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
- - -
Suzanne Jacques, Official Court Reporter

email: jacques@transcriptorders.com
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

4
1 Detroit, Michigan
2 Thursday, February 14, 2013
3 9:11 a.m.
4 - - -
5 THE COURT: Good morning. Before the jury comes in,
6 the additional jury instruction is not problematic at all.
7 I'll give it when I give the remaining instructions, and I
8 don't think it's necessary or even advisable to change the
9 verdict form to include special questions, as long as they have
10 the instruction, they know that they have to be unanimous with
11 respect to the two underlying findings, finding two underlying
12 acts and agree on what they are.
13 MS. VAN DUSEN: Just on behalf of the record, we
14 would object to that and request that the Court give a special
15 verdict form that sets forth the acts.
16 THE COURT: Okay.
17 MR. SHEA: Same.
18 THE COURT: I assume you all agree with --
19 MR. THOMAS: We do.
20 THE COURT: And, Mr. Shea, the jurors have asked if
21 you would start over, basically.
22 MR. SHEA: I'll basically start over, although it
23 will be a little condensed.
24 THE COURT: All right. And my plan would be then to
25 go straight through your entire argument and then take a break.

5
1 MR. SHEA: Very good.

2 (Jury in 9:07 a.m.)
3 THE COURT: Be seated. Good morning, everyone. I'm
4 glad everyone is feeling somewhat better, better enough to go
5 forward today. I've advised Mr. Shea that you requested that
6 he start over and he said he would do that, and we are ready to
7 go.
8 Mr. Shea.
9 (9:11 a.m.)
10 MR. SHEA: Good morning. In truth, I feel better
11 too, so it wasn't necessarily a bad thing. I am going to start
12 over but not going to start completely over. There were some
13 things I was talking to you about. You know how old
14 Bernard Kilpatrick is, how many kids he's got. You know what
15 his government experience was before he opened his consulting
16 business, and you know why he left government service to go
17 into consulting when his son was elected mayor. I don't have
18 to retread all of that ground.
19 I do want to correct a misstatement I made, though.
20 I explained to you that Bernard Kilpatrick, after
21 Kwame Kilpatrick was elected mayor, he was, of course, the
22 chief of staff to Ed McNamara, and there was -- it was felt
23 within county government that he needed to get out of there
24 because it was too problematic to have the father of the
25 incoming mayor working as the chief of staff for the county

Defendant's Closing Argument by Mr. Shea
6
1 executive.
2 The mistake I made was they would be in the same
3 building, and I was advised by various people, including my
4 client afterwards, that right around that time the county
5 executive offices had moved out of the CAYMAC Building and over
6 to the old City-County Building, so they wouldn't have been in
7 the same building, but the point is the same. It would have
8 been problematic to have the county executive as his right-hand
9 person, the father of the incoming mayor.
10 So with that correction, Bernard Kilpatrick, of
11 course, started a consulting business, Maestro Consulting. You
12 know about that, and we were talking about what consultants do,
13 and what they do is they act as representatives, as a
14 go-between, between the clients and people in government,
15 whether it's city government or county government or state
16 government or federal government, on issues that their client
17 has with the particular governmental entity that the consultant
18 is asked to deal with, and we were talking about how they do
19 it.
20 And I explained to you they do it by having personal
21 relationships with people, contacts with people within the
22 governmental units which permits them to pick up a phone,
23 perhaps, and call somebody and have a conversation or schedule
24 a meeting, or make a complaint or advocate for their client,
25 and that personal relationship gives them some credibility,

7
1 gives them some access. So that's one way they do it.

2 The other way they do it is by having knowledge of
3 how governmental processes work, because if you don't have
4 knowledge about how government processes work, you don't even
5 know who to call in order to get something done for your
6 client. So we're talking about that, and we're talking about
7 how Bernard Kilpatrick in particular was valuable as a
8 consultant. And I said the more -- the stronger, the more
9 extensive the personal relationship network a consultant has,
10 and the more experience a consultant has with how governmental
11 entities work, the more valuable that consultant is, and
12 Bernard had both in spades.
13 There's nothing illegal about using consultants. We
14 heard about lots of consultants being used in this case. It's
15 a normal, common practice, and there's nothing illegal about
16 Bernard Kilpatrick in particular being a consultant, even if he
17 were going to represent clients' interests to the City of
18 Detroit where his son was the mayor. No more illegal for him
19 to act in that capacity because of his relationship to the
20 mayor, than for Curtis Hertel to act in that capacity, who we
21 heard acted in that capacity, who also had a relationship with
22 the mayor from when they served in the legislature together in
23 Lansing. No more than Conrad Mallett, who we heard acted as a
24 consultant, no more would it be illegal for him to be a
25 consultant because he had a personal relationship with the

8
1 mayor, and we heard he did, he acted in a fairly high capacity

2 in Kwame Kilpatrick's first campaign.
3 So there's nothing improper or illegal about
4 Bernard Kilpatrick or any of these other people being
5 consultants just because they happen to have a relationship
6 with the mayor.
7 Now, notwithstanding the fact that
8 Bernard Kilpatrick had a relationship with the mayor, he wasn't
9 always successful as a consultant, and we heard examples of
10 that, we'll talk more about that later, but the basic point is
11 he didn't get what he wanted all the time.
12 We heard from Derrick Miller and from others that
13 it's a competitive business and Bernard took his lumps just
14 like other people did. Now, the government doesn't really, I
15 don't believe, dispute any of this. Their argument with
16 respect to Bernard Kilpatrick, as I understand it, is that they
17 claim as a businessman he used his business relationships and
18 his personal relationships to extort money from people, to get
19 money that he was not entitled to in return for doing no work.
20 That's what I understand their contention to be, and
21 they presented five chapters in this case regarding Bernard and
22 his business relationships in an attempt to illustrate that
23 point of theirs, and I think they have failed utterly to do
24 that.
25 Three of those chapters they discussed in closing

9
1 argument. They discussed Marc Andre Cunningham, they discussed

2 Karl Kado, and they discussed James Rosendall in Synagro. Two
3 they did not discuss, Jon Rutherford, Mr. Bernard Kilpatrick's
4 relationship to him, and Capital Waste and Bernard Kilpatrick's
5 representation of Capital Waste in connection with the Book
6 Cadillac project. Because I think all of those chapters are
7 relevant to my contention that they haven't proved their case,
8 I'm going to talk about all of them, and we'll start with Jon
9 Rutherford.
10 We know that Jon Rutherford knew Bernard Kilpatrick
11 for some years prior to Kwame Kilpatrick becoming mayor. He
12 testified that he had met Bernard in some capacity, he could
13 not exactly remember what capacity, back in the mid '90s.
14 Jon Rutherford testified that shortly after
15 Kwame Kilpatrick was elected mayor, Cassandra Smith-Gray, who
16 was a mutual friend of Jon Rutherford's and
17 Bernard Kilpatrick's, approached Jon Rutherford and said,
18 "Listen, Bernard's got to leave county government, do you think
19 you have a position for him as a contractor to you?" And he
20 said, "Sure."
21 He actually testified that he helped Bernard set up
22 his business, advised him about how to set up an LLC, helped
23 him get a bank account, doing things that Bernard Kilpatrick
24 hadn't had to do prior to this.
25 He described why he thought Bernard Kilpatrick could

10
1 be valuable to him or would be valuable to him. One was he

2 said because he had relationships with people, including the
3 mayor. Didn't shy away from that and neither do we, but he had
4 relationships with other people as well. He had relationships
5 in county government, state government, even federal
6 government, so he had relationships. That was one reason that
7 he described gave Bernard Kilpatrick value to him.
8 But, second, he said, "Bernard Kilpatrick had an
9 extensive career in government that deals with the private
10 sector every day. Someone with that experience is someone who
11 knows the bureaucrats who get things done. That's of value to
12 me."
13 Remember, Jon Rutherford ran nonprofits that
14 provided shelter, homeless shelter and other types of services
15 to people without homes and other people who were poor, mental
16 health services, too. He had to, he had contracts with
17 governmental entities. He had to deal with governmental
18 entities because he was regulated by them. He thought it
19 valuable to have somebody with Bernard Kilpatrick's level of
20 experience on the inside of government to assist him in dealing
21 with those governmental relationships. Absolutely nothing
22 wrong with that, totally normal.
23 Examples of work that Bernard performed in the 13
24 months of his contract with Jon Rutherford.
25 He obtained real estate records along the riverfront

11
1 to inform Jon Rutherford about ownership status of, of those

2 real properties because you heard Jon say that he was, had some
3 interest and design in terms of trying to get a convention
4 center located on the riverfront.
5 He collected information regarding zoning for cell
6 phone tower placements, he testified.
7 These are just examples.
8 Jon Rutherford, more along the lines of his
9 nonprofit business, Jon Rutherford was owed a bunch of money by
10 the county for, for his, for some mental health services that
11 he was providing through his nonprofits, and he asked Bernard
12 to help him in terms of collecting that money.
13 So Bernard was doing things for Jon Rutherford, and
14 remember, this was back in 2002, so Jon Rutherford testifying
15 to that in 2012, from ten years earlier memory, you can't
16 expect him to be able to give you a litany of everything that
17 Bernard did for him every day or even every week or even every
18 month, but he gave you some concrete examples.
19 Bernard was paid monthly for 13 months. Typically,
20 it was $10,000 a month. Couple times toward the end, one was
21 15 and one was 5, and it was because there was some catch-up.
22 One month he only paid five, I think, Jon did, so he was five
23 behind and then the next month he paid 15 to catch it up, he
24 explained.
25 Jon Rutherford paid other consultants as well,

12
1 similarly, monthly. Curtis Hertel was on -- was a contractor

2 to him. There was a communications firm called Six
3 Communications out of Lansing that he also paid monthly that
4 was a consultant to him. And you know, the most interesting
5 thing about this relationship that Bernard had, to me anyway,
6 with Jon Rutherford is how it ended.
7 Now, here's a guy who the government is trying to
8 paint as only in it for himself, that being Bernard Kilpatrick,
9 making ten grand a month, which is pretty good change, and he
10 leaves the contract with Jon Rutherford to take what is
11 essentially a volunteer position on the Wayne County-Detroit
12 Mental Health Board.
13 There was nothing illegal about this relationship
14 when it started, there was nothing illegal about this
15 relationship during it, and there was nothing illegal about
16 this relationship when it ended. There was nothing
17 extortionate in the least about it, and there's no contact with
18 Kwame Kilpatrick at all in connection with that relationship.
19 That's probably why this chapter wasn't mentioned, or at least
20 this aspect of the chapter wasn't mentioned in the government's
21 closing argument.
22 Let's move on to Karl Kado. Karl Kado is someone
23 whom Mr. Chutkow in opening statement said Bernard Kilpatrick
24 extorted for no work, no work. Got over 180 to $300,000,
25 depending on what day it is Mr. Kado is remembering what he

13
1 paid, for no work.

2 Mr. Kado was, in this trial, the single most
3 difficult witness to get a straight story out of. We got used
4 to hearing different stories between the government's
5 examination of a witness on direct examination and the defense
6 examination of a witness on cross examination. But Karl Kado
7 would flip-flop from one sentence to the next, no matter who it
8 was was asking him the questions, and there were examples where
9 he simply refused to have his recollections interfered with by
10 reality.
11 Recall toward the end of my cross examination of him
12 when I was asking him to read a section of transcript of a
13 meeting that had been recorded between him and
14 Bernard Kilpatrick, and he could not read the words without
15 inserting his own additional words, insisting that those
16 additional words should be in there because that's how he
17 recalled it. Of course, he wanted to insert those additional
18 words because it changed the meaning of what the real words
19 were and it made it closer to what he wanted you to think the
20 meaning was, but it was complete theater.
21 Karl Kado also knew Bernard Kilpatrick before
22 Kwame Kilpatrick was elected mayor. He also met
23 Bernard Kilpatrick back in the '90s when Bernard Kilpatrick was
24 working for the county. They were friends, they became
25 friends, because Bernard Kilpatrick went to his store all the

14
1 time, bought stuff, bought lottery tickets. He saw him so

2 frequently and he was such a regular customer he gave him a
3 line of credit at the store, which he testified Bernard paid
4 off every week.
5 Now, Karl Kado didn't acknowledge that the first
6 time I asked him. He had to be shown reports that refreshed
7 his recollection about what he had said earlier, but he finally
8 ultimately acknowledged, yes, he and Bernard were friends,
9 they'd known each other a long time, and he was such a regular
10 guy to him that he allowed him to buy stuff on credit at his
11 store and he paid it off every week.
12 Karl Kado had business interests at Cobo Hall. He
13 had a food service contract where he was partnered with a
14 national company called Ogden, and he had that in the Archer
15 administration.
16 As Kwame Kilpatrick is being elected mayor and sworn
17 in as mayor, there was another contract coming up that he had
18 an opportunity to get and that was the cleaning contract, the
19 janitorial services contract. He wanted that. And then
20 shortly after that, there was an electrical contract that the
21 opportunity came for him to obtain. He wanted that as well.
22 He had a hidden interest as well at Cobo Hall in that he was
23 paying kickbacks to the director, Lou Pavledes, and he wanted
24 Lou Pavledes to remain at Cobo Hall because once you got
25 somebody bought, you want him to stay bought, you don't want to

15
1 have to buy somebody else new. Or, worse, somebody new comes
2 in, you can't buy them at all. So he had a hidden interest in
3 wanting Lou to stay.
4 It took awhile, but he ultimately acknowledged that
5 he asked Bernard Kilpatrick to assist him to provide him real
6 services in connection with protecting his business interests
7 at Cobo Hall. He acknowledged that he asked Bernard to
8 intercede for him with the administration to keep Lou Pavledes
9 as director, didn't tell him why. He acknowledged that he
10 asked Bernard Kilpatrick to advocate for him in terms of
11 obtaining the janitorial contract. He acknowledged that he
12 asked Bernard Kilpatrick to advocate for his interest in
13 obtaining the electrical contract. He confirmed on cross that
14 his understanding with Bernard called for Bernard to be paid
15 for these services.
16 You don't have to take Karl Kado's word for it, but
17 I'd say that's pretty good testimony since he's the guy that's
18 actually formed the relationship. But in addition, Derrick
19 Miller testified it was well known that Karl Kado was
20 Bernard Kilpatrick's client, one of his best clients. Derrick
21 Miller testified that he used Bernard Kilpatrick as his point
22 of contact when he received complaints from the DADA about
23 Karl Kado's services at Cobo Hall, and that Bernard Kilpatrick
24 discussed those complaints with Karl Kado and reported back to
25 Derrick Miller about, "Well, maybe these are overblown, maybe

16
1 this one's valid." So there's no question that Bernard

2 Kilpatrick and Kwame Kilpatrick -- I mean, Bernard Kilpatrick
3 and Karl Kado had a client relationship and that
4 Mr. Bernard Kilpatrick did real work, provided real services in
5 connection with that.
6 There's also text messages. You might take a look
7 at exhibits, when you get a chance, Cobo 3 through 7 and 10A
8 and 10B. They're text messages between Bernard Kilpatrick and
9 Derrick Miller regarding Karl Kado and contracts coming up for
10 consideration of Karl Kado obtaining.
11 Also, I found this interesting, you know -- you'll
12 remember that there was a -- you recall there was a meeting
13 between Karl Kado and Bernard Kilpatrick in February of 2008 at
14 Tom's Oyster Bar, and it was recorded because it was part of an
15 FBI operation. Karl Kado was working for them and Karl was
16 wearing a wire, and he was out meeting with Bernard in an
17 attempt to gather evidence against Bernard, and we -- they talk
18 about all kinds of things.
19 But here's one part of it, where they're talking
20 about the contracts that Karl Kado claims are, he's owed money
21 on. There was the DAH renovation contract, and there was the
22 cleaning contract he said the city owed him money on, and there
23 was the electrical contract. And about half an hour into it,
24 Bernard says, "It's, it's just they can't do that legally. I'm
25 going to meet with Amru Monday." And there they're talking

17
1 about the DAH contract.

2 And Karl says, "That one, that one, all I am
3 concerned about, all what I am concerned about electric."
4 That's the electric contract. "Electric, we made it together,
5 you and me." Another acknowledgment by Karl Kado that he and
6 Bernard Kilpatrick had a relationship where they worked
7 together and Bernard Kilpatrick provided services and
8 assistance.
9 Karl Kado testified that he paid Bernard Kilpatrick
10 monthly during 2002 and 2003, doesn't believe he was paying him
11 in 2004, and then he made a final $100,000 payment in June of
12 2005. Let's recall that monthly payments are consistent with
13 how Bernard Kilpatrick is paid from other clients as well.
14 There's nothing inconsistent with Karl Kado paying him monthly.
15 Let's also remember that Karl Kado, because he paid in cash,
16 couldn't and didn't keep records, didn't have a very solid idea
17 about how much in total he paid Bernard Kilpatrick. His
18 estimates ranged from between $180,000 and $300,000 in total,
19 depending -- and that means including the final $100,000
20 payment -- depending on who asked him and when it was asked.
21 But that may sound like a lot of money. Keep in
22 mind that the contracts, the janitorial service contracts and
23 the electrical service contracts alone, not even talking about
24 the food service contract, generated about $15 million a year
25 in revenue for Karl Kado. It's not necessarily profit, but

18
1 that's a lot of revenue, that's a lot of business, and that's

2 not a lot of money that he paid Bernard Kilpatrick in terms --
3 relatively speaking in, for Bernard Kilpatrick's assistance in
4 getting them, getting those contracts.
5 Now, the government says -- they mention that
6 $100,000 payment in June 2005 as if there was something wrong
7 with it. Two things about that. First, as I've already
8 alluded to, Karl Kado said he stopped paying Bernard the
9 monthly payments in 2003, and Bernard Kilpatrick, you might
10 remember, in that first recorded conversation, he said
11 something to Karl, something like, "I thought you'd gone and
12 hid under a rock, I couldn't find you, thought you'd gone and
13 hid under a rock."
14 Karl Kado confirmed that Bernard Kilpatrick thought
15 that $100,000 was a catch-up on monies that were owed, and
16 Karl Kado confirmed that Bernard Kilpatrick, in fact, thought
17 that monies were owed, so there's nothing improper with that
18 $100,000 payment.
19 Second thing to keep in mind about that is
20 Bernard Kilpatrick was not dogging Karl Kado for that money.
21 Karl Kado testified, not only to Mr. Bullotta but also to me,
22 that he came forward with that $100,000. It's not
23 Bernard Kilpatrick calling him up and saying -- and saying,
24 "I'm going to break your legs," or anything like that. It was
25 a come forward by Karl to make things right with his

19
1 consultant. Again, there's nothing illegal about that payment.

2 The government also asked, "Well, where are the
3 invoices and why pay in cash?" Well, there's no testimony in
4 this record that I can recall about invoices one way or the
5 other. I don't recall anybody saying there were invoices. I
6 don't recall anybody saying there weren't invoices. But even
7 assuming there were not invoices, so what? Who needs an
8 invoice to make a payment every month when you know you got a
9 payment due every month?
10 Jon Rutherford testified in response to a question
11 from Mr. Chutkow, "Would Bernard call you to get his monthly
12 payment?"
13 Jon says, "Why would he have to do that? I knew
14 when the first of the month came around, I knew when I was
15 supposed to pay the monthly payment." There's no need for
16 invoices in this kind of relationship.
17 Cash. Why cash? Karl Kado paid in cash because
18 Karl Kado was skimming cash. Again, he fought me on it.
19 Eventually, Mr. Thomas got Karl Kado to acknowledge, yes, he
20 was skimming cash and that's what he pled guilty to, that was
21 the basis for his tax fraud problems. Well, when you're
22 skimming cash, you pay as many of your expenses as you can with
23 cash because you're skimming cash to hide total revenues from
24 the IRS, keep them off your tax returns and lower your income.
25 That's why he was paying in cash.

20
1 It's interesting, because he testified on cross

2 examination that Bernard Kilpatrick demanded cash. What's
3 interesting about that is that it's contrary, it's opposite to
4 what he told Agent Schuch in an interview with Agent Schuch
5 where he said Bernard Kilpatrick did not specify that he wanted
6 cash.
7 The bottom line here with Karl Kado is there's no
8 question that he asked for Bernard Kilpatrick's services in
9 advancing Karl Kado's interests. There's no question that
10 Bernard Kilpatrick provided the services, and there's no
11 question that Karl Kado paid for the services. There's nothing
12 extortionate here.
13 The second chapter of Karl Kado has to do with the
14 2008 activities he had with Bernard Kilpatrick, and on Monday,
15 Mr. Bullotta said Bernard Kilpatrick extorted a 10 percent deal
16 from Karl Kado in connection with those 2008 activities, and
17 nothing can be further from the truth. Karl Kado was owed, by
18 his estimate, $1.6 million from the City of Detroit between
19 what he claimed were amounts owing on the cleaning contract, on
20 the janitorial services contract and for his renovation of the
21 Detroit Administrative Hearings Building, the DAH Building.
22 The government wired Karl Kado to go talk to
23 Bernard Kilpatrick about various things, but including that,
24 and they were trying to trap Bernard Kilpatrick into agreeing
25 to do something illegal in order to help Karl Kado obtain these

21
1 monies, and they didn't get that. Bernard Kilpatrick acted

2 completely legitimately, just as he had before.
3 Could we play Cobo 16, excerpt 1, please.
4 (Government's Exhibit Cobo 16, audiotape, was
5 played.)
6 MR. SHEA: Tom's Oyster Bar, February 2008. Bernard
7 is adding up some figures, saying, "This is what you should
8 get."
9 Karl Kado says, "How much?" Bernard's not even
10 paying attention, "How much, how much you want, 10?"
11 Bernard says, "What do you think is fair?"
12 This is not Bernard Kilpatrick demanding 10 percent
13 out of any deal with Karl Kado. This is Karl Kado offering
14 10 percent. Karl Kado is saying, "How much you want? Will 10,
15 10 percent do it as a collections fee?"
16 Let's go on and play excerpt 2, please. Same
17 meeting.
18 (Government's Exhibit COBO 16, audiotape, was
19 played.)
20 MR. SHEA: Here's Karl saying, "This is going to be
21 a contingent fee arrangement. If I collect, I'll pay you. If
22 I don't collect, I won't pay you. It's on you. You bear the
23 risk."
24 Bernard says, "Fine, I wouldn't expect it to be any
25 different."

