(Updates with excerpt from filing in fourth paragraph.)
Oct. 5 (Bloomberg) -- Adelphia Communications Corp. founder John Rigas and his son Timothy, in prison for securities fraud, asked a judge to overturn their convictions and sentences, claiming prosecutors withheld evidence that would exonerate them.
John Rigas, 86, is serving 12 years in prison, and his son Timothy, 55, is serving 17 years after being convicted in 2004 of looting Adelphia and lying about its finances. They asked U.S. District Judge Leonard Sand, who oversaw their trial, to rule that their constitutional rights were violated in two ways.
The Rigases said prosecutors failed to turn over notes of interviews they conducted in February 2002 with Adelphia’s lead securities lawyer. Those notes, obtained by the defense through litigation after the jury trial, provide “powerful exculpatory evidence on a number of key issues at the trial,” the Rigases argued in filings in Manhattan federal court.
“Had this evidence been disclosed to the defense, as required by the Due Process Clause of the United States Constitution, there is a reasonable probability of a different outcome at trial,” they said in the motion.
Jerika Richardson, a spokeswoman for Manhattan U.S. Attorney Preet Bharara, declined to comment.
Adelphia, once the fifth-largest U.S. cable-TV provider, collapsed in 2002 and its assets were sold to Time Warner Inc. and Comcast Corp.
The Rigases also argued that prosecutors violated their rights by “causing Adelphia to withdraw the advancement of legal fees and by causing Adelphia to close off access to critical witnesses and evidence.”
A judge overseeing the Adelphia bankruptcy later authorized at least $27.8 million for the Rigases to use for legal fees, according to the filing.
“But that was too little too late given the impairments in the trial preparation that had already caused irreparable injury to the defense,” it said.
The Rigases are under federal indictment in Pennsylvania on charges that they conspired to dodge taxes on $1.9 billion they stole from Adelphia. The Rigases raised similar arguments there about prosecutors threatening Adelphia with indictment if it supported the men before the New York trial. In June, the judge in Pennsylvania said the Rigases had to raise it with Sand.
Sand had ruled in January 2008 that prosecutors weren’t obligated to turn over notes from the securities lawyer, Carl Rothenberger, who wasn’t called as a witness at trial.
Sand said the government’s obligation to hand over exculpatory material didn’t extend to Rothenberger because the rule on such disclosures applied to evidence known only to the government. The Rigases knew of Rothenberger’s existence, his role at Adelphia and facts on which he could testify, he said.
The Rigases unsuccessfully contested that ruling and other issues in one of two failed appeals to the U.S. Appeals Court in New York. The U.S. Supreme Court also twice declined to hear their case, including one petition citing the Sand ruling.
In their new filing, the Rigases said they hadn’t previously appealed whether prosecutors had to turn over the notes “in light of their actual content.” They also said the documents “only came to light recently during discovery in another criminal case, and were hidden from the defense until then.”
‘Scores of Witnesses’
The Rigases also claimed Adelphia worked closely with prosecutors to ensure that the company forced them to resign and didn’t pay their legal fees. Adelphia also cooperated to avoid its own indictment and to bar the Rigases from talking to “scores of witnesses” at the company, its outside law firm and its auditors, according to the filing.
The Rigases didn’t call those witnesses to testify because “Adelphia (acting in coordination with the government) had forbidden anyone within its control from speaking with defense investigators or lawyers prior to trial,” according to the filing.
“No lawyer worth his salt would ever blindly call a witness at trial when that witness has refused to be interviewed,” it said. “The prejudice the defense suffered as a result of the witnesses’ refusal to be interviewed was devastating.”
The Rigases were convicted of securities fraud and bank fraud, as well as conspiring to commit securities fraud, bank fraud, falsify books and records and make false statements to the Securities and Exchange Commission. They are in a federal prison in Butner, North Carolina.
The New York case is U.S. v. Rigas, 02-cr-01236, U.S. District Court, Southern District of New York (Manhattan). The Pennsylvania case is U.S. v. Rigas, 05-cr-402, U.S. District Court, Middle District of Pennsylvania (Harrisburg).
--Editors: Andrew Dunn, Peter Blumberg
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