportunity came for him to obtain. He wanted that as well.

He had a hidden interest as well at Cobo Hall in that he was

paying kickbacks to the director, Lou Pavledes, and he wanted

Lou Pavledes to remain at Cobo Hall because once you got

somebody bought, you want him to stay bought, you don't want to


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have to buy somebody else new. Or, worse, somebody new comes

in, you can't buy them at all. So he had a hidden interest in

wanting Lou to stay.

It took awhile, but he ultimately acknowledged that

he asked Bernard Kilpatrick to assist him to provide him real

services in connection with protecting his business interests

at Cobo Hall. He acknowledged that he asked Bernard to

intercede for him with the administration to keep Lou Pavledes

as director, didn't tell him why. He acknowledged that he

asked Bernard Kilpatrick to advocate for him in terms of

obtaining the janitorial contract. He acknowledged that he

asked Bernard Kilpatrick to advocate for his interest in

obtaining the electrical contract. He confirmed on cross that

his understanding with Bernard called for Bernard to be paid

for these services.

You don't have to take Karl Kado's word for it, but

I'd say that's pretty good testimony since he's the guy that's

actually formed the relationship. But in addition, Derrick

Miller testified it was well known that Karl Kado was

Bernard Kilpatrick's client, one of his best clients. Derrick

Miller testified that he used Bernard Kilpatrick as his point

of contact when he received complaints from the DADA about

Karl Kado's services at Cobo Hall, and that Bernard Kilpatrick

discussed those complaints with Karl Kado and reported back to

Derrick Miller about, "Well, maybe these are overblown, maybe


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this one's valid." So there's no question that Bernard

Kilpatrick and Kwame Kilpatrick -- I mean, Bernard Kilpatrick

and Karl Kado had a client relationship and that

Mr. Bernard Kilpatrick did real work, provided real services in

connection with that.

There's also text messages. You might take a look

at exhibits, when you get a chance, Cobo 3 through 7 and 10A

and 10B. They're text messages between Bernard Kilpatrick and

Derrick Miller regarding Karl Kado and contracts coming up for

consideration of Karl Kado obtaining.

Also, I found this interesting, you know -- you'll

remember that there was a -- you recall there was a meeting

between Karl Kado and Bernard Kilpatrick in February of 2008 at

Tom's Oyster Bar, and it was recorded because it was part of an

FBI operation. Karl Kado was working for them and Karl was

wearing a wire, and he was out meeting with Bernard in an

attempt to gather evidence against Bernard, and we -- they talk

about all kinds of things.

But here's one part of it, where they're talking

about the contracts that Karl Kado claims are, he's owed money

on. There was the DAH renovation contract, and there was the

cleaning contract he said the city owed him money on, and there

was the electrical contract. And about half an hour into it,

Bernard says, "It's, it's just they can't do that legally. I'm

going to meet with Amru Monday." And there they're talking


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about the DAH contract.

And Karl says, "That one, that one, all I am

concerned about, all what I am concerned about electric."

That's the electric contract. "Electric, we made it together,

you and me." Another acknowledgment by Karl Kado that he and

Bernard Kilpatrick had a relationship where they worked

together and Bernard Kilpatrick provided services and

assistance.

Karl Kado testified that he paid Bernard Kilpatrick

monthly during 2002 and 2003, doesn't believe he was paying him

in 2004, and then he made a final $100,000 payment in June of

2005. Let's recall that monthly payments are consistent with

how Bernard Kilpatrick is paid from other clients as well.

There's nothing inconsistent with Karl Kado paying him monthly.

Let's also remember that Karl Kado, because he paid in cash,

couldn't and didn't keep records, didn't have a very solid idea

about how much in total he paid Bernard Kilpatrick. His

estimates ranged from between $180,000 and $300,000 in total,

depending -- and that means including the final $100,000

payment -- depending on who asked him and when it was asked.

But that may sound like a lot of money. Keep in

mind that the contracts, the janitorial service contracts and

the electrical service contracts alone, not even talking about

the food service contract, generated about $15 million a year

in revenue for Karl Kado. It's not necessarily profit, but


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that's a lot of revenue, that's a lot of business, and that's

not a lot of money that he paid Bernard Kilpatrick in terms --

relatively speaking in, for Bernard Kilpatrick's assistance in

getting them, getting those contracts.

Now, the government says -- they mention that

$100,000 payment in June 2005 as if there was something wrong

with it. Two things about that. First, as I've already

alluded to, Karl Kado said he stopped paying Bernard the

monthly payments in 2003, and Bernard Kilpatrick, you might

remember, in that first recorded conversation, he said

something to Karl, something like, "I thought you'd gone and

hid under a rock, I couldn't find you, thought you'd gone and

hid under a rock."

Karl Kado confirmed that Bernard Kilpatrick thought

that $100,000 was a catch-up on monies that were owed, and

Karl Kado confirmed that Bernard Kilpatrick, in fact, thought

that monies were owed, so there's nothing improper with that

$100,000 payment.

Second thing to keep in mind about that is

Bernard Kilpatrick was not dogging Karl Kado for that money.

Karl Kado testified, not only to Mr. Bullotta but also to me,

that he came forward with that $100,000. It's not

Bernard Kilpatrick calling him up and saying -- and saying,

"I'm going to break your legs," or anything like that. It was

a come forward by Karl to make things right with his


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consultant. Again, there's nothing illegal about that payment.

The government also asked, "Well, where are the

invoices and why pay in cash?" Well, there's no testimony in

this record that I can recall about invoices one way or the

other. I don't recall anybody saying there were invoices. I

don't recall anybody saying there weren't invoices. But even

assuming there were not invoices, so what? Who needs an

invoice to make a payment every month when you know you got a

payment due every month?

Jon Rutherford testified in response to a question

from Mr. Chutkow, "Would Bernard call you to get his monthly

payment?"

Jon says, "Why would he have to do that? I knew

when the first of the month came around, I knew when I was

supposed to pay the monthly payment." There's no need for

invoices in this kind of relationship.

Cash. Why cash? Karl Kado paid in cash because

Karl Kado was skimming cash. Again, he fought me on it.

Eventually, Mr. Thomas got Karl Kado to acknowledge, yes, he

was skimming cash and that's what he pled guilty to, that was

the basis for his tax fraud problems. Well, when you're

skimming cash, you pay as many of your expenses as you can with

cash because you're skimming cash to hide total revenues from

the IRS, keep them off your tax returns and lower your income.

That's why he was paying in cash.


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It's interesting, because he testified on cross

examination that Bernard Kilpatrick demanded cash. What's

interesting about that is that it's contrary, it's opposite to

what he told Agent Schuch in an interview with Agent Schuch

where he said Bernard Kilpatrick did not specify that he wanted

cash.

The bottom line here with Karl Kado is there's no

question that he asked for Bernard Kilpatrick's services in

advancing Karl Kado's interests. There's no question that

Bernard Kilpatrick provided the services, and there's no

question that Karl Kado paid for the services. There's nothing

extortionate here.

The second chapter of Karl Kado has to do with the

2008 activities he had with Bernard Kilpatrick, and on Monday,

Mr. Bullotta said Bernard Kilpatrick extorted a 10 percent deal

from Karl Kado in connection with those 2008 activities, and

nothing can be further from the truth. Karl Kado was owed, by

his estimate, $1.6 million from the City of Detroit between

what he claimed were amounts owing on the cleaning contract, on

the janitorial services contract and for his renovation of the

Detroit Administrative Hearings Building, the DAH Building.

The government wired Karl Kado to go talk to

Bernard Kilpatrick about various things, but including that,

and they were trying to trap Bernard Kilpatrick into agreeing

to do something illegal in order to help Karl Kado obtain these


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monies, and they didn't get that. Bernard Kilpatrick acted

completely legitimately, just as he had before.

Could we play Cobo 16, excerpt 1, please.

(Government's Exhibit Cobo 16, audiotape, was

played.)

MR. SHEA: Tom's Oyster Bar, February 2008. Bernard

is adding up some figures, saying, "This is what you should

get."

Karl Kado says, "How much?" Bernard's not even

paying attention, "How much, how much you want, 10?"

Bernard says, "What do you think is fair?"

This is not Bernard Kilpatrick demanding 10 percent

out of any deal with Karl Kado. This is Karl Kado offering

10 percent. Karl Kado is saying, "How much you want? Will 10,

10 percent do it as a collections fee?"

Let's go on and play excerpt 2, please. Same

meeting.

(Government's Exhibit COBO 16, audiotape, was

played.)

MR. SHEA: Here's Karl saying, "This is going to be

a contingent fee arrangement. If I collect, I'll pay you. If

I don't collect, I won't pay you. It's on you. You bear the

risk."

Bernard says, "Fine, I wouldn't expect it to be any

different."


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This is not Bernard Kilpatrick demanding any

particular amount or setting any particular terms. This is

Karl Kado acting as the agent of the government, remember, who

is making the offer and setting the terms.

A little bit later, Karl Kado prompts Bernard again,

"Okay, how much? Will you do it for 10 percent?" And Bernard

agrees to do the 10 percent.

And then a little bit after that, Karl Kado says,

"Okay, assuming we're successful, how do you want to be paid,

cash or check?" And you can go back and listen to it, but it's

clear as a bell, Bernard Kilpatrick says, "I want a check."

There's nothing remotely improper, illegal,

extortionate about this conversation, or about this project.

Now, Bernard Kilpatrick does real work. In fact,

he's doing real work before he even has this meeting at Tom's

Oyster Bar and before he has any kind of an understanding in

terms of payment from Karl Kado at all. He's already doing

work.

Can we play D-Cobo 6, please. This is a

conversation between Bernard Kilpatrick and Kwame Kilpatrick on

February 4, which is about four days before the Tom's Oyster

Bar meeting.

(Defendants' Exhibit Cobo 6, audiotape, was

played.)

MR. SHEA: Medina is Medina Noor, Agent Beeckman


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confirmed. She worked either in the building safety department

or the contracts department. She was someone who Karl was

dealing with trying to get paid. This doesn't sound like a

conspiratorial conversation, does it? I mean this is

Kwame Kilpatrick acting not as son, but as mayor of the City of

Detroit, talking to Bernard Kilpatrick, acting not as father,

but as representative for a client and saying, "We ain't gonna

pay your guy what he wants. We don't owe him that. We owe him

some of it. We owe him about 20 percent of what it is he's

claiming, and we'll pay that when he comes to us, and agrees to

a global settlement."

This is Bernard doing work. This is Bernard

representing a client's interest. And this is Bernard who

supposedly is in a conspiracy with the mayor of the City of

Detroit to line his pockets and the mayor of the City of

Detroit is saying, "I'm not giving your guy what he wants. I

don't care if it means more money for you."

After the February 8th Tom's Oyster Bar meeting,

Bernard Kilpatrick continues doing work. He makes additional

calls. We hear a phone call between him and Karl Kado, which

I'm not going to play for you. It's D-Cobo 2, though, if you

want to go back and listen to it, where Karl says, "How's

things going with the DAH Building issues," and Bernard says,

"Well, I've got them -- we started around 200, two and a

quarter, I've got them up to about double that."


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Clearly, Bernard is talking to people, working

things, trying to get as much as he can for Karl, and then on

March the 1st, at a second recorded meeting, Karl Kado pulls

the plug on the whole thing. "I'm not going to pay you, I

don't want -- I don't care about my money anymore, I want you

to stop work."

Could we play D-Cobo 17's excerpt, please.

(Government's Exhibit Cobo 17, audiotape, was

played.)

MR. SHEA: "You want me to leave it alone," Bernard

says to Karl. He says, "Yes."

Bernard says, "I've got this teed up finally. We're

getting close."

Now, of course, Bernard doesn't realize Karl is

working for the government, and the government is not

interested in paying Bernard Kilpatrick any success fee for

assisting Karl Kado in getting any collection, so I'm sure

there's some of that going on in terms of why Karl Kado is

pulling the plug. But Bernard doesn't know this. All Bernard

knows is, "I'm working, I'm working for you under the terms of

the deal that you offered to me and that I accepted in good

faith, and I'm getting close to getting you something that you

want, and now you're saying don't do it anymore."

By the way, I misspoke. It's not D-Cobo 17, that

was Cobo 17.


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So Karl Kado pulls the plug, and says, "Stop work,"

and Bernard does, Bernard does. We know that, because two

weeks later -- this is D-Cobo 3, and I'm saying it right this

time -- Karl calls him back and says, "Please start work

again."

Could we have that one.

(Defendants' Exhibit D-Cobo 3, audiotape, was

played.)

MR. SHEA: So it's on again, off again, and now back

on again. Karl Kado says, "Please do more work." And Bernard,

of course, makes more calls, does more work.

Now, of course, we know that Bernard is being played

by a cooperating witness working for the government throughout

all this. Again, Bernard Kilpatrick doesn't know it. The

point is Bernard Kilpatrick is acting as a legitimate

consultant doing what legitimate consultants do for their

clients every day. There's nothing remotely improper about

what he was doing here.

And, you know, the funny thing is he failed. I

mean, the government claimed on Monday that Karl Kado didn't

get paid because he didn't pay Bernard Kilpatrick. That's what

Mr. Bullotta said to you. Karl Kado did not get paid because

he did not pay Bernard Kilpatrick. To use one of Mr. Thomas'

words, that's just hogwash.

The only way Bernard Kilpatrick was going to get


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paid was if Karl Kado got paid. If Kwame Kilpatrick really was

looking out for his old man and really wanted to lay the heavy

thumb on the scales to help line his old man's pocket, instead

of saying, "We're not paying your guy what he wants,"

Kwame Kilpatrick would be saying, "Oh, sure, dad, we'll write

him a $1.6 million check so you can make your 160 grand."

It didn't happen. There's nothing extortionate

here. There's nothing conspiratorial here.

The government claims that Bernard Kilpatrick tried

to bribe Karl Kado in September of 2005 with ten more years of

contract at Cobo Hall. Let's examine that.

In very late August of 2005, Karl Kado gets a target

letter saying he's under investigation for bribery and taxes.

He claims he has a meeting with Bernard Kilpatrick in early

September of 2005 where he talks to Bernard about that letter

and what it could possibly be about. He claims that he leaves

and goes down to the parking lot of his building. So he met

Bernard in an office that was in the building that Karl Kado

owned. Karl Kado said he leaves the meeting, goes down to his

parking lot, and two minutes later, his words, two minutes

later, Bernard Kilpatrick comes downstairs and offers him ten

years, an additional ten-year contract, like Bernard Kilpatrick

has the power to do that, like in two minutes,

Bernard Kilpatrick had the ability to call anybody in the City

of Detroit, explain the situation, and get that kind of


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authorization. It's just completely, totally implausible.

What makes it even more incredible, however, is

this, he started cooperating with the government in February of

2006, six months later, not even six months later. He is

exhaustively debriefed in February of 2006, again in early

March of 2006, and in some other meetings shortly after that.

He's asked questions about all things

Bernard Kilpatrick. Does he mention this meeting? No, he

doesn't mention this meeting until October 27th of 2006, eight

months later. It suddenly occurs to him that he had this

incredibly suspicious and damning conversation with

Bernard Kilpatrick.

Karl Kado also testified that at this meeting in

September of 2005, Bernard Kilpatrick supposedly patted him

down for a wire. Not something you'd think he'd forget, right?

But does he disclose that to the agents on October 27, 2006

when he finally remembers having the meeting at all and

supposedly this ten-year contract offer? Does he disclose the

patdown? No.

When does he disclose that? Six years to the day

later, October 27, 2012, is when he first told an agent about

Bernard Kilpatrick supposedly patting him down for a wire. It

is completely unbelievable that these things would have

happened and that Karl Kado just forgot about them and waited

all this time to tell anybody about them. Those things didn't


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happen, and it's just Karl Kado's, one of the many ways

Karl Kado tried to elevate his own position here because he got

a cooperation agreement with the government, and because he's

required to continue cooperating even after he's sentenced

because he still has exposure under that cooperation agreement,

and it's just one more lie to spin in connection with that

cooperation agreement.

In Mr. Kado's final testimony in my cross

examination, he acknowledged at no time did Bernard Kilpatrick

say, "Pay me or you don't get what you want." At no time did

Bernard Kilpatrick say, "Pay me or you lose what you have." At

no time did Bernard Kilpatrick say, "You have to pay somebody

to get a contract or keep a contract at Cobo Hall." He

acknowledged all of those things. There is nothing

extortionate about this relationship between Bernard Kilpatrick

and Karl Kado.

Let's move on to Marc Andre Cunningham. Marc Andre

Cunningham is an excellent example of a person whose version of

reality changes depending on who happens to be asking him the

questions at the time.

In brief, to the government, he testified

Bernard Kilpatrick brought him in on a deal -- no, reverse --

Marc Andre Cunningham was required to bring Bernard Kilpatrick

in on a deal after the deal was already done and for no work.

That's what he told the government in brief.


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To me he said Bernard Kilpatrick was brought in on

the deal before it was approved and he, in fact, did do work.

Two starkly different descriptions of the situation. How can

this be? It's the power of the cooperation agreement and the

cooperating witness, ladies and gentlemen. That's how it can

be.

Marc Andre Cunningham had gotten himself in trouble.

In a completely unrelated matter, he was caught on film taking

money from an undercover police officer who was acting as

someone who wanted do business with the City of Detroit.

Marc Andre Cunningham at this time was working for the City of

Detroit and he took a $5,000 bribe to help these undercover

officers, who obviously he didn't know were undercover

officers, to have their business interest advanced with the

City of Detroit. He was caught. He was approached by the

government and said, "We've got you on this, would you like to

cooperate?" And he said, "Yes."

And so you -- trial day comes and you've got to give

your testimony, and you're sort of on the horns of a dilemma.

You got an agreement where you're going to cooperate with the

government in the investigation and prosecution of others, and

so you give a version of testimony to the government that you

hope is that cooperation. But then you're confronted with the

truth by defense counsel on cross examination and recross

examination and re-recross examination, and the truth is


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different from the testimony he gave to the government. That's

how it happens.

Background. Cunningham's uncle, Terry Jones, wants

a $30 million loan from the two City of Detroit pension funds,

15 million from each. Uncle Terry offers Mr. Cunningham one

percent as a success fee if the deals are approved, 300 grand.

Marc Andre Cunningham seeks advice from his friends Chris

Jackson and Jeff Beasley, who happened to sit on the pension

board, about how this might work, how he might be able to get

this deal approved, and the pension boards eventually do

approve the deal on May 8, 2006.

To the government on direct examination, Marc Andre

Cunningham describes a meeting at Mosaic Restaurant later that

summer after the deal is approved on May 8, 2006, where he's

told, he thinks by Chris Jackson, that he has to put

Bernard Kilpatrick in the deal, and he has to do this just

because Bernard Kilpatrick is Kwame Kilpatrick's dad and that

Bernard Kilpatrick did no work. That was his testimony on

direct examination.