22
1 This is not Bernard Kilpatrick demanding any

2 particular amount or setting any particular terms. This is
3 Karl Kado acting as the agent of the government, remember, who
4 is making the offer and setting the terms.
5 A little bit later, Karl Kado prompts Bernard again,
6 "Okay, how much? Will you do it for 10 percent?" And Bernard
7 agrees to do the 10 percent.
8 And then a little bit after that, Karl Kado says,
9 "Okay, assuming we're successful, how do you want to be paid,
10 cash or check?" And you can go back and listen to it, but it's
11 clear as a bell, Bernard Kilpatrick says, "I want a check."
12 There's nothing remotely improper, illegal,
13 extortionate about this conversation, or about this project.
14 Now, Bernard Kilpatrick does real work. In fact,
15 he's doing real work before he even has this meeting at Tom's
16 Oyster Bar and before he has any kind of an understanding in
17 terms of payment from Karl Kado at all. He's already doing
18 work.
19 Can we play D-Cobo 6, please. This is a
20 conversation between Bernard Kilpatrick and Kwame Kilpatrick on
21 February 4, which is about four days before the Tom's Oyster
22 Bar meeting.
23 (Defendants' Exhibit Cobo 6, audiotape, was
24 played.)
25 MR. SHEA: Medina is Medina Noor, Agent Beeckman

23
1 confirmed. She worked either in the building safety department

2 or the contracts department. She was someone who Karl was
3 dealing with trying to get paid. This doesn't sound like a
4 conspiratorial conversation, does it? I mean this is
5 Kwame Kilpatrick acting not as son, but as mayor of the City of
6 Detroit, talking to Bernard Kilpatrick, acting not as father,
7 but as representative for a client and saying, "We ain't gonna
8 pay your guy what he wants. We don't owe him that. We owe him
9 some of it. We owe him about 20 percent of what it is he's
10 claiming, and we'll pay that when he comes to us, and agrees to
11 a global settlement."
12 This is Bernard doing work. This is Bernard
13 representing a client's interest. And this is Bernard who
14 supposedly is in a conspiracy with the mayor of the City of
15 Detroit to line his pockets and the mayor of the City of
16 Detroit is saying, "I'm not giving your guy what he wants. I
17 don't care if it means more money for you."
18 After the February 8th Tom's Oyster Bar meeting,
19 Bernard Kilpatrick continues doing work. He makes additional
20 calls. We hear a phone call between him and Karl Kado, which
21 I'm not going to play for you. It's D-Cobo 2, though, if you
22 want to go back and listen to it, where Karl says, "How's
23 things going with the DAH Building issues," and Bernard says,
24 "Well, I've got them -- we started around 200, two and a
25 quarter, I've got them up to about double that."

24
1 Clearly, Bernard is talking to people, working

2 things, trying to get as much as he can for Karl, and then on
3 March the 1st, at a second recorded meeting, Karl Kado pulls
4 the plug on the whole thing. "I'm not going to pay you, I
5 don't want -- I don't care about my money anymore, I want you
6 to stop work."
7 Could we play D-Cobo 17's excerpt, please.
8 (Government's Exhibit Cobo 17, audiotape, was
9 played.)
10 MR. SHEA: "You want me to leave it alone," Bernard
11 says to Karl. He says, "Yes."
12 Bernard says, "I've got this teed up finally. We're
13 getting close."
14 Now, of course, Bernard doesn't realize Karl is
15 working for the government, and the government is not
16 interested in paying Bernard Kilpatrick any success fee for
17 assisting Karl Kado in getting any collection, so I'm sure
18 there's some of that going on in terms of why Karl Kado is
19 pulling the plug. But Bernard doesn't know this. All Bernard
20 knows is, "I'm working, I'm working for you under the terms of
21 the deal that you offered to me and that I accepted in good
22 faith, and I'm getting close to getting you something that you
23 want, and now you're saying don't do it anymore."
24 By the way, I misspoke. It's not D-Cobo 17, that
25 was Cobo 17.

25
1 So Karl Kado pulls the plug, and says, "Stop work,"

2 and Bernard does, Bernard does. We know that, because two
3 weeks later -- this is D-Cobo 3, and I'm saying it right this
4 time -- Karl calls him back and says, "Please start work
5 again."
6 Could we have that one.
7 (Defendants' Exhibit D-Cobo 3, audiotape, was
8 played.)
9 MR. SHEA: So it's on again, off again, and now back
10 on again. Karl Kado says, "Please do more work." And Bernard,
11 of course, makes more calls, does more work.
12 Now, of course, we know that Bernard is being played
13 by a cooperating witness working for the government throughout
14 all this. Again, Bernard Kilpatrick doesn't know it. The
15 point is Bernard Kilpatrick is acting as a legitimate
16 consultant doing what legitimate consultants do for their
17 clients every day. There's nothing remotely improper about
18 what he was doing here.
19 And, you know, the funny thing is he failed. I
20 mean, the government claimed on Monday that Karl Kado didn't
21 get paid because he didn't pay Bernard Kilpatrick. That's what
22 Mr. Bullotta said to you. Karl Kado did not get paid because
23 he did not pay Bernard Kilpatrick. To use one of Mr. Thomas'
24 words, that's just hogwash.
25 The only way Bernard Kilpatrick was going to get

26
1 paid was if Karl Kado got paid. If Kwame Kilpatrick really was
2 looking out for his old man and really wanted to lay the heavy
3 thumb on the scales to help line his old man's pocket, instead
4 of saying, "We're not paying your guy what he wants,"
5 Kwame Kilpatrick would be saying, "Oh, sure, dad, we'll write
6 him a $1.6 million check so you can make your 160 grand."
7 It didn't happen. There's nothing extortionate
8 here. There's nothing conspiratorial here.
9 The government claims that Bernard Kilpatrick tried
10 to bribe Karl Kado in September of 2005 with ten more years of
11 contract at Cobo Hall. Let's examine that.
12 In very late August of 2005, Karl Kado gets a target
13 letter saying he's under investigation for bribery and taxes.
14 He claims he has a meeting with Bernard Kilpatrick in early
15 September of 2005 where he talks to Bernard about that letter
16 and what it could possibly be about. He claims that he leaves
17 and goes down to the parking lot of his building. So he met
18 Bernard in an office that was in the building that Karl Kado
19 owned. Karl Kado said he leaves the meeting, goes down to his
20 parking lot, and two minutes later, his words, two minutes
21 later, Bernard Kilpatrick comes downstairs and offers him ten
22 years, an additional ten-year contract, like Bernard Kilpatrick
23 has the power to do that, like in two minutes,
24 Bernard Kilpatrick had the ability to call anybody in the City
25 of Detroit, explain the situation, and get that kind of

27
1 authorization. It's just completely, totally implausible.

2 What makes it even more incredible, however, is
3 this, he started cooperating with the government in February of
4 2006, six months later, not even six months later. He is
5 exhaustively debriefed in February of 2006, again in early
6 March of 2006, and in some other meetings shortly after that.
7 He's asked questions about all things
8 Bernard Kilpatrick. Does he mention this meeting? No, he
9 doesn't mention this meeting until October 27th of 2006, eight
10 months later. It suddenly occurs to him that he had this
11 incredibly suspicious and damning conversation with
12 Bernard Kilpatrick.
13 Karl Kado also testified that at this meeting in
14 September of 2005, Bernard Kilpatrick supposedly patted him
15 down for a wire. Not something you'd think he'd forget, right?
16 But does he disclose that to the agents on October 27, 2006
17 when he finally remembers having the meeting at all and
18 supposedly this ten-year contract offer? Does he disclose the
19 patdown? No.
20 When does he disclose that? Six years to the day
21 later, October 27, 2012, is when he first told an agent about
22 Bernard Kilpatrick supposedly patting him down for a wire. It
23 is completely unbelievable that these things would have
24 happened and that Karl Kado just forgot about them and waited
25 all this time to tell anybody about them. Those things didn't

28
1 happen, and it's just Karl Kado's, one of the many ways
2 Karl Kado tried to elevate his own position here because he got
3 a cooperation agreement with the government, and because he's
4 required to continue cooperating even after he's sentenced
5 because he still has exposure under that cooperation agreement,
6 and it's just one more lie to spin in connection with that
7 cooperation agreement.
8 In Mr. Kado's final testimony in my cross
9 examination, he acknowledged at no time did Bernard Kilpatrick
10 say, "Pay me or you don't get what you want." At no time did
11 Bernard Kilpatrick say, "Pay me or you lose what you have." At
12 no time did Bernard Kilpatrick say, "You have to pay somebody
13 to get a contract or keep a contract at Cobo Hall." He
14 acknowledged all of those things. There is nothing
15 extortionate about this relationship between Bernard Kilpatrick
16 and Karl Kado.
17 Let's move on to Marc Andre Cunningham. Marc Andre
18 Cunningham is an excellent example of a person whose version of
19 reality changes depending on who happens to be asking him the
20 questions at the time.
21 In brief, to the government, he testified
22 Bernard Kilpatrick brought him in on a deal -- no, reverse --
23 Marc Andre Cunningham was required to bring Bernard Kilpatrick
24 in on a deal after the deal was already done and for no work.
25 That's what he told the government in brief.

29
1 To me he said Bernard Kilpatrick was brought in on

2 the deal before it was approved and he, in fact, did do work.
3 Two starkly different descriptions of the situation. How can
4 this be? It's the power of the cooperation agreement and the
5 cooperating witness, ladies and gentlemen. That's how it can
6 be.
7 Marc Andre Cunningham had gotten himself in trouble.
8 In a completely unrelated matter, he was caught on film taking
9 money from an undercover police officer who was acting as
10 someone who wanted do business with the City of Detroit.
11 Marc Andre Cunningham at this time was working for the City of
12 Detroit and he took a $5,000 bribe to help these undercover
13 officers, who obviously he didn't know were undercover
14 officers, to have their business interest advanced with the
15 City of Detroit. He was caught. He was approached by the
16 government and said, "We've got you on this, would you like to
17 cooperate?" And he said, "Yes."
18 And so you -- trial day comes and you've got to give
19 your testimony, and you're sort of on the horns of a dilemma.
20 You got an agreement where you're going to cooperate with the
21 government in the investigation and prosecution of others, and
22 so you give a version of testimony to the government that you
23 hope is that cooperation. But then you're confronted with the
24 truth by defense counsel on cross examination and recross
25 examination and re-recross examination, and the truth is

30
1 different from the testimony he gave to the government. That's

2 how it happens.
3 Background. Cunningham's uncle, Terry Jones, wants
4 a $30 million loan from the two City of Detroit pension funds,
5 15 million from each. Uncle Terry offers Mr. Cunningham one
6 percent as a success fee if the deals are approved, 300 grand.
7 Marc Andre Cunningham seeks advice from his friends Chris
8 Jackson and Jeff Beasley, who happened to sit on the pension
9 board, about how this might work, how he might be able to get
10 this deal approved, and the pension boards eventually do
11 approve the deal on May 8, 2006.
12 To the government on direct examination, Marc Andre
13 Cunningham describes a meeting at Mosaic Restaurant later that
14 summer after the deal is approved on May 8, 2006, where he's
15 told, he thinks by Chris Jackson, that he has to put
16 Bernard Kilpatrick in the deal, and he has to do this just
17 because Bernard Kilpatrick is Kwame Kilpatrick's dad and that
18 Bernard Kilpatrick did no work. That was his testimony on
19 direct examination.
20 And if that was true, I'd be worried, but it's not
21 true, because on cross examination he acknowledged that
22 Bernard Kilpatrick was brought into the deal before May 8,
23 2006, that Marc Andre Cunningham had discussions with
24 Bernard Kilpatrick about this deal before that, that after
25 those discussions, Marc Andre Cunningham and Terry Jones, his

31
1 uncle, and Jeff Beasley and Bernard Kilpatrick had a dinner

2 meeting where they discussed the deal further, that
3 Bernard Kilpatrick had experience in these matters, that's why
4 he was brought in, that Bernard Kilpatrick gave his insights in
5 terms of pension board processes and pension board members. In
6 Marc Andre Cunningham's own words, Bernard Kilpatrick,
7 quote-unquote, was there as the deal was moving forward, and to
8 me he acknowledged that Bernard Kilpatrick assisted in guiding
9 the deal forward.
10 He also acknowledged he did not expect
11 Bernard Kilpatrick to work for free, that he knew this was what
12 Bernard Kilpatrick did for a living, and that he expected to be
13 paid for it. He also acknowledged that his friend, Chris
14 Jackson, who had been mentoring him during the process, went
15 absent for about a month before the deal was approved, which
16 made Bernard Kilpatrick's experience even more valuable and
17 important.
18 This was a fee for services arrangement. This had
19 nothing to do with extortion, this had nothing to do with
20 paying somebody for no work.
21 And while $15,000 might seem like pretty good pay
22 for two months' work, let's keep in mind, it's only 5 percent
23 of what Marc Andre Cunningham made, 300 grand, as a rookie in
24 this business. I'm not suggesting that Bernard Kilpatrick
25 necessarily made this deal go, and I didn't suggest it to

32
1 Mr. Cunningham either, but he worked on it and he was brought

2 in to work on it by them, and this was a deal where Marc Andre
3 Cunningham wasn't going to make a dime unless the deal was
4 successful, so it was important to have somebody to help him
5 make the deal successful.
6 Notwithstanding Mr. Cunningham's acknowledgment that
7 Mr. Kilpatrick did work for his money, the government argues
8 that this was a corrupt relationship. They say, "The locations
9 of where Mr. Kilpatrick got paid are suspicious, meaning the
10 basement of the CAYMAC Building by the barbershop. Well, I'm
11 not as familiar with the basement of the CAYMAC Building by the
12 barbershop as Mr. Thomas is, but Mr. Thomas' cross examination
13 of Marc Andre Cunningham made it quite clear that that's a
14 public place.
15 Let's keep in mind, Marc Andre Cunningham is working
16 in the CAYMAC Building at the time. If Mr. Kilpatrick is going
17 to get paid, he's going to go up to the 11th floor and have the
18 guy give him an envelope full of cash, which probably doesn't
19 look very good, or he's going to meet him somewhere else. And
20 the fact that he met him at the barbershop or near the
21 barbershop to get paid, nothing to indicate corruption there.
22 The government said, "Well, he was paid in cash."
23 Well, he was paid in cash. On the other hand, every time
24 Marc -- look at the deposit records. They're in evidence as an
25 exhibit. Every time Marc Andre Cunningham deposited a

33
1 quarterly check and paid Bernard Kilpatrick, and it wasn't

2 every time, even before supposedly Kwame said, "Stop paying my
3 dad," he was getting more checks than he was paying
4 Bernard Kilpatrick out of.
5 We know that because he claims he paid
6 Bernard Kilpatrick in cash, and some of these quarterly payment
7 checks that he received, he deposited, he didn't take cash out.
8 But when he did take cash out, he took a lot of cash out, and
9 it wasn't just for Bernard Kilpatrick. So he's paying himself
10 in cash too. I don't hear anybody saying that's corrupt. And
11 finally, the government says Kwame Kilpatrick supposedly told
12 Mr. Cunningham to stop paying Bernard Kilpatrick after
13 Marc Andre Cunningham's bribe-taking from the undercover
14 officers was reported in the press in September of 2006.
15 Now, I don't know if that really happened,
16 Kwame Kilpatrick telling Marc Andre Cunningham that, I don't
17 know. Marc Andre Cunningham said so many different things,
18 it's hard to know what's true and what isn't true, but even if
19 that is true, I don't see what is unexpected in that. You've
20 got a staffer who has been exposed in the Philadelphia Inquirer
21 as someone who is taking bribes from undercover officers. You
22 know that your client, your staffer, is in a business
23 relationship with your father. I think you might want your
24 staffer to stay the heck away from your father, because it's a
25 little bit worrisome that you think the focus on this guy is

34
1 going to expand into a focus on somebody else that might be, it

2 might not be a legitimate other -- it might not be illegitimate
3 what Bernard Kilpatrick was doing in terms of being paid for
4 the work he did for Marc Andre Cunningham, but why would you
5 want to expose him to it? So I don't think that is an
6 indication of a corrupt relationship at all.
7 Again, Mr. Cunningham acknowledged Mr. Kilpatrick
8 was brought into the deal before the deal was done. He
9 provided services. He expected to be paid for the services.
10 He was paid for the services. There's nothing extortionate in
11 that relationship.
12 Let's move on to Synagro and James Rosendall. James
13 Rosendall was, I think, without a doubt, the most manipulative
14 and immoral witness who testified in this trial. He lied to
15 everybody. I heard one person say after his testimony he
16 thought he needed an acid bath, to make sure that any film that
17 he left behind after he testified was removed.
18 In background, this privatized sludge processing
19 concept had been around since the Archer administration.
20 Minergy Corporation had a deal with the City of Detroit to
21 privatize the sludge processing. It wasn't working out because
22 they didn't have a model that was cost effective. Synagro was
23 interested in purchasing that contract and making it cost
24 effective. The City of Detroit was interested because it had
25 potentially big savings for the city, a cash-strapped city, so

35
1 they were interested in it.

2 James Rosendall wanted Synagro to get the contract
3 because it meant big revenues for him. He estimated three
4 million bucks would be coming to him if the contract were
5 approved, and including the sale to Synagro of a piece of
6 property that he owned that was going to underlie the facility
7 that was going to be built there. So he had a real serious
8 interest in seeing that approved.
9 The review process was lengthy, and it was
10 complicated. It was not approved by city council until late
11 November of 2007, and the testimony indicates that
12 Mr. Rosendall was talking about this as early as 2002, maybe
13 even earlier.
14 The testimony indicates that Kwame Kilpatrick
15 suggested Bernard Kilpatrick as a consultant early on. James
16 Rosendall testified it happened at a Manoogian Mansion event.
17 Derrick Miller testified it happened at a meeting that he and
18 Kwame Kilpatrick and James Rosendall had. Regardless, the
19 testimony indicates that Bernard Kilpatrick was suggested as a
20 consultant early on. The Manoogian Mansion event would have
21 been the, probably late 2003, maybe early 2004, if that's where
22 it happened.
23 But interestingly, after that, there's very little
24 evidence of Kwame Kilpatrick being involved in this project
25 moving forward at all. And it's curious from this standpoint,

36
1 at the time, 2002, 2003, 2004, Kwame Kilpatrick, as we heard

2 lots of testimony about, was a special administrator for the
3 Detroit Water and Sewer Department. He had lots of power. He
4 had power to circumvent the normal review and evaluation
5 processes. He had the power to sign contracts just because he
6 thought he could. Didn't have to go to city council.
7 You heard James Rosendall twice in his testimony
8 kind of complain when I asked him to confirm it took a long
9 time to get this approval, and he said, "Yeah, wouldn't have
10 taken so long if the mayor had used his special administrator
11 powers."
12 Now, if Mayor Kilpatrick had exercised those powers,
13 presumably if he were in a conspiracy to aggrandize his father
14 and line his pockets, he would have done so. He'd have gotten
15 through the approval process faster, Bernard Kilpatrick would
16 have had a more sure potential of getting something out of it,
17 and he would have gotten it faster and that would make sense.
18 It would make sense for Kwame Kilpatrick to have done that if,
19 in fact, there were a conspiracy.
20 But he didn't do that. He let it go through the
21 standard review process. Again, it took years, went through
22 DWSD, went through Board of Water Commissioners, finally got to
23 city council, and even then the prospects were terribly iffy.
24 At city council the project was approved on a five-to-four
25 vote. One vote. And we learned later that it was only

37
1 approved on that one vote because James Rosendall and Rayford

2 Jackson bought a vote. They bought a councilwoman's vote, and
3 she was the deciding vote to get to that five-four.
4 I don't think that if Kwame Kilpatrick was
5 supposedly extorting Synagro to benefit his father he would
6 have left the outcome to such an uncertain process.
7 Bernard Kilpatrick got involved to assist in managing community
8 opposition to the project. James Rosendall testified they
9 expected some in the neighborhoods and with the unions.
10 Now, James Rosendall testified first that he got
11 Bernard Kilpatrick involved because he supposedly heard a rumor
12 in Grand Rapids that Detroit was a pay-to-play city. Couldn't
13 tell us who he heard the rumor from, couldn't tell us whether
14 that person, what the source of that person's knowledge was,
15 couldn't tell us whether that person even did any business in
16 the City of Detroit. But he wants you to believe that that's
17 why he hired Bernard Kilpatrick, because he heard this rumor.
18 This contrasts with Derrick Miller's clear
19 recollection that in his meetings with James Rosendall, Bernard
20 Kilpatrick was suggested as a consultant to manage the
21 community outreach piece of this project. And James Rosendall
22 agreed that community outreach was important and he agreed that
23 someone with Bernard Kilpatrick's qualifications and experience
24 was a good person to assist them in that community outreach.
25 He also agreed that Bernard Kilpatrick worked on this project.

