Barry Berke and Paul Schoeman of Kramer Levin Naftalis & Frankel accomplished something
exceedingly rare Tuesday. They won an acquittal on all counts for their client,
former Deutsche Bank private banker Craig Brubaker,
who was accused
of participating in a complex, four-year scheme to sell illegal tax shelters.
That in itself counts as a huge win. But the Kramer
Levin lawyers did it in a case in which Brubaker’s four co-defendants-- two former Jenkens
& Gilchrist partners, a former Deutsche Bank broker, and the former CEO
of the accounting firm BDO Seidman—were all
convicted.Of the five alleged conspirators who sat before jurors for
almost three months, only Brubaker walked out of Judge William Pauley’s Manhattan federal courtroom Tuesday scot-free.
Berke talked Wednesday morning with On the Case about how he
and Schoeman were able to distinguish Brubaker from the other defendants. (Full
disclosure: Berke is a main character in my 2006 book, Double
Eagle.) Part of Kramer Levin’s strategy was to construct,
through cross-examination of the government’s witnesses, an alternative
interpretation of the evidence against Brubaker. That’s a classic white-collar
defense tactic, but Berke said he tried to go beyond just poking holes in the
government’s case and instead flesh out “a compelling narrative” about his
client’s innocent reliance on Jenkens & Gilchrist’s assurances.
In a somewhat riskier
move, Berke also made sure jurors would
remember him when they began deliberating about Brubaker. For that, he used a
prop: a red handkerchief. The government’s case against Brubaker depended
heavily on the testimony of Erwin Mayer, a former Jenkens & Gilchrist
partner who pleaded
guilty to participating in the illegal tax shelter scheme in October 2010.
“That was a challenge for us,” Berke said. “It was also an opportunity for us.”
Berke wanted jurors to see Mayer the way he contended
Brubaker had back in 1999, when the two were selling the Jenkens-devised tax
shelters. In those days, Berke said, Mayer wasn’t an abashed cooperating
witness for the prosecution. He was an extremely knowledgeable and persuasive
To make the point, Berke pulled out a red handkerchief as he
began his four-day (yes, four day) cross-examination of Mayer. He told Mayer
and the jury that he was going to do some role-playing. When he put the
handkerchief in his front pocket, he said, he wanted Mayer to speak to him as
though he were a Florida real estate developer in 1999, looking for a way to
shield income from the Internal Revenue Service. When he took the handkerchief
out of his pocket, Berke said at trial, he
was back to being Brubaker’s lawyer.
Berke said Mayer resisted the game, but after Berke (sans
red handkerchief) kept reminding Mayer of his prior testimony about his sales
techniques, the former Jenkens lawyer demonstrated the pitch he had used to
market the shelters. “ He finally got into it,” Berke said. “It was one of
those magic moments in the courtroom.” It
was also enormously beneficial to Brubaker, in Berke’s account. “We went
through every issue in the case,” he said.
“Craig Brubaker was at a lot of the pitches with Mayer. Mayer never told my
client he had doubts [about the shelters’ legality].”
By establishing through Mayer’s testimony that Brubaker had
relied on the Jenkens partner’s assurances of the
shelters’ legitimacy, Berke said, he
and Schoeman were able to counter the government’s volumes of e-mail evidence
against their client. “The e-mails made him seem like he was a bigger player
than he was,” Berke said. “We argued that he was acting in good faith….The
cross-examination [of Mayer] was key to framing the issue, because we showed
that Mayer and Jenkens were so compelling.”
Berke said the red handkerchief bit could have flopped if he
hadn’t been able to get Mayer to play along, but he had plenty of prior
testimony to use in a more traditional
cross-examination if it had. Since the role-playing cross went so well, though,
Berke brought back the handkerchief for his closing argument, reminding jurors of what Mayer had said
when Berke was playing the part of the tax-averse developer.
The jury got the case on May 16. Last Monday deliberations
had to restart when one juror had to be replaced for medical reasons. Berke
said Brubaker and his legal team felt good about the case they’d presented, but
the long wait for a verdict was nerve-wracking.
As the jury came into the courtroom Tuesday to deliver the
verdict, Berke said, he thought he glimpsed the jury forewoman, an
environmental scientist, smile slightly at Brubaker. That seemed like a good
sign, he said, but the verdict seemed to take forever to read, with jurors plowing through count-by-count pronouncements on
each of the five defendants. Brubaker and the other Deutsche Bank defendant
(represented by Susan Brune of Brune & Richard) had both been cleared of
all charges when jury reached count 20, obstruction of internal revenue laws.
As Berke held his breath, he heard the forewoman say Brubaker was not guilty.
Brune’s client, David Parse, was found guilty.
The final count against Brubaker was mail fraud. When his
client heard the words, “Not guilty,” Berke said, “he had tears of joy in his
Brubaker and the Kramer Levin team didn’t want to celebrate the acquittal in the courtroom, given
that the co-defendants had all been convicted. But Tuesday night, they went out
to celebrate, and Wednesday morning Brubaker sent his Kramer lawyers an e-mail.
For the first time in seven years, he said, he’d finally gotten a good night’s
(Reporting by Alison Frankel)