John and Timothy Rigas have filed a last-ditch motion demanding a new trial, based on evidence that the main witness against the convicted former Adelphia Communications Corp. executives appeared to change his story in other court cases.
Filed just a few weeks before the two Rigases are scheduled to be sent to federal prison, the motion follows an unsuccessful appeal. But it is based on new evidence that James Brown, the star prosecution witness in the 2004 Rigas criminal trial, appeared to contradict himself once the trial was over.
The Rigases contend that what Brown said at their trial was false, and that both his later testimony and the testimony of other witnesses prove it.
"In a lot of ways his false testimony hurt a lot of people," said Timothy Rigas, the former Adelphia chief financial officer, in a rare interview with his brothers Michael and James and their lawyers on Tuesday.
The Rigases point to apparent contradictions between what Brown told jurors in the criminal trial and what he said under oath in other court cases.
Most notably, in the criminal trial, Brown -- who struck a plea deal but still has not been sentenced -- said he manipulated Adelphia's financial numbers in innumerable ways.
When he was asked: "You lied to banks and bankers and investment bankers and lawyers and accountants and sophisticated analysts and all kinds of people, right, sir?", Brown replied, "Yes, I did."
But in early 2006, when he testified in the Securities and Exchange Commission's lawsuit against Adelphia's former accountant, Brown denied ever misleading Adelphia's accounting firm, Deloitte and Touche.
At that time, when asked if he lied to the auditors about co-signed loans that the Rigases took out but that Adelphia would be liable to repay, Brown said: "No."
Similarly, when asked about if he lied about the co-mingling of Adelphia money and Rigas family money, Brown also answered: "No."
Brown did not return a call to his home in Coudersport, Pa., but the Rigases were happy to discuss what they saw as gross discrepancies between his testimony in different court venues.
Although John Rigas remained at home in Coudersport while his sons traveled to New York to meet with their lawyers, Michael Rigas said his father is "angry" and "disappointed" in Brown for testifying so differently in different court cases.
Speaking of his father, Michael Rigas said: "It hurt him personally to know that people could betray him."
The Rigases' lawyers spell out the details of that perceived betrayal in a 50-page brief before U.S. District Court Judge Leonard B. Sand, who presided over their trial and last month ordered John and Timothy Rigas to prison on Aug. 13. Two years earlier, Sand sentenced John Rigas to 15 years in federal prison, while Timothy Rigas received a 20-year sentence.
The appeal is filed under a section of federal criminal law that permits a motion for a new trial when "newly discovered evidence" surfaces after a trial.
Separately, the Rigases have asked the Second Circuit Court of Appeals to stay their imprisonment while they appeal their conviction to the U.S. Supreme Court. The Rigas lawyers make a different argument in that case, saying the prosecution erred because it didn't call an expert witness to discuss accounting rules before the jury.
The lawyer handling the Rigases' appeal for a new trial, Lawrence G. McMichael, said the two legal matters are proceeding separately. That means John and Timothy Rigas could be sent to prison Aug. 13 even though their request for a new trial is still pending.
John Rigas -- the former owner of the Buffalo Sabres -- and Timothy Rigas were convicted of fraud and conspiracy after prosecutors alleged they hid $2.3 billion in co-signed Adelphia loans and cooked the company's books.
But the Rigases have steadfastly maintained their innocence, and argue in their new court filing that they would not have been convicted if Brown had not testified against them.
Asked if he believed anything Brown had to say in any of the various court proceedings, McMichael replied: "He said he was a liar. He said he lied repeatedly and he said he lied a lot, and I agree with that."