38
1 For about six months before turning it over to

2 Rayford Jackson, Bernard Kilpatrick was the point person for
3 Synagro on the project, and we saw examples of things he did,
4 including an example of trying to get a meeting with
5 Victor Mercado for James Rosendall. There are text messages to
6 that effect in evidence, including James Rosendall's text
7 messages asking Mike Tardif what's the status of the meeting
8 with -- that Bernard is trying to set up with Victor Mercado.
9 So he's obviously doing work, and James Rosendall
10 acknowledges that he was doing work, and then he continues to
11 do work behind the scenes after Rayford Jackson is brought in.
12 Rayford Jackson is brought in, because Synagro is -- does not
13 want, in this very public, very large contract, any hint that
14 they're getting special treatment because Bernard Kilpatrick is
15 representing their interests out front. They don't want the
16 public relations problems that would come with having the
17 father of the mayor be the primary representative of the
18 business. It makes total sense. I agree with that, and
19 Bernard Kilpatrick agreed with that, according to James
20 Rosendall's testimony. Makes complete sense.
21 So Bernard Kilpatrick turned Synagro over to Rayford
22 Jackson, and he continued whatever work Bernard Kilpatrick did
23 behind the scenes. James Rosendall testified that
24 Bernard Kilpatrick remained the primary point of contact on the
25 project for people in the Water and Sewerage Department and

39
1 people in the administration where Rayford Jackson didn't have

2 the kind of relationships that Bernard Kilpatrick had. Rayford
3 Jackson was the person out front in the public and the person
4 who was dealing with city council, even illegally with city
5 council.
6 For all this work that Bernard Kilpatrick does over
7 four years, he got $10,000 from James Rosendall. You saw the
8 two checks. You got the $5,000 check that said "Consulting,"
9 you saw the $5,000 check that said "Loan." This was under the
10 table because Synagro, again, did not want Bernard Kilpatrick
11 in any official way linked in a way that was -- had him
12 involved for purposes of the public relations concerns that I
13 previously discussed.
14 What else did Bernard Kilpatrick get? He got a
15 double-cross from James Rosendall and from Rayford Jackson.
16 James Rosendall testified that he knew Bernard Kilpatrick
17 retained a business interest with Rayford Jackson on the back
18 end of the Synagro deal. That is, if the deal were successful,
19 Bernard Kilpatrick was going to share equally in what Rayford
20 Jackson was going to make on the back end in terms of success
21 fees and other follow-up.
22 James Rosendall testified he knew that this
23 arrangement existed, and he knew that, in fact, Rayford Jackson
24 was going to come into those sums of money because he was
25 familiar with Rayford Jackson's consulting agreement with

40
1 Synagro.
2 James Rosendall testified that Rayford Jackson,
3 Bernard Kilpatrick and he had meetings starting in late summer
4 or fall of 2007 where Bernard Kilpatrick, and they, and the
5 rest of them, all three of them were discussing memorializing
6 Bernard Kilpatrick's agreement with Rayford Jackson in some
7 kind of an agreement, because it was unwritten at this point,
8 and the agreement was going to run Bernard Kilpatrick's share
9 of Rayford Jackson's success fees through a woman named
10 Akunna Olumba, who was a former girlfriend of
11 Bernard Kilpatrick and also a business associate. And Akunna
12 was going to get a small percentage, have a small percentage
13 role as well if it were approved.
14 Unbeknownst to Bernard Kilpatrick, Rayford Jackson
15 and James Rosendall, behind the scenes, were working to in
16 fact -- were, in fact, working against Bernard Kilpatrick.
17 They were -- James Rosendall kept telling Bernard Kilpatrick,
18 "I'm moving this forward. I'm talking to the home office.
19 We're going to get this agreement written up. Tell me what
20 Akunna Olumba's business name is so we can put it in the
21 agreement." All sorts of stuff.
22 But in fact, he was doing nothing. He was leading
23 him along, he was stringing him along, and he was doing it
24 complicit with Rayford Jackson, because we heard phone
25 conversations where they're discussing. They're plotting and

41
1 scheming against Bernard Kilpatrick to string him along, put

2 him off and ultimately cut him out.
3 Bernard Kilpatrick finally got fed up. He was put
4 off for awhile. Then, after city council approved the
5 contract, he had a meeting at a pancake house restaurant on
6 December 4th, 2007, Bernard, Akunna Olumba and James Rosendall.
7 They had this meeting at the pancake house restaurant, which
8 the FBI kindly got them a booth at with the special
9 microphones, and you hear James Rosendall tell
10 Bernard Kilpatrick that he can expect half of between a hundred
11 to $200,000 in success fees to be paid by the end of the year.
12 That's what he expected Rayford Jackson to, the payment
13 schedule for Rayford Jackson and Bernard Kilpatrick would be
14 paid half of it.
15 Then nothing, no communication with James Rosendall
16 for much of the rest of the month until Bernard Kilpatrick, fed
17 up, on December 20th, 2007, leaves the famous "vacation or no
18 vacation" voice mail message.
19 Once again, what's James Rosendall's first move
20 after getting that message? You heard the recording. He
21 called Rayford Jackson. "Rayford, I got this angry message
22 from Bernard Kilpatrick," and for 10 or 15 minutes, they plot
23 and they scheme about how James Rosendall should play off
24 Bernard Kilpatrick in connection with Bernard Kilpatrick's
25 expectations.

42
1 Rayford suggests, "Tell him I'm under investigation

2 for a housing scandal and that the general counsel's office is
3 now dealing with me directly and that you're out of it." What
4 does J.R. do next? He calls Bernard Kilpatrick, and that's
5 what he tells him, "Sorry, it's out of my hands. It's now in
6 the general counsel's office because Rayford's in trouble and
7 they don't want me dealing with him anymore."
8 Bernard demands a meeting. J.R. says, "I've got
9 five minutes this afternoon. I'm heading out of town tomorrow.
10 I'll meet you in the parking lot of your office."
11 Bernard Kilpatrick had suggested, if you go back and
12 listen to the recording, says, "I'm going to be at a meeting in
13 the Millender Center, why don't we have lunch at the Millender
14 Center?"
15 J.R. says, "No. I'll just meet you for five minutes
16 in the parking lot of your office."
17 Government wants you to think that they met in the
18 parking lot of the office because Bernard Kilpatrick was afraid
19 of bugs in his office. Has nothing to do with that. Listen to
20 the conversation.
21 J.R. shows up with 300 bucks and a cigarette package
22 and a case of champagne and thinks that's going to pacify and
23 appease Bernard and is taken aback when it doesn't. And
24 Bernard says, "I'm going to blow up the deal." J.R. finally is
25 worried; he's worried about losing this deal. Remember, he's

43
1 got three million bucks on the line himself. So he calls his

2 boss, Pam Racey, and finally starts to come clean. Doesn't
3 come clean, but he starts to come clean.
4 He advises her of the dispute between Rayford
5 Jackson and Bernard Kilpatrick. He advises her that Rayford
6 Jackson is trying to cut Bernard Kilpatrick out. He does not
7 tell her that he's known about this for months and he does not
8 tell her that he's been complicit with Rayford Jackson trying
9 cut Bernard Kilpatrick out.
10 Pam Racey, to her credit, immediately observes that
11 Rayford Jackson has an obligation to Bernard Kilpatrick and he
12 has to honor it. He expects more work out of Synagro. If they
13 can't trust him to honor his obligations with people, they
14 don't want to do business with the guy, and J.R. agrees. I
15 mean, he -- Pam Racey also observes that Rayford Jackson's
16 obligation is borne of the fact that Bernard Kilpatrick brought
17 him into the deal, he brought him into the deal with an
18 understanding that Bernard Kilpatrick was going to get
19 something out of it if the deal went well. That's why he had
20 an obligation. And again, J.R. agreed and more than agreed.
21 Could we play D-Synagro 11, please.
22 (Defendants' Exhibit D-Synagro 11, audiotape, was
23 played.)
24 MR. SHEA: I love that from James Rosendall,
25 "Morally, it's not right." I mean, geez, this is a guy who is

44
1 trying to stab him in the back for months, and he says to his
2 boss what's true, "Morally, it's not right." So what was James
3 Rosendall doing all those months when he's working with Rayford
4 Jackson to deep six Bernard Kilpatrick? He was acting in a
5 pretty immoral fashion.
6 What this means is Bernard Kilpatrick's threats to
7 blow up the house or blow up the deal or pull the plug are not
8 extortion. The judge has already instructed you what is
9 extortion, and one of the critical elements for someone to be
10 convicted of the crime of extortion is they use wrongful --
11 they wrongfully use the fear of economic harm to get something
12 for themselves. And the definition of "wrongful" is to get
13 property unfairly and unjustly because the person has no lawful
14 claim to it.
15 Well, everybody here acknowledged that
16 Bernard Kilpatrick had a lawful claim to share in Rayford
17 Jackson's success. It was part of their deal; it was part of
18 their agreement. Pam Racey said it's lawful. Pam Racey said
19 it's understandable. Pam Racey said it's enforceable. Pam
20 Racey said he has to honor it. And James Rosendall agreed and,
21 moreover, said it was the moral thing to do. This was not
22 extortion.
23 J.R. sort of made it sound like Bernard Kilpatrick
24 didn't deserve so much money because he didn't do as much work
25 as Rayford Jackson, but he also acknowledged that wasn't his

45
1 deal, it wasn't any of his business. What Rayford Jackson

2 agreed to pay Bernard Kilpatrick four years earlier, when
3 nobody knew if this thing was going to be pie in the sky or
4 bricks and mortar on the ground, was between Rayford Jackson
5 and Bernard Kilpatrick. Had nothing to do with what J.R. after
6 the fact thought it was worth. And once the deal was made,
7 Bernard Kilpatrick was entitled to have it honored and was
8 entitled to rely on it being honored.
9 And getting upset, really angry, and saying, "If I
10 can't" -- "If you're going to try to screw me, I'm going to do
11 what I can to see that you don't get the economic benefits that
12 you think you got coming," is not extortion. And not for
13 nothing, but Bernard Kilpatrick never, in fact, sought any
14 adverse action within the City of Detroit. Notwithstanding all
15 of his bluster, all of his anger, all of his swearing. He
16 never did anything to try and hurt that project, even though,
17 heck, Rayford Jackson never came around.
18 Your Honor, I'm going longer than I expected I was
19 going to. I'm going to move into the $5,000 payment, but I can
20 break now or I can break when I get through that.
21 THE COURT: Let's have a quick sidebar here.
22 (The following sidebar conference was held:)
23 THE COURT: Unfortunately, what this means is
24 that --
25 MR. SHEA: I can keep going.

46
1 THE COURT: But how much longer do you have?

2 MR. SHEA: Half hour.
3 THE COURT: Then Gerald's not going to get his
4 argument in.
5 MR. SHEA: I'm doing the best I can.
6 THE COURT: I want you to finish.
7 MR. SHEA: I'm happy to keep going, sure, sure.
8 THE COURT: Keep going. We're going to have to
9 split your argument. I can't help it.
10 MR. EVELYN: I understand, Judge, I was thinking
11 about that this morning.
12 THE COURT: I mean, we'll take a lunch break in the
13 middle of it. You just tell me what a good place is to break
14 it and we'll do that.
15 (End of discussion at sidebar.)
16 THE COURT: Does the jury prefer to take a break
17 now? All right. We'll take a break.
18 MR. SHEA: I thought you wanted me to keep going.
19 THE COURT: They want a break.
20 MR. SHEA: Okay.
21 THE COURT: Twenty minutes.
22 (Jury out 10:21 a.m.)
23 (Recess taken 10:21 a.m. until 10:48 a.m.)
24 (Jury in 10:48 a.m.)
25 THE COURT: Be seated. Well, ladies and gentlemen,

47
1 slight revision in the schedule. We had hoped, everyone had

2 hoped that we might have time today to get all of the final,
3 the closing arguments in, and it's just not going to happen.
4 So Mr. Shea is going to finish his closing, we're
5 going to take an early lunch break, and then Mr. Evelyn is
6 going to do his closing this afternoon, and that will be the
7 end of the proceedings for the day. We'll take up tomorrow
8 morning with Mr. Chutkow's rebuttal argument and the final
9 instructions. So hopefully that works out for everybody.
10 MR. SHEA: Sorry for being such a windbag.
11 THE COURT: No. Let me just say, because this has
12 gone on -- and you're not a windbag, obviously. This is a long
13 trial, a lot of evidence. Well, maybe they think you are, I
14 don't know.
15 MR. SHEA: I might think I am.
16 THE COURT: But, you know, we've been at this a long
17 time, there's a lot of ground to cover, and everyone is doing
18 the best they can to kind of keep it focused but say what needs
19 to be said.
20 So Mr. Shea.
21 (10:50 a.m.)
22 MR. SHEA: Thank you. We're still on the Synagro
23 chapter, and I just finished talking about the James Rosendall
24 double cross and how he reported it to his boss and suggested
25 that it was a moral failing to not honor Bernard Kilpatrick's

48
1 agreement with Rayford Jackson and telling you that it's not
2 extortion because what Bernard Kilpatrick did in saying if
3 you're going to double cross me and deny me what I've got
4 legitimately coming in terms of economic benefit, then I'm
5 going to do what I can to see that you don't share in the
6 economic benefits, Mr. Rosendall, or Mr. Jackson, that you
7 think you've got coming either, and maybe that will turn you
8 around and make you honor the agreements with me. Not
9 extortion.
10 So now I want to talk about the $5,000 payment that
11 James Rosendall paid after he was working for the government,
12 and you'll recall the individual recordings of 2,500 being paid
13 on March 5th, 2008, and then another 2,500 being paid -- 2,500
14 being paid in April. It's not recorded, it was testified to by
15 James Rosendall.
16 And I want you to think back to the recorded meeting
17 of December 4th, 2008. We talked about it a little bit
18 earlier. This is the meeting where Akunna Olumba and
19 Bernard Kilpatrick and James Rosendall were speaking about ten
20 days, maybe, after city council had approved and signed off on
21 the Synagro deal, and you'll remember that I described James
22 Rosendall assuring Bernard Kilpatrick that by the end of the
23 year he should be getting a pretty significant chunk of money.
24 Rayford Jackson was owed between $100,000 and $200,000 by then,
25 and Bernard was supposed to get half of that, and then, of

49
1 course, everything goes to heck and they have the dust-up on

2 December the 20th, and Rosendall calls Pam Racey and starts
3 coming clean, and they have the conversation about he's got --
4 the deal with Bernard Kilpatrick has to be honored.
5 Well, what does James Rosendall do after that
6 conversation with Pam Racey, which is about 4:30 in the
7 afternoon? Again, you can go back and look at it and listen to
8 it yourself. Well, he calls Bernard Kilpatrick, and he lies to
9 Bernard Kilpatrick again in two respects. A guy just can't
10 change his spots.
11 He says, "The home office is going to talk to
12 Rayford Jackson tomorrow and remind him how he got in this deal
13 and remind him that he has got to honor his obligations," which
14 was hooey. Home office acknowledged it was hooey.
15 Home office was not going to be talking to Rayford
16 Jackson the next day. They weren't going to be saying these
17 things. But Bernard's gratified to hear it, "Okay, good, glad
18 to hear that." And Bernard asks whether the home office is
19 going to be sending any payment, and J.R. says, "Well, they're
20 working on that, too. They're working on the paperwork for
21 that, and they're going to process that before Christmas."
22 Next day, Rosendall flies out of town. He lands
23 wherever it is he's flying out of town to, and he calls
24 Bernard Kilpatrick, returns Bernard's call or maybe Bernard
25 reaches him somehow. And the substance of the conversation is,

50
1 "I need an invoice. I've got to get an invoice, and have

2 Akunna Olumba -- and, oh, I've already spoken" -- Mr. Rosendall
3 says, "I've already spoken with Akunna Olumba, and I've told
4 her to prepare an invoice." And she does prepare an invoice,
5 and I don't have it here, but it's in evidence, I believe -- I
6 don't even have the exhibit number, but it's a Synagro exhibit
7 number, and it's the Black Onyx invoice for $5,000 and it says
8 for something like political consulting and something else,
9 which I'm forgetting about.
10 And J.R. says to Bernard Kilpatrick, "I will get it
11 to Pam Racey or the home office today, and it will be processed
12 before Christmas," which, again, was just more lies.
13 You'll see the exhibit is a number of pages. The
14 first page is a cover, is a fax cover sheet from James
15 Rosendall to Pam Racey, and it's dated December 24th, and she
16 had not had -- and the email that went along with it, or the
17 message that went along with it was, "Pam, see attached. You
18 may want to let Alvin look at this," the general counsel. It
19 was clear that he had had no conversation with anybody at
20 Synagro's home office about this $5,000 invoice. It was just
21 another way to push Bernard off while I guess he tried to
22 figure out how to get Rayford Jackson on board.
23 But Bernard and Akunna Olumba don't know that.
24 They're told, they're advised by James Rosendall, "Get me a
25 $5,000 invoice." I asked James Rosendall where the number came

51
1 from. He said, "It probably came from me. It was half of, I
2 think it was half of what Rayford Jackson was supposed to get.
3 He was supposed to get about $10,000 a month, so that's what I
4 was thinking. So that's why it was $5,000."
5 So James Rosendall says, "Prepare an invoice, get it
6 to me, for $5,000, and we'll see that you get your share of
7 Rayford Jackson's $10,000 payment." Doesn't happen. Of course
8 it doesn't happen.
9 And the government made some, tried to make some
10 point in redirecting Mr. Rosendall about the substance of the
11 invoice saying "political consulting" and whatever else it
12 said, as if Bernard Kilpatrick had not been doing any political
13 consulting for years in connection with this, and of course he
14 had been, so it's not like the invoice was made up in terms of
15 services provided. And the reason it was submitted on Akunna
16 Olumba's Black Onyx business letterhead is, again, Synagro did
17 not want, and they acknowledged they did not want to see
18 Bernard Kilpatrick's name as the name on invoices that they
19 were going to be having Rayford -- they were going to be paying
20 out of Rayford Jackson's share. So the invoice doesn't get
21 paid.
22 We're into 2008, and there's a meeting at Southern
23 Fires on January 29th of 2008, and by this time, James
24 Rosendall is working with the FBI, and so he's wired and that
25 meeting is taped. And he brings $2,500 in cash and tries to

52
1 slide it to Bernard, and you'll recall Bernard saying, "What

2 are you doing? We need a check." James -- Bernard says, "This
3 was supposed to be, you were supposed to be bringing money to
4 take care of what you told me you were going to take care of in
5 December from Synagro."
6 And Rosendall said, "Well, I told you I was going to
7 have half of it, and this is what I've got, and it's coming
8 from me."
9 And Bernard says, "Well, that's a problem, too,
10 because it's supposed to be coming from Synagro."
11 And so, again, there's no payment made on that
12 $5,000 invoice. It's still out there outstanding. He still
13 has this understanding that it's going to be paid because
14 that's what he was told. And then we go to March 5th, 2008,
15 and it still hasn't been paid.
16 At the end of the first meeting he has with James
17 Rosendall on March 5th, 2008, he asks Rosendall when he's going
18 to be coming back around. Rosendall says he's going to be gone
19 for a couple weeks. Bernard seems to be a little
20 disappointed --
21 THE COURT: Mr. Shea, slow down, please.
22 MR. SHEA: -- and at the end, he says, "Well, when
23 you come back around, bring me this," which Rosendall
24 interpreted as the $5,000 that had not yet been paid. And he
25 comes back that afternoon. Bernard Kilpatrick didn't say,

53
1 "Come back this afternoon." He comes back that afternoon, with

2 cash. Bernard Kilpatrick didn't say, "Come back with cash,"
3 but at this point he takes the cash. I mean, how long are you
4 going to wait to get a check out of a guy? You say, "I want a
5 check," but he also wanted the invoice paid, and he took the
6 cash. And he took the cash in April, as well, which finished
7 paying off that invoice.
8 And I asked Mr. Rosendall toward the end of my cross
9 examination, "This was the same $5,000 as invoiced on December
10 the 21st, 2007?"
11 And he said, "Yes.
12 "This is the same $5,000 that did not get paid as
13 invoiced?"
14 And he said, "Yes.
15 "And you finished paying this off in April 2008?"
16 And he said, "Yes."
17 This can't be extortion or even attempted extortion,
18 which is how it's actually charged in the indictment, as
19 attempted extortion.
20 I guess this is a good point to remind you that
21 Bernard Kilpatrick is only charged in one -- you've got the
22 RICO count, and then you've got all these other substantive
23 counts, that's what we call them, for bribery and extortion and
24 tax counts and stuff like that, mail fraud, wire fraud.
25 Bernard Kilpatrick, setting aside the tax counts, is

54
1 only charged in one substantive count, and it's charged as an

2 attempted extortion and it relates to James Rosendall. This is
3 not attempted extortion.
4 Mr. Rosendall suggested the invoice after his
5 telephone conversation with his boss where it was agreed that
6 he was entitled to be sharing in Rayford Jackson fees, and
7 after subsequent discussions with Bernard Kilpatrick where he's
8 the one who instructed that they send the invoice and told him
9 what to put in it and told them what amount to put in. And it
10 was never paid, and it was entirely understandable that
11 Bernard Kilpatrick would seek its payment. It's not extortion.
12 What about conspiracy? Is there anything about the
13 Synagro project that smacks of conspiracy? Well, if there's no
14 extortion by Bernard Kilpatrick -- and I've argued to you, and
15 I think demonstrated to you that there is not -- then there's
16 no conspiracy to commit extortion in connection with the
17 Synagro project either.
18 But it bears noting, again, the lack of
19 Kwame Kilpatrick's administration's involvement in this. Yes,
20 Bernard Kilpatrick may have been suggested to James Rosendall
21 as a consultant back in late 2003, but, again, after that,
22 there's little, if any, evidence of Kwame Kilpatrick's
23 involvement in this process. And I've already gone through how
24 Kwame Kilpatrick could have leveraged his special
25 administrator's powers to have gotten his father a bunch of

55
1 consultant fees on the Synagro deal a whole lot sooner and with
2 a whole lot more assurance than if he had just let this thing
3 go through the standard review and evaluation process.
4 So I don't see any evidence of conspiracy, but even
5 more, Bernard Kilpatrick is in a dispute with Rayford Jackson
6 and James Rosendall for a number of weeks starting in late
7 2007, mid December 2007 and into, you know, the first couple of
8 months of 2008. Does he call his son and say, "Mess with these
9 guys' permits, mess with these guys' contract"?
10 Does he call anybody in his son's administration and
11 suggest that? There's no evidence. The evidence is he did
12 none of those things. If he was in a conspiracy with his son
13 and the object of the conspiracy was to get rich by leveraging
14 his son's office, where is his efforts at leveraging his son's
15 office?
16 James Rosendall actually said it best. You can go
17 back and listen to DSYN-13, which is a January 8 or January 9,
18 2008 conversation between Pam Racey and James Rosendall late in
19 the day, around 5:00. She's actually making dinner in her
20 kitchen, and they're discussing the status of things in Detroit
21 and the fact that Rayford is being recalcitrant in terms of
22 coming around and honoring his obligations. And Pam Racey
23 almost offhand says, "I'm kind of surprised that his son hasn't
24 gotten involved in this." And James Rosendall says, quite
25 clearly, "He's not involved in it."

