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Feds: Secret tapes in NHL scam case could bring new charges

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Bryan Berard is one of the former NHL players who claims to be a victim of Phil Kenner's scam.Alex Rud

Bryan Berard is one of the former NHL players who claims to be a victim of Phil Kenner’s scam.

Armed with secretly recorded jailhouse conversations, federal prosecutors are exploring obstruction of justice charges against Phil Kenner, the one-time financial adviser already in jail awaiting trial on allegations of stealing upwards of $ 30 million from a group of former NHL players and Long Island cops.

Prosecutors revealed the existence of the recordings Wednesday at a status conference at the federal courthouse in Central Islip, L.I., where jury selection in the trial of Kenner and co-defendant Tommy Constantine is scheduled to begin next week. Assistant U.S. Attorney James Miskiewicz said in court that the possible new charges are based partly on “recordings on the telephone system” at the Queens detention facility where Kenner has been held for almost a year and a half.

“It’s a parallel investigation into obstruction of justice,” Miskiewicz told U.S. District Court Judge Joseph Bianco, explaining that a separate team of federal prosecutors has been investigating statements Kenner made while behind bars. “We know very little about it.”

Kenner has been held without bail since his arrest in 2013 because he purportedly made threats against alleged victims and potential witnesses during the three-year criminal investigation that led to his indictment.

Developer Ken Jowdy, who waged a lengthy legal battle with Kenner for years over control of a luxury Mexican golf course called Diamante San Lucas, has told the Daily News in the past that he was bombarded with threats from Kenner, whom he suspects told Mexican authorities that Jowdy was involved in a variety of criminal activities.

Former No. 1 NHL draft pick Bryan Berard and ex-New York police office John Kaiser, two alleged victims and probable government witnesses in the trial, have also said previously that they have received threats from Kenner in the past.

Attorneys for Kenner and Constantine were handed compact discs on Wednesday containing recorded conversations. The recordings were not broadcast in court, and are subject to a protective order, but Bianco suggested that they might become evidence in the upcoming trial.

Kenner has been in custody in the Queens Detention Facility since late 2013, when the FBI arrested him and Constantine. Both men pleaded not guilty to nine counts of wire fraud and money laundering that could result in lengthy prison sentences if the two men are convicted. Constantine is out on bail, and required to wear an electronic monitoring device on his ankle.

The criminal trial is a culmination of a lengthy FBI investigation and follows years of civil litigation that pitted Kenner and Constantine against Jowdy, Kenner’s onetime partner, over Diamante, one of the most lauded new golf courses in the world. Jowdy split with Kenner in 2007 and has spent the last few years developing the course and cooperating with the FBI’s investigation of the fraud the government claims Kenner and Constantine perpetrated on the hockey players who invested with them in Diamante and other projects.

Late Tuesday night, Kenner and his attorney Richard Haley were informed that the U.S. Marshal’s service and the Federal Bureau of Prisons intended to move Kenner on Wednesday from the Queens Detention Facility to the Metropolitan Detention Center in Brooklyn because of security issues raised during the obstruction of justice probe.

Haley objected to the move because Kenner would likely not be allowed to bring a laptop computer he has been using to review thousands of pages of documents that may be introduced as evidence during the trial, hampering preparation for his defense. “This is the most complicated criminal case I’ve seen in 30 years of practice,” Haley said in court.

Bianco ordered prosecutors to see if the security issue could be resolved by moving Kenner to a different portion of the Queens facility. If officials insisted on moving Kenner, Bianco said they should find a way to give the alleged con man access to his laptop.

The prosecutor handling the possible new charges, assistant U.S. Attorney Robert Polemeni, was briefly patched into the courtroom intercom system Wednesday to answer questions about Kenner’s relocation. Reached by phone after the conference, Polemeni had no comment about the possible obstruction case.

Prosecutors also filed papers Wednesday notifying Kenner and Constantine that the government is seeking forfeiture of any interests the alleged scammers have in Diamante.

The feds have already said they will seek forfeitures of at least $ 30 million from the co-defendants, as well as an airplane and real estate in Hawaii and Arizona.

Haley and LaRusso said after the status conference that there was no chance their clients would agree to an 11th-hour plea agreement with prosecutors that would require Kenner and Constantine to plead guilty.

“Would you plead guilty to a crime you didn’t commit?” Haley asked.

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