CENTRAL ISLIP, L.I. — After spending two hours blistering alleged con men Phil Kenner and Tommy Constantine as thieves and liars on Thursday, Assistant United States Attorney James Miskiewicz wrapped up his closing argument by telling the jury that when he was in law school he became obsessed with how TV infomercial pitchmen persuaded viewers to part with their money.
Miskiewicz said Kenner and Constantine, accused of stealing millions of dollars from NHL players and other investors, reminded him of Billy Mays, the late-night pitchman who would promise to send viewers two bottles of OxiClean for the price of one if they called within the next 15 minutes. Kenner and Constantine also made big promises to their clients, Miskiewicz said, but unlike Mays, the defendants on trial at the Alfonse M. D’Amato United States Courthouse never actually delivered on the promises they made to their clients.
“They promised the hockey players, John Kaiser, Ethel Kaiser everything,” Miskiewicz said, referring to the retired Suffolk County police officer and his mother who are also alleged victims. “They got nothing.”
After nine weeks of testimony from a long line of witnesses that included former Ranger Bryan Berard and ex-Islander Michael Peca, the trial of Kenner and Constantine lurched closer to its conclusion and should go to the jury sometime next week. Kenner, a former financial adviser who now calls himself a “lifestyle coach,” was charged with nine counts of wire fraud, money laundering and other charges in a superseding indictment handed down earlier this year. Constantine, a former race car driver and convicted cocaine dealer, faces seven counts.
The government’s case was a troubling reminder of the problems wealthy but naive athletes face as they struggle to manage the millions of dollars they earn early in their lives, but Miskiewicz said the betrayal in this case is especially sharp. NHL star Joe Juneau, the prosecutor reminded the jury, was not only Kenner’s client but also his roommate and college hockey teammate. Other investors considered Kenner a good friend for years.
In boiling down the government’s case for the jury, Miskiewicz argued that Kenner and Constantine had convinced the NHL players and others to invest millions of dollars in real estate projects in Hawaii and Mexico, as well as other business opportunities. Instead, the two alleged con men blew most of the money on their lavish lifestyles, legal bills and other ventures.
“Much of that money raised to develop land in Hawaii was diverted to the defendants,” Miskiewicz told the jury.
Kenner also opened up lines of credit in the players’ names at Northern Trust and then spent several years shifting money from one account to another to make interest payments before what Miskiewicz described as a Ponzi scheme crashed in 2009, when the players received letters from the bank saying the loans were going into default.
When the players raised questions about their money, Kenner told them he had loaned $5 million to golf resort developer Ken Jowdy, who had refused to pay it back. Kenner and Constantine convinced the players to contribute millions of dollars to a “Global Settlement Fund” to pursue litigation against Jowdy; prosecutors say they used most of that money for personal uses and business opportunities, too.
Miskiewicz said that while Kenner has kept thousands of business documents, emails and text messages, he has been unable to produce paperwork that corroborates the loan to Jowdy. “There was not a Ken Jowdy loan,” Miskiewicz said.
Miskiewicz urged the jurors to review a tape recording Kenner made of a conversation he had with Constantine after running into his then-estranged partner at a Scottsdale Home Depot store in 2010.
With the FBI launching an investigation and investors clamoring for their money, Constantine — who describes Kenner as the bank robber and himself as the getaway car driver — sounds like he knows they are in trouble.
“That conversation, there couldn’t be stronger evidence,” Miskiewicz said.
Kenner’s attorney Richard Haley, meanwhile, began his closing statement Thursday by telling the jury that it is the government’s case, and not the defendants, who are on trial. Haley is expected to wrap up his closing on Monday.
Constantine’s attorney, Robert LaRusso, will give his summation after that.
Haley told the jury his client is the victim of law-enforcement overreach: Haley claimed the FBI had decided that Kenner was a fraudster and then found evidence to support that claim. He also said the feds encouraged witnesses to perjure themselves by giving false testimony and gave “sweetheart deals” to witnesses who should face criminal charges.
Haley said the agents who investigated Kenner had ignored evidence that suggested his client was not guilty. “The defense has had to make sure during the course of this trial that documents which would prove a witness had told the truth, the whole truth and nothing but the truth were brought to your attention,” Haley said.
The hockey players who said they did not know what Kenner had done with their investments were not as naive as they suggested in their testimony, added Haley, who claimed they had not paid attention to documents sent to them by Kenner.
Haley, who took the unusual step of calling Kenner to the witness stand, also gave the jurors a choice: They can believe witnesses who claimed they had faulty memories when it came to documents and other evidence that would damage the government’s case, or they can believe Kenner, who provided detailed answers to most questions.
Haley told the jury that there was documentation for the Jowdy loan, although he acknowledged it was created well after Kenner had transferred money to the golf resort developer. He pinned his client’s problems on Jowdy, who has not been called to testify in the case.
“Would we not be here today if the Jowdy loan had been paid back and the hockey players were made whole?” he said.