56
1 There's no conspiracy here either. Now, the central

2 essential facts, before I get out of this chapter,
3 Bernard Kilpatrick had a deal with Rayford Jackson, Synagro,
4 and even James Rosendall recognized its legitimacy. James
5 Rosendall was active in trying to kill that deal, and Bernard's
6 reaction was in defense of something he was entitled to and not
7 wrongful. It's not wrongful, it's not extortion, it's not
8 attempted extortion, and it's not conspiracy to engage in
9 extortion.
10 The last business relationship chapter I want to
11 discuss, I told you the government litigated five chapters in
12 the trial involving Bernard Kilpatrick and his business
13 relationships, where the government tried to say this involves
14 extortion, is the Book Cadillac project, the waste hauling
15 aspect of it, and I'm going to be quick on this because there's
16 not -- I think it's a pretty obvious circumstance, again, of no
17 extortion.
18 Bernard Kilpatrick had a client. The client was
19 called Capital Waste. Capital Waste had two principals,
20 John Runco and John Francis. Capital Waste, early on in the
21 Book Cadillac renovation project, had the waste hauling
22 contract. They're the people who brought the dumpsters up and
23 got the construction debris and took the construction away.
24 The project was halted because the general
25 contractor pulled out, it was halted for a time. The new

57
1 general contractor came in, the project restarted, Capital

2 Waste was no longer the waste hauler. Instead, the waste
3 hauler was somebody from out of town.
4 Capital Waste was a Detroit-headquartered business
5 and a Detroit-based business and deserved preference on the
6 job, and they were being denied that in favor of an out-of-town
7 company. And you heard a series of phone calls where Bernard
8 was discussing with his client and then with Bobby Ferguson and
9 then with Shakib Deria what might be doable about this.
10 And Bernard was hot. He was upset that for months
11 he had been trying to reach Jim Jenkins, the person who was one
12 of the people who was managing the Book Cadillac job, to get
13 the situation rectified and get Capital Waste back on the job,
14 and Jim Jenkins was putting him off and putting him off and
15 putting him off.
16 And he wanted -- and he discussed various ways of
17 voicing his complaint officially about that. He talked about,
18 to his client, about going to the head of the Human Rights
19 Department, a Gerard Grant Phillips, who -- which department
20 was empowered with investigating complaints like this. We
21 heard from Kim Harris, this is what they do. And, in fact,
22 they had a history with Jim Jenkins on this job with these very
23 kinds of complaints, Kim Harris told us.
24 Bernard Kilpatrick discussed with Bobby Ferguson
25 maybe going to George Jackson, who was the head of the Detroit

58
1 Economic Growth Corporation, and DEGC was the responsible party

2 for that project from the City of Detroit perspective, and
3 Agent Beeckman acknowledged that he also would have been an
4 appropriate person to receive that kind of complaint.
5 And Bobby Ferguson, who was in the middle of a bunch
6 of other stuff on a job site, is talking to Bernard and says
7 "Well, listen, let me put you in touch with Shakib Deria who is
8 on the site and who knows what's going on better than me."
9 Bobby doesn't really have much involvement in this at all,
10 except for referring Bernard to Shakib.
11 Shakib calls back. Shakib says, "Yes, you're right,
12 your client has -- there is an out-of-town company that's on
13 the job, and what you may not know is they got the job by
14 bribing the Marous Brothers or somebody in Jenkins'
15 organization to get the job." And Shakib says, "But don't do
16 anything, don't file a complaint yet. Let me talk to the site
17 superintendent and we'll see if we can get it straightened
18 out."
19 And, in fact, Bernard never does file a complaint.
20 There's no evidence of any formal complaint being made of any
21 contact between him and Gerard Grant Phillips about this, of
22 any contact between him and George Jackson about this, of any
23 attempt by him to have adverse action taken against Jim Jenkins
24 on this. But had he taken such action, he would have been
25 completely justified in doing so because this is what

59
1 consultants do, they make complaints, they advocate for their

2 clients' interests with government. And here you had a
3 rules-based scheme that was supposed to favor Detroit-based and
4 Detroit-headquartered businesses that was not being followed by
5 Mr. Jenkins or the Marous Brothers, the people who were running
6 the project and who were supposed to be following those rules.
7 If Mr. Kilpatrick had not done anything in
8 connection with this, he would have been remiss. He would not
9 have been representing his client properly.
10 Now, Agent Beeckman testified that maybe he got some
11 work from Jenkins or his client got some work from Jenkins on
12 some other job some other place to try to make up for it.
13 Fine. Then he's fulfilling his duties to his client, trying to
14 assist them in getting their interests recognized and
15 furthered. But that was his job, and there was nothing wrong
16 with him speculating, wondering, discussing with anybody who he
17 might complain about this to when he had and his client had
18 legitimate complaints. This is not an example of
19 Bernard Kilpatrick trying to extort Jim Jenkins to get a
20 benefit from, for his client that his client didn't deserve.
21 So Jon Rutherford, Karl Kado, Marc Andre Cunningham,
22 James Rosendall and Synagro, Capital Waste, these five business
23 relationships are the core of the government's case against
24 Bernard Kilpatrick. That's what the government's case rests
25 on. They say these are extortionate relationships. These are

60
1 relationships where Bernard Kilpatrick leveraged his son's

2 office in some fashion to benefit himself and not do any
3 legitimate work. And it's hogwash.
4 You hold these chapters up to the light of day and
5 you see that Bernard Kilpatrick was doing legitimate work for
6 legitimate clients and getting legitimately paid for it,
7 sometimes not getting paid for it in the case of Karl Kado's
8 inability to collect the monies that the City of Detroit owed
9 him. They don't in any way evidence participation in any
10 extortion schemes or any conspiracy involving racketeering.
11 Now, what else might the government say in their
12 view shows Bernard Kilpatrick is involved in a conspiracy? I'm
13 going to have to debunk some myths here. One of the myths is
14 the sitdown meetings that we heard about in opening statement.
15 The government, Mr. Chutkow, said, "Derrick Miller will tell
16 you these meetings were to turn the most lucrative city
17 contracts into money for the defendants." Derrick Miller
18 didn't say that. He didn't say anything close to that.
19 First of all, notwithstanding Bernard Kilpatrick --
20 Bernard Kilpatrick has something of a habit of speaking in an
21 exaggerated fashion at times, and one of the earliest text
22 messages that the government put up, it may have even been
23 RC-1, was Bernard Kilpatrick texting his son and saying, "We
24 need to have meetings every couple of weeks for awhile; you,
25 me, Bobby and Derrick."

61
1 Well, that never happened. If you look at the text

2 message exhibits regarding these meetings, and I'm talking
3 about RC-1, RC-5 through 9, RC-10 and RC-12 through 15, you'll
4 see three meetings were held in two years. Bobby Ferguson
5 wasn't even at one of them. These guys, that's how they,
6 that's how they schedule stuff. Now, am I saying they couldn't
7 have had another meeting or two that they, you know, ran into
8 each other somewhere and said, "Let's meet tonight"? No, I'm
9 not saying that, I can't say that.
10 But as much as we saw text message history about
11 scheduling things, this seems to be the primary way they did
12 it. And three meetings in two years, this is hardly a
13 consistent, systematic approach to racketeering.
14 Derrick Miller said the purpose of the meetings were
15 to discuss, quote-unquote, "various topics as it relates to
16 city business, city politics and community activity." I don't
17 see anything in there about turning lucrative, the most
18 lucrative city contracts into money for defendants. And in
19 case he wasn't heard the first time, he reiterated later that
20 they were about, quote-unquote, "business opportunities,
21 political strategy, community interests, and general powwow."
22 When pressed what he meant by business
23 opportunities, which is one of the things he said, he explained
24 that sometimes Bernard Kilpatrick, for instance, might want
25 some particulars about opportunities for some of his clients.

62
1 This isn't evidence of racketeering activity.

2 Bernard Kilpatrick could have called Iris Ojeda or
3 April Edgar and said, like Curtis Hertel might do or Conrad
4 Mallett might do or Jim Stapleton might do or anybody else
5 might do, "Can I have a meeting with the mayor? I'd like to
6 discuss some things about one of my clients with him." And
7 Kwame Kilpatrick could say yes or he could say no, or he could
8 say talk to Derrick Miller, he could say talk to anybody else
9 in his administration instead.
10 There's nothing wrong with a consultant or a, the
11 businessperson himself or herself, for that matter, calling up
12 the mayor and asking for a meeting and saying, "I want to talk
13 about a business opportunity with the City of Detroit."
14 There's nothing wrong with that.
15 Now, if they went to the meeting and the mayor said,
16 "Give me five grand before I talk to you," there would be
17 something wrong with that. Or, "Give me five grand or I'm not
18 going to help you," there would be something wrong with that,
19 but there's no evidence that's what these meetings were about.
20 Was it easier for Bernard Kilpatrick to get a
21 meeting with his son? Absolutely. You know, luck of the last
22 name. Maybe it's unfair, but it's not illegal, and the fact
23 that they met in the evening at his condominium after everybody
24 was done with work for the day doesn't make it illegal either.
25 Might it be unfair? He can say to his son, "Why don't you come

63
1 on over for dinner, bring Derrick, bring Bobby, we'll talk

2 about stuff," maybe, but it's not illegal.
3 Remember, Bobby Ferguson and Bernard Kilpatrick and
4 Derrick Miller also were important to Kwame Kilpatrick in terms
5 of things like community outreach, politics, things of that
6 nature. They were involved in his campaigns, and just because
7 it's not campaign season in a particular year doesn't mean that
8 an elected official isn't always thinking about that at some
9 point, somewhere in his or her brain. That calculus is being
10 done.
11 There were all sorts of things happening in the City
12 of Detroit in 2002, 2003 and 2004 that had nothing to do with
13 business opportunities for Bernard Kilpatrick. All sorts of
14 opportunities or reasons why he and other political advisers to
15 the mayor might want to talk about things. And Derrick Miller
16 said these are things that, in fact, these meetings were for as
17 well. There is nothing about these occasional meetings that
18 demonstrate anything that's racketeering oriented.
19 Another myth, if you read through the redacted
20 indictment, you're going to get a copy of the indictment when
21 you go back to the jury room and you're going to be able to
22 read it, and it's going to say various places,
23 "Kwame Kilpatrick, Bobby Ferguson, and Bernard Kilpatrick
24 conspired to do" this, that and the other thing, as if
25 Bernard Kilpatrick and Bobby Ferguson were, you know, cheek by

64
1 jowl all the time.

2 I can't think of a handful of occasions where
3 Bobby Ferguson's name and Bernard Kilpatrick's name was
4 mentioned in this trial in the same breath. There was a phone
5 call where Bernard Kilpatrick let Bobby know that he might need
6 to hit him up for a couple of grand if -- in the summer of
7 2007, but so what? There's not even any indication that he
8 ever did hit him up for the couple of grand.
9 There's the brief conversation between when Bernard
10 called Bobby about getting some information on the Book
11 Cadillac job for Bernard's client, Capital Waste, but again, so
12 what? There's no evidence that Bernard Kilpatrick and
13 Bobby Ferguson acted in any concerted fashion to illegally
14 obtain business for each other.
15 Not mentioned by the government in closing argument,
16 but the indictment charges in the racketeering count, a theory
17 that Bernard Kilpatrick conspired with Kwame Kilpatrick and
18 Bobby Ferguson to obtain State of Michigan grants and
19 Kilpatrick Civic Fund and Kilpatrick For Mayor monies under
20 false pretenses. Now, the government didn't address it in
21 closing, but I have to because you're going to have this
22 document and you might have some questions about that. You
23 might wonder how come nobody talked about this.
24 First of all, there's no evidence that
25 Bernard Kilpatrick had anything to do with the State of

65
1 Michigan State Art Grants monies at all. There is evidence

2 that he received $25,000 from the Kilpatrick For Mayor fund in
3 December of 2007 and $50,000 from the Kilpatrick Civic Fund in
4 2008. But note the following. First, there's no evidence that
5 Bernard Kilpatrick had any governing role whatsoever in either
6 of those nonprofit entities. He wasn't on the board of
7 directors. He wasn't a -- he just didn't have any management
8 role at all in any of those entities.
9 Second, there's no evidence that he had any
10 decision-making role in terms of him receiving those funds
11 specifically.
12 Third, there has been evidence that he worked for
13 those funds in the sense that he did fundraising for them. He
14 did event planning for them. I think someone said that he
15 spoke occasionally at public events on behalf of the Civic
16 Fund. And, fourth, there's been evidence that people get
17 compensated for that kind of work.
18 There's no evidence that Bernard Kilpatrick received
19 any compensation from either of those funds prior to December
20 of 2007, when he got some money from the Kilpatrick For Mayor
21 fund, and 2008, when he got the Kilpatrick Civic Fund monies.
22 Now, does this show that Bernard Kilpatrick was
23 involved in a conspiracy to defraud donors? No, it doesn't.
24 It was appropriate for the entities to compensate him for work
25 that he had done in the past, and there's nothing, there's

66
1 simply nothing illegal about that, and there's also no evidence

2 that he had anything to do with the decision to pay him or that
3 he even knew in advance that they were going to make that
4 decision to pay him.
5 Since he didn't have any unlawful or fraudulent
6 intent when he solicited contributions, no evidence that when
7 he, in 2002, 2003, 2004, 2005, 2006, 2007, called clients or
8 signed letters or said, "Give to the fund," there's no evidence
9 that he knew that in -- end of 2007 or in 2008, those entities
10 were going to make decisions to compensate him or that that had
11 anything to do with his decision to solicit contributions.
12 There's no fraudulent intent on Bernard Kilpatrick's
13 part to defraud any donors. There's no evidence of any
14 agreement he had with anyone to improperly divert Kilpatrick
15 Civic Fund or Kilpatrick For Mayor funds, and he didn't direct
16 their spending. So he can't be said to have obtained donations
17 under false pretenses or knowingly participated in any
18 conspiracy to do so. There is no evidence in support of that
19 theory in the indictment, and you should disregard it.
20 There are three occasions on which Bernard made
21 trips where some Kilpatrick Civic Funds were spent, the 2002
22 Super Bowl, February of 2002, which was attended by
23 Kwame Kilpatrick as well, according to the calendar that we
24 introduced into evidence. Bernard Kilpatrick's plane ticket
25 was paid for by the KCF. Bernard Kilpatrick paid for

67
1 everything else.
2 It's pretty easy to infer a civic purpose in
3 connection with that travel. There's not a lot of testimony in
4 the record, but there's some limited testimony that, of course,
5 Detroit had the Super Bowl and Detroit was -- and delegations
6 from Detroit were going to various cities in preparation for
7 their own Super Bowl, and the fact that a close associate of
8 the mayor might go to the Super Bowl in New Orleans in 2002
9 would not be inconsistent with civic planning for that event
10 that was going to occur in Detroit a few years later.
11 There's no evidence that Bernard attended the game.
12 There's no evidence that the Civic Fund paid for a ticket for
13 him to the game or any other kind of entertainment. This is
14 not anything that shows any fraudulent participation in a
15 conspiracy to defraud donors by Bernard Kilpatrick.
16 In late 2008, Bernard Kilpatrick accompanied
17 Carlita Kilpatrick to Southport, Texas. Kwame was in jail.
18 His hotel stay was paid for by the Civic Fund. Carlita was
19 there shopping for a house, according to April Edgar. She and
20 the kids went down, again, Kwame was in jail, Bernard
21 accompanied them. There's no evidence even that Bernard knew
22 who was going to pay for his hotel. April Edgar made the
23 reservations. April Edgar said she never spoke with
24 Bernard Kilpatrick about it.
25 Again, this is not evidence of being in a conspiracy

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1 to defraud donors.
2 In late December 2007 into early January 2008, there
3 was a family trip to Orlando, Florida. Again, the civic --
4 there were -- apparently the, it was Bernard Kilpatrick and his
5 girlfriend, his children and his grandchildren. They arrived
6 in Orlando and stayed in one hotel for a couple of days and
7 then apparently there was a transfer to a different hotel.
8 One of those hotels, Bernard Kilpatrick's hotel room
9 was paid by the Civic Fund for two or three nights. He paid,
10 according to his credit card records, which are in evidence,
11 for his flights and his girlfriend's flights, paid over 1,200
12 bucks for a rental car for five or six days. That's a pretty,
13 that's -- I'm not sure that's just one rental car. That's a
14 pretty expensive bill for a rental car, and I don't know what
15 arrangement there was. Bernard Kilpatrick, I think, knew that
16 the Civic Fund had some, was going to pay for one of the hotel
17 rooms because we heard a telephone conversation to that effect,
18 but I don't know if he reimbursed the Civic Fund for that, or
19 if in paying for the rental car, he was doing that in trade for
20 the hotel rooms being paid. We don't know.
21 But in any event, this few hundred dollars worth of
22 hotel room benefit does not evidence a conspiracy by
23 Bernard Kilpatrick to defraud donors.
24 I would ask you to disregard the Civic Fund and
25 Kilpatrick For Mayor allegations in the indictment because

69
1 they're not supported by the evidence as being part of any

2 conspiracy involving him.
3 Now, I want to talk to you a little bit about what
4 evidence there is that Bernard was not in a conspiracy.
5 THE COURT: Mr. Shea.
6 MR. SHEA: Yes.
7 THE COURT: You need to be mindful of the time.
8 MR. SHEA: Yes.
9 There's a number -- I told you that he took his
10 lumps, like everybody else did, and he did take his lumps like
11 everybody else did.
12 You remember early on, Lakeshore Environmental paid
13 him $2,500 to help him find out why they were having a problem
14 with a particular contract. He couldn't. That was a
15 one-and-done client. He couldn't get anything done for them.
16 The Kado collection efforts, if he didn't collect
17 money for Kado, he wasn't going to get paid. His son was back
18 in the City of Detroit's position, not Bernard Kilpatrick's
19 decision. Again, Bernard Kilpatrick is taking his lumps on
20 that.
21 Capital Waste at the Book Cadillac project. Capital
22 Waste doesn't get back on the Book Cadillac project.
23 Bernard Kilpatrick doesn't even attempt to get the city to get
24 them back on the Book Cadillac project. He took his lumps on
25 that, although maybe he got some of it back on a different job.

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1 Synagro. Bernard Kilpatrick doesn't enlist the

2 city's assistance in terms of solving his dispute with Rayford
3 Jackson. He just loses out on that. The biggest deal of his
4 life, worth a ton of money, does not get his son or city
5 administration involved. Heck, there's one conversation where
6 he's complaining that Betty Kilpatrick, his ex-wife, is
7 complaining to him about him not being able to get her work.
8 He can't even get his ex-wife off his back.
9 I mean, this is not evidence -- this is evidence of
10 him not being involved in a conspiracy. If he's involved in a
11 conspiracy, you'd think he'd be getting these benefits. You'd
12 think he'd be getting these things taken care of for him, but
13 he's not.
14 There are a lot of people who look for an angle to
15 get government business, and I'm certain that there were people
16 who hired Bernard Kilpatrick because they thought he could help
17 them with those angles, he might actually be those angles, and
18 now many of them have the nerve to say that he extorted them.
19 Marc Andre Cunningham used Bernard Kilpatrick's
20 knowledge and his contacts to get himself a $300,000 payday.
21 He didn't mind using Bernard Kilpatrick's expertise back then
22 to help him get it, but when he gets caught taking a bribe in
23 an unrelated investigation from an undercover officer, he has
24 the nerve to cry, "I was extorted."
25 Karl Kado used Bernard in part to keep in place the

71
1 Cobo director who he was bribing, paying kickbacks to for

2 years, who used Bernard Kilpatrick to expand his own Cobo
3 business empire, didn't have any problem using Bernard's
4 experience and contacts then, but when he's caught for bribing
5 that Cobo director, for defrauding the federal government on
6 his taxes, he says, "Oh, I was extorted."
7 James Rosendall, who knew Bernard Kilpatrick was
8 working to advance Synagro's interests and James Rosendall's
9 own interests, who certainly had no objection and, no doubt,
10 encouraged those efforts at their many meetings and who then
11 betrayed him, gets caught bribing a councilwoman, he's in
12 trouble, and he has the nerve to cry, "I'm extorted, I was
13 extorted by Bernard Kilpatrick."
14 This is ludicrous. It's Alice in Wonderland down
15 the rabbit hole kind of stuff, where the manipulators and the
16 fixers become victims and where the guy who is working the
17 angles as he can, but doing it legally, becomes the villain.
18 I'm not trying to make Bernard Kilpatrick out to be
19 a saint. He's an old basketball player who knows how to mix it
20 up, and I'm sure could still throw an elbow or two if he had
21 to, but he's not guilty of these charges. That's what you're
22 here to decide, not whether he's a saint. Canonization isn't
23 part of your deliberations. It's whether he's guilty of these
24 charges. He's not. You have to acquit him.
25 I want to sit down. I got to say two things about

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1 the tax charges. First, in the two -- we only have two years
2 now, 2004, 2005. 2004, $800,000 worth of deposits that were
3 started with, whole bunch of things taken out by Agent Schuch
4 to try to reach a number that she thinks approximates
5 understated income, about $45,000 worth, of which she claims
6 $16,000 is paid. It's an estimate method. It is not something
7 that even she can say is totally accurate. It's not a
8 material, a materially false number, and that's one of the
9 elements of false statement on a tax return. The tax return
10 not only has to be false, it has to be materially false.
11 More important for 2004, the submission has to be
12 subscribed under penalty of perjury, has to be signed in some
13 fashion by Bernard Kilpatrick, and it's not. He doesn't sign
14 the return itself. He doesn't sign -- there's a form which we
15 put into evidence, it's DBKF-4. I'm not going to put it up
16 now. It's the electronic filing authorization form, contains a
17 statement that says, "I've read my return. It's accurate in
18 all material respects, and I sign it under penalty of perjury."
19 Didn't sign that.
20 They have an unsigned copy. They don't have a
21 signed copy. And the people who prepared the taxes
22 acknowledged they were supposed to have kept a signed copy and
23 they did not. They tried to say it's because more than three
24 years has passed, but when Agent Schuch interviewed them in
25 February of 2007, that was only, that was not even 18 months

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1 after they filed those 2004 returns in October of 2005.

2 October 2005, October 2006, February 2007, not even 18 months.
3 The "three years we destroyed it" excuse doesn't fly.
4 They should have had it. They don't have it. The
5 reason they don't have it is they didn't get it. They didn't
6 get it because things were done on the fly, because things were
7 done at the last minute. I'm not blaming them for it, but it
8 didn't happen. It's not a technical element. It's a critical
9 element. This is a perjury statute. It would be like somebody
10 charged with perjury because they testified falsely from the
11 witness stand when the judge didn't swear the witness. It's
12 not perjury if you're not sworn. This judge doesn't forget
13 that stuff, but I'm not saying that's never happened.
14 In this case, the tax preparers forgot to get the
15 signature. It's not a submission that's signed under penalty
16 of perjury. You have to acquit on the 2004 tax year.
17 2005, different issue, harder case. In that one,
18 $180,000 flowed into Mr. Kilpatrick's personal account from
19 some deferred compensation payments that he took. $100,000 of
20 it went into his business account and got captured by his
21 accountant. The 180 did not. He signed an electronic filing
22 authorization. That was done. Certainly, a $180,000 falsity
23 on a tax return is, I would say, is material.
24 The only issue on that one is, was it willful? Did
25 he willfully keep that from his accountants? You recall the

74
1 testimony of his accountants and how little contact they had

2 with him. Yeah, maybe three, three and-a-half, four years
3 earlier, when Bernard started his business, Mr. Young said,
4 "Make sure you keep stuff separate. Put your business in
5 business, personal in personal, and let us know if there's
6 anything unusual that goes into the personal account, because
7 we're not going to look at your personal accounts."
8 In October of 2006, when they're preparing the 2005
9 returns, I'm not sure that anybody is going to remember that.
10 And the fact that he did not call that out to them doesn't mean
11 he did that deliberately or willfully. I don't think there is
12 proof beyond a reasonable doubt that he falsely subscribed a
13 tax return for 2005 either.
14 So I ask you, after all this time, acquit
15 Mr. Kilpatrick on all counts. Thank you.
16 (11:32 a.m.)
17 THE COURT: Thank you, Mr. Shea.
18 All right, ladies and gentlemen, we'll take a lunch
19 break until 1:00 and we'll see you then.
20 (Jury out 11:33 a.m.)
21 (Lunch recess taken 11:33 a.m. until 1:02 p.m.)
22 (Jury in 1:02 p.m.)
23 THE COURT: Be seated.
24 Mr. Evelyn.
25 (1:03 p.m.)