And if that was true, I'd be worried, but it's not

true, because on cross examination he acknowledged that

Bernard Kilpatrick was brought into the deal before May 8,

2006, that Marc Andre Cunningham had discussions with

Bernard Kilpatrick about this deal before that, that after

those discussions, Marc Andre Cunningham and Terry Jones, his


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uncle, and Jeff Beasley and Bernard Kilpatrick had a dinner

meeting where they discussed the deal further, that

Bernard Kilpatrick had experience in these matters, that's why

he was brought in, that Bernard Kilpatrick gave his insights in

terms of pension board processes and pension board members. In

Marc Andre Cunningham's own words, Bernard Kilpatrick,

quote-unquote, was there as the deal was moving forward, and to

me he acknowledged that Bernard Kilpatrick assisted in guiding

the deal forward.

He also acknowledged he did not expect

Bernard Kilpatrick to work for free, that he knew this was what

Bernard Kilpatrick did for a living, and that he expected to be

paid for it. He also acknowledged that his friend, Chris

Jackson, who had been mentoring him during the process, went

absent for about a month before the deal was approved, which

made Bernard Kilpatrick's experience even more valuable and

important.

This was a fee for services arrangement. This had

nothing to do with extortion, this had nothing to do with

paying somebody for no work.

And while $15,000 might seem like pretty good pay

for two months' work, let's keep in mind, it's only 5 percent

of what Marc Andre Cunningham made, 300 grand, as a rookie in

this business. I'm not suggesting that Bernard Kilpatrick

necessarily made this deal go, and I didn't suggest it to


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Mr. Cunningham either, but he worked on it and he was brought

in to work on it by them, and this was a deal where Marc Andre

Cunningham wasn't going to make a dime unless the deal was

successful, so it was important to have somebody to help him

make the deal successful.

Notwithstanding Mr. Cunningham's acknowledgment that

Mr. Kilpatrick did work for his money, the government argues

that this was a corrupt relationship. They say, "The locations

of where Mr. Kilpatrick got paid are suspicious, meaning the

basement of the CAYMAC Building by the barbershop. Well, I'm

not as familiar with the basement of the CAYMAC Building by the

barbershop as Mr. Thomas is, but Mr. Thomas' cross examination

of Marc Andre Cunningham made it quite clear that that's a

public place.

Let's keep in mind, Marc Andre Cunningham is working

in the CAYMAC Building at the time. If Mr. Kilpatrick is going

to get paid, he's going to go up to the 11th floor and have the

guy give him an envelope full of cash, which probably doesn't

look very good, or he's going to meet him somewhere else. And

the fact that he met him at the barbershop or near the

barbershop to get paid, nothing to indicate corruption there.

The government said, "Well, he was paid in cash."

Well, he was paid in cash. On the other hand, every time

Marc -- look at the deposit records. They're in evidence as an

exhibit. Every time Marc Andre Cunningham deposited a


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quarterly check and paid Bernard Kilpatrick, and it wasn't

every time, even before supposedly Kwame said, "Stop paying my

dad," he was getting more checks than he was paying

Bernard Kilpatrick out of.

We know that because he claims he paid

Bernard Kilpatrick in cash, and some of these quarterly payment

checks that he received, he deposited, he didn't take cash out.

But when he did take cash out, he took a lot of cash out, and

it wasn't just for Bernard Kilpatrick. So he's paying himself

in cash too. I don't hear anybody saying that's corrupt. And

finally, the government says Kwame Kilpatrick supposedly told

Mr. Cunningham to stop paying Bernard Kilpatrick after

Marc Andre Cunningham's bribe-taking from the undercover

officers was reported in the press in September of 2006.

Now, I don't know if that really happened,

Kwame Kilpatrick telling Marc Andre Cunningham that, I don't

know. Marc Andre Cunningham said so many different things,

it's hard to know what's true and what isn't true, but even if

that is true, I don't see what is unexpected in that. You've

got a staffer who has been exposed in the Philadelphia Inquirer

as someone who is taking bribes from undercover officers. You

know that your client, your staffer, is in a business

relationship with your father. I think you might want your

staffer to stay the heck away from your father, because it's a

little bit worrisome that you think the focus on this guy is


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going to expand into a focus on somebody else that might be, it

might not be a legitimate other -- it might not be illegitimate

what Bernard Kilpatrick was doing in terms of being paid for

the work he did for Marc Andre Cunningham, but why would you

want to expose him to it? So I don't think that is an

indication of a corrupt relationship at all.

Again, Mr. Cunningham acknowledged Mr. Kilpatrick

was brought into the deal before the deal was done. He

provided services. He expected to be paid for the services.

He was paid for the services. There's nothing extortionate in

that relationship.

Let's move on to Synagro and James Rosendall. James

Rosendall was, I think, without a doubt, the most manipulative

and immoral witness who testified in this trial. He lied to

everybody. I heard one person say after his testimony he

thought he needed an acid bath, to make sure that any film that

he left behind after he testified was removed.

In background, this privatized sludge processing

concept had been around since the Archer administration.

Minergy Corporation had a deal with the City of Detroit to

privatize the sludge processing. It wasn't working out because

they didn't have a model that was cost effective. Synagro was

interested in purchasing that contract and making it cost

effective. The City of Detroit was interested because it had

potentially big savings for the city, a cash-strapped city, so


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they were interested in it.

James Rosendall wanted Synagro to get the contract

because it meant big revenues for him. He estimated three

million bucks would be coming to him if the contract were

approved, and including the sale to Synagro of a piece of

property that he owned that was going to underlie the facility

that was going to be built there. So he had a real serious

interest in seeing that approved.

The review process was lengthy, and it was

complicated. It was not approved by city council until late

November of 2007, and the testimony indicates that

Mr. Rosendall was talking about this as early as 2002, maybe

even earlier.

The testimony indicates that Kwame Kilpatrick

suggested Bernard Kilpatrick as a consultant early on. James

Rosendall testified it happened at a Manoogian Mansion event.

Derrick Miller testified it happened at a meeting that he and

Kwame Kilpatrick and James Rosendall had. Regardless, the

testimony indicates that Bernard Kilpatrick was suggested as a

consultant early on. The Manoogian Mansion event would have

been the, probably late 2003, maybe early 2004, if that's where

it happened.

But interestingly, after that, there's very little

evidence of Kwame Kilpatrick being involved in this project

moving forward at all. And it's curious from this standpoint,


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at the time, 2002, 2003, 2004, Kwame Kilpatrick, as we heard

lots of testimony about, was a special administrator for the

Detroit Water and Sewer Department. He had lots of power. He

had power to circumvent the normal review and evaluation

processes. He had the power to sign contracts just because he

thought he could. Didn't have to go to city council.

You heard James Rosendall twice in his testimony

kind of complain when I asked him to confirm it took a long

time to get this approval, and he said, "Yeah, wouldn't have

taken so long if the mayor had used his special administrator

powers."

Now, if Mayor Kilpatrick had exercised those powers,

presumably if he were in a conspiracy to aggrandize his father

and line his pockets, he would have done so. He'd have gotten

through the approval process faster, Bernard Kilpatrick would

have had a more sure potential of getting something out of it,

and he would have gotten it faster and that would make sense.

It would make sense for Kwame Kilpatrick to have done that if,

in fact, there were a conspiracy.

But he didn't do that. He let it go through the

standard review process. Again, it took years, went through

DWSD, went through Board of Water Commissioners, finally got to

city council, and even then the prospects were terribly iffy.

At city council the project was approved on a five-to-four

vote. One vote. And we learned later that it was only


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approved on that one vote because James Rosendall and Rayford

Jackson bought a vote. They bought a councilwoman's vote, and

she was the deciding vote to get to that five-four.

I don't think that if Kwame Kilpatrick was

supposedly extorting Synagro to benefit his father he would

have left the outcome to such an uncertain process.

Bernard Kilpatrick got involved to assist in managing community

opposition to the project. James Rosendall testified they

expected some in the neighborhoods and with the unions.

Now, James Rosendall testified first that he got

Bernard Kilpatrick involved because he supposedly heard a rumor

in Grand Rapids that Detroit was a pay-to-play city. Couldn't

tell us who he heard the rumor from, couldn't tell us whether

that person, what the source of that person's knowledge was,

couldn't tell us whether that person even did any business in

the City of Detroit. But he wants you to believe that that's

why he hired Bernard Kilpatrick, because he heard this rumor.

This contrasts with Derrick Miller's clear

recollection that in his meetings with James Rosendall, Bernard

Kilpatrick was suggested as a consultant to manage the

community outreach piece of this project. And James Rosendall

agreed that community outreach was important and he agreed that

someone with Bernard Kilpatrick's qualifications and experience

was a good person to assist them in that community outreach.

He also agreed that Bernard Kilpatrick worked on this project.


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For about six months before turning it over to

Rayford Jackson, Bernard Kilpatrick was the point person for

Synagro on the project, and we saw examples of things he did,

including an example of trying to get a meeting with

Victor Mercado for James Rosendall. There are text messages to

that effect in evidence, including James Rosendall's text

messages asking Mike Tardif what's the status of the meeting

with -- that Bernard is trying to set up with Victor Mercado.

So he's obviously doing work, and James Rosendall

acknowledges that he was doing work, and then he continues to

do work behind the scenes after Rayford Jackson is brought in.

Rayford Jackson is brought in, because Synagro is -- does not

want, in this very public, very large contract, any hint that

they're getting special treatment because Bernard Kilpatrick is

representing their interests out front. They don't want the

public relations problems that would come with having the

father of the mayor be the primary representative of the

business. It makes total sense. I agree with that, and

Bernard Kilpatrick agreed with that, according to James

Rosendall's testimony. Makes complete sense.

So Bernard Kilpatrick turned Synagro over to Rayford

Jackson, and he continued whatever work Bernard Kilpatrick did

behind the scenes. James Rosendall testified that

Bernard Kilpatrick remained the primary point of contact on the

project for people in the Water and Sewerage Department and


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people in the administration where Rayford Jackson didn't have

the kind of relationships that Bernard Kilpatrick had. Rayford

Jackson was the person out front in the public and the person

who was dealing with city council, even illegally with city

council.

For all this work that Bernard Kilpatrick does over

four years, he got $10,000 from James Rosendall. You saw the

two checks. You got the $5,000 check that said "Consulting,"

you saw the $5,000 check that said "Loan." This was under the

table because Synagro, again, did not want Bernard Kilpatrick

in any official way linked in a way that was -- had him

involved for purposes of the public relations concerns that I

previously discussed.

What else did Bernard Kilpatrick get? He got a

double-cross from James Rosendall and from Rayford Jackson.

James Rosendall testified that he knew Bernard Kilpatrick

retained a business interest with Rayford Jackson on the back

end of the Synagro deal. That is, if the deal were successful,

Bernard Kilpatrick was going to share equally in what Rayford

Jackson was going to make on the back end in terms of success

fees and other follow-up.

James Rosendall testified he knew that this

arrangement existed, and he knew that, in fact, Rayford Jackson

was going to come into those sums of money because he was

familiar with Rayford Jackson's consulting agreement with


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Synagro.

James Rosendall testified that Rayford Jackson,

Bernard Kilpatrick and he had meetings starting in late summer

or fall of 2007 where Bernard Kilpatrick, and they, and the

rest of them, all three of them were discussing memorializing

Bernard Kilpatrick's agreement with Rayford Jackson in some

kind of an agreement, because it was unwritten at this point,

and the agreement was going to run Bernard Kilpatrick's share

of Rayford Jackson's success fees through a woman named

Akunna Olumba, who was a former girlfriend of

Bernard Kilpatrick and also a business associate. And Akunna

was going to get a small percentage, have a small percentage

role as well if it were approved.

Unbeknownst to Bernard Kilpatrick, Rayford Jackson

and James Rosendall, behind the scenes, were working to in

fact -- were, in fact, working against Bernard Kilpatrick.

They were -- James Rosendall kept telling Bernard Kilpatrick,

"I'm moving this forward. I'm talking to the home office.

We're going to get this agreement written up. Tell me what

Akunna Olumba's business name is so we can put it in the

agreement." All sorts of stuff.

But in fact, he was doing nothing. He was leading

him along, he was stringing him along, and he was doing it

complicit with Rayford Jackson, because we heard phone

conversations where they're discussing. They're plotting and


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scheming against Bernard Kilpatrick to string him along, put

him off and ultimately cut him out.

Bernard Kilpatrick finally got fed up. He was put

off for awhile. Then, after city council approved the

contract, he had a meeting at a pancake house restaurant on

December 4th, 2007, Bernard, Akunna Olumba and James Rosendall.

They had this meeting at the pancake house restaurant, which

the FBI kindly got them a booth at with the special

microphones, and you hear James Rosendall tell

Bernard Kilpatrick that he can expect half of between a hundred

to $200,000 in success fees to be paid by the end of the year.

That's what he expected Rayford Jackson to, the payment

schedule for Rayford Jackson and Bernard Kilpatrick would be

paid half of it.

Then nothing, no communication with James Rosendall

for much of the rest of the month until Bernard Kilpatrick, fed

up, on December 20th, 2007, leaves the famous "vacation or no

vacation" voice mail message.

Once again, what's James Rosendall's first move

after getting that message? You heard the recording. He

called Rayford Jackson. "Rayford, I got this angry message

from Bernard Kilpatrick," and for 10 or 15 minutes, they plot

and they scheme about how James Rosendall should play off

Bernard Kilpatrick in connection with Bernard Kilpatrick's

expectations.


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Rayford suggests, "Tell him I'm under investigation

for a housing scandal and that the general counsel's office is

now dealing with me directly and that you're out of it." What

does J.R. do next? He calls Bernard Kilpatrick, and that's

what he tells him, "Sorry, it's out of my hands. It's now in

the general counsel's office because Rayford's in trouble and

they don't want me dealing with him anymore."

Bernard demands a meeting. J.R. says, "I've got

five minutes this afternoon. I'm heading out of town tomorrow.

I'll meet you in the parking lot of your office."

Bernard Kilpatrick had suggested, if you go back and

listen to the recording, says, "I'm going to be at a meeting in

the Millender Center, why don't we have lunch at the Millender

Center?"

J.R. says, "No. I'll just meet you for five minutes

in the parking lot of your office."

Government wants you to think that they met in the

parking lot of the office because Bernard Kilpatrick was afraid

of bugs in his office. Has nothing to do with that. Listen to

the conversation.

J.R. shows up with 300 bucks and a cigarette package

and a case of champagne and thinks that's going to pacify and

appease Bernard and is taken aback when it doesn't. And

Bernard says, "I'm going to blow up the deal." J.R. finally is

worried; he's worried about losing this deal. Remember, he's


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got three million bucks on the line himself. So he calls his

boss, Pam Racey, and finally starts to come clean. Doesn't

come clean, but he starts to come clean.

He advises her of the dispute between Rayford

Jackson and Bernard Kilpatrick. He advises her that Rayford

Jackson is trying to cut Bernard Kilpatrick out. He does not

tell her that he's known about this for months and he does not

tell her that he's been complicit with Rayford Jackson trying

cut Bernard Kilpatrick out.

Pam Racey, to her credit, immediately observes that

Rayford Jackson has an obligation to Bernard Kilpatrick and he

has to honor it. He expects more work out of Synagro. If they

can't trust him to honor his obligations with people, they

don't want to do business with the guy, and J.R. agrees. I

mean, he -- Pam Racey also observes that Rayford Jackson's

obligation is borne of the fact that Bernard Kilpatrick brought

him into the deal, he brought him into the deal with an

understanding that Bernard Kilpatrick was going to get

something out of it if the deal went well. That's why he had

an obligation. And again, J.R. agreed and more than agreed.

Could we play D-Synagro 11, please.

(Defendants' Exhibit D-Synagro 11, audiotape, was

played.)

MR. SHEA: I love that from James Rosendall,

"Morally, it's not right." I mean, geez, this is a guy who is


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trying to stab him in the back for months, and he says to his

boss what's true, "Morally, it's not right." So what was James

Rosendall doing all those months when he's working with Rayford

Jackson to deep six Bernard Kilpatrick? He was acting in a

pretty immoral fashion.

What this means is Bernard Kilpatrick's threats to

blow up the house or blow up the deal or pull the plug are not

extortion. The judge has already instructed you what is

extortion, and one of the critical elements for someone to be

convicted of the crime of extortion is they use wrongful --

they wrongfully use the fear of economic harm to get something

for themselves. And the definition of "wrongful" is to get

property unfairly and unjustly because the person has no lawful

claim to it.

Well, everybody here acknowledged that

Bernard Kilpatrick had a lawful claim to share in Rayford

Jackson's success. It was part of their deal; it was part of

their agreement. Pam Racey said it's lawful. Pam Racey said

it's understandable. Pam Racey said it's enforceable. Pam

Racey said he has to honor it. And James Rosendall agreed and,

moreover, said it was the moral thing to do. This was not

extortion.

J.R. sort of made it sound like Bernard Kilpatrick

didn't deserve so much money because he didn't do as much work

as Rayford Jackson, but he also acknowledged that wasn't his


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deal, it wasn't any of his business. What Rayford Jackson

agreed to pay Bernard Kilpatrick four years earlier, when

nobody knew if this thing was going to be pie in the sky or

bricks and mortar on the ground, was between Rayford Jackson

and Bernard Kilpatrick. Had nothing to do with what J.R. after

the fact thought it was worth. And once the deal was made,

Bernard Kilpatrick was entitled to have it honored and was

entitled to rely on it being honored.

And getting upset, really angry, and saying, "If I

can't" -- "If you're going to try to screw me, I'm going to do

what I can to see that you don't get the economic benefits that

you think you got coming," is not extortion. And not for

nothing, but Bernard Kilpatrick never, in fact, sought any

adverse action within the City of Detroit. Notwithstanding all

of his bluster, all of his anger, all of his swearing. He

never did anything to try and hurt that project, even though,

heck, Rayford Jackson never came around.

Your Honor, I'm going longer than I expected I was

going to. I'm going to move into the $5,000 payment, but I can

break now or I can break when I get through that.

THE COURT: Let's have a quick sidebar here.

(The following sidebar conference was held:)

THE COURT: Unfortunately, what this means is

that --

MR. SHEA: I can keep going.


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THE COURT: But how much longer do you have?

MR. SHEA: Half hour.

THE COURT: Then Gerald's not going to get his

argument in.

MR. SHEA: I'm doing the best I can.

THE COURT: I want you to finish.

MR. SHEA: I'm happy to keep going, sure, sure.

THE COURT: Keep going. We're going to have to

split your argument. I can't help it.

MR. EVELYN: I understand, Judge, I was thinking

about that this morning.

THE COURT: I mean, we'll take a lunch break in the

middle of it. You just tell me what a good place is to break

it and we'll do that.

(End of discussion at sidebar.)

THE COURT: Does the jury prefer to take a break

now? All right. We'll take a break.

MR. SHEA: I thought you wanted me to keep going.

THE COURT: They want a break.

MR. SHEA: Okay.

THE COURT: Twenty minutes.

(Jury out 10:21 a.m.)

(Recess taken 10:21 a.m. until 10:48 a.m.)

(Jury in 10:48 a.m.)

THE COURT: Be seated. Well, ladies and gentlemen,


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slight revision in the schedule. We had hoped, everyone had

hoped that we might have time today to get all of the final,

the closing arguments in, and it's just not going to happen.

