Prosecutors seek two-month delay in Bob Menendez trial over attorney 'impasse'

Federal prosecutors are making another attempt to delay Sen. Bob Menendez’s corruption trial, arguing that a sudden impasse over resolving a conflict for one of his co-defendant’s lawyers could make it necessary to push its start date two months, from May 6 to July 8.

The request, made in a legal filing Sunday, comes just after judge Sidney Stein agreed to delay the trial of the senator’s wife and co-defendant, Nadine Menendez, to at least July because of health issues, but to keep the May 6 trial date intact for the senator and his other co-defendants, Wael Hana and Fred Daibes.

The letter also reflects a reversal of positions in the timing of the case. Menendez — who initially sought to delay his trial — is now pushing to start it next month while prosecutors are looking to delay it, which they also said they were open to during a hearing last week. Prosecutors, who are seeking the delay in an attempt to avoid splintering the case against Menendez and his co-defendants into multiple trials, asked for a phone conference with Stein on Monday to discuss how to proceed.

At issue is attorney Lawrence Lustberg’s representation of Hana. Lustberg also represents Daibes — an Edgewater developer — in a separate, pending bank fraud case that touches on the Menendez indictment. The senator is accused of seeking to influence the selection of New Jersey’s U.S. Attorney to help Daibes in his pre-existing case in exchange for bribes.

According to a letter, Assistant U.S. Attorney Daniel C. Richenthal wrote to judge Stein that Lustberg could shed light “among other things, defendant Robert Menendez’s corrupt intent in selecting individuals to recommend for the position of U.S. Attorney and a phone call from Menendez to Mr. Lustberg that, unbeknownst to Mr. Lustberg at the time, was in furtherance of the bribery and obstruction scheme.”

Richenthal’s letter says prosecutors had been working since March 22 on an anonymous stipulation by Lustberg to be used at trial instead of requiring Lustberg’s testimony, which would avoid potentially disqualifying Lustberg as Hana’s attorney. The two sides, he wrote, agreed that they could argue about the admissibility of Lustberg’s answers later.

But on Friday, Richenthal wrote, Menendez’s legal team told them that the senator “did not expect to agree to a stipulation that contained any facts that he did not agree were both relevant and admissible” and that a Daibes attorney “informed the Government that Daibes wished to reserve the right to elicit additional facts from Mr. Lustberg based on developments at trial,” and preferred to be able to cross-examine Lustberg directly instead of by stipulation.

“In light of the foregoing, it appears that it may be difficult to try all defendants (except for Nadine Menendez, who was severed for medical reasons) together on May 6,” reads the letter, which goes on to request that Stein delay the trial to July 8 or shortly after, “so that all the defendants (including Nadine Menendez, if possible) can be tried together.”

The prosecution suggested that the last-minute rejection is “gamemanship” for Menendez to sever his trial from at least one of his other co-defendants, which he has already unsuccessfully tried to do.

“The Court should not reward further gamesmanship or provide a perceived tactical advantage to one or more defendants charged together with committing crimes together,” Richenthal wrote.

But Menendez attorney Adam Fee and Lustberg both said there was no impasse, with Fee accusing prosecutors of seeking to cause one by suddenly “injecting assertions and language into the stipulation that no criminal defendant would ever accept.”

“What is clear, however, is that the government has ‘manufactured’ this supposed dispute about a stipulation in the hope of causing Your Honor to revisit his rulings and to adjourn the trial,” Fee wrote in a letter Sunday, calling the prosecution's request a “transparent effort to avoid the production of 3500 material and trial exhibits by tomorrow’s deadline.” (Prosecutors in their letter said they were prepared to turn over the material and exhibits Monday).

“The government has now injected entirely new, and we believe irrelevant and inadmissible allegations into the proposed stipulation, precisely because the prosecutors know that no competent defense lawyer would ever stipulate to these facts,” Fee wrote.

Lustberg in a letter Monday morning also said prosecutors’ claim of an impasse was “premature and inaccurate” and disputed that he might have to be disqualified.

“The prejudice that would befall Mr. Hana should he be forced to use new lead trial counsel at this late date after this issue was known about, raised, and then simply ignored for months cannot be overstated,” Lustberg wrote.

During a hearing last week, Stein said he was alert to “gamesmanship” going on in the case.

Ry Rivard contributed to this report.