Defendant's Closing Argument by Mr. Evelyn
75
1 MR. EVELYN: Thank you. Judge, brother and sister

2 counsel, ladies and gentlemen of the jury, my name is Gerald
3 Evelyn. Hope you remember that.
4 The first thing I'm going to do is, by way of some
5 preliminary remarks, I want to thank you. The judge has
6 already thanked you, and I want to thank you on my own behalf,
7 on behalf of my client, Bobby Ferguson, his family, on behalf
8 of Michael Rataj, Susan Van Dusen, my associate Rob Higbee.
9 We thank you because it's the polite thing to do,
10 and I think you should know that this case has been a long
11 trial. It's been kind of an odyssey. I've drawn the short
12 straw, so I'm the last guy, and I'm sure you're ready to go
13 home. I'll be a little while, but I'm going to try to keep
14 things as short as I can, and I'm going to assume that you guys
15 have remembered most of the testimony better than the lawyers
16 have.
17 This case had a lot of interruption. It's been
18 longer than we thought. I'm responsible for one of those
19 interruptions and delays, and I apologize for that. I can
20 assure you it wasn't planned.
21 I'm thanking you not just to be polite, although I
22 think I'm polite, sometimes, but I'm thanking you because we
23 are genuinely glad you're here. We're genuinely glad you're
24 here because this is a cross section of our city, of our
25 community, of the Eastern District of Michigan, and that's a

76
1 good thing to have a representative jury. It hasn't always

2 been the case in this country or even in the Eastern District
3 that we've had a cross section of the entire community.
4 And each one of you have given up some things to be
5 here, jobs, family, leisure time, obligations, and we have this
6 cross section, but you could have changed that. Any one of you
7 could have chosen not to serve by what you put on your
8 questionnaire, by your answers, you could have just said, "I'm
9 not going to do this," and if you'd done that, we wouldn't have
10 the body of people here that we have now, from all walks of
11 life, all segments of our neighborhoods, different races,
12 different ages, different sizes and shapes.
13 We want a representative jury. It's important.
14 It's important not just because of the symbolism, but because
15 we want a community sense to make decisions about important
16 matters like lawsuits. So for giving up the things that you've
17 given up to make this possible, each one of us, we thank you
18 for that, and I'm sure the government thanks you for that, too.
19 Now, this is a case that -- let me go back to my
20 opening statement. I told you that this case was going to be a
21 challenge. It's always a challenge being a juror, but in this
22 case, it's a special challenge because I think this has been
23 more challenging than any case in recent history. Jurors
24 always have to resist the external things that aren't supposed
25 to affect you, the things that are going on outside the case,

77
1 and in this case we've had more of that than any case I can
2 ever remember. There have been more external influences in
3 this case than I can even imagine.
4 The amount of pretrial publicity before you were
5 even brought here, which has intensified during this trial, has
6 built up over years, and that publicity urges an imperative, an
7 imperative to prejudge this case, an imperative that is
8 negative, and my esteemed colleague Mr. Thomas alluded to that.
9 An imperative that says that you're supposed to come to a
10 predetermined verdict because there is some sense out there in
11 the community that's what's wanted here.
12 It's almost an institutional drumbeat that seems to
13 echo from many corners and screams a result that says
14 prejudgment. It beckons you to prejudge in a way that I can't
15 remember in my 36 years as a lawyer. Yes, I'm that old.
16 Add to that this impressive array of lawyers, and
17 these are some of the top people in the Eastern District's
18 office, and agents, and the seemingly endless flow of documents
19 and witnesses and the complexity of the charges here. It could
20 easily seem difficult to be objective and to do your duty as
21 jurors, even if the right result is an unpopular result.
22 We've struggled with this on our team. You promised
23 that you would be fair with all that's going on, but we
24 struggled with this. Mr. Rataj and I had a conversation awhile
25 back about how to impress upon you, to make it clear how

78
1 important that is. It's always important, but in this case,

2 with what you're up against, it is unbelievably important and
3 it's going to be difficult.
4 Mike and I talked about it awhile back, and he
5 reminded me of a book that both of us read some years ago. I'm
6 older than he is, so I read it before he did, but he brought it
7 up. He's an ex-marine, and that book was written by the first
8 president that I remember as a young boy, and he wrote it
9 before he was president. It's called Profiles in Courage,
10 written by John F. Kennedy back in '57, I think, and he was,
11 had a back surgery. He was in the hospital, and it bespeaks
12 his talent that while he is recovering from back surgery, he
13 writes a Pulitzer prize winning book.
14 But in that book he talks about eight senators who
15 showed the courage to do what was right, even though it was not
16 just unpopular, but even though the consequences were going to
17 be deleterious for them, and they're all very significant
18 stories. You may want to look at.
19 One particular senator talked about how he was going
20 to cast a vote against the impeachment of Andrew Johnson after
21 the death of Abraham Lincoln, and he says, "I stared down into
22 my open grave." He knew the consequences of that decision. He
23 did it anyway. It's hard to do what's right when there is this
24 imperative to do something else.
25 Each one of you gave us a solemn promise that you'd

79
1 be able to resist that kind of powerful pressure. Each one of

2 you told us that you'd be able to stand up and make a decision
3 based upon the evidence and the law in this case, or the lack
4 of evidence.
5 We trusted that promise at the beginning of this
6 trial. We trust it now. I remind you of it because of its
7 importance, and I hope that you can take heart in the fact
8 that, for the 12 of you who will decide this case, you will be
9 in there together, and hopefully you will gird each other, even
10 the people that don't agree with you.
11 There's a scene in the movie called 12 Angry Men.
12 Actually, it's a play, and it's about 12 jurors who are
13 discussing, deliberating a case. And at one point a juror who
14 disagrees with a juror he's trying to persuade to his point of
15 view, talks to that juror and the juror says, "Okay, I agree
16 with you, I'm going to go to the baseball game." And the guy
17 says, "Wait a minute, I want you to agree with me but for the
18 right reason. Don't just toss your view aside because of
19 convenience."
20 So I hope that you can all support each other, even
21 those who disagree with you, so you can reach an agreement
22 that's a meaningful agreement and that's honest.
23 Now, I want to talk a little bit about the evidence
24 in this case. Government in this case has, as I told you in my
25 opening, brought in witnesses, and they have been able to

80
1 benefit from the extraordinary power that they have and the
2 extraordinary pressure they can put on people to do what they
3 want. In this case, they've used that pressure, and they've
4 pressured people in a way that has caused them to testify. But
5 more than that, the government and the media have demonized, as
6 Mr. Thomas said, Mr. Kilpatrick and, by extension, my client,
7 Mr. Ferguson. And this demonization, this declaration that
8 Mr. Bullotta said, he all but said he wanted you to convict
9 Kwame Kilpatrick because he thought he was a bad mayor, and
10 that's not what's in issue here.
11 But this demonization has made Kwame Kilpatrick
12 radioactive, and in a way, at least in my view, that reality
13 has affected the testimony of some witnesses in this case
14 because, you see, people don't want to be seen as helping
15 Kwame Kilpatrick and, by extension, Bobby Ferguson and, by
16 extension, Bernard Kilpatrick. They're not people, today, who
17 folks want to come to court and say, "I'm going to testify to a
18 truth that's going to help them."
19 In addition, certain witnesses here actually rely on
20 the government for their business, government contracts.
21 You've heard about it; Lakeshore, Johnson Akinwusi who was from
22 JOA, Mr. Tony Soave. All of them rely in some significant way
23 on the government for their business and their livelihood, and
24 that directly affects how they testified in this case and, in
25 some instances, how they change their testimony.

81
1 Every witness in this case took an oath to tell the

2 truth, and they sat in that witness chair and testified. That
3 oath is not a magic wand. It doesn't guarantee that you will
4 not hear lies, because you did in this case. It doesn't
5 guarantee that you will not hear exaggerations and other
6 distortions of the truth.
7 You are the jurors who have to decide what the truth
8 is, and your obligation is to decide who's telling you the
9 truth, how much of it you can believe, and whether it supplies
10 proof beyond the highest standard that our legal system
11 recognizes, and that is beyond a reasonable doubt.
12 Now, the charges in this case have been detailed to
13 you. Some testimony you've heard involves allegations that are
14 not actually charged in the indictment in a formal way, but
15 because of the way the law of RICO works, the government is
16 entitled to introduce evidence that they think will support
17 that claim, even if they're not substantive counts of their
18 charge.
19 Now, I want to turn to one of those such counts or
20 allegations. Early in the trial, you heard from a person by
21 the name of Officer Michael Fountain, and I think you can
22 decide this allegation by using one of the instructions the
23 judge gave you, which is reason and common sense. Michael
24 Fountain -- and bear in mind, people testify and they have
25 agendas, and Mr. Kilpatrick is so polarizing, and to some

82
1 extent Mr. Ferguson also, that they produce attitudes and

2 agendas.
3 Mr. Michael Fountain had an agenda. He actually
4 came in and testified to you, he came in this courtroom and had
5 the temerity to tell you that he is a Detroit police officer
6 for 20-some years, and that this man threatened his life, his
7 wife's life and his children's life, to dismiss some
8 misdemeanor tickets. He told you that.
9 And more than that, he's armed with a gun. He's in
10 the 36th District Court. It is filled with Detroit police
11 officers, and he does it in front of two EPU officers. That's
12 his story. That's what they want you to believe. Now, think
13 about that. Without knowing anything else, how plausible does
14 that sound?
15 But there's more to that because this melodramatic
16 story he told you, it doesn't hold any water at all, and I
17 don't want to go through all the testimony because I promise
18 I'm going to try to get done as soon as I can, but remember
19 some of the features of what he told you.
20 He says that Mr. Ferguson told him that it wasn't on
21 his property, he wanted the tickets dismissed. And then he
22 tells you, when I asked him on cross examination, "When you
23 check the tax rolls of the address that you gave the tickets
24 to, and 8631 Military, who is registered as the taxpayer?"
25 Answer, "I don't know."

83
1 In his arrogance, "I don't know."

2 And then he tells us, after I show him -- and I'll
3 cut to the chase here, I show him his testimony from the grand
4 jury. Now, in the grand jury, what does he say? He claims
5 that in the grand jury that Mr. Martin, Officer Martin, he's
6 summoned outside and Officer Martin speaks to him and says,
7 "Well, you should drop these tickets," and he tries to
8 encourage him to do that. He says that Mr. Martin did not
9 threaten him.
10 Now, that's significantly different. This guy is
11 threatening him, an officer, who, by the way, remember, he was
12 Officer Martin's training officer, so they know each other very
13 well, he says Officer Martin tells him this. He comes to court
14 in trial and takes the witness stand -- witness stand was in a
15 different location then -- and now he's got to make it
16 Bobby Ferguson's words, and more than that, it's a threat
17 against his life and his wife's life and his kids.
18 Now, that doesn't stand up for a number of reasons
19 because, remember, he said that that discrepancy, he was asked
20 about it by Agent Beeckman. Agent Beeckman said, "Wait a
21 minute, you're saying something different in court or you're
22 going to, and you said that Mr. Martin is the person who gave
23 you these, who talked to you about it in a way that wasn't
24 threatening."
25 He says, "Well, that's not my story. I was

84
1 misquoted."
2 And these were his own words in the grand jury. And
3 as my associate, Mr. Higbee said, that's like claiming to be
4 being misquoted in your own autobiography. You're going to
5 walk away from your own words.
6 Now, there's more to it. He supposedly identified
7 the other officer as a guy named Officer Sessions, and then
8 they check and they discover that this happened in 2001, and
9 Officer Sessions didn't become an EPU officer until 2006.
10 Again, the wrong guy. And, moreover, he tells the media that
11 this was, these tickets were dismissed because of a mistake,
12 they're the wrong location.
13 Now, in court, he tells you, "I didn't make any
14 comment to the media." And Agent Beeckman asked him the same
15 question, that was another difference, because his report to
16 the FBI said he told them, "What the media reported was
17 accurate." He comes to court and he wants to argue with me
18 about it.
19 When I confront him with the discrepancy, he says,
20 and I asked him, "Is Agent Beeckman, did he get it wrong?"
21 And he gave us an answer that made absolutely no
22 sense. He says, "That's what you're saying," pointing to me.
23 So you got to ask yourself, proof beyond a reasonable doubt.
24 Now, let's talk about some of the contracts. Let's
25 talk first about two twelve. Two twelve was a consequence of a

85
1 pilot project, you will remember, and again, these contracts

2 are supposed to be the products of extortion. Mr. Pratap
3 Rajadhyaksha, I think his name is pronounced, testified about
4 DLZ and the two twelve pilot project.
5 Now, remember, he said on cross examination that he
6 had contact with engineers and contractors at DWSD, so he's
7 another person that talks directly to engineers and employees.
8 He claims that he was the inventor of the construction
9 management concept, the CM concept.
10 Now, remember, he also says that this project gave
11 birth from him going directly to Victor Mercado. He says he
12 talked to Victor Mercado and he said, "Look, I got an idea, I
13 want you to put it into place," there's no bid, no RFP, just he
14 sold the idea directly to Mr. Mercado.
15 CS-1347 was the pilot project. He also said that he
16 hand picked two companies, two black companies, Hayes and
17 Ferguson Construction. The project came in under budget and
18 ahead of schedule, and that's important because the government
19 has castigated Mr. Ferguson and tried to suggest that he's been
20 paid to do no work, does a poor job, and the evidence is
21 exactly to the contrary, and it starts with this. Well, in
22 this case it starts with this. He's on 1347, the project comes
23 in under budget and ahead of schedule, and so as a result of
24 that, CM-2012 is let.
25 Now, remember when Agent Paszkiewicz was on the

86
1 witness stand and she's being questioned by my colleague,

2 Mr. Rataj, she tries to say that this was a low-bid contract,
3 until she's shown the documents and she admits she's wrong,
4 that it was an RFP, not a low-bid contract.
5 Now, there are documents that are in evidence that
6 we want you to refer to. Consider all the testimony and
7 evidence. I'm not trying to single anything out because
8 there's no one piece of paper that will help you decide this
9 case, but just for your review, some of the exhibits we put in,
10 DDLZ-6, can you pull that up, and I hope you can see that.
11 DDLZ-6 is a memo from Pratap Rajadhyaksha to Dan
12 Edwards, and it sort of sets out this program, this project.
13 And number one, it says, "An RFP process will be used to select
14 contractors. The evaluation criteria include," and it goes on
15 and describes them. And then in the middle, you see where it
16 says, "There may be as many as seven contractors working at the
17 same time." Now, this is on Wednesday, December 24th, 2003.
18 It goes on and talks about, "It's a fast track and it's a
19 complex project that requires special attention."
20 Now, DDLZ-7 -- can you pull that up -- is a letter
21 dated, from DLZ, dated January 8, 2004 to Mr. Awni Qaqish, and
22 it lays out the subcontracts under this project and who they're
23 going to be assigned to. And in the middle of the second
24 paragraph, you see it says, "Hayes Excavating Corporation and
25 Ferguson Enterprises will each be asked to provide a lump sum

87
1 price for the two contracts," and then it goes on to talk about
2 "DLZ will negotiate the prices with these two contractors to
3 get the best price, unit prices submitted for the pilot project
4 under 1347."
5 It goes down to the next to last paragraph and says,
6 "The work for WS-650, which is Washington Boulevard, WS-651,
7 Broadway Avenue, would be offered to Ferguson. These projects
8 both require pipe replacement with minimal restoration," et
9 cetera.
10 Now, DDLZ-8 is to Audrey Jackson from
11 Victor Mercado, dated January 12, 2004, and you go to the next
12 page, and it lists the various contracts; go to the next page,
13 it says, "The combined estimated cost of the five contracts is
14 $3,805,000," and it describes them, says, "WS-642 and 649 will
15 be assigned to Hayes, 650 and 651 will be assigned to Ferguson
16 Enterprises. These two firms have demonstrated their ability
17 to perform similar work within the streets of downtown Detroit
18 under a pilot study completed under CS-1347. Both firms are
19 Detroit-based, small businesses with headquarters in Detroit
20 and also, and are also minority businesses."
21 So there's no question about what happened here.
22 This is not a product of any corruption. That contract came to
23 Ferguson because of his performance on the pilot project,
24 successfully bringing it in, helping to bring it in under
25 budget and in a quality way.

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1 Now, let's talk for a minute about 2014, the east

2 side water main contract. Now, that contract was part of two
3 sibling contracts, you remember 2014 and 2015, east side and
4 west side. Xcel and DCI formed a joint venture, DPM, and they
5 won both contracts. That's significant because, remember, from
6 the testimony of Darryl Latimer and Dan Edwards that prior to
7 Kwame Kilpatrick's election, whenever you had sibling
8 contracts, DWSD could award both of them to the same
9 contractor.
10 After Mr. Kilpatrick was elected, that practice was
11 stopped, and now we know that after he left office it was
12 reinstated because, as you will get to later, Mr. Hardiman
13 admitted that Lakeshore actually filed a protest when Inland
14 won 866 and 867.
15 But, in any event, so if there's a Kilpatrick
16 enterprise operating here, why would he change that policy? If
17 he wants to favor his friend, Bobby Ferguson, why not let the
18 same policy continue in place and let them win both contracts?
19 Why would he want to change that? Mr. Mercado was a very good
20 director, and he felt that it was fair and better for the city
21 if you spread those contracts around.
22 Now, Superior and DLZ were not awarded the contract
23 because of concern over whether DLZ was properly certified as a
24 Detroit-headquartered business. Now, this has been laid at the
25 doorstep of Mr. Kilpatrick, but the fact of the matter is,

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1 Darryl Latimer testified that DWSD believed that DLZ was

2 headquartered in Ohio. So this concern about their
3 certification emanated from within DWSD.
4 Now, Mr. Higbee, can you pull up LS3-9.
5 This is a government exhibit, LS3-9, and this is a
6 letter dated May 5, 2006 from Darryl Latimer at Contracts and
7 Grants, when he was the manager, to Gerard Phillips at Human
8 Rights, and it's regarding 2014 and 2015, and in the second
9 paragraph, it says, "DWSD is currently in the process of
10 evaluating proposals for proposed contracts numbers CM-2014 and
11 CM-2015. In order to complete the evaluation process and award
12 the project, DWSD," DWSD, not the mayor's office, "needs
13 written verification of the Detroit-headquartered business
14 status of DLZ Michigan, Inc." And it's signed by Darryl
15 Latimer, refers to contacting Daniel Edwards.
16 Now, if we go to LS3-10, this is a memo, and it was
17 sent Wednesday, May 17, 2006 at about 11:13 a.m., and it's
18 obviously to Human Rights, Mr. Harris, and it says, "On May 5,
19 2006, DWSD sent a request for an investigation into the DHB
20 certificate for DLZ of Michigan. Could you please let us know
21 the status of the investigation? Contracts and Grants needs
22 this information to complete the evaluation of these contracts.
23 We do recognize that Human Rights is extremely short-staffed
24 and busy. Thanks, Dan Edwards."
25 Now, that sounds like DWSD is concerned about this,

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1 and Mr. Latimer testified that way in the trial. He testified

2 that his belief was that they were located in Ohio and he
3 testified that the memorandum that I've just showed you was
4 sent. Now, let's talk about the work on 2014. And again, I'm
5 trying to highlight these things that are important because I
6 know you were paying attention. I don't want to dwell on all
7 the details. There were other documents that were put in
8 evidence, but I want to highlight these things and draw your
9 attention to them so you can properly consider them.
10 Now, 2014, east side water main project, the
11 government has maintained, among other things, that E&T, this
12 company E&T, was a proxy for Mr. Ferguson, and I guess they
13 rely in part on testimony from the witnesses. But I was
14 insulted when I heard that term. You heard the testimony of
15 Theo Simmons, who testified. He's -- his brother, Eric
16 Simmons, owns E&T, E&T Trucking. Mr. Bullotta called E&T a
17 proxy for FEI. E&T is not a proxy for FEI, and he testified
18 that way. They have their own company.
19 See, E&T is a real example of mentoring. And in
20 their demonization of my client, they looked past the fact that
21 this is another example of him actually being a real company,
22 dealing with other real companies. And you heard the
23 testimony, I'm not going to belabor it because I want to get
24 done, their families knew each other, Mr. Simmons, Theo Simmons
25 and his brother, Eric, Mr. Ferguson's family. They had their

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1 own concrete company they started, and he got mentored by

2 Mr. Ferguson. Because, see, E&T is not a fake, fraudulent and
3 illusory mentoring, like Mr. Soave concocted with Charlie
4 Williams. We're going to come to that.
5 See, for you to be mentored, and it's been testified
6 to and you know we're going to come back to that, that one of
7 the very important agendas and one of the things that
8 Mr. Ferguson, as a matter of self-interest, and then Mayor
9 Kwame Kilpatrick shared is this belief that minority fronts
10 were bad for the city, it's bad for real minority companies.
11 Remember Odell Jones? Remember him testifying about
12 that, about how hard it is on people who have got real
13 businesses and how they have to compete with these fronts and
14 what it does and how it only helps the majority company because
15 you pass the money through and that you pay them a fee, and
16 then you keep the body of it, you keep the rest of the money.
17 Well, in this situation, this is a good example of
18 what happens when a company is really mentored, and, see, you
19 start out with a company, no matter how small it is. Theo
20 Simmons told you they had two trucks, but they had a real
21 company, and they start out doing simple cement work. And then
22 Mr. Ferguson approached them and said, "You know what? I got
23 this job called WS-623, Eight Mile, and you guys should get
24 involved in that." And Theo said they were kind of reluctant,
25 small company. But he said, "Mr. Ferguson encouraged us, he

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1 said, 'You can do it.'"