So Mr. Shea is going to finish his closing, we're

going to take an early lunch break, and then Mr. Evelyn is

going to do his closing this afternoon, and that will be the

end of the proceedings for the day. We'll take up tomorrow

morning with Mr. Chutkow's rebuttal argument and the final

instructions. So hopefully that works out for everybody.

MR. SHEA: Sorry for being such a windbag.

THE COURT: No. Let me just say, because this has

gone on -- and you're not a windbag, obviously. This is a long

trial, a lot of evidence. Well, maybe they think you are, I

don't know.

MR. SHEA: I might think I am.

THE COURT: But, you know, we've been at this a long

time, there's a lot of ground to cover, and everyone is doing

the best they can to kind of keep it focused but say what needs

to be said.

So Mr. Shea.

(10:50 a.m.)

MR. SHEA: Thank you. We're still on the Synagro

chapter, and I just finished talking about the James Rosendall

double cross and how he reported it to his boss and suggested

that it was a moral failing to not honor Bernard Kilpatrick's


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agreement with Rayford Jackson and telling you that it's not

extortion because what Bernard Kilpatrick did in saying if

you're going to double cross me and deny me what I've got

legitimately coming in terms of economic benefit, then I'm

going to do what I can to see that you don't share in the

economic benefits, Mr. Rosendall, or Mr. Jackson, that you

think you've got coming either, and maybe that will turn you

around and make you honor the agreements with me. Not

extortion.

So now I want to talk about the $5,000 payment that

James Rosendall paid after he was working for the government,

and you'll recall the individual recordings of 2,500 being paid

on March 5th, 2008, and then another 2,500 being paid -- 2,500

being paid in April. It's not recorded, it was testified to by

James Rosendall.

And I want you to think back to the recorded meeting

of December 4th, 2008. We talked about it a little bit

earlier. This is the meeting where Akunna Olumba and

Bernard Kilpatrick and James Rosendall were speaking about ten

days, maybe, after city council had approved and signed off on

the Synagro deal, and you'll remember that I described James

Rosendall assuring Bernard Kilpatrick that by the end of the

year he should be getting a pretty significant chunk of money.

Rayford Jackson was owed between $100,000 and $200,000 by then,

and Bernard was supposed to get half of that, and then, of


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course, everything goes to heck and they have the dust-up on

December the 20th, and Rosendall calls Pam Racey and starts

coming clean, and they have the conversation about he's got --

the deal with Bernard Kilpatrick has to be honored.

Well, what does James Rosendall do after that

conversation with Pam Racey, which is about 4:30 in the

afternoon? Again, you can go back and look at it and listen to

it yourself. Well, he calls Bernard Kilpatrick, and he lies to

Bernard Kilpatrick again in two respects. A guy just can't

change his spots.

He says, "The home office is going to talk to

Rayford Jackson tomorrow and remind him how he got in this deal

and remind him that he has got to honor his obligations," which

was hooey. Home office acknowledged it was hooey.

Home office was not going to be talking to Rayford

Jackson the next day. They weren't going to be saying these

things. But Bernard's gratified to hear it, "Okay, good, glad

to hear that." And Bernard asks whether the home office is

going to be sending any payment, and J.R. says, "Well, they're

working on that, too. They're working on the paperwork for

that, and they're going to process that before Christmas."

Next day, Rosendall flies out of town. He lands

wherever it is he's flying out of town to, and he calls

Bernard Kilpatrick, returns Bernard's call or maybe Bernard

reaches him somehow. And the substance of the conversation is,


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"I need an invoice. I've got to get an invoice, and have

Akunna Olumba -- and, oh, I've already spoken" -- Mr. Rosendall

says, "I've already spoken with Akunna Olumba, and I've told

her to prepare an invoice." And she does prepare an invoice,

and I don't have it here, but it's in evidence, I believe -- I

don't even have the exhibit number, but it's a Synagro exhibit

number, and it's the Black Onyx invoice for $5,000 and it says

for something like political consulting and something else,

which I'm forgetting about.

And J.R. says to Bernard Kilpatrick, "I will get it

to Pam Racey or the home office today, and it will be processed

before Christmas," which, again, was just more lies.

You'll see the exhibit is a number of pages. The

first page is a cover, is a fax cover sheet from James

Rosendall to Pam Racey, and it's dated December 24th, and she

had not had -- and the email that went along with it, or the

message that went along with it was, "Pam, see attached. You

may want to let Alvin look at this," the general counsel. It

was clear that he had had no conversation with anybody at

Synagro's home office about this $5,000 invoice. It was just

another way to push Bernard off while I guess he tried to

figure out how to get Rayford Jackson on board.

But Bernard and Akunna Olumba don't know that.

They're told, they're advised by James Rosendall, "Get me a

$5,000 invoice." I asked James Rosendall where the number came


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from. He said, "It probably came from me. It was half of, I

think it was half of what Rayford Jackson was supposed to get.

He was supposed to get about $10,000 a month, so that's what I

was thinking. So that's why it was $5,000."

So James Rosendall says, "Prepare an invoice, get it

to me, for $5,000, and we'll see that you get your share of

Rayford Jackson's $10,000 payment." Doesn't happen. Of course

it doesn't happen.

And the government made some, tried to make some

point in redirecting Mr. Rosendall about the substance of the

invoice saying "political consulting" and whatever else it

said, as if Bernard Kilpatrick had not been doing any political

consulting for years in connection with this, and of course he

had been, so it's not like the invoice was made up in terms of

services provided. And the reason it was submitted on Akunna

Olumba's Black Onyx business letterhead is, again, Synagro did

not want, and they acknowledged they did not want to see

Bernard Kilpatrick's name as the name on invoices that they

were going to be having Rayford -- they were going to be paying

out of Rayford Jackson's share. So the invoice doesn't get

paid.

We're into 2008, and there's a meeting at Southern

Fires on January 29th of 2008, and by this time, James

Rosendall is working with the FBI, and so he's wired and that

meeting is taped. And he brings $2,500 in cash and tries to


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slide it to Bernard, and you'll recall Bernard saying, "What

are you doing? We need a check." James -- Bernard says, "This

was supposed to be, you were supposed to be bringing money to

take care of what you told me you were going to take care of in

December from Synagro."

And Rosendall said, "Well, I told you I was going to

have half of it, and this is what I've got, and it's coming

from me."

And Bernard says, "Well, that's a problem, too,

because it's supposed to be coming from Synagro."

And so, again, there's no payment made on that

$5,000 invoice. It's still out there outstanding. He still

has this understanding that it's going to be paid because

that's what he was told. And then we go to March 5th, 2008,

and it still hasn't been paid.

At the end of the first meeting he has with James

Rosendall on March 5th, 2008, he asks Rosendall when he's going

to be coming back around. Rosendall says he's going to be gone

for a couple weeks. Bernard seems to be a little

disappointed --

THE COURT: Mr. Shea, slow down, please.

MR. SHEA: -- and at the end, he says, "Well, when

you come back around, bring me this," which Rosendall

interpreted as the $5,000 that had not yet been paid. And he

comes back that afternoon. Bernard Kilpatrick didn't say,


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"Come back this afternoon." He comes back that afternoon, with

cash. Bernard Kilpatrick didn't say, "Come back with cash,"

but at this point he takes the cash. I mean, how long are you

going to wait to get a check out of a guy? You say, "I want a

check," but he also wanted the invoice paid, and he took the

cash. And he took the cash in April, as well, which finished

paying off that invoice.

And I asked Mr. Rosendall toward the end of my cross

examination, "This was the same $5,000 as invoiced on December

the 21st, 2007?"

And he said, "Yes.

"This is the same $5,000 that did not get paid as

invoiced?"

And he said, "Yes.

"And you finished paying this off in April 2008?"

And he said, "Yes."

This can't be extortion or even attempted extortion,

which is how it's actually charged in the indictment, as

attempted extortion.

I guess this is a good point to remind you that

Bernard Kilpatrick is only charged in one -- you've got the

RICO count, and then you've got all these other substantive

counts, that's what we call them, for bribery and extortion and

tax counts and stuff like that, mail fraud, wire fraud.

Bernard Kilpatrick, setting aside the tax counts, is


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only charged in one substantive count, and it's charged as an

attempted extortion and it relates to James Rosendall. This is

not attempted extortion.

Mr. Rosendall suggested the invoice after his

telephone conversation with his boss where it was agreed that

he was entitled to be sharing in Rayford Jackson fees, and

after subsequent discussions with Bernard Kilpatrick where he's

the one who instructed that they send the invoice and told him

what to put in it and told them what amount to put in. And it

was never paid, and it was entirely understandable that

Bernard Kilpatrick would seek its payment. It's not extortion.

What about conspiracy? Is there anything about the

Synagro project that smacks of conspiracy? Well, if there's no

extortion by Bernard Kilpatrick -- and I've argued to you, and

I think demonstrated to you that there is not -- then there's

no conspiracy to commit extortion in connection with the

Synagro project either.

But it bears noting, again, the lack of

Kwame Kilpatrick's administration's involvement in this. Yes,

Bernard Kilpatrick may have been suggested to James Rosendall

as a consultant back in late 2003, but, again, after that,

there's little, if any, evidence of Kwame Kilpatrick's

involvement in this process. And I've already gone through how

Kwame Kilpatrick could have leveraged his special

administrator's powers to have gotten his father a bunch of


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consultant fees on the Synagro deal a whole lot sooner and with

a whole lot more assurance than if he had just let this thing

go through the standard review and evaluation process.

So I don't see any evidence of conspiracy, but even

more, Bernard Kilpatrick is in a dispute with Rayford Jackson

and James Rosendall for a number of weeks starting in late

2007, mid December 2007 and into, you know, the first couple of

months of 2008. Does he call his son and say, "Mess with these

guys' permits, mess with these guys' contract"?

Does he call anybody in his son's administration and

suggest that? There's no evidence. The evidence is he did

none of those things. If he was in a conspiracy with his son

and the object of the conspiracy was to get rich by leveraging

his son's office, where is his efforts at leveraging his son's

office?

James Rosendall actually said it best. You can go

back and listen to DSYN-13, which is a January 8 or January 9,

2008 conversation between Pam Racey and James Rosendall late in

the day, around 5:00. She's actually making dinner in her

kitchen, and they're discussing the status of things in Detroit

and the fact that Rayford is being recalcitrant in terms of

coming around and honoring his obligations. And Pam Racey

almost offhand says, "I'm kind of surprised that his son hasn't

gotten involved in this." And James Rosendall says, quite

clearly, "He's not involved in it."


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There's no conspiracy here either. Now, the central

essential facts, before I get out of this chapter,

Bernard Kilpatrick had a deal with Rayford Jackson, Synagro,

and even James Rosendall recognized its legitimacy. James

Rosendall was active in trying to kill that deal, and Bernard's

reaction was in defense of something he was entitled to and not

wrongful. It's not wrongful, it's not extortion, it's not

attempted extortion, and it's not conspiracy to engage in

extortion.

The last business relationship chapter I want to

discuss, I told you the government litigated five chapters in

the trial involving Bernard Kilpatrick and his business

relationships, where the government tried to say this involves

extortion, is the Book Cadillac project, the waste hauling

aspect of it, and I'm going to be quick on this because there's

not -- I think it's a pretty obvious circumstance, again, of no

extortion.

Bernard Kilpatrick had a client. The client was

called Capital Waste. Capital Waste had two principals,

John Runco and John Francis. Capital Waste, early on in the

Book Cadillac renovation project, had the waste hauling

contract. They're the people who brought the dumpsters up and

got the construction debris and took the construction away.

The project was halted because the general

contractor pulled out, it was halted for a time. The new


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general contractor came in, the project restarted, Capital

Waste was no longer the waste hauler. Instead, the waste

hauler was somebody from out of town.

Capital Waste was a Detroit-headquartered business

and a Detroit-based business and deserved preference on the

job, and they were being denied that in favor of an out-of-town

company. And you heard a series of phone calls where Bernard

was discussing with his client and then with Bobby Ferguson and

then with Shakib Deria what might be doable about this.

And Bernard was hot. He was upset that for months

he had been trying to reach Jim Jenkins, the person who was one

of the people who was managing the Book Cadillac job, to get

the situation rectified and get Capital Waste back on the job,

and Jim Jenkins was putting him off and putting him off and

putting him off.

And he wanted -- and he discussed various ways of

voicing his complaint officially about that. He talked about,

to his client, about going to the head of the Human Rights

Department, a Gerard Grant Phillips, who -- which department

was empowered with investigating complaints like this. We

heard from Kim Harris, this is what they do. And, in fact,

they had a history with Jim Jenkins on this job with these very

kinds of complaints, Kim Harris told us.

Bernard Kilpatrick discussed with Bobby Ferguson

maybe going to George Jackson, who was the head of the Detroit


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Economic Growth Corporation, and DEGC was the responsible party

for that project from the City of Detroit perspective, and

Agent Beeckman acknowledged that he also would have been an

appropriate person to receive that kind of complaint.

And Bobby Ferguson, who was in the middle of a bunch

of other stuff on a job site, is talking to Bernard and says

"Well, listen, let me put you in touch with Shakib Deria who is

on the site and who knows what's going on better than me."

Bobby doesn't really have much involvement in this at all,

except for referring Bernard to Shakib.

Shakib calls back. Shakib says, "Yes, you're right,

your client has -- there is an out-of-town company that's on

the job, and what you may not know is they got the job by

bribing the Marous Brothers or somebody in Jenkins'

organization to get the job." And Shakib says, "But don't do

anything, don't file a complaint yet. Let me talk to the site

superintendent and we'll see if we can get it straightened

out."

And, in fact, Bernard never does file a complaint.

There's no evidence of any formal complaint being made of any

contact between him and Gerard Grant Phillips about this, of

any contact between him and George Jackson about this, of any

attempt by him to have adverse action taken against Jim Jenkins

on this. But had he taken such action, he would have been

completely justified in doing so because this is what


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consultants do, they make complaints, they advocate for their

clients' interests with government. And here you had a

rules-based scheme that was supposed to favor Detroit-based and

Detroit-headquartered businesses that was not being followed by

Mr. Jenkins or the Marous Brothers, the people who were running

the project and who were supposed to be following those rules.

If Mr. Kilpatrick had not done anything in

connection with this, he would have been remiss. He would not

have been representing his client properly.

Now, Agent Beeckman testified that maybe he got some

work from Jenkins or his client got some work from Jenkins on

some other job some other place to try to make up for it.

Fine. Then he's fulfilling his duties to his client, trying to

assist them in getting their interests recognized and

furthered. But that was his job, and there was nothing wrong

with him speculating, wondering, discussing with anybody who he

might complain about this to when he had and his client had

legitimate complaints. This is not an example of

Bernard Kilpatrick trying to extort Jim Jenkins to get a

benefit from, for his client that his client didn't deserve.

So Jon Rutherford, Karl Kado, Marc Andre Cunningham,

James Rosendall and Synagro, Capital Waste, these five business

relationships are the core of the government's case against

Bernard Kilpatrick. That's what the government's case rests

on. They say these are extortionate relationships. These are


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relationships where Bernard Kilpatrick leveraged his son's

office in some fashion to benefit himself and not do any

legitimate work. And it's hogwash.

You hold these chapters up to the light of day and

you see that Bernard Kilpatrick was doing legitimate work for

legitimate clients and getting legitimately paid for it,

sometimes not getting paid for it in the case of Karl Kado's

inability to collect the monies that the City of Detroit owed

him. They don't in any way evidence participation in any

extortion schemes or any conspiracy involving racketeering.

Now, what else might the government say in their

view shows Bernard Kilpatrick is involved in a conspiracy? I'm

going to have to debunk some myths here. One of the myths is

the sitdown meetings that we heard about in opening statement.

The government, Mr. Chutkow, said, "Derrick Miller will tell

you these meetings were to turn the most lucrative city

contracts into money for the defendants." Derrick Miller

didn't say that. He didn't say anything close to that.

First of all, notwithstanding Bernard Kilpatrick --

Bernard Kilpatrick has something of a habit of speaking in an

exaggerated fashion at times, and one of the earliest text

messages that the government put up, it may have even been

RC-1, was Bernard Kilpatrick texting his son and saying, "We

need to have meetings every couple of weeks for awhile; you,

me, Bobby and Derrick."


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Well, that never happened. If you look at the text

message exhibits regarding these meetings, and I'm talking

about RC-1, RC-5 through 9, RC-10 and RC-12 through 15, you'll

see three meetings were held in two years. Bobby Ferguson

wasn't even at one of them. These guys, that's how they,

that's how they schedule stuff. Now, am I saying they couldn't

have had another meeting or two that they, you know, ran into

each other somewhere and said, "Let's meet tonight"? No, I'm

not saying that, I can't say that.

But as much as we saw text message history about

scheduling things, this seems to be the primary way they did

it. And three meetings in two years, this is hardly a

consistent, systematic approach to racketeering.

Derrick Miller said the purpose of the meetings were

to discuss, quote-unquote, "various topics as it relates to

city business, city politics and community activity." I don't

see anything in there about turning lucrative, the most

lucrative city contracts into money for defendants. And in

case he wasn't heard the first time, he reiterated later that

they were about, quote-unquote, "business opportunities,

political strategy, community interests, and general powwow."

When pressed what he meant by business

opportunities, which is one of the things he said, he explained

that sometimes Bernard Kilpatrick, for instance, might want

some particulars about opportunities for some of his clients.


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This isn't evidence of racketeering activity.

Bernard Kilpatrick could have called Iris Ojeda or

April Edgar and said, like Curtis Hertel might do or Conrad

Mallett might do or Jim Stapleton might do or anybody else

might do, "Can I have a meeting with the mayor? I'd like to

discuss some things about one of my clients with him." And

Kwame Kilpatrick could say yes or he could say no, or he could

say talk to Derrick Miller, he could say talk to anybody else

in his administration instead.

There's nothing wrong with a consultant or a, the

businessperson himself or herself, for that matter, calling up

the mayor and asking for a meeting and saying, "I want to talk

about a business opportunity with the City of Detroit."

There's nothing wrong with that.

Now, if they went to the meeting and the mayor said,

"Give me five grand before I talk to you," there would be

something wrong with that. Or, "Give me five grand or I'm not

going to help you," there would be something wrong with that,

but there's no evidence that's what these meetings were about.

Was it easier for Bernard Kilpatrick to get a

meeting with his son? Absolutely. You know, luck of the last

name. Maybe it's unfair, but it's not illegal, and the fact

that they met in the evening at his condominium after everybody

was done with work for the day doesn't make it illegal either.

Might it be unfair? He can say to his son, "Why don't you come


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on over for dinner, bring Derrick, bring Bobby, we'll talk

about stuff," maybe, but it's not illegal.

Remember, Bobby Ferguson and Bernard Kilpatrick and

Derrick Miller also were important to Kwame Kilpatrick in terms

of things like community outreach, politics, things of that

nature. They were involved in his campaigns, and just because

it's not campaign season in a particular year doesn't mean that

an elected official isn't always thinking about that at some

point, somewhere in his or her brain. That calculus is being

done.

