By LARRY NEUMEISTER
Associated Press

NEW YORK (AP) - The former Republican leader of the state Senate has asked a federal appeals court to stop prosecutors from filing new charges once his fraud conviction is overturned, saying the government gambled and lost by building a case with a flimsy legal foundation.

Joseph Bruno's lawyers made the request in a filing with the 2nd U.S. Circuit Court of Appeals in Manhattan. The 81-year-old Bruno, the state Senate's Republican leader for 13 years, was sentenced in May to two years in prison for his conviction on two fraud counts. He has remained free pending appeal.

A recent U.S. Supreme Court decision led federal prosecutors to say in an October letter to one of Bruno's lawyers that they plan to tell the appeals court that the conviction should be reversed because instructions on the "honest services" law given to jurors were in error.

The government said it will ask the 2nd Circuit to return the case to the lower court, where prosecutors can seek a superseding indictment and a new trial so jurors can be given proper instructions on the anti-fraud law.

Bruno's lawyers say the court should block a retrial.

"The government cannot get a ‘do-over' simply because it got the law wrong," the lawyers wrote. "Mr. Bruno does not agree that the district court's mistakes were limited to mere instructional error, and he does not agree that the government is entitled to seek a superseding indictment or to retry him under any circumstances."

The lawyers also wrote that the government had "relentlessly pursued" criminal charges against Bruno for nearly four years, interviewing more than 350 witnesses and bringing more than 100 people before a grand jury in an "exhaustive effort" that produced weak charges.

They noted that prosecutors did not charge Bruno with bribery, mail or wire fraud or a violation of racketeering laws.

"Instead, it charged him with eight counts of ‘honest services' fraud, alleging only that Mr. Bruno failed to disclose conflicts of interest," they wrote.

A month-long trial ended with jurors acquitting Bruno of five counts, failing to decide on a sixth and convicting him on two counts of honest services fraud, the lawyers noted in their filing Dec. 23.

A message seeking comment left Dec. 25 with prosecutors was not immediately returned.

Bruno was convicted Dec. 7, 2009, of using his office to help a businessman who paid him as a consultant and in a horse venture, violations of the federal honest services law.