2 And they got involved in the project, they did some
3 work, hired a couple of other people. So now he's got five
4 employees instead of three. They lease some equipment, they
5 buy some equipment, and they complete the project. And you saw
6 his look on his face when I asked him, "How did you feel when
7 you finished that?"
8 He said, "We really felt good."
9 And that led to E&T becoming a little bigger
10 company, and that's how they ended up doing 2014.
11 Now, that's what mentoring is. Mentoring is not
12 having a company on your bid -- your bid as if they're real,
13 that has no employees, no -- not so much as a shovel. That's
14 not mentoring. That's trickery, that's faking people out.
15 Yes, E&T is a small company, but you can see that
16 Theo Simmons and his brother are proud of it, and they did real
17 work, and it was quality work.
18 Now, and -- and you remember him telling you the
19 rest of it, that eventually Mr. Ferguson helped them further,
20 and he turned over to them his old building on Military because
21 they had been having problems with their trucks being
22 vandalized, so he said, "We were able to have them in a place
23 that was secured."
24 So it was really an insult to him and all the hard
25 work that he and his brother did to build that company, to call

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1 him a proxy. And again, as I told you in my opening statement,

2 what the government wants to do and they're hoping that you
3 will adopt and approve, is they want to criminalize their
4 relationships, criminalize his friendship with Mr. Kilpatrick,
5 criminalize Kwame Kilpatrick's relationship with his father,
6 criminalize Mr. Ferguson's relationship with E&T, because
7 that's what they need to do in order for you to be convinced
8 that there's racketeering going on here.
9 Now, Mr. Simmons told you that when he worked on
10 2014, even though A&H is listed on the project, he never saw an
11 A&H truck, never saw an A&H employee, and it wasn't until 2014
12 was extended and they added Fox Creek that A&H finally shows
13 up.
14 And what happens when they started getting involved?
15 You heard from a gentleman that we called to testify, Mr. Lewis
16 McVay, the guy from Muskogee, Oklahoma. He testified that what
17 happened when A&H finally tried to start doing some work, they
18 had that calamity over on Manistique. Now, Mr. Hardiman, Tom
19 Hardiman, tried to minimize it. He says, "Well, it was a
20 little event, and Bobby Ferguson was around the corner and he
21 sent a couple of guys."
22 Well, he wasn't even there. Tom Hardiman was trying
23 to pull the wool over your eyes, and he wasn't even out there.
24 What does Mr. McVay, who has no ax to grind, tell you about
25 what happened? And I'm not going to go through in detail, you

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1 heard the story, the testimony about the doghouse and what has
2 to be done to properly secure a water main when you're doing
3 real work, and you heard him talk about how he came to work for
4 Mr. Ferguson.
5 He worked for Hayes and, you know, the government
6 tried to misuse that text message and suggest to him that it
7 meant that there's a conversation going on between Mr. Ferguson
8 and then Mayor Kilpatrick, and that they're laughing at
9 Mr. Hayes, when Mr. Hayes supposedly, you know, told the
10 director, Victor Mercado, that he didn't want to work on this
11 job. And I don't know if that was because he had union
12 problems. It could have been anything. Assuming that even
13 happened.
14 But, in any event, Mr. McVay tells you what happened
15 out on Manistique. He's out there. They have this calamity,
16 the whole area is flooded. And he comes out there. He said it
17 was on a Saturday, wasn't a work day for him. He gets out
18 there, M.J. Reynolds, Kenny Reynolds, a full team of people are
19 out there, and they're out there for a long time getting this
20 straightened out.
21 I asked him, "Did you see anybody from A&H?
22 "No.
23 "Did you meet a guy named Johnny Hardiman?
24 "Yeah, I had a guy that was identified to me as the
25 owner."

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1 The owner doesn't have any employees out there, not

2 even to learn the right way to do it. And what I find
3 instructive is what's even more significant than that, is that
4 Mr. Rachmale testified about the experience that his asbestos
5 company had in water main work, and there were no Lakeshore
6 employees out there either.
7 So when this event occurs, however it happens, who
8 gets summoned? Bobby Ferguson. When they have a problem, and
9 this is a real significant problem, and they have this
10 breakdown, they go get a person who has a real company, with
11 real employees, with real equipment, and with real expertise.
12 So Hardiman claims later that Mr. Ferguson took some
13 of their streets. They didn't even know what they were doing.
14 Now, let's talk for a minute about Tom Hardiman.
15 He's the person who came in and told you that he was the victim
16 of extortion, 5 million, 10 million. Remember the very
17 animated little thing he liked to do? We're going to come to
18 that in a moment.
19 But remember what I asked him about in the beginning
20 of the cross examination? When he's first interviewed by the
21 government, I believe it's in 2006, he says he raised campaign
22 money for Mr. Kilpatrick. He did it because it was good
23 business. He knew the mayor's family. He did business with
24 the city, and he got no special favors. No discussion about
25 being extorted. That never even came up.

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1 Time moves forward. He's interviewed repeatedly by

2 the FBI. He's subjected to their pressures, and now all of a
3 sudden, this normal relationship is transformed into something
4 that's not normal and he tells you the story about him being
5 extorted. And even that was internally inconsistent because,
6 as he told you, as the relationship evolves, he and Bobby
7 become good friends. He becomes a member of the board on Homer
8 Ferguson Foundation. He told you about Homer Ferguson, the
9 good things that it did, feeding seniors and other things
10 involving youth.
11 He says that Mr. Ferguson and him shared values.
12 They both believed in furthering black businesses. They both
13 believed in mentoring. So that's totally inconsistent with the
14 guy who says he's a victim of extortion. And even he later on
15 says that he had arguments with Mr. Ferguson.
16 Now, his partner, Avinash Rachmale, I want to talk
17 to you about him for a minute. At the same time he tells you
18 that Lakeshore is this great company, and they certainly grew
19 into making a lot of money, he also said that before this
20 contract 1361, they'd never done any water contracts with the
21 city. He claims he didn't need Mr. Ferguson, but it's
22 interesting his company had no record of doing this kind of
23 work. And as I said before, when there was a problem with the
24 Lakeshore project, they weren't able to fix it, they sent for
25 Mr. Ferguson's company to fix it. Lakeshore's dealings, for

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1 the most part, he says, with Mr. Ferguson went through

2 Hardiman.
3 Now, what I find instructive regarding what may have
4 affected his decision to testify the way he did is this
5 situation involving Mr. Dilip Patel. And for me, that's
6 another clear example of a person who can take an oath, sit in
7 that chair, and then just not tell you the truth, because his
8 story about Dilip Patel was so far beyond the realm of belief.
9 Dilip Patel, we know, worked for his company. I mean, he's on
10 the email, he's got key cards to get inside of there.
11 I asked him if he remembered employees being told to
12 move his equipment out when they found out about it, and he's
13 even -- remember that email I showed you where Mr. Hardiman is
14 commenting about a decision that Mr. Dilip Patel made that he
15 didn't agree with, to not pay somebody. So now he's involved
16 in the chain, the hierarchy, with the senior management
17 executives discussing decisions made involving spending money
18 for Lakeshore.
19 But against all that backdrop, this man took the
20 witness stand and told you, "He didn't work for Lakeshore. I
21 don't remember, maybe I told the IT guy to delete his email. I
22 don't know what it was." And he even says he doesn't even know
23 how he got an office. He says I think he just came in and took
24 an office one day.
25 Now, come on, be real. You're a partner in a real

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1 estate company with his wife, with Mr. Patel's wife. He still
2 can't tell you the truth. Why is he holding back?
3 He even further denied -- remember, Mr. Patel has
4 this little problem. Now, he's a supervisor in BS&E, in
5 Building, Safety and Engineering, and that's where
6 Mr. Rachmale's company got their start, doing these asbestos
7 removal contracts. Dilip Patel supervises those contracts.
8 He's involved in the award process and he's involved in
9 supervising those.
10 Now, Mr. Patel is leaving his supervisory job by day
11 and punching in to Lakeshore by, in the evening, and reviewing
12 contracts and making decisions. That's the height of a
13 conflict of interest. Well, somebody who he works with makes a
14 complaint. They find out about it, and they want to fire him.
15 So Mr. Rachmale's company writes a letter, and
16 Mr. Rachmale says he knows nothing about this, knows nothing
17 about a letter being written claiming that Mr. Patel doesn't
18 work for his company, to keep his job at the city because he
19 wants him to stay there.
20 Now, when I press him about that, he ultimately
21 says, "Well, you know, I didn't really tell the government
22 about that because I didn't want Mr. Patel to get in trouble."
23 Not himself, Mr. Patel. So, clearly, you have a person who I
24 think has more than just an interest in testifying in a way
25 that favors the government. He says that's why he was less

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1 than forthright.
2 Now, let's turn for a minute to 1361 and 1387, you
3 know, 5 million, 10 million. Let's remember that 1325 was a
4 contract from the Archer administration and that it belonged to
5 Inland Waters, and you saw and heard the testimony that money
6 under 1325 was running out. DWSD generated a memo stating that
7 the work needed to continue.
8 Can you pull up DIN1-1?
9 Now, this is that memo from Mr. DeRiemaker dated
10 January 16, 2001, regarding DWSD, note the date, January 16,
11 2001, CS-1361. And in the center paragraph it says, "The above
12 services were performed under contract 1325 with Inland Waters
13 Pollution Control." Goes on and talks about the duration, and
14 it says, "It was a three-year duration and it's due to expire
15 on September 15, 2002. The budgeted money of this contract
16 will soon deplete. There is a need for a separate contract for
17 emergency sewer repair services."
18 Now, that's a memo from the general -- from the
19 superintendent. It's not from the mayor. It doesn't show any
20 involvement by the mayor.
21 Now, go to DLS1-46. Now, this is a memorandum from
22 Gary Fujita, it's dated July 25, 2002, and it's to Awni Qaqish
23 from -- at DWSD, and the first paragraph says, "The scope of
24 services appears to be similar to what engineering staff or the
25 consultants are doing under their construction management

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1 services task under design contracts. Please provide the

2 justification for the need for these services." Talking about,
3 look up at the subject part, it says, if you read it kind of
4 carefully, "Permission to release RFP for CS-1387."
5 So now they're already questioning, is there really
6 a need for this, and this is all internal to DWSD. Mayor's
7 office had nothing to do with this.
8 Let's go to DLS1-48. Now, this is the letter you
9 saw during trial written by John McGrail, and it's dated
10 January 15, 2003, it's to Miriam Dixon. CS-1387. It discusses
11 the need for the RFP in this situation, and in that second
12 paragraph, it says, "I personally was not a proponent of this
13 contract because I did not see much use for the contract in
14 support of my group operations."
15 Now, this contract was supposedly to support what
16 his division was doing, and he says, on January 15, 2003, he
17 was not in favor of it. He doesn't say the mayor told him to
18 change his mind about it. He says he was not in favor of it.
19 This is internal to DWSD.
20 Now, can you go to DLS1-63. Now, this is a memo
21 from Darryl Latimer, the subject is "Cutting." It's dated
22 2/19/2003, and it says, "Mr. Mercado," at the beginning at
23 least, "Here is some contract that I think the department can
24 do without. First, CS-1387," he's obviously talking about
25 several contracts, "which is currently being evaluated, this

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1 contract will do the job of construction inspector and some

2 engineering work. CS-1382. The work in this contract can be
3 done in house." So he goes on and talks about that. So,
4 clearly, now you have Darryl Latimer saying DWSD doesn't need
5 1387.
6 And remember, just kind of as a footnote,
7 Mr. Hardiman never says -- says that Mr. Ferguson never
8 mentioned 1387 in this supposed conversation he says they had.
9 DLS1-51, another exhibit that we introduced, this is
10 the Ed Ramey letter to Darryl Latimer, it's dated March 11,
11 2003, and he talks about problems with the scoring, the
12 evaluation process that were suspicious, and let's just skip
13 down to the fifth paragraph where it says "Another indicator."
14 "Another indicator of intentional lowballing is
15 reflected in the highest score given to Lakeshore Engineering
16 in the category 'Work completed timely and at cost.' During
17 the evaluation meeting, I challenged the committee on why
18 Lakeshore Engineering had been rated best in this category."
19 So, clearly, this contract that they say they think they won,
20 DWSD has some real issues with.
21 Now, let's go to the last exhibit in this contract
22 and I want to move on, I'm trying to go as quickly as I can
23 without talking too fast.
24 LS1-1, a government exhibit. Now, this is the
25 proposal tabulation for DWSD contract 1387. It lists the

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1 various contractors that bid on it. And if you go to the next,

2 second page, the third box down, see where it says Madison and
3 Madison International, and it lists the subcontractors to the
4 right, DLZ of Michigan, Spalding DeDecker Associates, Somat
5 Engineering, Xcel Construction Company.
6 So while Mr. Hardiman complains about losing
7 business on 1387, the 5 million, 5 million, 10 million, Xcel
8 Construction Services was a sub on that very contract, so if,
9 even if there's no evidence of it, if for some reason
10 Mr. Ferguson was involved in some shenanigans to pull the plug
11 on it or having the mayor do it, he was pulling the plug on
12 himself. Xcel was a sub on the same contract and lost.
13 Now, let's go to the east side sewer repair
14 contract, 865. We know that Lakeshore won 865 by using FEI's
15 employees to win this bid. Let's look at DLS1-5, portions of
16 the Lakeshore proposal.
17 You can see in that first paragraph on the left it
18 talks about Fred Erdman who we know was a FEI employee. He's
19 listed as an A&H Contractors employee, and he's listed on this
20 project as a person who is going to be, it says, "A, Name, Fred
21 Erdman; B, Proposed Assignment, supervisor; name of firm, A&H
22 Contractors."
23 I asked Mr. Hardiman about this, and he says, "Oh,
24 yeah, you can do that, you can borrow employees from companies,
25 you know," especially when you're being extorted, right,

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1 borrowing their employees.

2 Now, go to the next page, top of that page, "Name,
3 S. Deria," referring to Shakib Deria, he's listed as the person
4 who is going to be the foreman, he's also down there as an A&H
5 Contractors employee. Same situation. So this contract was
6 awarded based upon utilization of Mr. Ferguson's employees.
7 Now, let's go to DLS1-6. Another allegation in this
8 contract by the government is that -- and you recall
9 Mr. Hardiman testified that he had, and it's obvious because he
10 was using their employees, he had a verbal agreement with
11 Mr. Ferguson for Ferguson to do some point repairs on this
12 sewer repair contract, and the government alleges that
13 Mr. Ferguson shows up one day and throws off DCG.
14 Now, DLS1-6 is a memo dated Wednesday, July 11 --
15 well, actually, it's a memo chain, and I guess if you start at
16 the bottom, you can see where Michael Ford to Daryl Rocheleau
17 says, discussing this very same topic, point repairs, "Daryl,
18 this is to inform DCG that PR1-T1 is the last point repair
19 Lakeshore will require your services on until further notice."
20 So he wasn't thrown off. He was notified to
21 complete what he was doing and stop, according to this email
22 chain. Now, that was on July 11 at 1:11 p.m. 2007. You go up
23 to July 11, 1:55, and there's another email back, and it says,
24 "We have a contract to complete all of the assigned point
25 repairs," and so they're obviously complaining about it.

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1 You go up to the top and it basically says, "Daryl,

2 you will not start any point repairs. Point repairs will be
3 awarded on an as-needed basis. Please complete your current
4 point repair. Do not start anymore sites."
5 Now, what's interesting about that is DLS1-6. Now,
6 recall -- this is supposedly in July. Can you pull up DLS1-6?
7 I'm sorry, the next page of the same exhibit.
8 If you look, four entires down, it starts,
9 August 31, 2007, and it shows -- I'm sorry, go up to the top
10 again. This is a record of the invoices issued to DCG on this
11 project. They say they were kicked off. As you can see, if
12 they were kicked off in July of '07, as of August 31st, they
13 were still billing, and they continued to bill from August 31st
14 all the way down to January 8 of 2009. So from the time they
15 claim they were kicked off, where the recorded amounts to date
16 would have been, third entry down on the far right column,
17 $1,563,183.67, they continued to bill all the way down to the
18 bottom where you see $3,603,000. So they were never kicked
19 off. They kept being paid and they kept making money.
20 Now, let's go to the so-called outfalls contract,
21 849. Again, Lakeshore uses Ferguson to win this bid, and this
22 is a contract that Mr. Bullotta tells you was a pay for no work
23 contract. This is a contract where they say Mr. Ferguson got
24 paid to do nothing, and I think you probably recall the cross
25 examination of the witnesses who testified in this case and

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1 what really actually happened. Let's take a quick look at it.

2 We know that Lakeshore makes a side deal with
3 Lanzo's company, DCG. Mr. Ferguson's company is on the bid to
4 do the excavation. After the contract is awarded, Lanzo
5 creates this new company called DCG. Now, remember, Lanzo was
6 a lining company. Mr. Ferguson is the dirt guy. He does
7 excavation and point repairs, water and sewer work. Lanzo,
8 which does lining work after the contract is awarded, this
9 other company is created to take his work because on the bid,
10 he's supposed to get 36 percent of the project and he's
11 supposed to do all the excavation and work.
12 After the deal is cut, after the contract is
13 awarded, Mr. Hardiman makes a side deal with DCG to push
14 Mr. Ferguson out of the contract. DCG was created by Lanzo and
15 they basically do that, they elbow him out. And Hardiman
16 reluctantly agreed to it. He had a slightly different
17 description, but that's what it comes down to.
18 So now Mr. Ferguson, who is on the bid, they win the
19 contract, he's supposed to do the work, is suddenly told by
20 Angelo, "You know what, there's this discussion about," and
21 Mr. Hardiman tried to characterize it as they couldn't agree on
22 how much he should do. He was supposed to do all of it. DCG
23 wasn't even on the contract, wasn't even on the bid.
24 So, but somehow, because of a side deal that Lanzo
25 is making with Hardiman, they've decided to push Mr. Ferguson

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1 out. Well, he's not standing for it. And so there's this
2 discussion about how you get Ferguson out of the contract.
3 He's not asking to get out, they want him out, and here,
4 Mr. Hardiman says, at one point, Angelo says, "Let me handle
5 him, I'll deal with Mr. Ferguson."
6 So now there's these discussions between
7 Mr. Ferguson, according to Mr. Hardiman, and Angelo
8 D'Alessandro. And so, and you recall that Hardiman says that
9 Angelo offers Mr. Ferguson $300,000 initially, and Mr. Ferguson
10 says, according to Hardiman, I wrote it down, "I'll make
11 10 million. Why would I take 300,000?" And he rejected it.
12 So now they're going back and forth about how to get him out of
13 the contract.
14 So much is made of this $1.7 million that's
15 eventually paid to Mr. Ferguson, and remember, the agreement
16 was, okay, Angelo says, "I want to do the work," and that's
17 because he knows he's going to make a whole lot more money.
18 And he says, "All right, I'll pay you your profit, and I'll do
19 the work." And so he set up a schedule and Mr. Ferguson is
20 actually paid as DCG, as Lanzo is getting paid, that money is
21 split and Mr. Ferguson gets a 5 percent share that they
22 negotiated.
23 Now, let's look at DLS1-28 -- I'm sorry, let me back
24 up. Let's go to DLS1-1, I'm sorry.
25 This is a portion of the bid proposal on the

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1 outfalls, and as you can see -- scroll down, Mr. Higbee --

2 Mr. Ferguson's company is listed Detroit-headquartered, they
3 get Detroit-based credits, he's supposed to get 36 percent of
4 the contract, he's Detroit-based. Can you go to the next page.
5 There are the MBE credits and, of course, Lanzo has none
6 because they're not Detroit-based nor are they minority or
7 Detroit-headquartered.
8 Can you go over to the next page, 007, and you can
9 see Mr. Ferguson's company is going to have as many employees
10 as anybody, 20 employees proposed, and I'm not going to belabor
11 the point because we made it during the trial, but you see the
12 percentages that were used to win this contract. And further
13 in that same proposal is information about the company's
14 background which you saw and you can review again by pulling up
15 this exhibit.
16 Now let's go to DLS1-28, an exhibit that we put in
17 detailing Lakeshore's revenues from DWSD, or from several DWSD
18 contracts between 2002 and 2007, but in the second box, you see
19 the outfalls contract, the contract amount was 19,950, but the
20 change orders, the change orders were 24, almost $25 million,
21 the total contract amount was $44 million plus, almost
22 $45 million, and Mr. Ferguson was supposed to do 36 percent of
23 that. So you do the math, and you can see why DCG wanted to
24 push him out.
25 DCG was not on the original bid, Hardiman didn't

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1 back Mr. Ferguson up, he didn't act like a guy that was
2 intimidated. He said, "Well, you guys work it out."
3 Bobby Ferguson insisted on a share of the profits because his
4 work was being taken from him, and Lanzo knew that they'd make
5 more money by getting him out of that. So this was not a
6 contract that he was paid to do no work, it was a contract that
7 he was on to do work, and he got pushed out of it and
8 Mr. Hardiman didn't stand up.
9 Now, let's talk about 1368. 1368 is the Inland
10 contract where Mr. Ferguson supposedly had been forced in by
11 Mayor Kilpatrick, and you remember the conversation that
12 Mr. Soave says he had. Let's talk about that for a minute.
13 Recall what I said about Mr. Soave, and the other witnesses
14 that are in that situation.
15 Mr. Soave, if you remember, he was questioned by my
16 colleague, Mr. Rataj, and they had an interesting exchange.
17 Mr. Soave on cross examination admits that he's a
18 multibillionaire. He told Mr. Rataj that he's not even sure
19 how many companies he owns.
20 Mr. Rataj said, "Could it be 50?
21 "Maybe."
22 And that's all to his credit. He's a Fortune 500
23 company, and I think Mr. Rataj suggested he was worth
24 2.5 billion. He said, "No, that's what I made, or that's what
25 we grossed in 2008." And Mr. Rataj suggested he would like to

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1 have 10 percent of it.