There were all sorts of things happening in the City

of Detroit in 2002, 2003 and 2004 that had nothing to do with

business opportunities for Bernard Kilpatrick. All sorts of

opportunities or reasons why he and other political advisers to

the mayor might want to talk about things. And Derrick Miller

said these are things that, in fact, these meetings were for as

well. There is nothing about these occasional meetings that

demonstrate anything that's racketeering oriented.

Another myth, if you read through the redacted

indictment, you're going to get a copy of the indictment when

you go back to the jury room and you're going to be able to

read it, and it's going to say various places,

"Kwame Kilpatrick, Bobby Ferguson, and Bernard Kilpatrick

conspired to do" this, that and the other thing, as if

Bernard Kilpatrick and Bobby Ferguson were, you know, cheek by


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jowl all the time.

I can't think of a handful of occasions where

Bobby Ferguson's name and Bernard Kilpatrick's name was

mentioned in this trial in the same breath. There was a phone

call where Bernard Kilpatrick let Bobby know that he might need

to hit him up for a couple of grand if -- in the summer of

2007, but so what? There's not even any indication that he

ever did hit him up for the couple of grand.

There's the brief conversation between when Bernard

called Bobby about getting some information on the Book

Cadillac job for Bernard's client, Capital Waste, but again, so

what? There's no evidence that Bernard Kilpatrick and

Bobby Ferguson acted in any concerted fashion to illegally

obtain business for each other.

Not mentioned by the government in closing argument,

but the indictment charges in the racketeering count, a theory

that Bernard Kilpatrick conspired with Kwame Kilpatrick and

Bobby Ferguson to obtain State of Michigan grants and

Kilpatrick Civic Fund and Kilpatrick For Mayor monies under

false pretenses. Now, the government didn't address it in

closing, but I have to because you're going to have this

document and you might have some questions about that. You

might wonder how come nobody talked about this.

First of all, there's no evidence that

Bernard Kilpatrick had anything to do with the State of


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Michigan State Art Grants monies at all. There is evidence

that he received $25,000 from the Kilpatrick For Mayor fund in

December of 2007 and $50,000 from the Kilpatrick Civic Fund in

2008. But note the following. First, there's no evidence that

Bernard Kilpatrick had any governing role whatsoever in either

of those nonprofit entities. He wasn't on the board of

directors. He wasn't a -- he just didn't have any management

role at all in any of those entities.

Second, there's no evidence that he had any

decision-making role in terms of him receiving those funds

specifically.

Third, there has been evidence that he worked for

those funds in the sense that he did fundraising for them. He

did event planning for them. I think someone said that he

spoke occasionally at public events on behalf of the Civic

Fund. And, fourth, there's been evidence that people get

compensated for that kind of work.

There's no evidence that Bernard Kilpatrick received

any compensation from either of those funds prior to December

of 2007, when he got some money from the Kilpatrick For Mayor

fund, and 2008, when he got the Kilpatrick Civic Fund monies.

Now, does this show that Bernard Kilpatrick was

involved in a conspiracy to defraud donors? No, it doesn't.

It was appropriate for the entities to compensate him for work

that he had done in the past, and there's nothing, there's


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simply nothing illegal about that, and there's also no evidence

that he had anything to do with the decision to pay him or that

he even knew in advance that they were going to make that

decision to pay him.

Since he didn't have any unlawful or fraudulent

intent when he solicited contributions, no evidence that when

he, in 2002, 2003, 2004, 2005, 2006, 2007, called clients or

signed letters or said, "Give to the fund," there's no evidence

that he knew that in -- end of 2007 or in 2008, those entities

were going to make decisions to compensate him or that that had

anything to do with his decision to solicit contributions.

There's no fraudulent intent on Bernard Kilpatrick's

part to defraud any donors. There's no evidence of any

agreement he had with anyone to improperly divert Kilpatrick

Civic Fund or Kilpatrick For Mayor funds, and he didn't direct

their spending. So he can't be said to have obtained donations

under false pretenses or knowingly participated in any

conspiracy to do so. There is no evidence in support of that

theory in the indictment, and you should disregard it.

There are three occasions on which Bernard made

trips where some Kilpatrick Civic Funds were spent, the 2002

Super Bowl, February of 2002, which was attended by

Kwame Kilpatrick as well, according to the calendar that we

introduced into evidence. Bernard Kilpatrick's plane ticket

was paid for by the KCF. Bernard Kilpatrick paid for


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everything else.

It's pretty easy to infer a civic purpose in

connection with that travel. There's not a lot of testimony in

the record, but there's some limited testimony that, of course,

Detroit had the Super Bowl and Detroit was -- and delegations

from Detroit were going to various cities in preparation for

their own Super Bowl, and the fact that a close associate of

the mayor might go to the Super Bowl in New Orleans in 2002

would not be inconsistent with civic planning for that event

that was going to occur in Detroit a few years later.

There's no evidence that Bernard attended the game.

There's no evidence that the Civic Fund paid for a ticket for

him to the game or any other kind of entertainment. This is

not anything that shows any fraudulent participation in a

conspiracy to defraud donors by Bernard Kilpatrick.

In late 2008, Bernard Kilpatrick accompanied

Carlita Kilpatrick to Southport, Texas. Kwame was in jail.

His hotel stay was paid for by the Civic Fund. Carlita was

there shopping for a house, according to April Edgar. She and

the kids went down, again, Kwame was in jail, Bernard

accompanied them. There's no evidence even that Bernard knew

who was going to pay for his hotel. April Edgar made the

reservations. April Edgar said she never spoke with

Bernard Kilpatrick about it.

Again, this is not evidence of being in a conspiracy


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to defraud donors.

In late December 2007 into early January 2008, there

was a family trip to Orlando, Florida. Again, the civic --

there were -- apparently the, it was Bernard Kilpatrick and his

girlfriend, his children and his grandchildren. They arrived

in Orlando and stayed in one hotel for a couple of days and

then apparently there was a transfer to a different hotel.

One of those hotels, Bernard Kilpatrick's hotel room

was paid by the Civic Fund for two or three nights. He paid,

according to his credit card records, which are in evidence,

for his flights and his girlfriend's flights, paid over 1,200

bucks for a rental car for five or six days. That's a pretty,

that's -- I'm not sure that's just one rental car. That's a

pretty expensive bill for a rental car, and I don't know what

arrangement there was. Bernard Kilpatrick, I think, knew that

the Civic Fund had some, was going to pay for one of the hotel

rooms because we heard a telephone conversation to that effect,

but I don't know if he reimbursed the Civic Fund for that, or

if in paying for the rental car, he was doing that in trade for

the hotel rooms being paid. We don't know.

But in any event, this few hundred dollars worth of

hotel room benefit does not evidence a conspiracy by

Bernard Kilpatrick to defraud donors.

I would ask you to disregard the Civic Fund and

Kilpatrick For Mayor allegations in the indictment because


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they're not supported by the evidence as being part of any

conspiracy involving him.

Now, I want to talk to you a little bit about what

evidence there is that Bernard was not in a conspiracy.

THE COURT: Mr. Shea.

MR. SHEA: Yes.

THE COURT: You need to be mindful of the time.

MR. SHEA: Yes.

There's a number -- I told you that he took his

lumps, like everybody else did, and he did take his lumps like

everybody else did.

You remember early on, Lakeshore Environmental paid

him $2,500 to help him find out why they were having a problem

with a particular contract. He couldn't. That was a

one-and-done client. He couldn't get anything done for them.

The Kado collection efforts, if he didn't collect

money for Kado, he wasn't going to get paid. His son was back

in the City of Detroit's position, not Bernard Kilpatrick's

decision. Again, Bernard Kilpatrick is taking his lumps on

that.

Capital Waste at the Book Cadillac project. Capital

Waste doesn't get back on the Book Cadillac project.

Bernard Kilpatrick doesn't even attempt to get the city to get

them back on the Book Cadillac project. He took his lumps on

that, although maybe he got some of it back on a different job.


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Synagro. Bernard Kilpatrick doesn't enlist the

city's assistance in terms of solving his dispute with Rayford

Jackson. He just loses out on that. The biggest deal of his

life, worth a ton of money, does not get his son or city

administration involved. Heck, there's one conversation where

he's complaining that Betty Kilpatrick, his ex-wife, is

complaining to him about him not being able to get her work.

He can't even get his ex-wife off his back.

I mean, this is not evidence -- this is evidence of

him not being involved in a conspiracy. If he's involved in a

conspiracy, you'd think he'd be getting these benefits. You'd

think he'd be getting these things taken care of for him, but

he's not.

There are a lot of people who look for an angle to

get government business, and I'm certain that there were people

who hired Bernard Kilpatrick because they thought he could help

them with those angles, he might actually be those angles, and

now many of them have the nerve to say that he extorted them.

Marc Andre Cunningham used Bernard Kilpatrick's

knowledge and his contacts to get himself a $300,000 payday.

He didn't mind using Bernard Kilpatrick's expertise back then

to help him get it, but when he gets caught taking a bribe in

an unrelated investigation from an undercover officer, he has

the nerve to cry, "I was extorted."

Karl Kado used Bernard in part to keep in place the


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Cobo director who he was bribing, paying kickbacks to for

years, who used Bernard Kilpatrick to expand his own Cobo

business empire, didn't have any problem using Bernard's

experience and contacts then, but when he's caught for bribing

that Cobo director, for defrauding the federal government on

his taxes, he says, "Oh, I was extorted."

James Rosendall, who knew Bernard Kilpatrick was

working to advance Synagro's interests and James Rosendall's

own interests, who certainly had no objection and, no doubt,

encouraged those efforts at their many meetings and who then

betrayed him, gets caught bribing a councilwoman, he's in

trouble, and he has the nerve to cry, "I'm extorted, I was

extorted by Bernard Kilpatrick."

This is ludicrous. It's Alice in Wonderland down

the rabbit hole kind of stuff, where the manipulators and the

fixers become victims and where the guy who is working the

angles as he can, but doing it legally, becomes the villain.

I'm not trying to make Bernard Kilpatrick out to be

a saint. He's an old basketball player who knows how to mix it

up, and I'm sure could still throw an elbow or two if he had

to, but he's not guilty of these charges. That's what you're

here to decide, not whether he's a saint. Canonization isn't

part of your deliberations. It's whether he's guilty of these

charges. He's not. You have to acquit him.

I want to sit down. I got to say two things about


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the tax charges. First, in the two -- we only have two years

now, 2004, 2005. 2004, $800,000 worth of deposits that were

started with, whole bunch of things taken out by Agent Schuch

to try to reach a number that she thinks approximates

understated income, about $45,000 worth, of which she claims

$16,000 is paid. It's an estimate method. It is not something

that even she can say is totally accurate. It's not a

material, a materially false number, and that's one of the

elements of false statement on a tax return. The tax return

not only has to be false, it has to be materially false.

More important for 2004, the submission has to be

subscribed under penalty of perjury, has to be signed in some

fashion by Bernard Kilpatrick, and it's not. He doesn't sign

the return itself. He doesn't sign -- there's a form which we

put into evidence, it's DBKF-4. I'm not going to put it up

now. It's the electronic filing authorization form, contains a

statement that says, "I've read my return. It's accurate in

all material respects, and I sign it under penalty of perjury."

Didn't sign that.

They have an unsigned copy. They don't have a

signed copy. And the people who prepared the taxes

acknowledged they were supposed to have kept a signed copy and

they did not. They tried to say it's because more than three

years has passed, but when Agent Schuch interviewed them in

February of 2007, that was only, that was not even 18 months


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after they filed those 2004 returns in October of 2005.

October 2005, October 2006, February 2007, not even 18 months.

The "three years we destroyed it" excuse doesn't fly.

They should have had it. They don't have it. The

reason they don't have it is they didn't get it. They didn't

get it because things were done on the fly, because things were

done at the last minute. I'm not blaming them for it, but it

didn't happen. It's not a technical element. It's a critical

element. This is a perjury statute. It would be like somebody

charged with perjury because they testified falsely from the

witness stand when the judge didn't swear the witness. It's

not perjury if you're not sworn. This judge doesn't forget

that stuff, but I'm not saying that's never happened.

In this case, the tax preparers forgot to get the

signature. It's not a submission that's signed under penalty

of perjury. You have to acquit on the 2004 tax year.

2005, different issue, harder case. In that one,

$180,000 flowed into Mr. Kilpatrick's personal account from

some deferred compensation payments that he took. $100,000 of

it went into his business account and got captured by his

accountant. The 180 did not. He signed an electronic filing

authorization. That was done. Certainly, a $180,000 falsity

on a tax return is, I would say, is material.

The only issue on that one is, was it willful? Did

he willfully keep that from his accountants? You recall the


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testimony of his accountants and how little contact they had

with him. Yeah, maybe three, three and-a-half, four years

earlier, when Bernard started his business, Mr. Young said,

"Make sure you keep stuff separate. Put your business in

business, personal in personal, and let us know if there's

anything unusual that goes into the personal account, because

we're not going to look at your personal accounts."

In October of 2006, when they're preparing the 2005

returns, I'm not sure that anybody is going to remember that.

And the fact that he did not call that out to them doesn't mean

he did that deliberately or willfully. I don't think there is

proof beyond a reasonable doubt that he falsely subscribed a

tax return for 2005 either.

So I ask you, after all this time, acquit

Mr. Kilpatrick on all counts. Thank you.

(11:32 a.m.)

THE COURT: Thank you, Mr. Shea.

All right, ladies and gentlemen, we'll take a lunch

break until 1:00 and we'll see you then.

(Jury out 11:33 a.m.)

(Lunch recess taken 11:33 a.m. until 1:02 p.m.)

(Jury in 1:02 p.m.)

THE COURT: Be seated.

Mr. Evelyn.

(1:03 p.m.)


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75Defendant's Closing Argument by Mr. Evelyn


MR. EVELYN: Thank you. Judge, brother and sister

counsel, ladies and gentlemen of the jury, my name is Gerald

Evelyn. Hope you remember that.

The first thing I'm going to do is, by way of some

preliminary remarks, I want to thank you. The judge has

already thanked you, and I want to thank you on my own behalf,

on behalf of my client, Bobby Ferguson, his family, on behalf

of Michael Rataj, Susan Van Dusen, my associate Rob Higbee.

We thank you because it's the polite thing to do,

and I think you should know that this case has been a long

trial. It's been kind of an odyssey. I've drawn the short

straw, so I'm the last guy, and I'm sure you're ready to go

home. I'll be a little while, but I'm going to try to keep

things as short as I can, and I'm going to assume that you guys

have remembered most of the testimony better than the lawyers

have.

This case had a lot of interruption. It's been

longer than we thought. I'm responsible for one of those

interruptions and delays, and I apologize for that. I can

assure you it wasn't planned.

I'm thanking you not just to be polite, although I

think I'm polite, sometimes, but I'm thanking you because we

are genuinely glad you're here. We're genuinely glad you're

here because this is a cross section of our city, of our

community, of the Eastern District of Michigan, and that's a


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good thing to have a representative jury. It hasn't always

been the case in this country or even in the Eastern District

that we've had a cross section of the entire community.

And each one of you have given up some things to be

here, jobs, family, leisure time, obligations, and we have this

cross section, but you could have changed that. Any one of you

could have chosen not to serve by what you put on your

questionnaire, by your answers, you could have just said, "I'm

not going to do this," and if you'd done that, we wouldn't have

the body of people here that we have now, from all walks of

life, all segments of our neighborhoods, different races,

different ages, different sizes and shapes.

We want a representative jury. It's important.

It's important not just because of the symbolism, but because

we want a community sense to make decisions about important

matters like lawsuits. So for giving up the things that you've

given up to make this possible, each one of us, we thank you

for that, and I'm sure the government thanks you for that, too.

Now, this is a case that -- let me go back to my

opening statement. I told you that this case was going to be a

challenge. It's always a challenge being a juror, but in this

case, it's a special challenge because I think this has been

more challenging than any case in recent history. Jurors

always have to resist the external things that aren't supposed

to affect you, the things that are going on outside the case,


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and in this case we've had more of that than any case I can

ever remember. There have been more external influences in

this case than I can even imagine.

The amount of pretrial publicity before you were

even brought here, which has intensified during this trial, has

built up over years, and that publicity urges an imperative, an

imperative to prejudge this case, an imperative that is

negative, and my esteemed colleague Mr. Thomas alluded to that.

An imperative that says that you're supposed to come to a

predetermined verdict because there is some sense out there in

the community that's what's wanted here.

It's almost an institutional drumbeat that seems to

echo from many corners and screams a result that says

prejudgment. It beckons you to prejudge in a way that I can't

remember in my 36 years as a lawyer. Yes, I'm that old.

Add to that this impressive array of lawyers, and

these are some of the top people in the Eastern District's

office, and agents, and the seemingly endless flow of documents

and witnesses and the complexity of the charges here. It could

easily seem difficult to be objective and to do your duty as

jurors, even if the right result is an unpopular result.

We've struggled with this on our team. You promised

that you would be fair with all that's going on, but we

struggled with this. Mr. Rataj and I had a conversation awhile

back about how to impress upon you, to make it clear how


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important that is. It's always important, but in this case,

with what you're up against, it is unbelievably important and

it's going to be difficult.

Mike and I talked about it awhile back, and he

reminded me of a book that both of us read some years ago. I'm

older than he is, so I read it before he did, but he brought it

up. He's an ex-marine, and that book was written by the first

president that I remember as a young boy, and he wrote it

before he was president. It's called Profiles in Courage,

written by John F. Kennedy back in '57, I think, and he was,

had a back surgery. He was in the hospital, and it bespeaks

his talent that while he is recovering from back surgery, he

writes a Pulitzer prize winning book.

But in that book he talks about eight senators who

showed the courage to do what was right, even though it was not

just unpopular, but even though the consequences were going to

be deleterious for them, and they're all very significant

stories. You may want to look at.

One particular senator talked about how he was going

to cast a vote against the impeachment of Andrew Johnson after

the death of Abraham Lincoln, and he says, "I stared down into

my open grave." He knew the consequences of that decision. He

did it anyway. It's hard to do what's right when there is this

imperative to do something else.

Each one of you gave us a solemn promise that you'd


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be able to resist that kind of powerful pressure. Each one of

you told us that you'd be able to stand up and make a decision

based upon the evidence and the law in this case, or the lack

of evidence.

We trusted that promise at the beginning of this

trial. We trust it now. I remind you of it because of its

importance, and I hope that you can take heart in the fact

that, for the 12 of you who will decide this case, you will be

in there together, and hopefully you will gird each other, even

the people that don't agree with you.

There's a scene in the movie called 12 Angry Men.

Actually, it's a play, and it's about 12 jurors who are

discussing, deliberating a case. And at one point a juror who

disagrees with a juror he's trying to persuade to his point of

view, talks to that juror and the juror says, "Okay, I agree

with you, I'm going to go to the baseball game." And the guy

says, "Wait a minute, I want you to agree with me but for the

right reason. Don't just toss your view aside because of

convenience."

So I hope that you can all support each other, even

those who disagree with you, so you can reach an agreement

that's a meaningful agreement and that's honest.

