WILKES-BARRE — A disgraced former judge’s aim to have a recent high court ruling applied to a motion to toss his corruption conviction in the so-called “Kids for Cash” scandal is futile because the court’s actions were consistent with the finding, federal prosecutors argued Friday.
Former Luzerne County Judge Mark A. Ciavarella Jr. argues in a pro se filing last month that a June 27 Supreme Court decision, United States of America v. McDonnell, established a “new constitutional rule” he is entitled to have retroactively applied to a July 2015 motion to dismiss his conviction and 28-year prison sentence.
The ex-judge asks to amend the motion to include the decision, which overturned the conviction of former Virginia Gov. Bob McDonnell who, like Ciavarella, was convicted of violating the Honest Services Fraud statute. The Supreme Court vacated McDonnell’s convictions based on the district court’s instructions to the jury about what constitutes an “official act.”
Ciavarella, citing the decision, argues setting up an initial meeting between developer Robert Mericle and former attorney Robert Powell was not an official act and therefore, his conviction on four counts honest services fraud should be tossed.
Responding to the filing Friday, prosecutors say Ciavarella’s proposed amendment is “futile” because the court’s instructions to the jury “tailored the definition of official act in the precise manner set forth by the Supreme Court.”
“There is no possibility that Ciavarella was prejudiced by any deficiency in the instructions,” wrote Assistant U.S. Attorneys Carlo D. Marchioli, Michael A. Consiglio and William S. Houser.
Ciavarella, 66, was convicted in 2011 of charges stemming from the former president judge’s involvement in a $2.8 million kickback scheme tied to the construction of two for-profit, private juvenile detention centers and the placement of youths in the facilities. He is locked up at a federal prison in Ashland, Kentucky.
Ciavarella, along with co-defendant and former Luzerne County President Judge Michael T. Conahan, resigned in January 2009 amid the filing of federal charges against them. Conahan, 64, was sentenced to 17 ½ years in federal prison.