2 Nonetheless, Soave, Mr. Soave testifies about this
3 meeting he says he had with Mr. Kilpatrick, and Mr. Kilpatrick
4 says, "You got the wrong contractor." Now, let's think about
5 that for just a moment. What else did he say? Mr. Kilpatrick
6 is a newly elected mayor. Mr. Soave is one of the most
7 important businessmen in our entire state, in the country, he's
8 Fortune 500. He supported Mr. Kilpatrick's opponent. What
9 happens before this meeting that Mr. Soave says he gets elbowed
10 or nudged? Recall he testified on cross that the first meeting
11 he had was right after Mr. Kilpatrick got elected, and who
12 causes that meeting? Mr. Kilpatrick goes to him and says he
13 wants to extend the olive branch.
14 This is a very important man. He's a billionaire,
15 one of the biggest companies, if not the biggest company,
16 located in Detroit, where he had -- or at least Inland is
17 located here. And he sits down and he says he wants to try to
18 basically win him over. And he talks to Mr. Soave and says,
19 "You supported my opponent, but I want to establish a
20 relationship with you," and it makes sense. If you want to run
21 for reelection, that's the guy that can help you raise a lot of
22 money. He's in the business and in the city, and if you want
23 him to do business in the city, you want to have a relationship
24 with him.
25 But he's got the upper hand. He's the billionaire,

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1 not the mayor. He's a new, 31-year-old mayor trying to

2 establish some relationships with the business community or
3 expand them. So he goes to Mr. Soave and says, "Look, I'm the
4 new mayor. You supported my opponent, but let's get together
5 and try to have a good relationship." Now, that's the first
6 meeting.
7 Now, Mr. Soave says that he, after talking to some
8 of his employees about this Inland situation, 1368, has a
9 meeting with Mr. Kilpatrick about that and other things. That
10 was not the only purpose of that meeting.
11 Now, think about that. He goes to this meeting and
12 he's discussing his business, and this man is going to issue
13 him an ultimatum. The first time they talked, he's asking him
14 to be his friend, basically. "Hey, let's have a friendship and
15 a good relationship."
16 The next time Mr. Soave comes to see him, he's
17 making demands on this multibillionaire. Does that make any
18 sense? Well, there's some facts that support the fact that it
19 doesn't make any sense, because what did Mr. Soave say? He
20 said that, when he's questioned by Mr. Rataj, that he wants to
21 have good relations with the mayor in the town that he does
22 work in. I think he says, he testified he likes to be friends
23 with politicians.
24 And what else does he say? He says, when Mr. Rataj
25 presses him, that before the grand jury when he's asked about

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1 this same meeting and asked about how Mr. Ferguson's name came
2 up, he says, "Well, I think Mr. Kilpatrick may have implied,"
3 he may have implied, as if it was a suggestion, using
4 Mr. Ferguson.
5 Now, why is that important? In trial, he says,
6 "You've got the wrong contractor." He's making a demand on
7 this multibillionaire businessman he wants to be a friend of.
8 The first time he testifies about this under oath, he says,
9 "Well, I'm not sure, I think he may have implied it," as if it
10 was a suggestion, a conversation.
11 What makes more sense? And why would he come to
12 court and say, you know, I know what I said in the grand jury,
13 which is earlier, but today in front of this community, when
14 it's going to be -- grand jury proceedings are secret,
15 remember. Now we're going to be reported in the newspaper, now
16 it's going to be public, so now it's important that my position
17 be a little different because if I say, well, he suggested
18 it -- and we kind of went back and forth about it -- then now
19 I'm helping Kwame Kilpatrick, and I'm not coming here in this
20 courtroom in the public with the Free Press and the News and
21 Channel 7 and Channel 2 reporting what happens. The story's
22 got to change. And it did.
23 Now, Mr. Rataj questioned him further, and he says
24 other things. He says Mr. Kilpatrick never told him that he
25 had to use Ferguson. He never told him that there would be

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1 adverse consequences if he didn't use Ferguson. Now, let's

2 think about it. Fear of economic harm. This man, whose
3 company grosses in the billions every year, is talking to him
4 and he's afraid, he's fearing economic harm, a company -- with
5 the new mayor of the city that he could probably crush
6 financially.
7 And I think you saw the kind of man that Mr. Soave
8 is. He kind of muted it a bit, but at one point he says that
9 allegedly that Mr. -- in this sequence of events, Mr. Ferguson,
10 he claims, wanted to do a joint venture and he says, "I told
11 him to go F himself." That's the real Tony Soave. That's the
12 guy, and that's the guy that Mr. Kilpatrick had to deal with.
13 So sometimes you get these windows into a real --
14 the person's real personality. When he's pushed, that's what
15 you get out of Tony Soave. Tony Soave is not a guy to be
16 pushed around. Tony Soave is a strong man who built himself
17 up, and he's dealt with all kinds of people, and if he's
18 confronted about something he doesn't want to do, guess what
19 you're going to be told? "Well, you know, you want to be my
20 friend, Mr. Mayor, I don't want to do what you want to do, and
21 as a matter of fact, I think the next time your opponent runs,
22 he can look for my support."
23 "Well, hold on, Mr. Soave, let's work this out." I
24 mean, ask yourself how they were really talking, or was it
25 played out like he played out here in court?

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1 He does business all over the country, he told

2 Mr. Rataj, he has relationships with all kind of politicians,
3 and he made the statement, all over the country. He testified
4 that in his experience, every city has its favorite contractor,
5 and none of those relationships involved allegations of
6 corruption, none of them. But when it involves
7 Kwame Kilpatrick, somehow it's crooked.
8 Now, 1368 was never held up. Ferguson was a real
9 minority contractor. If they talked about it at all, it could
10 have been, and I wasn't there, a discussion more in the nature
11 of him knowing that, as was testified to by Darryl Latimer and
12 others, their agenda, Kilpatrick administration's agenda at the
13 time, was to not have favorite minority fronts. And the guy
14 who he says they got rid of, Charlie Williams, unlike E&T,
15 didn't have any equipment, didn't have any employees, and this
16 is from Mr. Soave, didn't have any bonding capacity, any
17 insurance.
18 And you saw two of the witnesses that we brought in
19 to testify, Mr. Schneider from CAT and Mr. Zervos, and they
20 told you for this, starting out, small company, Mr. Ferguson,
21 what he had to do. You saw pictures of just some of the
22 invoices. And he said, this is some of the equipment he
23 bought, not all of it. Millions of dollars worth of equipment.
24 And what did Mr. Zervos tell you? He said that
25 "I've been dealing with him and his family," Mr. Ferguson's

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1 family, "for 40 years, bonded him, insured him, and never once
2 did I have a complaint, not one time." And you know how hard
3 that is? What did he tell you that was? He says, "That's
4 special." Because in their business, and I told you before and
5 you learned it, it's the rough and tumble, elbowing kind of
6 business, people trying to get advantages all kinds of ways,
7 people that they know, information they can get from DWSD
8 engineers, everybody's trying to gain an advantage. And so you
9 know if you don't get your payment early enough, you're going
10 to file a claim against somebody's bond. Never happened once
11 to him, in all the time he was doing business, and he's
12 supposed to be a crook.
13 Now, Mr. Kilpatrick had an interest in eliminating
14 fronts, according to Darryl Latimer. DWSD knew that.
15 Mr. Higbee, can you pull up DIN1-20.
16 This was admitted as a defense exhibit. It shows
17 the relationship between 1325 and 1368. It shows the revenue
18 amounts. The two were connected. Inland had the contract
19 first, Inland did the work. It made sense that Inland would do
20 this and not Lakeshore. Lakeshore was an asbestos company,
21 asbestos removal company, that was trying to become, trying to
22 break into the water main business.
23 Can you pull up DIN-1-14A?
24 This was admitted earlier during the trial, and it
25 basically just has the dates that, that involved 1368. And you

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1 go to the bottom. You can see on right, the corporation

2 counsel signed off on this contract on June 19, 2002, and June
3 26, the contract was approved, 2002.
4 Remember that Mr. Latimer testified that normally
5 the time for processing contracts is about 18 months. I know
6 that Inland had a long relationship with the city and they were
7 used to things going at lightning speed. This one almost did.
8 But there was obviously no delay.
9 Now, while we're on 1368, let's talk for just a
10 moment about the sinkhole. This was also never held up. You
11 remember, I showed Derrick Miller an exhibit, which I'm going
12 to let you take a quick look at again, and he said, having
13 worked for the city, that that exhibit shows that there was no
14 delay in the payment history under 1368.
15 And remember that as Mr. -- my esteemed colleague,
16 Mr. Thomas, great lawyer that he is, was able to get Mr. Parker
17 to, when confronted with that similar exhibit, after saying
18 that there was this meeting where there was no resolution of
19 getting Mr. Ferguson in, when he shows that the date of the
20 meeting, as of the date of the meeting, the contract had
21 actually been signed, what does he say? "Oh, wow." Didn't fit
22 with your story, Mr. Parker. That's what causes witnesses to
23 say "wow," when they don't know what the facts are or when they
24 don't care.
25 Can you pull up DIN-1-62.

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1 And you've seen this, and you can look at it

2 yourself. It basically details the payment history on 1368,
3 and it shows that there were no interruptions. They were
4 getting paid twice a month sometimes, all the way down to, over
5 to the next page, and you see the bottom figure there,
6 remaining balance of three million nine. He'd been paid $133
7 million on a $137 million contract. Now, there's some
8 supporting documents that go with it. I'm not going to review
9 those because I want to get done.
10 Let's go to 864, west side sewer repair. This won't
11 take very long. I don't know what it's doing in the
12 indictment. No exhibits on 864, no testimony on 864, not a
13 single government witness testified about it. I guess we'll
14 see what Mr. Chutkow says in rebuttal.
15 Let's go to Bernard Parker. Bernard Parker. You
16 recall that he and I, you will recall I questioned him on cross
17 examination. I'll just leave it at that. He's a person who
18 will say anything depending on who he's tethered to at the
19 time. In this case, for all the reasons I indicated before and
20 others, he's tethered to the government. So his exaggerations
21 and distortions and lies were designed to help them.
22 After acknowledging that he lied in this case on the
23 witness stand, he told you that he will lie, quote, when it
24 suits his purpose. What does that tell you about a witness
25 that says, "I will lie when it suits my purpose. I will lie

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1 when it suits my purpose"?

2 Does that mean an oath will erase that? Does that
3 mean that you can trust what he tells you? Does that mean that
4 he's a qualified liar? It means what it said because it came
5 out of his own mouth. It means, "I will lie when it suits my
6 purpose." It means you can't believe anything he tells you.
7 You certainly can't trust it, and remember the example -- and I
8 don't want to misstate it -- that my esteemed brother counsel,
9 Mr. Thomas, used about reasonable doubt and whether you trust
10 somebody. I don't know if he put Bernard Parker in it, but if
11 Bernard Parker comes to your door and says, "Hey, there's a
12 fire, I'll watch your stuff," you better watch your stuff.
13 Now, he acknowledged that he lied in this case, and
14 it was just kind of interesting, because when he's confronted
15 with the conflicting information regarding that memo that he
16 wrote, remember -- I'm not going to go through all of it, but
17 remember he's now in a situation where he's got to admit that
18 either the memo is false or his testimony in court is false,
19 and he says -- he's got to make a choice, I'm lying to the jury
20 or I lied to my boss. Well, he's not stupid. He sits there
21 for awhile, he says, "I lied to my boss."
22 You trust that? I mean, it made no sense because
23 he's talking about a highly placed administration official and
24 then in trying to bend over to help them, he says, "Oh, it was
25 Bobby Ferguson. He's the highly placed administration

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1 official." I mean, come on. You want to do it that bad,

2 Mr. Parker? What did they do to you? What did they do to you
3 to get you that wound up, or is it just something you do
4 automatically?
5 He worked for everybody, Walbridge, Ferguson, I
6 mean, it didn't make any sense. He talks about how horrible
7 Bobby Ferguson is, he's threatening people, and then he goes to
8 work for him.
9 "Why?
10 "I made a mistake."
11 Okay, you made a mistake, made a lot of mistakes.
12 And then he says, after he leaves, remember I showed you the
13 consulting contract that he put together that Mr. Ferguson
14 didn't sign? He says he wants to make his first client
15 Bobby Ferguson. This horrible guy at the end of this parade of
16 lies, he tells you, "I wanted to make him my first client."
17 Believe what he says? And that's important because
18 they rely on him for everything, Walbridge. It's ridiculous.
19 Now, we've got to get finished, so let's just turn
20 to 738, Baby Creek/Patton Park.
21 THE COURT: How about if we take a little break
22 before we do that.
23 MR. EVELYN: That's fine, Your Honor.
24 THE COURT: About 20 minutes.
25 (Jury out 2:21 p.m.)

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1 (Recess taken 2:21 p.m. until 2:45 p.m.)

2 (Jury in 2:47 p.m.)
3 THE COURT: Be seated.
4 Mr. Evelyn.
5 MR. EVELYN: Thank you, Judge. Welcome back.
6 Let's talk about, and again, as I said, I'm going to
7 highlight things so we can get done, but I do have to touch on
8 them.
9 Let's talk about 748, Baby Creek/Patton Park. This
10 is the contract that they say was delayed and held up by
11 Mr. Kilpatrick and by Bobby Ferguson or for his benefit, and
12 that's simply not true, the evidence doesn't support that. The
13 government relies on, of all people, Bernard Parker to
14 establish the allegations in this count. The bid process was
15 not held up at the request of Bobby Ferguson, and you will
16 recall that it was delayed, the bid opening was delayed,
17 because of the patent infringement claim that delayed the date
18 of the bid opening.
19 Mr. Higbee, can you pull up DWA-15.
20 Now, quickly, the date on this memo is February
21 21st, 2003. It's from Victor Mercado to the mayor. It's
22 referring to PC-748, which is the Baby Creek project. Let's go
23 to the middle paragraph, and it says, "The bid opening date for
24 PC-748 was originally scheduled for October 31," and it
25 basically goes on and says, the next sentence, "During this

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1 time period, DWSD" -- I'm sorry, let me back up. "However,

2 this date was postponed until February 6, 2003 because of a
3 patent infringement claim. During this time period, DWSD
4 needed to obtain legal opinions from patent attorneys before
5 proceeding."
6 And it goes on to further elucidate that entire
7 issue. So we know that this document, which is both a
8 government exhibit, which is Government Exhibit WA1-16, Defense
9 Exhibit WA1-15. I'm sorry, strike that, WA-15.
10 Mr. Higbee, can you go to DWA-16.
11 Now, they say that the mayor used a special
12 administrative order to the benefit of Mr. Ferguson, and as you
13 can see, this was a special administrator contract, and it
14 refers to the award of PC-748.
15 Let's go to the second page. And the same language
16 from Mr. Mercado is included in that second paragraph. In the
17 middle, it basically says that, "I also understand that DWSD
18 was delayed in awarding PC-748 by a patent infringement claim
19 asserted by a third party which required a modification to the
20 bid specifications. The claim delayed the bidding process for
21 several months. In order to satisfy my obligations as special
22 administrator and to ensure that DWSD complies with the
23 requirements of DCDS permit and second amended consent
24 judgment," which was the authority that made him the special
25 administrator, "I have approved and executed the contract 748,"

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1 et cetera.
2 And so we know that this delay in the bid opening
3 was something that was the result of a patent infringement
4 claim, unless you think that Mr. Mercado lied to the mayor and
5 the mayor lied to a federal judge.
6 Now, this notion of a climate of fear, as
7 articulated by Bernard Parker, Walbridge won this job and, if
8 nothing else, they were hardly afraid of the city. Can you go
9 to DWA-5, Page 1. You saw this memorandum that was introduced
10 when I was questioning Mr. Parker, and it shows the
11 equalization -- first of all, let's look at the date,
12 February 6, 2003, and it says this is the date that bids were
13 open. So the bid opening was that, was February 6, and it
14 lists the various contractors who bid, and it shows the
15 pre-equalization scores, and it shows the equalization scores
16 which put Walbridge in first place.
17 The last paragraph -- well, the second to last
18 paragraph talks about Barton Malow, who is going to probably
19 file a protest, but then the last paragraph, Mr. Hausmann says,
20 "Because this will be a real dog fight, you should know" -- and
21 this is Mr. Rakolta, the owner of the company -- "there is no
22 protocol nor precedent that the city has for this, and their
23 administrators are frankly way over their heads in trying to
24 comprehend the permutations of their own rules."
25 So they have obviously no real respect for what the

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1 city people are going to be involved in making this decision.

2 "Please don't share this stuff unless you feel you
3 must, but this is how it works for now."
4 Now, the next page of that exhibit is an email from
5 Bernard Parker, and it's dated February 12 at 5:00 p.m., and
6 it's very instructive because the subject is Baby Creek, and
7 the first paragraph says, "I spoke with Dan Edwards." See, he
8 engaged with whoever he needs to engage with in the city
9 administration, including DWSD. "He indicated the city's
10 lawyers have advised Miss Audrey Jackson" -- so he's got direct
11 information about what's going on inside the administration --
12 "Audrey Jackson of the City of Detroit purchasing director, to
13 conduct a review and response of the protests personally." Not
14 going to legal. He already knows that, he knows that on
15 February 12th. "Her response will be sent out to all
16 interested parties by the end of the week."
17 Now, he has that kind of really inside information.
18 He knows who's going to do it, what the process is and the
19 timing of it within days of the bid openings.
20 "I believe that this is a great sign given that
21 Mrs. Jackson concurred" -- he already knows that -- "with the
22 original findings from DWSD, in favor of his company,"
23 Walbridge. "Additionally, the lawyers will not be involved."
24 He knows all of that.
25 Now, this shows that Mr. Parker got direct

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1 information from Edwards regarding Audrey Jackson and the

2 handling of the protests.
3 Let's go to WA1-3. This is an exhibit that there
4 was some dispute between, I believe, Mr. Rataj and
5 Agent Beeckman. Agent Beeckman said that he had information
6 that this was incomplete. But what's significant about it is
7 that it is clearly a Walbridge document, and it is our
8 position -- you have to make the decision -- that this is three
9 separate subjects for bid.
10 Can you go to the top.
11 First page shows bids for sewer work, and it has the
12 base bid, and DPM is not even on here -- I'm sorry, WPM is not
13 even on here. It's at the top that has no bid, see, in the far
14 right column. Now, at the bottom there, the rankings -- can
15 you go to the next page. That page has the bids for structural
16 site work, as it says at the top. Again, WPM on the far right
17 has no entry. Mr. Beeckman, Agent Beeckman said that that was
18 added later on.
19 When you go to the last page, and by the way, it
20 shows that Ferguson had the lowest bid. When we get to the
21 last page, you see it says, "Mass excavation," and the base bid
22 shows that Ferguson is the lowest, and it's for the mass
23 excavation.
24 Now, let's go to WA1-14, which the government has
25 put in and used quite extensively. This is the agreement that

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1 was crafted on the 14th of February, and as you can see in

2 Paragraph 1, it's refers to "Walbridge will award Ferguson the
3 mass site work," just as indicated on the previous exhibit, and
4 it has the numbers for the amounts, including the Baby Creek
5 and the Patton Park addition. At the bottom it is agreed to by
6 Ferguson's company, and it's signed by Keith Merritt, not
7 Mr. Ferguson, by Keith Merritt, who was one of Mr. Ferguson's
8 employees. No holdup by either the mayor or Mr. Ferguson.
9 Now, let's turn to Book Cadillac. This won't take
10 long either. The only testimony on the record in this trial is
11 that Mr. Ferguson's company won the demolition contract as a
12 result of a competitive bid and that there was nothing unusual
13 about this contract and its award. Recall that Odell Jones
14 testified, they called him as a witness, but he testified that
15 the demolition work was separated out after the problem with
16 Alberici, but that it was a competitive bid and his words were,
17 "Mr. Ferguson's company won the bid."
18 It's unrebutted that his participation in that
19 contract was as a result of a competitive bid, and it's
20 unrebutted that he was selected without any shenanigans
21 whatsoever, even of being alleged. I'm not going to waste your
22 time any longer discussing that contract.
23 Now, let's talk about the 3D State Arts Grant, and
24 there are a number of exhibits, but to save time, I'm going to
25 refer to them and ask that you look at them in your

125
1 deliberations. Mr. Bullotta says, and he shows you pictures

2 and says that, "Oh, Mr. Ferguson, through fraud, procured this
3 grant and a presidential style office."
4 And this is part of the whole misrepresentation.
5 Remember that the 3D activities arise out of Mr. Ferguson's
6 Homer Ferguson Foundation activities, his community activities.
7 There were renovations being done when Mr. Ferguson moves into
8 the Wyoming office. He's renovating the office for his own
9 use, and he's also having renovations done for work area for
10 the training.
11 The monies that were expended were bifurcated, they
12 were split, and the government's own exhibits demonstrate that.
13 If you look at, make a note that Government Exhibit SG-25B is
14 five pages, is photocopies of each of the checks. There's one
15 check for $37,000 from 3D to Mr. Murray's company, Detroit
16 Interiors. The remaining balance, the other three checks were
17 written by FEI, so some of the renovations were paid for out of
18 the 3D funds, and some, the lion's share, were paid out of
19 Mr. Ferguson's own funds, because they were split, and that
20 later lead to some confusion or the state people got confused,
21 because they thought the renovations were occurring in that
22 house purchased on Meyers. And as you can see, if you look at
23 that exhibit, it fully -- it completely demonstrates that.
24 Now, if you look at DSG-14, you'll see a series of
25 invoices, $19,053.06 was paid by Ferguson Enterprises. Only a

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1 portion of AirTec's invoices were paid by 3D, and this is

2 important because it leads me to SG-17. Please make a note of
3 that.
4 You'll find that $32,000 of the grant money was left
5 unspent, and Marilyn Ferguson sent that information to the
6 state. The state never asked for the money to be returned, and
7 in that same exhibit, it demonstrates that the reason why the
8 grant was terminated included the fact that they had not
9 expended all of the funds. So Miss Ferguson, Marilyn Ferguson
10 sends that information to the state, makes it very clear that
11 it was separated and makes it very clear there's $32,000 left
12 out of the grant.
13 In the letter that was sent by the state, they tell
14 her the reasons for terminating the grant was because you spent
15 the money, they thought, for renovations of the house on
16 Meyers, which is not accurate and was not part of her
17 documentation, and you didn't expend all of the money. There
18 was never a request for the money to be returned, and it was
19 never hidden. This entire thing was transparent.
20 And they used the transparency against her. If they
21 were hiding it or if they were using the grant money to make
22 these expenditures, why was there $32,000 left over? And why
23 did they tell the state that and show it to them by sending
24 them a copy of the bank records? And how could the state say
25 part of the reason we're going to terminate the grant is

127
1 because you did not spend all of what you got?