Now, I want to talk a little bit about the evidence

in this case. Government in this case has, as I told you in my

opening, brought in witnesses, and they have been able to


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benefit from the extraordinary power that they have and the

extraordinary pressure they can put on people to do what they

want. In this case, they've used that pressure, and they've

pressured people in a way that has caused them to testify. But

more than that, the government and the media have demonized, as

Mr. Thomas said, Mr. Kilpatrick and, by extension, my client,

Mr. Ferguson. And this demonization, this declaration that

Mr. Bullotta said, he all but said he wanted you to convict

Kwame Kilpatrick because he thought he was a bad mayor, and

that's not what's in issue here.

But this demonization has made Kwame Kilpatrick

radioactive, and in a way, at least in my view, that reality

has affected the testimony of some witnesses in this case

because, you see, people don't want to be seen as helping

Kwame Kilpatrick and, by extension, Bobby Ferguson and, by

extension, Bernard Kilpatrick. They're not people, today, who

folks want to come to court and say, "I'm going to testify to a

truth that's going to help them."

In addition, certain witnesses here actually rely on

the government for their business, government contracts.

You've heard about it; Lakeshore, Johnson Akinwusi who was from

JOA, Mr. Tony Soave. All of them rely in some significant way

on the government for their business and their livelihood, and

that directly affects how they testified in this case and, in

some instances, how they change their testimony.


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Every witness in this case took an oath to tell the

truth, and they sat in that witness chair and testified. That

oath is not a magic wand. It doesn't guarantee that you will

not hear lies, because you did in this case. It doesn't

guarantee that you will not hear exaggerations and other

distortions of the truth.

You are the jurors who have to decide what the truth

is, and your obligation is to decide who's telling you the

truth, how much of it you can believe, and whether it supplies

proof beyond the highest standard that our legal system

recognizes, and that is beyond a reasonable doubt.

Now, the charges in this case have been detailed to

you. Some testimony you've heard involves allegations that are

not actually charged in the indictment in a formal way, but

because of the way the law of RICO works, the government is

entitled to introduce evidence that they think will support

that claim, even if they're not substantive counts of their

charge.

Now, I want to turn to one of those such counts or

allegations. Early in the trial, you heard from a person by

the name of Officer Michael Fountain, and I think you can

decide this allegation by using one of the instructions the

judge gave you, which is reason and common sense. Michael

Fountain -- and bear in mind, people testify and they have

agendas, and Mr. Kilpatrick is so polarizing, and to some


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extent Mr. Ferguson also, that they produce attitudes and

agendas.

Mr. Michael Fountain had an agenda. He actually

came in and testified to you, he came in this courtroom and had

the temerity to tell you that he is a Detroit police officer

for 20-some years, and that this man threatened his life, his

wife's life and his children's life, to dismiss some

misdemeanor tickets. He told you that.

And more than that, he's armed with a gun. He's in

the 36th District Court. It is filled with Detroit police

officers, and he does it in front of two EPU officers. That's

his story. That's what they want you to believe. Now, think

about that. Without knowing anything else, how plausible does

that sound?

But there's more to that because this melodramatic

story he told you, it doesn't hold any water at all, and I

don't want to go through all the testimony because I promise

I'm going to try to get done as soon as I can, but remember

some of the features of what he told you.

He says that Mr. Ferguson told him that it wasn't on

his property, he wanted the tickets dismissed. And then he

tells you, when I asked him on cross examination, "When you

check the tax rolls of the address that you gave the tickets

to, and 8631 Military, who is registered as the taxpayer?"

Answer, "I don't know."


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In his arrogance, "I don't know."

And then he tells us, after I show him -- and I'll

cut to the chase here, I show him his testimony from the grand

jury. Now, in the grand jury, what does he say? He claims

that in the grand jury that Mr. Martin, Officer Martin, he's

summoned outside and Officer Martin speaks to him and says,

"Well, you should drop these tickets," and he tries to

encourage him to do that. He says that Mr. Martin did not

threaten him.

Now, that's significantly different. This guy is

threatening him, an officer, who, by the way, remember, he was

Officer Martin's training officer, so they know each other very

well, he says Officer Martin tells him this. He comes to court

in trial and takes the witness stand -- witness stand was in a

different location then -- and now he's got to make it

Bobby Ferguson's words, and more than that, it's a threat

against his life and his wife's life and his kids.

Now, that doesn't stand up for a number of reasons

because, remember, he said that that discrepancy, he was asked

about it by Agent Beeckman. Agent Beeckman said, "Wait a

minute, you're saying something different in court or you're

going to, and you said that Mr. Martin is the person who gave

you these, who talked to you about it in a way that wasn't

threatening."

He says, "Well, that's not my story. I was


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misquoted."

And these were his own words in the grand jury. And

as my associate, Mr. Higbee said, that's like claiming to be

being misquoted in your own autobiography. You're going to

walk away from your own words.

Now, there's more to it. He supposedly identified

the other officer as a guy named Officer Sessions, and then

they check and they discover that this happened in 2001, and

Officer Sessions didn't become an EPU officer until 2006.

Again, the wrong guy. And, moreover, he tells the media that

this was, these tickets were dismissed because of a mistake,

they're the wrong location.

Now, in court, he tells you, "I didn't make any

comment to the media." And Agent Beeckman asked him the same

question, that was another difference, because his report to

the FBI said he told them, "What the media reported was

accurate." He comes to court and he wants to argue with me

about it.

When I confront him with the discrepancy, he says,

and I asked him, "Is Agent Beeckman, did he get it wrong?"

And he gave us an answer that made absolutely no

sense. He says, "That's what you're saying," pointing to me.

So you got to ask yourself, proof beyond a reasonable doubt.

Now, let's talk about some of the contracts. Let's

talk first about two twelve. Two twelve was a consequence of a


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pilot project, you will remember, and again, these contracts

are supposed to be the products of extortion. Mr. Pratap

Rajadhyaksha, I think his name is pronounced, testified about

DLZ and the two twelve pilot project.

Now, remember, he said on cross examination that he

had contact with engineers and contractors at DWSD, so he's

another person that talks directly to engineers and employees.

He claims that he was the inventor of the construction

management concept, the CM concept.

Now, remember, he also says that this project gave

birth from him going directly to Victor Mercado. He says he

talked to Victor Mercado and he said, "Look, I got an idea, I

want you to put it into place," there's no bid, no RFP, just he

sold the idea directly to Mr. Mercado.

CS-1347 was the pilot project. He also said that he

hand picked two companies, two black companies, Hayes and

Ferguson Construction. The project came in under budget and

ahead of schedule, and that's important because the government

has castigated Mr. Ferguson and tried to suggest that he's been

paid to do no work, does a poor job, and the evidence is

exactly to the contrary, and it starts with this. Well, in

this case it starts with this. He's on 1347, the project comes

in under budget and ahead of schedule, and so as a result of

that, CM-2012 is let.

Now, remember when Agent Paszkiewicz was on the


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witness stand and she's being questioned by my colleague,

Mr. Rataj, she tries to say that this was a low-bid contract,

until she's shown the documents and she admits she's wrong,

that it was an RFP, not a low-bid contract.

Now, there are documents that are in evidence that

we want you to refer to. Consider all the testimony and

evidence. I'm not trying to single anything out because

there's no one piece of paper that will help you decide this

case, but just for your review, some of the exhibits we put in,

DDLZ-6, can you pull that up, and I hope you can see that.

DDLZ-6 is a memo from Pratap Rajadhyaksha to Dan

Edwards, and it sort of sets out this program, this project.

And number one, it says, "An RFP process will be used to select

contractors. The evaluation criteria include," and it goes on

and describes them. And then in the middle, you see where it

says, "There may be as many as seven contractors working at the

same time." Now, this is on Wednesday, December 24th, 2003.

It goes on and talks about, "It's a fast track and it's a

complex project that requires special attention."

Now, DDLZ-7 -- can you pull that up -- is a letter

dated, from DLZ, dated January 8, 2004 to Mr. Awni Qaqish, and

it lays out the subcontracts under this project and who they're

going to be assigned to. And in the middle of the second

paragraph, you see it says, "Hayes Excavating Corporation and

Ferguson Enterprises will each be asked to provide a lump sum


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price for the two contracts," and then it goes on to talk about

"DLZ will negotiate the prices with these two contractors to

get the best price, unit prices submitted for the pilot project

under 1347."

It goes down to the next to last paragraph and says,

"The work for WS-650, which is Washington Boulevard, WS-651,

Broadway Avenue, would be offered to Ferguson. These projects

both require pipe replacement with minimal restoration," et

cetera.

Now, DDLZ-8 is to Audrey Jackson from

Victor Mercado, dated January 12, 2004, and you go to the next

page, and it lists the various contracts; go to the next page,

it says, "The combined estimated cost of the five contracts is

$3,805,000," and it describes them, says, "WS-642 and 649 will

be assigned to Hayes, 650 and 651 will be assigned to Ferguson

Enterprises. These two firms have demonstrated their ability

to perform similar work within the streets of downtown Detroit

under a pilot study completed under CS-1347. Both firms are

Detroit-based, small businesses with headquarters in Detroit

and also, and are also minority businesses."

So there's no question about what happened here.

This is not a product of any corruption. That contract came to

Ferguson because of his performance on the pilot project,

successfully bringing it in, helping to bring it in under

budget and in a quality way.


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Now, let's talk for a minute about 2014, the east

side water main contract. Now, that contract was part of two

sibling contracts, you remember 2014 and 2015, east side and

west side. Xcel and DCI formed a joint venture, DPM, and they

won both contracts. That's significant because, remember, from

the testimony of Darryl Latimer and Dan Edwards that prior to

Kwame Kilpatrick's election, whenever you had sibling

contracts, DWSD could award both of them to the same

contractor.

After Mr. Kilpatrick was elected, that practice was

stopped, and now we know that after he left office it was

reinstated because, as you will get to later, Mr. Hardiman

admitted that Lakeshore actually filed a protest when Inland

won 866 and 867.

But, in any event, so if there's a Kilpatrick

enterprise operating here, why would he change that policy? If

he wants to favor his friend, Bobby Ferguson, why not let the

same policy continue in place and let them win both contracts?

Why would he want to change that? Mr. Mercado was a very good

director, and he felt that it was fair and better for the city

if you spread those contracts around.

Now, Superior and DLZ were not awarded the contract

because of concern over whether DLZ was properly certified as a

Detroit-headquartered business. Now, this has been laid at the

doorstep of Mr. Kilpatrick, but the fact of the matter is,


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Darryl Latimer testified that DWSD believed that DLZ was

headquartered in Ohio. So this concern about their

certification emanated from within DWSD.

Now, Mr. Higbee, can you pull up LS3-9.

This is a government exhibit, LS3-9, and this is a

letter dated May 5, 2006 from Darryl Latimer at Contracts and

Grants, when he was the manager, to Gerard Phillips at Human

Rights, and it's regarding 2014 and 2015, and in the second

paragraph, it says, "DWSD is currently in the process of

evaluating proposals for proposed contracts numbers CM-2014 and

CM-2015. In order to complete the evaluation process and award

the project, DWSD," DWSD, not the mayor's office, "needs

written verification of the Detroit-headquartered business

status of DLZ Michigan, Inc." And it's signed by Darryl

Latimer, refers to contacting Daniel Edwards.

Now, if we go to LS3-10, this is a memo, and it was

sent Wednesday, May 17, 2006 at about 11:13 a.m., and it's

obviously to Human Rights, Mr. Harris, and it says, "On May 5,

2006, DWSD sent a request for an investigation into the DHB

certificate for DLZ of Michigan. Could you please let us know

the status of the investigation? Contracts and Grants needs

this information to complete the evaluation of these contracts.

We do recognize that Human Rights is extremely short-staffed

and busy. Thanks, Dan Edwards."

Now, that sounds like DWSD is concerned about this,


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and Mr. Latimer testified that way in the trial. He testified

that his belief was that they were located in Ohio and he

testified that the memorandum that I've just showed you was

sent. Now, let's talk about the work on 2014. And again, I'm

trying to highlight these things that are important because I

know you were paying attention. I don't want to dwell on all

the details. There were other documents that were put in

evidence, but I want to highlight these things and draw your

attention to them so you can properly consider them.

Now, 2014, east side water main project, the

government has maintained, among other things, that E&T, this

company E&T, was a proxy for Mr. Ferguson, and I guess they

rely in part on testimony from the witnesses. But I was

insulted when I heard that term. You heard the testimony of

Theo Simmons, who testified. He's -- his brother, Eric

Simmons, owns E&T, E&T Trucking. Mr. Bullotta called E&T a

proxy for FEI. E&T is not a proxy for FEI, and he testified

that way. They have their own company.

See, E&T is a real example of mentoring. And in

their demonization of my client, they looked past the fact that

this is another example of him actually being a real company,

dealing with other real companies. And you heard the

testimony, I'm not going to belabor it because I want to get

done, their families knew each other, Mr. Simmons, Theo Simmons

and his brother, Eric, Mr. Ferguson's family. They had their


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own concrete company they started, and he got mentored by

Mr. Ferguson. Because, see, E&T is not a fake, fraudulent and

illusory mentoring, like Mr. Soave concocted with Charlie

Williams. We're going to come to that.

See, for you to be mentored, and it's been testified

to and you know we're going to come back to that, that one of

the very important agendas and one of the things that

Mr. Ferguson, as a matter of self-interest, and then Mayor

Kwame Kilpatrick shared is this belief that minority fronts

were bad for the city, it's bad for real minority companies.

Remember Odell Jones? Remember him testifying about

that, about how hard it is on people who have got real

businesses and how they have to compete with these fronts and

what it does and how it only helps the majority company because

you pass the money through and that you pay them a fee, and

then you keep the body of it, you keep the rest of the money.

Well, in this situation, this is a good example of

what happens when a company is really mentored, and, see, you

start out with a company, no matter how small it is. Theo

Simmons told you they had two trucks, but they had a real

company, and they start out doing simple cement work. And then

Mr. Ferguson approached them and said, "You know what? I got

this job called WS-623, Eight Mile, and you guys should get

involved in that." And Theo said they were kind of reluctant,

small company. But he said, "Mr. Ferguson encouraged us, he


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said, 'You can do it.'"

And they got involved in the project, they did some

work, hired a couple of other people. So now he's got five

employees instead of three. They lease some equipment, they

buy some equipment, and they complete the project. And you saw

his look on his face when I asked him, "How did you feel when

you finished that?"

He said, "We really felt good."

And that led to E&T becoming a little bigger

company, and that's how they ended up doing 2014.

Now, that's what mentoring is. Mentoring is not

having a company on your bid -- your bid as if they're real,

that has no employees, no -- not so much as a shovel. That's

not mentoring. That's trickery, that's faking people out.

Yes, E&T is a small company, but you can see that

Theo Simmons and his brother are proud of it, and they did real

work, and it was quality work.

Now, and -- and you remember him telling you the

rest of it, that eventually Mr. Ferguson helped them further,

and he turned over to them his old building on Military because

they had been having problems with their trucks being

vandalized, so he said, "We were able to have them in a place

that was secured."

So it was really an insult to him and all the hard

work that he and his brother did to build that company, to call


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him a proxy. And again, as I told you in my opening statement,

what the government wants to do and they're hoping that you

will adopt and approve, is they want to criminalize their

relationships, criminalize his friendship with Mr. Kilpatrick,

criminalize Kwame Kilpatrick's relationship with his father,

criminalize Mr. Ferguson's relationship with E&T, because

that's what they need to do in order for you to be convinced

that there's racketeering going on here.

Now, Mr. Simmons told you that when he worked on

2014, even though A&H is listed on the project, he never saw an

A&H truck, never saw an A&H employee, and it wasn't until 2014

was extended and they added Fox Creek that A&H finally shows

up.

And what happens when they started getting involved?

You heard from a gentleman that we called to testify, Mr. Lewis

McVay, the guy from Muskogee, Oklahoma. He testified that what

happened when A&H finally tried to start doing some work, they

had that calamity over on Manistique. Now, Mr. Hardiman, Tom

Hardiman, tried to minimize it. He says, "Well, it was a

little event, and Bobby Ferguson was around the corner and he

sent a couple of guys."

Well, he wasn't even there. Tom Hardiman was trying

to pull the wool over your eyes, and he wasn't even out there.

What does Mr. McVay, who has no ax to grind, tell you about

what happened? And I'm not going to go through in detail, you


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heard the story, the testimony about the doghouse and what has

to be done to properly secure a water main when you're doing

real work, and you heard him talk about how he came to work for

Mr. Ferguson.

He worked for Hayes and, you know, the government

tried to misuse that text message and suggest to him that it

meant that there's a conversation going on between Mr. Ferguson

and then Mayor Kilpatrick, and that they're laughing at

Mr. Hayes, when Mr. Hayes supposedly, you know, told the

director, Victor Mercado, that he didn't want to work on this

job. And I don't know if that was because he had union

problems. It could have been anything. Assuming that even

happened.

But, in any event, Mr. McVay tells you what happened

out on Manistique. He's out there. They have this calamity,

the whole area is flooded. And he comes out there. He said it

was on a Saturday, wasn't a work day for him. He gets out

there, M.J. Reynolds, Kenny Reynolds, a full team of people are

out there, and they're out there for a long time getting this

straightened out.

I asked him, "Did you see anybody from A&H?

"No.

"Did you meet a guy named Johnny Hardiman?

"Yeah, I had a guy that was identified to me as the

owner."


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The owner doesn't have any employees out there, not

even to learn the right way to do it. And what I find

instructive is what's even more significant than that, is that

Mr. Rachmale testified about the experience that his asbestos

company had in water main work, and there were no Lakeshore

employees out there either.

So when this event occurs, however it happens, who

gets summoned? Bobby Ferguson. When they have a problem, and

this is a real significant problem, and they have this

breakdown, they go get a person who has a real company, with

real employees, with real equipment, and with real expertise.

So Hardiman claims later that Mr. Ferguson took some

of their streets. They didn't even know what they were doing.

Now, let's talk for a minute about Tom Hardiman.

He's the person who came in and told you that he was the victim

of extortion, 5 million, 10 million. Remember the very

animated little thing he liked to do? We're going to come to

that in a moment.

But remember what I asked him about in the beginning

of the cross examination? When he's first interviewed by the

government, I believe it's in 2006, he says he raised campaign

money for Mr. Kilpatrick. He did it because it was good

business. He knew the mayor's family. He did business with

the city, and he got no special favors. No discussion about

being extorted. That never even came up.


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Time moves forward. He's interviewed repeatedly by

the FBI. He's subjected to their pressures, and now all of a

sudden, this normal relationship is transformed into something

that's not normal and he tells you the story about him being

extorted. And even that was internally inconsistent because,

as he told you, as the relationship evolves, he and Bobby

become good friends. He becomes a member of the board on Homer

Ferguson Foundation. He told you about Homer Ferguson, the

good things that it did, feeding seniors and other things

involving youth.

He says that Mr. Ferguson and him shared values.

They both believed in furthering black businesses. They both

believed in mentoring. So that's totally inconsistent with the

guy who says he's a victim of extortion. And even he later on

says that he had arguments with Mr. Ferguson.

