Appeals court only vacates a count of honest services mail fraud, which knocks off $100 fine.

Last updated: May 25. 2013 12:14AM - 6471 Views
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To read the opinion by the federal appeals court, visit www.timesleader.com

WILKES-BARRE — A federal appeals court Friday knocked $100 off the fines imposed on former Luzerne County Judge Mark Ciavarella but let stand his 28-year prison sentence and conviction on corruption-related charges in the “Kids for Cash” scandal that attracted international attention and led to the overhaul of the state’s juvenile justice system.

A three-member panel of the 3rd U.S. Circuit Court of Appeals based in Philadelphia vacated a count of honest services mail fraud, one of the 12 counts returned in the guilty verdict against Ciavarella in February 2011.

But the dismissal did not alter the overall outcome of the case. Pending a request made within 14 days for a rehearing, the case goes back to the trial court for modification of the $1,200 special assessment, or $100 imposed for each of the guilty counts.

U.S. Attorney for the Middle District of Pennsylvania Peter Smith gave no indication he would petition for a rehearing and instead praised prosecutors for their work in securing the conviction.

Attorney Al Flora, who argued the appeal on Nov. 14 before the panel and represented Ciavarella at trial, said he hadn’t had a chance to review the 56-page opinion in detail.

“This is just part of the appellate process,” he said. What direction he takes depends upon a conference with Ciavarella about his options to do nothing, ask for reconsideration or petition the U.S. Supreme Court to hear the appeal.

The nation’s highest court could decide to look at it because “it’s a case establishing precedent within the 3rd Circuit,” Flora said. If he is able to show that there is a conflict among the other circuit courts on the legal issues raised in the opinion, it creates a situation in which the U.S. Supreme Court could consider it ripe for review.

Thrust of appeal

Ciavarella, 63, appealed the verdict, which acquitted him of 27 other charges, arguing, among other things, the evidence was insufficient to support finding him guilty, the time limit had passed on prosecution and Senior U.S. District Judge Edwin Kosik showed a bias toward the defendant and should have recused himself.

Ciavarella was the only one of the four key players in the scandal to go to trial and received the stiffest sentence of the group. He was sentenced in August 2011 and has been housed at the Federal Correctional Institution in Pekin, Ill. His scheduled release date is Dec. 30, 2035.

In 2009 federal prosecutors charged Ciavarella and former county Judge Michael Conahan with participating in a $2.8 million kickback scheme related to the construction of the PA Child Care facility in Pittston Township and the Western PA Child Care Center in Butler County and the placement of youths in the facilities.

Ciavarella and Conahan were indicted after Kosik rejected plea deals reached with prosecutors that would have sent them to prison for 87 months and noted the sentences were well below the advisory guidelines for the felony charges of wire fraud and conspiracy.

Conahan ultimately pleaded guilty to a charge of racketeering conspiracy and was sentenced to 17 1/2 years in prison.

Another one the four, attorney Robert Powell, who cooperated with federal investigators and wore a concealed recording device in meetings with the former judges, completed his 18-month prison sentence upon release from a halfway house in Florida last month. He pleaded guilty to failing to report the illegal activity of Ciavarella and Conahan.

Powell had been one of the co-owners of the juvenile detention centers at the heart of the scandal and testified at Ciavarella’s trial the former judges extorted money from him in exchange for actions they took on the bench related to the centers.

Mericle’s case

The last of the group, developer Robert Mericle, has yet to be sentenced. He is cooperating with federal prosecutors in the corruption-related case of former state Sen. Raphael Musto of Pittston Township.

In return for Mericle’s construction company building the juvenile centers and expanding one of them, he paid $2.1 million in finder’s fees to Ciavarella and Conahan. He failed to disclose to authorities that the former judges attempted to disguise the source of the payments.

A statement Kosik purportedly made about the payments after Powell’s guilty plea and reported in the Citizens’ Voice newspaper served as the grounds for a defense recusal motion.

In the newspaper report, Kosik questioned how there could not be a “quid pro quo” surrounding the payments, according to the appellate court’s opinion. The defense argued the statement — made after the former judges pleaded guilty to the wire fraud and conspiracy charges and before they were indicted on the more serious charges — could be perceived as commenting on the merits of the case and Ciavarella’s guilt.

The appellate court panel rejected the argument, saying it was not clear Kosik made them and statements reported in the newspaper were either made in court or in his opinion issued on why he rejected the guilty pleas of the former judges.

Kosik’s written responses to seven of the nearly 200 letters from the public regarding Ciavarella’s pending sentencing raised concerns for the appellate panel, but they did not warrant his removal from the case. The panel called his responses “ill-advised, ” adding “their contents do not mandate his recusal because no reasonable person would question Judge Kosik’s impartiality under these unique circumstances.”

Judicial error alleged

The defense also attempted to show judicial error when Kosik would not allow the admission of a prosecutor’s statement that there was no “quid pro quo” regarding Mericle’s payment to the former judges.

The prosecution argued the statement made by Assistant U.S. Attorney Gordon Zubrod at Mericle’s guilty plea referred to Mericle’s intent for the payment and was not a switch from its contention in the Ciavarella case. The appellate court panel agreed the prosecution’s stance at the Ciavarella trial was “neither an inconsistent nor a mutually contradictory position” from the Mericle plea hearing. The defense at Ciavarella’s trial could have introduced Zubrod’s statement while questioning Mericle who appeared as a prosecution witness, the appellate panel added.

The sole point where the defense succeeded was on the honest services mail fraud conviction, count seven in the verdict. The charge was included in the indictment handed up on Sept. 9, 2009 and was related to the statement of financial interests Ciavarella mailed in April 2004. The charge was filed more than five years after the mailing and beyond the statute of limitations for prosecuting the offense.

Prosecutors argued Ciavarella waived the statute of limitations with his plea agreement reached in January 2009.

Even though one count was dismissed, it did not change the guideline sentencing range for Ciavarella who faced a maximum term of life imprisonment based on the charges and his criminal history. The dismissed count carried a special assessment of $100 that was wiped away, prompting the appellate panel to remand the case to the lower court for Kosik to adjust Ciavarella’s sentence.

Civil cases related to the scandal are still pending in federal court.

In addition, the state Legislature enacted reforms recommended by the Interbranch Commission on Juvenile Justice that was created in reaction to the scandal.

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