2 Now, let's turn to the obstruction count. Let's be
3 real clear about this. You're going to have to really put your
4 legal hat on. This charge requires that you find beyond a
5 reasonable doubt that Mr. Ferguson tried to influence the
6 testimony before a federal grand jury, not the gaming
7 commission. The legitimacy of the donations is not before you
8 in this particular allegation. The money in question was
9 nonetheless kept when it was returned to each of these
10 witnesses before there was ever any investigation at all, and
11 kept as, treated as if it was their own -- as their own.
12 Each witness's testimony in this category was at
13 best ambiguous, and more likely related to the gaming
14 commission, which, if it was, it's not the crime charged.
15 Renee Newsome specifically testified, when I questioned her,
16 that her conversations that the government alleged to take
17 place related to the gaming commission only. At one point she
18 said it may have been both and she was unsure, and then she
19 confirmed that she got a subpoena from the gaming commission
20 and that it related directly to the gaming commission.
21 None of the witnesses, except Ms. Newsome, were ever
22 certain about which proceeding was in question, and that by
23 itself, ladies and gentlemen, is a reasonable doubt. If
24 they're not certain, except for Ms. Newsome, if they're not
25 sure, how can the government ask you to be sure in relying on

128
1 their testimony?
2 Now, let's talk very briefly about Derrick Miller.
3 Let me save us all a lot of time, and I'll say, I will
4 incorporate by reference everything that my esteemed brother
5 counsel, Mr. Jim Thomas, said about Derrick Miller. So we can
6 just skip over all of that, and I'll only make one reference in
7 support of what he's clearly established regarding Mr. Miller's
8 being tethered to the government and basically trying to do
9 everything he could to avoid going to prison for ten years.
10 MR. EVELYN: At one point, he's -- I shouldn't say
11 that. At one point, he's asked and he says in effect that
12 Mr. Ferguson was exceeding his limits on his demolition
13 contracts, and that action had to be taken to reinforce that,
14 to deal with that, as if Mr. Ferguson was being favored by the
15 administration.
16 Recall that we put into evidence, and I won't show
17 it here, but just make a reference of it, DRC-2, and what that
18 showed was that this whole notion of favoritism in the
19 demolition contracts -- you remember the testimony about Adamo
20 complaining? It became very clear from that, and that's the
21 journal of the city council, that journal shows that, first of
22 all, there were ten contractors, nine of which were minority,
23 that got a contract to demolish abandoned houses and it was a
24 low-bid contract.
25 Mr. Ferguson's company was one of ten, okay, and you

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1 look at that exhibit and it shows that all ten contractors had
2 extensions granted, and they were extended because they added
3 more houses to be demolished. I think 40 was used as the
4 average number, and that Mr. Ferguson's company was right in
5 the middle. They didn't get the most, they didn't get the
6 least. So it's a complete gross misrepresentation to say that
7 testimony to you and ask you to grab onto it as a racketeering
8 act when it was absolutely, completely misleading to you, and
9 it's misleading because, oh, by the way, it wasn't
10 Mr. Ferguson, it was nine other contractors in the same
11 situation who aren't charged with racketeering.
12 Now, but Mr. Miller said it, and we know why because
13 Mr. Thomas demonstrated that, I think, very clearly by taking
14 you through that.
15 Now, another allegation that's not separately
16 charged but that's offered up to support their claim of
17 racketeering was this Heilmann Recreation project. Very
18 interesting. Not charged, and it doesn't even come up until
19 the trial starts. Remember that Mr. Akinwusi said he was first
20 interviewed in September, in I think he said somewhere around
21 the 22nd. He's interviewed in September after we're already
22 trying this case, about his so-called claims.
23 Now, they tell you, and I'm going to be as short as
24 I can about it, they basically suggest that Xcel got the
25 contract. It was supposedly rigged. They have that text

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1 message from the HLM series, none of which show the same thing
2 that they're alleging, and the allegations are replete that
3 Xcel was unqualified, did a poor job, even did no work at all.
4 Well, we had to do some digging and produce actual,
5 real records, and I'm not going to go through them. I taxed
6 the judge's patience that day by introducing so many exhibits
7 that showed you what was actually being done by Xcel, all the
8 owner's meetings with the subcontracts, all the RFI's from
9 Bobby Toliver, who was the senior engineer for Xcel and who
10 Mr. Akinwusi couldn't really hardly remember, and the fact that
11 it really shows that who did most of the work on that project
12 was actually Xcel.
13 And even LaJuan Wilks, who clearly had an ax to
14 grind against Mr. Ferguson, she says he threatened her job, and
15 Tyrone Clifton says, "Well, I talked to her, and she was upset,
16 but I told her she couldn't lose her job, she's civil service
17 anyway." But it's clear that what, in fact, happened is that
18 Johnson Akinwusi's company, JOA, they had the majority interest
19 in that contract. Remember, it was 65 percent for them,
20 35 percent for Xcel. He had to fire his project manager, and
21 that's the reason why the project got slowed.
22 Ultimately, who takes over? Mr. Mike Woodhouse
23 takes over, and even LaJuan Wilks says, "Yeah, toward the end,
24 I see Mr. Woodhouse a lot more and they finished the project."
25 Now, I frankly don't even know why they brought this

131
1 up, and you recall -- I won't go through all of it -- you

2 remember that Mr. Akinwusi, when I started questioning him, he
3 has to admit that he really got involved in this project
4 because Mr. Woodhouse approached him, that they go back to the
5 '80s, they worked at Barton Malow together. He was an engineer
6 who worked under Mr. Woodhouse. Mr. Woodhouse developed the
7 software that his company was using for the bid packages. This
8 is a guy that really knows what he's doing, and I asked him,
9 and he didn't accept it, but I asked him, isn't what happened,
10 was that Mr. Woodhouse approaches you and says, look, there's
11 this project, we may be able to get it, let's put together an
12 all-black design team. His company is African American,
13 Johnson Akinwusi's is African American, and they brought in
14 SDG, the black architectural company that did the African
15 American museum.
16 Now, the government says that this was rigged, and I
17 want you to take a look at DHLM-1, and turn the page. That's
18 the bid proposal that Tyrone Clifton said he wrote. Turn
19 quickly to Page 3 of Part 1, I think that's 10059. Remember
20 that I asked Mr. Clifton about this testimony and where it says
21 "Rejection of proposals, the Detroit Building Authority
22 reserves the right to reject all proposals received as a result
23 of this RFP or to negotiate separately with any source
24 whatsoever in any manner necessary to serve the best interest
25 of the Detroit Recreation Department. This RFP is made for

132
1 information and planning purposes only. The Detroit Building

2 Authority does not intend to award contracts solely on the
3 basis of responses made to this request or otherwise pay for
4 the information solicited or obtained under this RFP."
5 So the RFP was to collect information, DBA was going
6 to make their own call on who they picked. So this notion that
7 they were unqualified or they weren't the lowest bid, it was an
8 RFP, but it was not going to be the sole basis for awarding the
9 contract.
10 I won't go through all the things that relate to the
11 delays and the like. I want you to look at those exhibits, and
12 they are DHLM-2 through 18, those were the
13 owner/architect/manager meetings. And then there's DHLM-19
14 through 55, those are the RFI's that got me in trouble with the
15 judge for taking too much of your time and she stopped me, as
16 she should, and I made some adjustments.
17 Why don't we talk a little bit about money. They've
18 shown you pictures of Mr. Ferguson's money in safes, cashier's
19 checks, and they're unable to connect in this so-called
20 racketeering enterprise, which they haven't proven at all, the
21 notion that Mr. Ferguson is stealing money from the city by
22 virtue of his relationship, again criminalized, with
23 Mr. Kwame Kilpatrick and we didn't hide from that. They're
24 friends. There's no question about that. They are actually
25 friends, and you know what? That's not a crime, believe it or

133
1 not, to have a friend who is the mayor.

2 But they tell you that, supposedly, he's supposed to
3 have gotten money from Mr. Ferguson, and other than this Mahlon
4 Clift situation, which we'll deal with in a moment, there's
5 nothing that connects money that Mr. Ferguson legally earned
6 and worked hard for and paid taxes on and what they claim he
7 supposedly imparted to Mr. Kilpatrick.
8 They showed you pictures of money that was seized in
9 2009 and 2010, okay, 2009 January and 2010 September, and they
10 claim that this money that they find in the safe and the
11 cashier's checks and other instruments somehow means that
12 before then, he was giving that money to this man. No proof
13 and completely illogical.
14 Why is it in his safe if he's giving it to him?
15 Well, we can't track. It could have been more. Yes, you can.
16 Oh, yes, you can, because, see, this man earned every dime,
17 paid taxes on it and declared it, even the money that's cash in
18 the safe. So there's a transactional record for it, and they
19 should really be able to show to the penny how much he
20 supposedly gave to Mr. Kilpatrick by showing what's missing.
21 Ain't nothing missing. He bought equipment, he paid
22 employees. He paid bonds and insurance. He had a real
23 company. That's kind of a problem. You got a real company,
24 it's expensive, you got to pay for all this. Remember that
25 Mr. Schneider said, "Oh, Mr. Ferguson was so interested in

134
1 trying to gain an advantage, he would sometimes buy

2 enhancements for his equipment." He'd buy a special -- and I'm
3 not a construction guy -- special tool that will pound concrete
4 faster so he could work better, so that he could be beat out
5 somebody else.
6 You don't do that if you're cheating. You do that
7 if you're working. Think about it, ladies and gentlemen, think
8 about it. They're trying to pull the wool over your eyes.
9 Don't let it happen and don't let them push you into it.
10 Now, $560,000 in cash in two safes, $1.7 million in
11 cashier's checks and CD's. Most of it was not in cash. I
12 mean, they show you the pictures, and it's real sexy, gets your
13 attention, but let's look past that and pay attention to what
14 you really are looking at.
15 Brother counsel, Mr. Rataj, when questioning
16 Ms. Rosenthal, and she finally acknowledges that, "Well, you
17 know, in this investigation and we're pursuing Mr. Ferguson,
18 did it kind of coincidentally occur that we'd go to a bank and
19 then he'd be out of the bank, and we'd go to another bank and
20 do a seizure or subpoena, and not because of our activity, but
21 somehow he just kept getting run out of banks." And you notice
22 that in the house that was, in the townhouse where they seized
23 the money, there were five cashier's checks from the same bank,
24 $560,000 in cash in those two safes, safes, and $500,000 in
25 cashier's checks. I think it was four $100,000 checks and one

135
1 that was a little more than $100,000.

2 Now, they run you out of the bank. What you gonna
3 do with your money? Put it in cashier's checks, put it in
4 CD's, put it in cash and stick it somewhere. But be that as it
5 may, what's clear is that it is not illegal to possess cash,
6 not a crime, nothing wrong with it at all, and so the fact that
7 he had that money is not evidence of criminal activity at all.
8 Now, they displayed this text message where they --
9 where Mr. Ferguson is on a trip and there's this stuff about
10 the Super Bowl tickets, and he gives Mr. Kilpatrick in his text
11 the combination to the safe that's in the hotel and says, "You
12 can go up there, $7,000, you can get money to buy the Super
13 Bowl tickets."
14 And then they show you a picture of the safe from
15 the Southfield townhouse as if it's the same thing. It's not.
16 That was on a trip, and the evidence shows that Mr. Kilpatrick
17 never even really went up there and got the check, got the
18 money anyway to buy the tickets.
19 Another thing that's really important is that when
20 Mr. Thomas, who we relied on quite a bit in this trial, is
21 questioning Mr. Sauer, he basically acknowledges that they
22 tried to correlate the cash withdrawals from Mr. Ferguson to
23 cash payments by Kwame Kilpatrick. Couldn't do it. Didn't
24 match up.
25 When he's asked the question -- I won't read it to

136
1 you, but basically he says, "On a daily basis, the analysis did
2 not correlate." So they did everything they could to try to
3 link this. There was no link.
4 I'm not going belabor Mahlon Clift. Mr. Thomas,
5 once again, outstanding job of laying that whole issue out and
6 how the government did a tape that they didn't show you because
7 it didn't show what they thought it would.
8 Now, one significant point. Please pull D-Clift-1.
9 These are the Atheneum records. I'm not going to show you
10 that. I want you guys to make a note of that exhibit. That
11 exhibit has all the Atheneum records that the government seized
12 involving Mr. Clift, and sometimes an event occurs and there
13 has to be corroboration if it happened.
14 Aside from what Mr. Thomas so clearly pointed out to
15 you, there's another issue that he mentioned that I want to
16 reemphasize. Mr. Clift was clear in his story, and we also
17 know, as Mr. Thomas pointed out, he didn't bring this up in his
18 first interview, then there's this break, something happens, he
19 gets on the phone, then he comes backs and says, "Oh, guess
20 what, I know something about some cash." We don't know why he
21 did that. We don't know if that was because he's got issues or
22 if he did it for some inexplicable reason.
23 These records that are in D-Clift-1 will clearly
24 show that if Mr. Clift met with Bobby Ferguson at the
25 Atheneum -- remember, he said Mr. Ferguson either texted him or

137
1 he called him and he comes to the Atheneum and he brings his

2 bag and it's in the fall, but it's not June because he's shown
3 the June records, he says, "No, that's too soon."
4 In October, he supposedly came back and gave
5 Mr. Kilpatrick the other $40,000. So where is the day between
6 October and June where he's staying at the Atheneum, registered
7 in his own name, and he supposedly sees Mr. Ferguson and he
8 gives him this $90,000? It doesn't exist. Not in there.
9 Didn't happen.
10 So if he wasn't there, how can you find that it
11 occurred? He didn't say, "Well, I think I stayed at the
12 Atheneum but I may" -- no, his thing was, "I always stayed at
13 the Atheneum or with a girlfriend when I came to Detroit."
14 "Were you at your girlfriend's house when you got
15 the bag?"
16 "Oh, no, I was at the Atheneum."
17 Well, why is there no record of it? There's no
18 record of it because it didn't happen.
19 Now, much has been made about the revenues in this
20 case. They make a big deal about that, about how much money
21 Mr. Ferguson has made, and they sort of skip over everybody
22 else. But I want to put something in context for you.
23 Can you pull up the revenue exhibit? This is just a
24 demonstrative exhibit, not in evidence. Soave Enterprises,
25 Mr. Soave testified that they made $2.5 billion in 2008.

138
1 Lakeshore revenues, 2007, quarter of a million dollars. Later

2 on he says he made a half million by 2010.
3 Now, these are victims of crime, these are victims
4 of extortion, these are people that got their arms twisted so
5 that my client could make money, and they are -- well, I'm not
6 a rich man, I think that's rich. You can decide whether it's
7 rich to you or not. They're the victims. The 2.5 billion and
8 the quarter of a billion dollar victims in this case.
9 Now, I want to show you one other demonstrative
10 exhibit, and let me point out -- well, let me show you one more
11 demonstrative exhibit. Mr. Ferguson is supposed to, with
12 Kwame Kilpatrick being involved, in trying to extort and
13 hijack, as a result of a criminal enterprise, nine contracts.
14 Mr. Latimer and Mr. Edwards testified that there are 40 to 60
15 contracts at any given time outstanding from DWSD, $800 million
16 annually in capital improvements. That would be $5.6 billion
17 in contracts. Only nine of them are supposed to have been
18 hijacked by my client, and they're supposed to be running a
19 criminal enterprise.
20 Ask yourself, does that make sense? Ask yourself if
21 that's logical. Ask yourself if the evidence proves anything
22 like that. Criminal organization. The government is
23 criminally incompetent to make that allegation.
24 Now, there's also an allegation about the Civic
25 Fund. I'm not going to spend much time on that because

139
1 Mr. Ferguson -- Mr. Thomas did a great job again, but I will
2 tell you that they alleged that Mr. Ferguson contributed
3 $75,000 to the Civic Fund and that somehow this was part of a
4 conspiracy to benefit him, and again, there's no logic to it.
5 Why would he put it in the Civic Fund instead of giving it to
6 him? And how can a contribution to the Civic Fund, and
7 Mr. Thomas showed that you well over a million dollars, I think
8 it was a million seven, was raised by the Civic Fund and other
9 than $13,000 of it that are questionable expenditures in this
10 case, the rest of it was properly spent. So how did this
11 $75,000 be something other than a contribution?
12 Let me finish with the contract and talk about the
13 Oakwood Pump Station. This is another thing that kind of
14 confuses me because this is a contract that is in the
15 indictment as a, an attempt extortion. The allegation is that
16 Walbridge refused to add Ferguson to their team, and so they
17 lost a $140 million contract. How? What strings got pulled?
18 What happened? There's no evidence.
19 So I guess if you bid on a contract and you lose it,
20 it's corruption if you have a conversation with Bobby Ferguson
21 because that had to be the reason you lost it. It couldn't be
22 that he pulled out -- we didn't even know what the full
23 conversation was, we have to rely on Mr. Parker for that. The
24 esteemed Mr. Parker. There's no evidence to support that
25 claim.

140
1 Can you pull up DWA-7, Page 1. This is an email

2 from Ron Hausmann to John Rakolta sent on January 30th, 2007.
3 "John, FYI, you may get a call from Bobby Ferguson regarding
4 the DWSD Oakwood job."
5 What's the next sentence say? "We reached out to
6 Ferguson Enterprises last week, and this to try to contact
7 Bobby involving him with our dirt team on the job." Says they
8 reached out to him.
9 Now, let's go to Page 2, same exhibit. Scott
10 Penrod, March 5, 2007, to Bernard Parker. "BP, we need to push
11 as best we can to get this pushed at least one week. The key
12 will be how quickly they can get out Bulletin Number 3. Ron,
13 any help you can lend in getting this pushed from the 15th to
14 the 22nd would be a benefit." And they talk about their
15 estimator being out of the country, so they need to get
16 something moved back. And the lead to that, can you go down
17 just a bit, I guess I'm reading in reverse order, talks about
18 them waiting to see -- and this is from Bernard Parker to Scott
19 Penrod, "We're waiting on Mirza, the DWSD engineer, to make up
20 his mind on the date change. We may know as early as Tuesday
21 morning."
22 You go to the next page and you see, from
23 Bernard Parker, it's dated March 6, 2007, which is the very
24 next day, and it says, "Family, pursuant to my conversation
25 with" who? "Mr. Dan Edwards, DWSD. He indicated that the new

141
1 date, tentatively for Oakwood's bid submission, is Thursday,

2 March 22, 2007." I guess he got it put over without
3 Mr. Ferguson. Shows that you can do it by merely asking for
4 it.
5 Now, the final note on this is DLS1-28. Who wins
6 755? Lakeshore. See at the bottom? D'Agostini and Lakeshore.
7 So he's supposedly trying to extort Walbridge. No evidence of
8 it, but that's supposed to happen, and we see the email showed
9 there was no extortion. But even a step further, Lakeshore
10 wins the contract. I guess he doesn't have any pull.
11 Now, the good news is this little folder means I'm
12 about done. My conclusion. Give me just a few minutes. I
13 know you're tired. I am too. Really.
14 This is the last time I will have a chance to
15 address you about this case. The prosecutor goes first and
16 last, and even though that's what the law provides because they
17 have the burden of proof, defense lawyers are always sick over
18 that. We always emotionally feel that that's just not fair,
19 even though it is because that's the law. They have the burden
20 of proof, they should get to go first and last.
21 But having said that, I've tried to address in
22 summary fashion the things I thought that were important. To
23 the extent that I could, I've addressed some things that
24 Mr. Bullotta mentioned.
25 When Mr. Chutkow gets up here tomorrow after he

142
1 rests and has overnight to digest all of this, he will probably

2 raise some questions, and good lawyer that he is, I'm sure he's
3 going to raise some things that I didn't address. Well, I
4 won't get a chance to get up and answer those questions. So if
5 it becomes an issue in the jury room, the 12 of you who have to
6 decide this case will have to take what you hear me say now,
7 what I've already said, what you know about the case, and
8 somebody will have to say, "Well, Evelyn probably would have
9 said this." You got to answer for me because I won't be able
10 to do it, if you want an answer. You may say you don't need an
11 answer.
12 Decide this case based on the evidence.
13 Bobby Ferguson is a tough-minded, sometimes coarse, oftentimes
14 animated. I mean, you've seen us at the table bouncing back
15 and forth. Sometimes I tell him to be quiet. He's a very
16 active person because that's how he survived and that's how he
17 succeeded in business, is by doing what has to be done and
18 being engaged in whatever is important, and believe me, this
19 case is important to him so he's very engaged.
20 And he's a tough-minded businessman who has been
21 really steeled by his experiences, particularly in the
22 construction business. He's learned the hard knocks the hard
23 way. He has fought and he has struggled and he's succeeded in
24 the construction industry, not like the victims in this case,
25 but he's had what he feels is success.

143
1 It's true that many people in that business are

2 hard-driving, aggressive, like all the other contractors in
3 this case. Angelo D'Alessandro trying make money hand over
4 fist, pushing him out of a deal because he sees 13 or
5 $14 million and he says, I can pay him a few hundred thousand
6 and do much better. Plus, it's a new company so I can have a
7 track record, not just doing mining but also doing excavation.
8 Bobby Ferguson, as I've said several times and I'll
9 say one last time, a real company, real employees, real
10 equipment, and he followed the admonition of witness
11 George Brown and his father to never be a pass-through. As
12 Odell Jones told you, it's much more expensive and can cause
13 you problems if you don't want to be a pass-through, if you
14 don't want to be Charlie Williams and say you're going to get
15 20 percent of a contract, got no equipment, got no expenses,
16 that's going to all pass through to Inland. That's why they
17 want pass-throughs, because they can make money off of them.
18 And for me it's emotional because it's like making
19 money off the civil rights movement because that's how this
20 came to be.
21 He's also a man who cares about others. People like
22 him in his community, the community in which he live, the Homer
23 Ferguson Foundation. Even Hardiman had to own up to that being
24 something that was real that he had to support.
25 The Motor City Makeover, according to Derrick

144
1 Miller, saved the city millions of dollars. You heard the man
2 from CAT, Mr. Schneider, say, "Yeah, we loaned him thousands of
3 dollars of equipment and we loaned it to him because he'd come
4 and pick it up." That was not something he made money off of.
5 That didn't enhance his reputation. That was part of him
6 caring about his community. A man that didn't believe in free
7 rides.
8 That's why it's an insult for them to say that the
9 849 contract was a no-work contract. Does he look like a
10 no-work person? And I say that not just by how he physically
11 looks but by what you know about him in this case. The
12 government says he belonged to a criminal organization that
13 never really existed.
14 Ladies and gentlemen, let me implore you to face up
15 and meet that challenge that I talked to you about earlier that
16 me and my colleagues all want you to embrace. Bring back not
17 guilty verdicts that the evidence and the lack of evidence call
18 for in this case.
19 And if you feel pressure and find it difficult,
20 remember that in 1963, Martin Luther King published a book of
21 his sermons called Strength to Love, and in one of those
22 sermons he reminded us that the ultimate measure of a man or a
23 woman is not where he stands in moments of comfort and
24 convenience but where he stands in the time of challenge and
25 controversy.

145
1 I challenge each one of you to do what's right and

2 find my client not guilty of these charges.
3 (3:34 p.m.)
4 THE COURT: Thank you, Mr. Evelyn.
5 Ladies and gentlemen, we'll adjourn for the day. We
6 will resume tomorrow at 9:00. I remind you again, of course,
7 not to read, watch, listen to anything. Don't let anyone talk
8 to you about this case.
9 It's been a long week, get some sleep, get some
10 rest. We'll finish up tomorrow with the last of the closing
11 arguments and instructions and hopefully have the case
12 submitted to you for deliberations before lunch. Thank you.
13 (Jury out 3:35 p.m.)
14 (Proceedings adjourned at 3:35 p.m.)
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1
2 - - -
3 C E R T I F I C A T I O N
4 I, Suzanne Jacques, Official Court Reporter for the United States
5 District Court, Eastern District of Michigan, Southern Division,
6 hereby certify that the foregoing is a correct transcript of the
7 proceedings in the above-entitled cause on the date set forth.
8
Date: February 14, 2013
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s:/Suzanne Jacques
11 Suzanne Jacques
12 Official Court Reporter
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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

UNITED STATES OF AMERICA,

Counsel for Defendant Kwame M. Kilpatrick:

Counsel for Defendant Bernard N. Kilpatrick:

Suzanne Jacques, Official Court Reporter

Proceedings recorded by mechanical stenography.

Defendant's Closing Argument by Mr. Shea 5

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

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

1 MR. SHEA: Very good.

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

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

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

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

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

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

1 argument. They discussed Marc Andre Cunningham, they discussed

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

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

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

1 to inform Jon Rutherford about ownership status of, of those

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

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

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

1 paid, for no work.

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

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

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

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

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

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

1 about the DAH contract.

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

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

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

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

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

1 It's interesting, because he testified on cross

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

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

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

1 This is not Bernard Kilpatrick demanding any

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

1 confirmed. She worked either in the building safety department

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

1 Clearly, Bernard is talking to people, working

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

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

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

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

1 authorization. It's just completely, totally implausible.

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

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

1 To me he said Bernard Kilpatrick was brought in on

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

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

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

1 uncle, and Jeff Beasley and Bernard Kilpatrick had a dinner

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

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

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

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