Now, his partner, Avinash Rachmale, I want to talk

to you about him for a minute. At the same time he tells you

that Lakeshore is this great company, and they certainly grew

into making a lot of money, he also said that before this

contract 1361, they'd never done any water contracts with the

city. He claims he didn't need Mr. Ferguson, but it's

interesting his company had no record of doing this kind of

work. And as I said before, when there was a problem with the

Lakeshore project, they weren't able to fix it, they sent for

Mr. Ferguson's company to fix it. Lakeshore's dealings, for


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the most part, he says, with Mr. Ferguson went through

Hardiman.

Now, what I find instructive regarding what may have

affected his decision to testify the way he did is this

situation involving Mr. Dilip Patel. And for me, that's

another clear example of a person who can take an oath, sit in

that chair, and then just not tell you the truth, because his

story about Dilip Patel was so far beyond the realm of belief.

Dilip Patel, we know, worked for his company. I mean, he's on

the email, he's got key cards to get inside of there.

I asked him if he remembered employees being told to

move his equipment out when they found out about it, and he's

even -- remember that email I showed you where Mr. Hardiman is

commenting about a decision that Mr. Dilip Patel made that he

didn't agree with, to not pay somebody. So now he's involved

in the chain, the hierarchy, with the senior management

executives discussing decisions made involving spending money

for Lakeshore.

But against all that backdrop, this man took the

witness stand and told you, "He didn't work for Lakeshore. I

don't remember, maybe I told the IT guy to delete his email. I

don't know what it was." And he even says he doesn't even know

how he got an office. He says I think he just came in and took

an office one day.

Now, come on, be real. You're a partner in a real


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estate company with his wife, with Mr. Patel's wife. He still

can't tell you the truth. Why is he holding back?

He even further denied -- remember, Mr. Patel has

this little problem. Now, he's a supervisor in BS&E, in

Building, Safety and Engineering, and that's where

Mr. Rachmale's company got their start, doing these asbestos

removal contracts. Dilip Patel supervises those contracts.

He's involved in the award process and he's involved in

supervising those.

Now, Mr. Patel is leaving his supervisory job by day

and punching in to Lakeshore by, in the evening, and reviewing

contracts and making decisions. That's the height of a

conflict of interest. Well, somebody who he works with makes a

complaint. They find out about it, and they want to fire him.

So Mr. Rachmale's company writes a letter, and

Mr. Rachmale says he knows nothing about this, knows nothing

about a letter being written claiming that Mr. Patel doesn't

work for his company, to keep his job at the city because he

wants him to stay there.

Now, when I press him about that, he ultimately

says, "Well, you know, I didn't really tell the government

about that because I didn't want Mr. Patel to get in trouble."

Not himself, Mr. Patel. So, clearly, you have a person who I

think has more than just an interest in testifying in a way

that favors the government. He says that's why he was less


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than forthright.

Now, let's turn for a minute to 1361 and 1387, you

know, 5 million, 10 million. Let's remember that 1325 was a

contract from the Archer administration and that it belonged to

Inland Waters, and you saw and heard the testimony that money

under 1325 was running out. DWSD generated a memo stating that

the work needed to continue.

Can you pull up DIN1-1?

Now, this is that memo from Mr. DeRiemaker dated

January 16, 2001, regarding DWSD, note the date, January 16,

2001, CS-1361. And in the center paragraph it says, "The above

services were performed under contract 1325 with Inland Waters

Pollution Control." Goes on and talks about the duration, and

it says, "It was a three-year duration and it's due to expire

on September 15, 2002. The budgeted money of this contract

will soon deplete. There is a need for a separate contract for

emergency sewer repair services."

Now, that's a memo from the general -- from the

superintendent. It's not from the mayor. It doesn't show any

involvement by the mayor.

Now, go to DLS1-46. Now, this is a memorandum from

Gary Fujita, it's dated July 25, 2002, and it's to Awni Qaqish

from -- at DWSD, and the first paragraph says, "The scope of

services appears to be similar to what engineering staff or the

consultants are doing under their construction management


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services task under design contracts. Please provide the

justification for the need for these services." Talking about,

look up at the subject part, it says, if you read it kind of

carefully, "Permission to release RFP for CS-1387."

So now they're already questioning, is there really

a need for this, and this is all internal to DWSD. Mayor's

office had nothing to do with this.

Let's go to DLS1-48. Now, this is the letter you

saw during trial written by John McGrail, and it's dated

January 15, 2003, it's to Miriam Dixon. CS-1387. It discusses

the need for the RFP in this situation, and in that second

paragraph, it says, "I personally was not a proponent of this

contract because I did not see much use for the contract in

support of my group operations."

Now, this contract was supposedly to support what

his division was doing, and he says, on January 15, 2003, he

was not in favor of it. He doesn't say the mayor told him to

change his mind about it. He says he was not in favor of it.

This is internal to DWSD.

Now, can you go to DLS1-63. Now, this is a memo

from Darryl Latimer, the subject is "Cutting." It's dated

2/19/2003, and it says, "Mr. Mercado," at the beginning at

least, "Here is some contract that I think the department can

do without. First, CS-1387," he's obviously talking about

several contracts, "which is currently being evaluated, this


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contract will do the job of construction inspector and some

engineering work. CS-1382. The work in this contract can be

done in house." So he goes on and talks about that. So,

clearly, now you have Darryl Latimer saying DWSD doesn't need

1387.

And remember, just kind of as a footnote,

Mr. Hardiman never says -- says that Mr. Ferguson never

mentioned 1387 in this supposed conversation he says they had.

DLS1-51, another exhibit that we introduced, this is

the Ed Ramey letter to Darryl Latimer, it's dated March 11,

2003, and he talks about problems with the scoring, the

evaluation process that were suspicious, and let's just skip

down to the fifth paragraph where it says "Another indicator."

"Another indicator of intentional lowballing is

reflected in the highest score given to Lakeshore Engineering

in the category 'Work completed timely and at cost.' During

the evaluation meeting, I challenged the committee on why

Lakeshore Engineering had been rated best in this category."

So, clearly, this contract that they say they think they won,

DWSD has some real issues with.

Now, let's go to the last exhibit in this contract

and I want to move on, I'm trying to go as quickly as I can

without talking too fast.

LS1-1, a government exhibit. Now, this is the

proposal tabulation for DWSD contract 1387. It lists the


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various contractors that bid on it. And if you go to the next,

second page, the third box down, see where it says Madison and

Madison International, and it lists the subcontractors to the

right, DLZ of Michigan, Spalding DeDecker Associates, Somat

Engineering, Xcel Construction Company.

So while Mr. Hardiman complains about losing

business on 1387, the 5 million, 5 million, 10 million, Xcel

Construction Services was a sub on that very contract, so if,

even if there's no evidence of it, if for some reason

Mr. Ferguson was involved in some shenanigans to pull the plug

on it or having the mayor do it, he was pulling the plug on

himself. Xcel was a sub on the same contract and lost.

Now, let's go to the east side sewer repair

contract, 865. We know that Lakeshore won 865 by using FEI's

employees to win this bid. Let's look at DLS1-5, portions of

the Lakeshore proposal.

You can see in that first paragraph on the left it

talks about Fred Erdman who we know was a FEI employee. He's

listed as an A&H Contractors employee, and he's listed on this

project as a person who is going to be, it says, "A, Name, Fred

Erdman; B, Proposed Assignment, supervisor; name of firm, A&H

Contractors."

I asked Mr. Hardiman about this, and he says, "Oh,

yeah, you can do that, you can borrow employees from companies,

you know," especially when you're being extorted, right,


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borrowing their employees.

Now, go to the next page, top of that page, "Name,

S. Deria," referring to Shakib Deria, he's listed as the person

who is going to be the foreman, he's also down there as an A&H

Contractors employee. Same situation. So this contract was

awarded based upon utilization of Mr. Ferguson's employees.

Now, let's go to DLS1-6. Another allegation in this

contract by the government is that -- and you recall

Mr. Hardiman testified that he had, and it's obvious because he

was using their employees, he had a verbal agreement with

Mr. Ferguson for Ferguson to do some point repairs on this

sewer repair contract, and the government alleges that

Mr. Ferguson shows up one day and throws off DCG.

Now, DLS1-6 is a memo dated Wednesday, July 11 --

well, actually, it's a memo chain, and I guess if you start at

the bottom, you can see where Michael Ford to Daryl Rocheleau

says, discussing this very same topic, point repairs, "Daryl,

this is to inform DCG that PR1-T1 is the last point repair

Lakeshore will require your services on until further notice."

So he wasn't thrown off. He was notified to

complete what he was doing and stop, according to this email

chain. Now, that was on July 11 at 1:11 p.m. 2007. You go up

to July 11, 1:55, and there's another email back, and it says,

"We have a contract to complete all of the assigned point

repairs," and so they're obviously complaining about it.


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You go up to the top and it basically says, "Daryl,

you will not start any point repairs. Point repairs will be

awarded on an as-needed basis. Please complete your current

point repair. Do not start anymore sites."

Now, what's interesting about that is DLS1-6. Now,

recall -- this is supposedly in July. Can you pull up DLS1-6?

I'm sorry, the next page of the same exhibit.

If you look, four entires down, it starts,

August 31, 2007, and it shows -- I'm sorry, go up to the top

again. This is a record of the invoices issued to DCG on this

project. They say they were kicked off. As you can see, if

they were kicked off in July of '07, as of August 31st, they

were still billing, and they continued to bill from August 31st

all the way down to January 8 of 2009. So from the time they

claim they were kicked off, where the recorded amounts to date

would have been, third entry down on the far right column,

$1,563,183.67, they continued to bill all the way down to the

bottom where you see $3,603,000. So they were never kicked

off. They kept being paid and they kept making money.

Now, let's go to the so-called outfalls contract,

849. Again, Lakeshore uses Ferguson to win this bid, and this

is a contract that Mr. Bullotta tells you was a pay for no work

contract. This is a contract where they say Mr. Ferguson got

paid to do nothing, and I think you probably recall the cross

examination of the witnesses who testified in this case and


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what really actually happened. Let's take a quick look at it.

We know that Lakeshore makes a side deal with

Lanzo's company, DCG. Mr. Ferguson's company is on the bid to

do the excavation. After the contract is awarded, Lanzo

creates this new company called DCG. Now, remember, Lanzo was

a lining company. Mr. Ferguson is the dirt guy. He does

excavation and point repairs, water and sewer work. Lanzo,

which does lining work after the contract is awarded, this

other company is created to take his work because on the bid,

he's supposed to get 36 percent of the project and he's

supposed to do all the excavation and work.

After the deal is cut, after the contract is

awarded, Mr. Hardiman makes a side deal with DCG to push

Mr. Ferguson out of the contract. DCG was created by Lanzo and

they basically do that, they elbow him out. And Hardiman

reluctantly agreed to it. He had a slightly different

description, but that's what it comes down to.

So now Mr. Ferguson, who is on the bid, they win the

contract, he's supposed to do the work, is suddenly told by

Angelo, "You know what, there's this discussion about," and

Mr. Hardiman tried to characterize it as they couldn't agree on

how much he should do. He was supposed to do all of it. DCG

wasn't even on the contract, wasn't even on the bid.

So, but somehow, because of a side deal that Lanzo

is making with Hardiman, they've decided to push Mr. Ferguson


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out. Well, he's not standing for it. And so there's this

discussion about how you get Ferguson out of the contract.

He's not asking to get out, they want him out, and here,

Mr. Hardiman says, at one point, Angelo says, "Let me handle

him, I'll deal with Mr. Ferguson."

So now there's these discussions between

Mr. Ferguson, according to Mr. Hardiman, and Angelo

D'Alessandro. And so, and you recall that Hardiman says that

Angelo offers Mr. Ferguson $300,000 initially, and Mr. Ferguson

says, according to Hardiman, I wrote it down, "I'll make

10 million. Why would I take 300,000?" And he rejected it.

So now they're going back and forth about how to get him out of

the contract.

So much is made of this $1.7 million that's

eventually paid to Mr. Ferguson, and remember, the agreement

was, okay, Angelo says, "I want to do the work," and that's

because he knows he's going to make a whole lot more money.

And he says, "All right, I'll pay you your profit, and I'll do

the work." And so he set up a schedule and Mr. Ferguson is

actually paid as DCG, as Lanzo is getting paid, that money is

split and Mr. Ferguson gets a 5 percent share that they

negotiated.

Now, let's look at DLS1-28 -- I'm sorry, let me back

up. Let's go to DLS1-1, I'm sorry.

This is a portion of the bid proposal on the


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outfalls, and as you can see -- scroll down, Mr. Higbee --

Mr. Ferguson's company is listed Detroit-headquartered, they

get Detroit-based credits, he's supposed to get 36 percent of

the contract, he's Detroit-based. Can you go to the next page.

There are the MBE credits and, of course, Lanzo has none

because they're not Detroit-based nor are they minority or

Detroit-headquartered.

Can you go over to the next page, 007, and you can

see Mr. Ferguson's company is going to have as many employees

as anybody, 20 employees proposed, and I'm not going to belabor

the point because we made it during the trial, but you see the

percentages that were used to win this contract. And further

in that same proposal is information about the company's

background which you saw and you can review again by pulling up

this exhibit.

Now let's go to DLS1-28, an exhibit that we put in

detailing Lakeshore's revenues from DWSD, or from several DWSD

contracts between 2002 and 2007, but in the second box, you see

the outfalls contract, the contract amount was 19,950, but the

change orders, the change orders were 24, almost $25 million,

the total contract amount was $44 million plus, almost

$45 million, and Mr. Ferguson was supposed to do 36 percent of

that. So you do the math, and you can see why DCG wanted to

push him out.

DCG was not on the original bid, Hardiman didn't


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back Mr. Ferguson up, he didn't act like a guy that was

intimidated. He said, "Well, you guys work it out."

Bobby Ferguson insisted on a share of the profits because his

work was being taken from him, and Lanzo knew that they'd make

more money by getting him out of that. So this was not a

contract that he was paid to do no work, it was a contract that

he was on to do work, and he got pushed out of it and

Mr. Hardiman didn't stand up.

Now, let's talk about 1368. 1368 is the Inland

contract where Mr. Ferguson supposedly had been forced in by

Mayor Kilpatrick, and you remember the conversation that

Mr. Soave says he had. Let's talk about that for a minute.

Recall what I said about Mr. Soave, and the other witnesses

that are in that situation.

Mr. Soave, if you remember, he was questioned by my

colleague, Mr. Rataj, and they had an interesting exchange.

Mr. Soave on cross examination admits that he's a

multibillionaire. He told Mr. Rataj that he's not even sure

how many companies he owns.

Mr. Rataj said, "Could it be 50?

"Maybe."

And that's all to his credit. He's a Fortune 500

company, and I think Mr. Rataj suggested he was worth

2.5 billion. He said, "No, that's what I made, or that's what

we grossed in 2008." And Mr. Rataj suggested he would like to


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have 10 percent of it.

Nonetheless, Soave, Mr. Soave testifies about this

meeting he says he had with Mr. Kilpatrick, and Mr. Kilpatrick

says, "You got the wrong contractor." Now, let's think about

that for just a moment. What else did he say? Mr. Kilpatrick

is a newly elected mayor. Mr. Soave is one of the most

important businessmen in our entire state, in the country, he's

Fortune 500. He supported Mr. Kilpatrick's opponent. What

happens before this meeting that Mr. Soave says he gets elbowed

or nudged? Recall he testified on cross that the first meeting

he had was right after Mr. Kilpatrick got elected, and who

causes that meeting? Mr. Kilpatrick goes to him and says he

wants to extend the olive branch.

This is a very important man. He's a billionaire,

one of the biggest companies, if not the biggest company,

located in Detroit, where he had -- or at least Inland is

located here. And he sits down and he says he wants to try to

basically win him over. And he talks to Mr. Soave and says,

"You supported my opponent, but I want to establish a

relationship with you," and it makes sense. If you want to run

for reelection, that's the guy that can help you raise a lot of

money. He's in the business and in the city, and if you want

him to do business in the city, you want to have a relationship

with him.

But he's got the upper hand. He's the billionaire,


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not the mayor. He's a new, 31-year-old mayor trying to

establish some relationships with the business community or

expand them. So he goes to Mr. Soave and says, "Look, I'm the

new mayor. You supported my opponent, but let's get together

and try to have a good relationship." Now, that's the first

meeting.

Now, Mr. Soave says that he, after talking to some

of his employees about this Inland situation, 1368, has a

meeting with Mr. Kilpatrick about that and other things. That

was not the only purpose of that meeting.

Now, think about that. He goes to this meeting and

he's discussing his business, and this man is going to issue

him an ultimatum. The first time they talked, he's asking him

to be his friend, basically. "Hey, let's have a friendship and

a good relationship."

The next time Mr. Soave comes to see him, he's

making demands on this multibillionaire. Does that make any

sense? Well, there's some facts that support the fact that it

doesn't make any sense, because what did Mr. Soave say? He

said that, when he's questioned by Mr. Rataj, that he wants to

have good relations with the mayor in the town that he does

work in. I think he says, he testified he likes to be friends

with politicians.

And what else does he say? He says, when Mr. Rataj

presses him, that before the grand jury when he's asked about


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this same meeting and asked about how Mr. Ferguson's name came

up, he says, "Well, I think Mr. Kilpatrick may have implied,"

he may have implied, as if it was a suggestion, using

Mr. Ferguson.

Now, why is that important? In trial, he says,

"You've got the wrong contractor." He's making a demand on

this multibillionaire businessman he wants to be a friend of.

The first time he testifies about this under oath, he says,

"Well, I'm not sure, I think he may have implied it," as if it

was a suggestion, a conversation.

What makes more sense? And why would he come to

court and say, you know, I know what I said in the grand jury,

which is earlier, but today in front of this community, when

it's going to be -- grand jury proceedings are secret,

remember. Now we're going to be reported in the newspaper, now

it's going to be public, so now it's important that my position

be a little different because if I say, well, he suggested

it -- and we kind of went back and forth about it -- then now

I'm helping Kwame Kilpatrick, and I'm not coming here in this

courtroom in the public with the Free Press and the News and

Channel 7 and Channel 2 reporting what happens. The story's

got to change. And it did.

Now, Mr. Rataj questioned him further, and he says

other things. He says Mr. Kilpatrick never told him that he

had to use Ferguson. He never told him that there would be


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adverse consequences if he didn't use Ferguson. Now, let's

think about it. Fear of economic harm. This man, whose

company grosses in the billions every year, is talking to him

and he's afraid, he's fearing economic harm, a company -- with

the new mayor of the city that he could probably crush

financially.

And I think you saw the kind of man that Mr. Soave

is. He kind of muted it a bit, but at one point he says that

allegedly that Mr. -- in this sequence of events, Mr. Ferguson,

he claims, wanted to do a joint venture and he says, "I told

him to go F himself." That's the real Tony Soave. That's the

guy, and that's the guy that Mr. Kilpatrick had to deal with.

So sometimes you get these windows into a real --

the person's real personality. When he's pushed, that's what

you get out of Tony Soave. Tony Soave is not a guy to be

pushed around. Tony Soave is a strong man who built himself

up, and he's dealt with all kinds of people, and if he's

confronted about something he doesn't want to do, guess what

you're going to be told? "Well, you know, you want to be my

friend, Mr. Mayor, I don't want to do what you want to do, and

as a matter of fact, I think the next time your opponent runs,

he can look for my support."

"Well, hold on, Mr. Soave, let's work this out." I

mean, ask yourself how they were really talking, or was it

played out like he played out here in court?


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He does business all over the country, he told

Mr. Rataj, he has relationships with all kind of politicians,

and he made the statement, all over the country. He testified

that in his experience, every city has its favorite contractor,

and none of those relationships involved allegations of

corruption, none of them. But when it involves

Kwame Kilpatrick, somehow it's crooked.

Now, 1368 was never held up. Ferguson was a real

minority contractor. If they talked about it at all, it could

have been, and I wasn't there, a discussion more in the nature

of him knowing that, as was testified to by Darryl Latimer and

others, their agenda, Kilpatrick administration's agenda at the

time, was to not have favorite minority fronts. And the guy

who he says they got rid of, Charlie Williams, unlike E&T,

didn't have any equipment, didn't have any employees, and this

is from Mr. Soave, didn't have any bonding capacity, any

insurance.

And you saw two of the witnesses that we brought in

to testify, Mr. Schneider from CAT and Mr. Zervos, and they

told you for this, starting out, small company, Mr. Ferguson,

what he had to do. You saw pictures of just some of the

invoices. And he said, this is some of the equipment he

bought, not all of it. Millions of dollars worth of equipment.

And what did Mr. Zervos tell you? He said that

"I've been dealing with him and his family," Mr. Ferguson's


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family, "for 40 years, bonded him, insured him, and never once

did I have a complaint, not one time." And you know how hard

that is? What did he tell you that was? He says, "That's

special." Because in their business, and I told you before and

you learned it, it's the rough and tumble, elbowing kind of

business, people trying to get advantages all kinds of ways,

people that they know, information they can get from DWSD

engineers, everybody's trying to gain an advantage. And so you

know if you don't get your payment early enough, you're going

to file a claim against somebody's bond. Never happened once

to him, in all the time he was doing business, and he's

supposed to be a crook.

Now, Mr. Kilpatrick had an interest in eliminating

fronts, according to Darryl Latimer. DWSD knew that.

Mr. Higbee, can you pull up DIN1-20.

This was admitted as a defense exhibit. It shows

the relationship between 1325 and 1368. It shows the revenue

amounts. The two were connected. Inland had the contract

first, Inland did the work. It made sense that Inland would do

this and not Lakeshore. Lakeshore was an asbestos company,

asbestos removal company, that was trying to become, trying to

break into the water main business.

Can you pull up DIN-1-14A?

This was admitted earlier during the trial, and it

basically just has the dates that, that involved 1368. And you


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go to the bottom. You can see on right, the corporation

counsel signed off on this contract on June 19, 2002, and June

26, the contract was approved, 2002.

Remember that Mr. Latimer testified that normally

the time for processing contracts is about 18 months. I know

that Inland had a long relationship with the city and they were

used to things going at lightning speed. This one almost did.

But there was obviously no delay.

Now, while we're on 1368, let's talk for just a

moment about the sinkhole. This was also never held up. You

remember, I showed Derrick Miller an exhibit, which I'm going

to let you take a quick look at again, and he said, having

worked for the city, that that exhibit shows that there was no

delay in the payment history under 1368.

And remember that as Mr. -- my esteemed colleague,

Mr. Thomas, great lawyer that he is, was able to get Mr. Parker

to, when confronted with that similar exhibit, after saying

that there was this meeting where there was no resolution of

getting Mr. Ferguson in, when he shows that the date of the

meeting, as of the date of the meeting, the contract had

actually been signed, what does he say? "Oh, wow." Didn't fit

with your story, Mr. Parker. That's what causes witnesses to

say "wow," when they don't know what the facts are or when they

don't care.

Can you pull up DIN-1-62.


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And you've seen this, and you can look at it

yourself. It basically details the payment history on 1368,

and it shows that there were no interruptions. They were

getting paid twice a month sometimes, all the way down to, over

to the next page, and you see the bottom figure there,

remaining balance of three million nine. He'd been paid $133

million on a $137 million contract. Now, there's some

supporting documents that go with it. I'm not going to review

those because I want to get done.

Let's go to 864, west side sewer repair. This won't

take very long. I don't know what it's doing in the

indictment. No exhibits on 864, no testimony on 864, not a

single government witness testified about it. I guess we'll

see what Mr. Chutkow says in rebuttal.

Let's go to Bernard Parker. Bernard Parker. You

recall that he and I, you will recall I questioned him on cross

examination. I'll just leave it at that. He's a person who

will say anything depending on who he's tethered to at the

time. In this case, for all the reasons I indicated before and

others, he's tethered to the government. So his exaggerations

and distortions and lies were designed to help them.

After acknowledging that he lied in this case on the

witness stand, he told you that he will lie, quote, when it

suits his purpose. What does that tell you about a witness

that says, "I will lie when it suits my purpose. I will lie


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when it suits my purpose"?

Does that mean an oath will erase that? Does that

mean that you can trust what he tells you? Does that mean that

he's a qualified liar? It means what it said because it came

out of his own mouth. It means, "I will lie when it suits my

purpose." It means you can't believe anything he tells you.

You certainly can't trust it, and remember the example -- and I

don't want to misstate it -- that my esteemed brother counsel,

Mr. Thomas, used about reasonable doubt and whether you trust

somebody. I don't know if he put Bernard Parker in it, but if

Bernard Parker comes to your door and says, "Hey, there's a

fire, I'll watch your stuff," you better watch your stuff.

Now, he acknowledged that he lied in this case, and

it was just kind of interesting, because when he's confronted

with the conflicting information regarding that memo that he

wrote, remember -- I'm not going to go through all of it, but

remember he's now in a situation where he's got to admit that

either the memo is false or his testimony in court is false,

and he says -- he's got to make a choice, I'm lying to the jury

or I lied to my boss. Well, he's not stupid. He sits there

for awhile, he says, "I lied to my boss."

You trust that? I mean, it made no sense because

he's talking about a highly placed administration official and

then in trying to bend over to help them, he says, "Oh, it was

Bobby Ferguson. He's the highly placed administration


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official." I mean, come on. You want to do it that bad,

Mr. Parker? What did they do to you? What did they do to you

to get you that wound up, or is it just something you do

automatically?

He worked for everybody, Walbridge, Ferguson, I

mean, it didn't make any sense. He talks about how horrible

Bobby Ferguson is, he's threatening people, and then he goes to

work for him.

"Why?

"I made a mistake."

Okay, you made a mistake, made a lot of mistakes.

And then he says, after he leaves, remember I showed you the

consulting contract that he put together that Mr. Ferguson

didn't sign? He says he wants to make his first client

Bobby Ferguson. This horrible guy at the end of this parade of

lies, he tells you, "I wanted to make him my first client."

Believe what he says? And that's important because

they rely on him for everything, Walbridge. It's ridiculous.

Now, we've got to get finished, so let's just turn

to 738, Baby Creek/Patton Park.

THE COURT: How about if we take a little break

before we do that.

MR. EVELYN: That's fine, Your Honor.

THE COURT: About 20 minutes.

(Jury out 2:21 p.m.)


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(Recess taken 2:21 p.m. until 2:45 p.m.)

(Jury in 2:47 p.m.)

THE COURT: Be seated.

Mr. Evelyn.

MR. EVELYN: Thank you, Judge. Welcome back.

Let's talk about, and again, as I said, I'm going to

highlight things so we can get done, but I do have to touch on

them.

Let's talk about 748, Baby Creek/Patton Park. This

is the contract that they say was delayed and held up by

Mr. Kilpatrick and by Bobby Ferguson or for his benefit, and

that's simply not true, the evidence doesn't support that. The

government relies on, of all people, Bernard Parker to

establish the allegations in this count. The bid process was

not held up at the request of Bobby Ferguson, and you will

recall that it was delayed, the bid opening was delayed,

because of the patent infringement claim that delayed the date

of the bid opening.

Mr. Higbee, can you pull up DWA-15.

Now, quickly, the date on this memo is February

21st, 2003. It's from Victor Mercado to the mayor. It's

referring to PC-748, which is the Baby Creek project. Let's go

to the middle paragraph, and it says, "The bid opening date for

PC-748 was originally scheduled for October 31," and it

basically goes on and says, the next sentence, "During this


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time period, DWSD" -- I'm sorry, let me back up. "However,

this date was postponed until February 6, 2003 because of a

patent infringement claim. During this time period, DWSD

needed to obtain legal opinions from patent attorneys before

proceeding."

And it goes on to further elucidate that entire

issue. So we know that this document, which is both a

government exhibit, which is Government Exhibit WA1-16, Defense

Exhibit WA1-15. I'm sorry, strike that, WA-15.

Mr. Higbee, can you go to DWA-16.

Now, they say that the mayor used a special

administrative order to the benefit of Mr. Ferguson, and as you

can see, this was a special administrator contract, and it

refers to the award of PC-748.

Let's go to the second page. And the same language

from Mr. Mercado is included in that second paragraph. In the

middle, it basically says that, "I also understand that DWSD

was delayed in awarding PC-748 by a patent infringement claim

asserted by a third party which required a modification to the

bid specifications. The claim delayed the bidding process for

several months. In order to satisfy my obligations as special

administrator and to ensure that DWSD complies with the

requirements of DCDS permit and second amended consent

judgment," which was the authority that made him the special

administrator, "I have approved and executed the contract 748,"


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et cetera.

And so we know that this delay in the bid opening

was something that was the result of a patent infringement

claim, unless you think that Mr. Mercado lied to the mayor and

the mayor lied to a federal judge.

Now, this notion of a climate of fear, as

articulated by Bernard Parker, Walbridge won this job and, if

nothing else, they were hardly afraid of the city. Can you go

to DWA-5, Page 1. You saw this memorandum that was introduced

when I was questioning Mr. Parker, and it shows the

equalization -- first of all, let's look at the date,

February 6, 2003, and it says this is the date that bids were

open. So the bid opening was that, was February 6, and it

lists the various contractors who bid, and it shows the

pre-equalization scores, and it shows the equalization scores

which put Walbridge in first place.

The last paragraph -- well, the second to last

paragraph talks about Barton Malow, who is going to probably

file a protest, but then the last paragraph, Mr. Hausmann says,

"Because this will be a real dog fight, you should know" -- and

this is Mr. Rakolta, the owner of the company -- "there is no

protocol nor precedent that the city has for this, and their

administrators are frankly way over their heads in trying to

comprehend the permutations of their own rules."

So they have obviously no real respect for what the


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city people are going to be involved in making this decision.

"Please don't share this stuff unless you feel you

must, but this is how it works for now."

Now, the next page of that exhibit is an email from

Bernard Parker, and it's dated February 12 at 5:00 p.m., and

it's very instructive because the subject is Baby Creek, and

the first paragraph says, "I spoke with Dan Edwards." See, he

engaged with whoever he needs to engage with in the city

administration, including DWSD. "He indicated the city's

lawyers have advised Miss Audrey Jackson" -- so he's got direct

information about what's going on inside the administration --

"Audrey Jackson of the City of Detroit purchasing director, to

conduct a review and response of the protests personally." Not

going to legal. He already knows that, he knows that on

February 12th. "Her response will be sent out to all

interested parties by the end of the week."

Now, he has that kind of really inside information.

He knows who's going to do it, what the process is and the

timing of it within days of the bid openings.

"I believe that this is a great sign given that

Mrs. Jackson concurred" -- he already knows that -- "with the

original findings from DWSD, in favor of his company,"

Walbridge. "Additionally, the lawyers will not be involved."

He knows all of that.

Now, this shows that Mr. Parker got direct


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information from Edwards regarding Audrey Jackson and the

handling of the protests.

Let's go to WA1-3. This is an exhibit that there

was some dispute between, I believe, Mr. Rataj and

Agent Beeckman. Agent Beeckman said that he had information

that this was incomplete. But what's significant about it is

that it is clearly a Walbridge document, and it is our

position -- you have to make the decision -- that this is three

separate subjects for bid.

Can you go to the top.

First page shows bids for sewer work, and it has the

base bid, and DPM is not even on here -- I'm sorry, WPM is not

even on here. It's at the top that has no bid, see, in the far

right column. Now, at the bottom there, the rankings -- can

you go to the next page. That page has the bids for structural

site work, as it says at the top. Again, WPM on the far right

has no entry. Mr. Beeckman, Agent Beeckman said that that was

added later on.

When you go to the last page, and by the way, it

shows that Ferguson had the lowest bid. When we get to the

last page, you see it says, "Mass excavation," and the base bid

shows that Ferguson is the lowest, and it's for the mass

excavation.

Now, let's go to WA1-14, which the government has

put in and used quite extensively. This is the agreement that


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was crafted on the 14th of February, and as you can see in

Paragraph 1, it's refers to "Walbridge will award Ferguson the

mass site work," just as indicated on the previous exhibit, and

it has the numbers for the amounts, including the Baby Creek

and the Patton Park addition. At the bottom it is agreed to by

Ferguson's company, and it's signed by Keith Merritt, not

Mr. Ferguson, by Keith Merritt, who was one of Mr. Ferguson's

employees. No holdup by either the mayor or Mr. Ferguson.

Now, let's turn to Book Cadillac. This won't take

long either. The only testimony on the record in this trial is

that Mr. Ferguson's company won the demolition contract as a

result of a competitive bid and that there was nothing unusual

about this contract and its award. Recall that Odell Jones

testified, they called him as a witness, but he testified that

the demolition work was separated out after the problem with

Alberici, but that it was a competitive bid and his words were,

"Mr. Ferguson's company won the bid."

It's unrebutted that his participation in that

contract was as a result of a competitive bid, and it's

unrebutted that he was selected without any shenanigans

whatsoever, even of being alleged. I'm not going to waste your

time any longer discussing that contract.

Now, let's talk about the 3D State Arts Grant, and

there are a number of exhibits, but to save time, I'm going to

refer to them and ask that you look at them in your


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deliberations. Mr. Bullotta says, and he shows you pictures

and says that, "Oh, Mr. Ferguson, through fraud, procured this

grant and a presidential style office."

And this is part of the whole misrepresentation.

Remember that the 3D activities arise out of Mr. Ferguson's

Homer Ferguson Foundation activities, his community activities.

There were renovations being done when Mr. Ferguson moves into

the Wyoming office. He's renovating the office for his own

use, and he's also having renovations done for work area for

the training.

The monies that were expended were bifurcated, they

were split, and the government's own exhibits demonstrate that.

If you look at, make a note that Government Exhibit SG-25B is

five pages, is photocopies of each of the checks. There's one

check for $37,000 from 3D to Mr. Murray's company, Detroit

Interiors. The remaining balance, the other three checks were

written by FEI, so some of the renovations were paid for out of

the 3D funds, and some, the lion's share, were paid out of

Mr. Ferguson's own funds, because they were split, and that

later lead to some confusion or the state people got confused,

because they thought the renovations were occurring in that

house purchased on Meyers. And as you can see, if you look at

that exhibit, it fully -- it completely demonstrates that.

Now, if you look at DSG-14, you'll see a series of

invoices, $19,053.06 was paid by Ferguson Enterprises. Only a


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portion of AirTec's invoices were paid by 3D, and this is

important because it leads me to SG-17. Please make a note of

that.

You'll find that $32,000 of the grant money was left

unspent, and Marilyn Ferguson sent that information to the

state. The state never asked for the money to be returned, and

in that same exhibit, it demonstrates that the reason why the

grant was terminated included the fact that they had not

expended all of the funds. So Miss Ferguson, Marilyn Ferguson

sends that information to the state, makes it very clear that

it was separated and makes it very clear there's $32,000 left

out of the grant.

In the letter that was sent by the state, they tell

her the reasons for terminating the grant was because you spent

the money, they thought, for renovations of the house on

Meyers, which is not accurate and was not part of her

documentation, and you didn't expend all of the money. There

was never a request for the money to be returned, and it was

never hidden. This entire thing was transparent.

And they used the transparency against her. If they

were hiding it or if they were using the grant money to make

these expenditures, why was there $32,000 left over? And why

did they tell the state that and show it to them by sending

them a copy of the bank records? And how could the state say

part of the reason we're going to terminate the grant is


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because you did not spend all of what you got?

Now, let's turn to the obstruction count. Let's be

real clear about this. You're going to have to really put your

legal hat on. This charge requires that you find beyond a

reasonable doubt that Mr. Ferguson tried to influence the

testimony before a federal grand jury, not the gaming

commission. The legitimacy of the donations is not before you

in this particular allegation. The money in question was

nonetheless kept when it was returned to each of these

witnesses before there was ever any investigation at all, and

kept as, treated as if it was their own -- as their own.

Each witness's testimony in this category was at

best ambiguous, and more likely related to the gaming

commission, which, if it was, it's not the crime charged.

Renee Newsome specifically testified, when I questioned her,

that her conversations that the government alleged to take

place related to the gaming commission only. At one point she

said it may have been both and she was unsure, and then she

confirmed that she got a subpoena from the gaming commission

and that it related directly to the gaming commission.

None of the witnesses, except Ms. Newsome, were ever

certain about which proceeding was in question, and that by

itself, ladies and gentlemen, is a reasonable doubt. If

they're not certain, except for Ms. Newsome, if they're not

sure, how can the government ask you to be sure in relying on


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their testimony?

Now, let's talk very briefly about Derrick Miller.

Let me save us all a lot of time, and I'll say, I will

incorporate by reference everything that my esteemed brother

counsel, Mr. Jim Thomas, said about Derrick Miller. So we can

just skip over all of that, and I'll only make one reference in

support of what he's clearly established regarding Mr. Miller's

being tethered to the government and basically trying to do

everything he could to avoid going to prison for ten years.

MR. EVELYN: At one point, he's -- I shouldn't say

that. At one point, he's asked and he says in effect that

Mr. Ferguson was exceeding his limits on his demolition

contracts, and that action had to be taken to reinforce that,

to deal with that, as if Mr. Ferguson was being favored by the

administration.

Recall that we put into evidence, and I won't show

it here, but just make a reference of it, DRC-2, and what that

showed was that this whole notion of favoritism in the

demolition contracts -- you remember the testimony about Adamo

complaining? It became very clear from that, and that's the

journal of the city council, that journal shows that, first of

all, there were ten contractors, nine of which were minority,

that got a contract to demolish abandoned houses and it was a

low-bid contract.

Mr. Ferguson's company was one of ten, okay, and you


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look at that exhibit and it shows that all ten contractors had

extensions granted, and they were extended because they added

more houses to be demolished. I think 40 was used as the

average number, and that Mr. Ferguson's company was right in

the middle. They didn't get the most, they didn't get the

least. So it's a complete gross misrepresentation to say that

testimony to you and ask you to grab onto it as a racketeering

act when it was absolutely, completely misleading to you, and

it's misleading because, oh, by the way, it wasn't

Mr. Ferguson, it was nine other contractors in the same

situation who aren't charged with racketeering.

Now, but Mr. Miller said it, and we know why because

Mr. Thomas demonstrated that, I think, very clearly by taking

you through that.

Now, another allegation that's not separately

charged but that's offered up to support their claim of

racketeering was this Heilmann Recreation project. Very

interesting. Not charged, and it doesn't even come up until

the trial starts. Remember that Mr. Akinwusi said he was first

interviewed in September, in I think he said somewhere around

the 22nd. He's interviewed in September after we're already

trying this case, about his so-called claims.

Now, they tell you, and I'm going to be as short as

I can about it, they basically suggest that Xcel got the

contract. It was supposedly rigged. They have that text


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message from the HLM series, none of which show the same thing

that they're alleging, and the allegations are replete that

Xcel was unqualified, did a poor job, even did no work at all.

Well, we had to do some digging and produce actual,

real records, and I'm not going to go through them. I taxed

the judge's patience that day by introducing so many exhibits

that showed you what was actually being done by Xcel, all the

owner's meetings with the subcontracts, all the RFI's from

Bobby Toliver, who was the senior engineer for Xcel and who

Mr. Akinwusi couldn't really hardly remember, and the fact that

it really shows that who did most of the work on that project

was actually Xcel.

And even LaJuan Wilks, who clearly had an ax to

grind against Mr. Ferguson, she says he threatened her job, and

Tyrone Clifton says, "Well, I talked to her, and she was upset,

but I told her she couldn't lose her job, she's civil service

anyway." But it's clear that what, in fact, happened is that

Johnson Akinwusi's company, JOA, they had the majority interest

in that contract. Remember, it was 65 percent for them,

35 percent for Xcel. He had to fire his project manager, and

that's the reason why the project got slowed.

Ultimately, who takes over? Mr. Mike Woodhouse

takes over, and even LaJuan Wilks says, "Yeah, toward the end,

I see Mr. Woodhouse a lot more and they finished the project."

Now, I frankly don't even know why they brought this


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up, and you recall -- I won't go through all of it -- you

remember that Mr. Akinwusi, when I started questioning him, he

has to admit that he really got involved in this project

because Mr. Woodhouse approached him, that they go back to the

'80s, they worked at Barton Malow together. He was an engineer

who worked under Mr. Woodhouse. Mr. Woodhouse developed the

software that his company was using for the bid packages. This

is a guy that really knows what he's doing, and I asked him,

and he didn't accept it, but I asked him, isn't what happened,

was that Mr. Woodhouse approaches you and says, look, there's

this project, we may be able to get it, let's put together an

all-black design team. His company is African American,

Johnson Akinwusi's is African American, and they brought in

SDG, the black architectural company that did the African

American museum.

Now, the government says that this was rigged, and I

want you to take a look at DHLM-1, and turn the page. That's

the bid proposal that Tyrone Clifton said he wrote. Turn

quickly to Page 3 of Part 1, I think that's 10059. Remember

that I asked Mr. Clifton about this testimony and where it says

"Rejection of proposals, the Detroit Building Authority

reserves the right to reject all proposals received as a result

of this RFP or to negotiate separately with any source

whatsoever in any manner necessary to serve the best interest

of the Detroit Recreation Department. This RFP is made for


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information and planning purposes only. The Detroit Building

Authority does not intend to award contracts solely on the

basis of responses made to this request or otherwise pay for

the information solicited or obtained under this RFP."

So the RFP was to collect information, DBA was going

to make their own call on who they picked. So this notion that

they were unqualified or they weren't the lowest bid, it was an

RFP, but it was not going to be the sole basis for awarding the

contract.

I won't go through all the things that relate to the

delays and the like. I want you to look at those exhibits, and

they are DHLM-2 through 18, those were the

owner/architect/manager meetings. And then there's DHLM-19

through 55, those are the RFI's that got me in trouble with the

judge for taking too much of your time and she stopped me, as

she should, and I made some adjustments.

Why don't we talk a little bit about money. They've

shown you pictures of Mr. Ferguson's money in safes, cashier's

checks, and they're unable to connect in this so-called

racketeering enterprise, which they haven't proven at all, the

notion that Mr. Ferguson is stealing money from the city by

virtue of his relationship, again criminalized, with

Mr. Kwame Kilpatrick and we didn't hide from that. They're

friends. There's no question about that. They are actually

friends, and you know what? That's not a crime, believe it or


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not, to have a friend who is the mayor.

But they tell you that, supposedly, he's supposed to

have gotten money from Mr. Ferguson, and other than this Mahlon

Clift situation, which we'll deal with in a moment, there's

nothing that connects money that Mr. Ferguson legally earned

and worked hard for and paid taxes on and what they claim he

supposedly imparted to Mr. Kilpatrick.

They showed you pictures of money that was seized in

2009 and 2010, okay, 2009 January and 2010 September, and they

claim that this money that they find in the safe and the

cashier's checks and other instruments somehow means that

before then, he was giving that money to this man. No proof

and completely illogical.

Why is it in his safe if he's giving it to him?

Well, we can't track. It could have been more. Yes, you can.

Oh, yes, you can, because, see, this man earned every dime,

paid taxes on it and declared it, even the money that's cash in

the safe. So there's a transactional record for it, and they

should really be able to show to the penny how much he

supposedly gave to Mr. Kilpatrick by showing what's missing.

Ain't nothing missing. He bought equipment, he paid

employees. He paid bonds and insurance. He had a real

company. That's kind of a problem. You got a real company,

it's expensive, you got to pay for all this. Remember that

Mr. Schneider said, "Oh, Mr. Ferguson was so interested in


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trying to gain an advantage, he would sometimes buy

enhancements for his equipment." He'd buy a special -- and I'm

not a construction guy -- special tool that will pound concrete

faster so he could work better, so that he could be beat out

somebody else.

You don't do that if you're cheating. You do that

if you're working. Think about it, ladies and gentlemen, think

about it. They're trying to pull the wool over your eyes.

Don't let it happen and don't let them push you into it.

Now, $560,000 in cash in two safes, $1.7 million in

cashier's checks and CD's. Most of it was not in cash. I

mean, they show you the pictures, and it's real sexy, gets your

attention, but let's look past that and pay attention to what

you really are looking at.

Brother counsel, Mr. Rataj, when questioning

Ms. Rosenthal, and she finally acknowledges that, "Well, you

know, in this investigation and we're pursuing Mr. Ferguson,

did it kind of coincidentally occur that we'd go to a bank and

then he'd be out of the bank, and we'd go to another bank and

do a seizure or subpoena, and not because of our activity, but

somehow he just kept getting run out of banks." And you notice

that in the house that was, in the townhouse where they seized

the money, there were five cashier's checks from the same bank,

$560,000 in cash in those two safes, safes, and $500,000 in

cashier's checks. I think it was four $100,000 checks and one


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that was a little more than $100,000.

Now, they run you out of the bank. What you gonna

do with your money? Put it in cashier's checks, put it in

CD's, put it in cash and stick it somewhere. But be that as it

may, what's clear is that it is not illegal to possess cash,

not a crime, nothing wrong with it at all, and so the fact that

he had that money is not evidence of criminal activity at all.

Now, they displayed this text message where they --

where Mr. Ferguson is on a trip and there's this stuff about

the Super Bowl tickets, and he gives Mr. Kilpatrick in his text

the combination to the safe that's in the hotel and says, "You

can go up there, $7,000, you can get money to buy the Super

Bowl tickets."

And then they show you a picture of the safe from

the Southfield townhouse as if it's the same thing. It's not.

That was on a trip, and the evidence shows that Mr. Kilpatrick

never even really went up there and got the check, got the

money anyway to buy the tickets.

Another thing that's really important is that when

Mr. Thomas, who we relied on quite a bit in this trial, is

questioning Mr. Sauer, he basically acknowledges that they

tried to correlate the cash withdrawals from Mr. Ferguson to

cash payments by Kwame Kilpatrick. Couldn't do it. Didn't

match up.

When he's asked the question -- I won't read it to


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you, but basically he says, "On a daily basis, the analysis did

not correlate." So they did everything they could to try to

link this. There was no link.

I'm not going belabor Mahlon Clift. Mr. Thomas,

once again, outstanding job of laying that whole issue out and

how the government did a tape that they didn't show you because

it didn't show what they thought it would.

Now, one significant point. Please pull D-Clift-1.

These are the Atheneum records. I'm not going to show you

that. I want you guys to make a note of that exhibit. That

exhibit has all the Atheneum records that the government seized

involving Mr. Clift, and sometimes an event occurs and there

has to be corroboration if it happened.

Aside from what Mr. Thomas so clearly pointed out to

you, there's another issue that he mentioned that I want to

reemphasize. Mr. Clift was clear in his story, and we also

know, as Mr. Thomas pointed out, he didn't bring this up in his

first interview, then there's this break, something happens, he

gets on the phone, then he comes backs and says, "Oh, guess

what, I know something about some cash." We don't know why he

did that. We don't know if that was because he's got issues or

if he did it for some inexplicable reason.

These records that are in D-Clift-1 will clearly

show that if Mr. Clift met with Bobby Ferguson at the

Atheneum -- remember, he said Mr. Ferguson either texted him or


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he called him and he comes to the Atheneum and he brings his

bag and it's in the fall, but it's not June because he's shown

the June records, he says, "No, that's too soon."

In October, he supposedly came back and gave

Mr. Kilpatrick the other $40,000. So where is the day between

October and June where he's staying at the Atheneum, registered

in his own name, and he supposedly sees Mr. Ferguson and he

gives him this $90,000? It doesn't exist. Not in there.

Didn't happen.

So if he wasn't there, how can you find that it

occurred? He didn't say, "Well, I think I stayed at the

Atheneum but I may" -- no, his thing was, "I always stayed at

the Atheneum or with a girlfriend when I came to Detroit."

"Were you at your girlfriend's house when you got

the bag?"

"Oh, no, I was at the Atheneum."

Well, why is there no record of it? There's no

record of it because it didn't happen.

Now, much has been made about the revenues in this

case. They make a big deal about that, about how much money

Mr. Ferguson has made, and they sort of skip over everybody

else. But I want to put something in context for you.

Can you pull up the revenue exhibit? This is just a

demonstrative exhibit, not in evidence. Soave Enterprises,

Mr. Soave testified that they made $2.5 billion in 2008.


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Lakeshore revenues, 2007, quarter of a million dollars. Later

on he says he made a half million by 2010.

Now, these are victims of crime, these are victims

of extortion, these are people that got their arms twisted so

that my client could make money, and they are -- well, I'm not

a rich man, I think that's rich. You can decide whether it's

rich to you or not. They're the victims. The 2.5 billion and

the quarter of a billion dollar victims in this case.

Now, I want to show you one other demonstrative

exhibit, and let me point out -- well, let me show you one more

demonstrative exhibit. Mr. Ferguson is supposed to, with

Kwame Kilpatrick being involved, in trying to extort and

hijack, as a result of a criminal enterprise, nine contracts.

Mr. Latimer and Mr. Edwards testified that there are 40 to 60

contracts at any given time outstanding from DWSD, $800 million

annually in capital improvements. That would be $5.6 billion

in contracts. Only nine of them are supposed to have been

hijacked by my client, and they're supposed to be running a

criminal enterprise.

Ask yourself, does that make sense? Ask yourself if

that's logical. Ask yourself if the evidence proves anything

like that. Criminal organization. The government is

criminally incompetent to make that allegation.

Now, there's also an allegation about the Civic

Fund. I'm not going to spend much time on that because


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Mr. Ferguson -- Mr. Thomas did a great job again, but I will

tell you that they alleged that Mr. Ferguson contributed

$75,000 to the Civic Fund and that somehow this was part of a

conspiracy to benefit him, and again, there's no logic to it.

Why would he put it in the Civic Fund instead of giving it to

him? And how can a contribution to the Civic Fund, and

Mr. Thomas showed that you well over a million dollars, I think

it was a million seven, was raised by the Civic Fund and other

than $13,000 of it that are questionable expenditures in this

case, the rest of it was properly spent. So how did this

$75,000 be something other than a contribution?

Let me finish with the contract and talk about the

Oakwood Pump Station. This is another thing that kind of

confuses me because this is a contract that is in the

indictment as a, an attempt extortion. The allegation is that

Walbridge refused to add Ferguson to their team, and so they

lost a $140 million contract. How? What strings got pulled?

What happened? There's no evidence.

So I guess if you bid on a contract and you lose it,

it's corruption if you have a conversation with Bobby Ferguson

because that had to be the reason you lost it. It couldn't be

that he pulled out -- we didn't even know what the full

conversation was, we have to rely on Mr. Parker for that. The

esteemed Mr. Parker. There's no evidence to support that

claim.


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Can you pull up DWA-7, Page 1. This is an email

from Ron Hausmann to John Rakolta sent on January 30th, 2007.

"John, FYI, you may get a call from Bobby Ferguson regarding

the DWSD Oakwood job."

What's the next sentence say? "We reached out to

Ferguson Enterprises last week, and this to try to contact

Bobby involving him with our dirt team on the job." Says they

reached out to him.

Now, let's go to Page 2, same exhibit. Scott

Penrod, March 5, 2007, to Bernard Parker. "BP, we need to push

as best we can to get this pushed at least one week. The key

will be how quickly they can get out Bulletin Number 3. Ron,

any help you can lend in getting this pushed from the 15th to

the 22nd would be a benefit." And they talk about their

estimator being out of the country, so they need to get

something moved back. And the lead to that, can you go down

just a bit, I guess I'm reading in reverse order, talks about

them waiting to see -- and this is from Bernard Parker to Scott

Penrod, "We're waiting on Mirza, the DWSD engineer, to make up

his mind on the date change. We may know as early as Tuesday

morning."

You go to the next page and you see, from

Bernard Parker, it's dated March 6, 2007, which is the very

next day, and it says, "Family, pursuant to my conversation

with" who? "Mr. Dan Edwards, DWSD. He indicated that the new


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date, tentatively for Oakwood's bid submission, is Thursday,

March 22, 2007." I guess he got it put over without

Mr. Ferguson. Shows that you can do it by merely asking for

it.

Now, the final note on this is DLS1-28. Who wins

755? Lakeshore. See at the bottom? D'Agostini and Lakeshore.

So he's supposedly trying to extort Walbridge. No evidence of

it, but that's supposed to happen, and we see the email showed

there was no extortion. But even a step further, Lakeshore

wins the contract. I guess he doesn't have any pull.

Now, the good news is this little folder means I'm

about done. My conclusion. Give me just a few minutes. I

know you're tired. I am too. Really.

This is the last time I will have a chance to

address you about this case. The prosecutor goes first and

last, and even though that's what the law provides because they

have the burden of proof, defense lawyers are always sick over

that. We always emotionally feel that that's just not fair,

even though it is because that's the law. They have the burden

of proof, they should get to go first and last.

But having said that, I've tried to address in

summary fashion the things I thought that were important. To

the extent that I could, I've addressed some things that

Mr. Bullotta mentioned.

When Mr. Chutkow gets up here tomorrow after he


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rests and has overnight to digest all of this, he will probably

raise some questions, and good lawyer that he is, I'm sure he's

going to raise some things that I didn't address. Well, I

won't get a chance to get up and answer those questions. So if

it becomes an issue in the jury room, the 12 of you who have to

decide this case will have to take what you hear me say now,

what I've already said, what you know about the case, and

somebody will have to say, "Well, Evelyn probably would have

said this." You got to answer for me because I won't be able

to do it, if you want an answer. You may say you don't need an

answer.

Decide this case based on the evidence.

Bobby Ferguson is a tough-minded, sometimes coarse, oftentimes

animated. I mean, you've seen us at the table bouncing back

and forth. Sometimes I tell him to be quiet. He's a very

active person because that's how he survived and that's how he

succeeded in business, is by doing what has to be done and

being engaged in whatever is important, and believe me, this

case is important to him so he's very engaged.

And he's a tough-minded businessman who has been

really steeled by his experiences, particularly in the

construction business. He's learned the hard knocks the hard

way. He has fought and he has struggled and he's succeeded in

the construction industry, not like the victims in this case,

but he's had what he feels is success.


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It's true that many people in that business are

hard-driving, aggressive, like all the other contractors in

this case. Angelo D'Alessandro trying make money hand over

fist, pushing him out of a deal because he sees 13 or

$14 million and he says, I can pay him a few hundred thousand

and do much better. Plus, it's a new company so I can have a

track record, not just doing mining but also doing excavation.

Bobby Ferguson, as I've said several times and I'll

say one last time, a real company, real employees, real

equipment, and he followed the admonition of witness

George Brown and his father to never be a pass-through. As

Odell Jones told you, it's much more expensive and can cause

you problems if you don't want to be a pass-through, if you

don't want to be Charlie Williams and say you're going to get

20 percent of a contract, got no equipment, got no expenses,

that's going to all pass through to Inland. That's why they

want pass-throughs, because they can make money off of them.

And for me it's emotional because it's like making

money off the civil rights movement because that's how this

came to be.

He's also a man who cares about others. People like

him in his community, the community in which he live, the Homer

Ferguson Foundation. Even Hardiman had to own up to that being

something that was real that he had to support.

The Motor City Makeover, according to Derrick


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Miller, saved the city millions of dollars. You heard the man

from CAT, Mr. Schneider, say, "Yeah, we loaned him thousands of

dollars of equipment and we loaned it to him because he'd come

and pick it up." That was not something he made money off of.

That didn't enhance his reputation. That was part of him

caring about his community. A man that didn't believe in free

rides.

That's why it's an insult for them to say that the

849 contract was a no-work contract. Does he look like a

no-work person? And I say that not just by how he physically

looks but by what you know about him in this case. The

government says he belonged to a criminal organization that

never really existed.

Ladies and gentlemen, let me implore you to face up

and meet that challenge that I talked to you about earlier that

me and my colleagues all want you to embrace. Bring back not

guilty verdicts that the evidence and the lack of evidence call

for in this case.

And if you feel pressure and find it difficult,

remember that in 1963, Martin Luther King published a book of

his sermons called Strength to Love, and in one of those

sermons he reminded us that the ultimate measure of a man or a

woman is not where he stands in moments of comfort and

convenience but where he stands in the time of challenge and

controversy.


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I challenge each one of you to do what's right and

find my client not guilty of these charges.

(3:34 p.m.)

THE COURT: Thank you, Mr. Evelyn.

Ladies and gentlemen, we'll adjourn for the day. We

will resume tomorrow at 9:00. I remind you again, of course,

not to read, watch, listen to anything. Don't let anyone talk

to you about this case.

It's been a long week, get some sleep, get some

rest. We'll finish up tomorrow with the last of the closing

arguments and instructions and hopefully have the case

submitted to you for deliberations before lunch. Thank you.

(Jury out 3:35 p.m.)

(Proceedings adjourned at 3:35 p.m.)


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- - -

C E R T I F I C A T I O N

I, Suzanne Jacques, Official Court Reporter for the United States

District Court, Eastern District of Michigan, Southern Division,

hereby certify that the foregoing is a correct transcript of the

proceedings in the above-entitled cause on the date set forth.

Date: February 14, 2013 s:/Suzanne Jacques Suzanne Jacques

Official Court Reporter


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Kilpatrick Vol 80

Documents

Transcript of Kilpatrick Vol 80