Some claim developer is using charity to influence sentence

Last updated: September 28. 2013 11:16PM - 6888 Views
By - rdupuis@timesleader.com

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WILKES-BARRE — Robert K. Mericle was a philanthropist long before he became a felon.

Awaiting sentencing after pleading guilty to federal corruption charges in 2009, the developer continues to spread his wealth around Northeastern Pennsylvania, in the form of charitable donations to a range of organizations.

Critics charge Mericle has stepped up his contributions to influence his sentencing judge, contending the primary motivation has been self-serving, in hopes of restoring a tarnished image and minimizing his eventual sentence.

Several people who have known the developer, and benefited from his donations, respond that such criticism is without foundation.

“If he had not had the 20 years of philanthropic works going into this, I would suspect that this may be the case,” Joseph Curran, executive director of the Ethics Institute at Misericordia University, said of suggestions that Mericle is merely trying to sway a judge. “I think since it’s a continuation of his past practice, that doesn’t ring true to me.”

Outcry reached a fever pitch last week, with Wyoming Seminary reversing its decision to name a Kingston athletic facility Mericle Field, in recognition of the developer’s contribution toward the project.

Tainted past

Why now, after significant philanthropy both before and after his downfall, has this project caused such anger? Mericle’s ties to Luzerne County’s notorious “kids-for-cash” scandal seem to have raised hackles after his family name was emblazoned on a youth sports facility owned by the private school.

Mericle, 50, of Jackson Township, pleaded guilty in September 2009 to withholding information on a crime for helping former county judges Mark A. Ciavarella Jr. and Michael T. Conahan try to obscure the source of $2.8 million, which Mericle and attorney Robert Powell paid the pair.

The disgraced ex-judges are serving long prison sentences for their roles in sentencing juvenile defendants to serve time in two private detention centers built by Mericle Construction. Powell pleaded guilty in July 2009 to paying the judges $772,500 in kickbacks and helping them conceal the source of $2.1 million more they received from Mericle as “finder’s fees” for helping him obtain construction contracts. Powell was sentenced in November 2011 to 18 months in prison.

Assistant U.S. Attorney Gordon Zubrod in 2009 said there was no evidence Mericle knew about the kickbacks. Rather, he got himself into trouble for not being honest with investigators about finder’s fees, which are an otherwise legitimate and common transaction in the real estate business, Zubrod explained.

With such a past, Curran suggested that for Wyoming Seminary to accept Mericle’s donations may be ethical in that it benefits students, but that honoring Mericle in a conspicuous way may not.

“The message that can send is that a certain amount of money can mean ‘all is good,’ and I’m not OK with that — especially for an organization that serves children,” Curran said.

In a statement issued by Wyoming Seminary Board of Trustees Chairman Richard Goldberg last week, the initial choice of “Mericle Field” was described as “a gesture to honor a family for its sincere support over a 20-year period,” but the school also called it a “regrettable situation” and apologized for any offense.

Mericle once served on the the school’s board of trustees, previously contributed to other projects, and his daughter graduated from the school earlier this year.

“I certainly have some sympathy for the people at Sem,” Curran said of the school. “They want to serve their students well and they want to acknowledge the generosity of someone who has done something terribly wrong and yet has been very generous to them.”

Other donations

Wyoming Seminary is far from the only organization associated with youths that he has chosen to assist.

Land and construction donation worth $2 million were provided by Mericle and his family to create a Junior Achievement “village” in Pittston Township, where youths have the chance to spend the day learning what it’s like to operate a business. Since it opened in 2007, more than 25,000 area students have participated in programs there.

Junior Achievement Director Melissa Turlip said the building would not have been built without the Mericle donation.

“The program would exist only in classrooms and students would not be able to come to a facility to get the real experience of entrepreneurship, financial literacy and work readiness,” Turlip said.

At the Wilkes-Barre Family YMCA, Executive Director Jim Thomas said Mericle’s association started early.

“He was a Y Kid,” Thomas said. “And he never left, later serving on our board and as a volunteer starting in the mid-1990s.”

That association really paid off, Thomas said, when Mericle stepped in with money and expertise after a 1998 capital campaign stalled.

“We were looking for things to cut out,” Thomas said. “We were struggling with a decision to choose between the new pool or the new gym. Rob stepped in with his team at Mericle Development and re-did our plans to make them more cost-effective. We came in under budget.”

Flood work noted

Mericle’s post-plea largess has not been limited to youth and recreation activities, nor has it always been as controversial as the Wyoming Seminary project.

In September 2011, Mericle’s intervention was credited with preventing disaster as the swollen Susquehanna River threatened to flood the West Side.

Jim Brozena, then executive director of the Luzerne County Flood Protection Authority and the former county engineer, said Mericle called him when the river was rising to record levels to ask what he could do to help. Mericle, his employees and trucks brought tons of material to the levee in Forty Fort where several situations occurred that threatened the integrity of the dike system.

“At the end of the day, because of his actions and the actions of several others, a positive outcome was effected,” Brozena said. “The repairs made at that time made a huge difference in the outcome.”

But Mericle’s money has not always found its way into charitable hands by choice in recent years.

Part of his 2009 plea agreement was to allocate $2.15 million to a fund to benefit children. The cash was forwarded to the Pennsylvania Commission on Crime and Delinquency, which selected 17 projects that would benefit, and Mericle had no input in the choice of projects.

Admission, forgiveness

Monsignor Joseph Kelly, executive director of Catholic Social Services — an agency that shared in the court-mandated largess — said part of the healing process and the rehabilitation of any offender is forgiveness. That is especially true, he said, when there has been an admission of guilt, as with Mericle.

“Here’s a man who has admitted he did wrong,” Kelly said. “We as a community need to accept the fact that he is asking for forgiveness. And don’t we have a responsibility to accept that and forgive?”

But in the Mericle case, there seems to be so much anger attached, he said.

“Scripture tells us we should take a look at the demon in our own eye before we look at the splinter in our neighbor’s eye,” Kelly said. “Mercy and forgiveness go a lot further to let us be who we are called to be.”

For Misericordia’s Curran, that $2.15 million is a crucial point, as is a $17.75 million settlement Mericle reached with about 1,600 juveniles who claimed they were wrongly incarcerated by the corrupt judges at the facilities he built.

If Mericle had resisted those paybacks and was still making donations using money he was obliged to pay back, Curran said that would be unethical.

“He’s made restitution. The money he has donated to Wyoming Seminary is not money that was supposed to be going somewhere else as restitution for what he’s done,” Curran said.

Future in question

Mericle’s fate — and whether he can influence it through charitable donations — remains unclear.

The developer remains at liberty. He was expected to testify in the corruption case of former state Sen. Raphael Musto, which was scheduled for November but delayed when defense attorneys argued the octogenarian former lawmaker was too ill to participate in his defense.

The terms of Mericle’s likely punishment also remain unclear.

At the time of his 2009 plea, it was reported that his charge carries a maximum sentence of three years in prison, but that Mericle likely faced no more than four to 10 months behind bars based on federal sentencing guidelines, and that he could be eligible for probation if he continued to cooperate with prosecutors.

In January 2011, federal prosecutors filed an amendment to the plea agreement that would increase the sentencing guideline to 12 to 18 months in prison. The move was based on Mericle “obstructing or impeding the administration of justice.”

Guideline changes must be approved by a judge, who is not bound by them.

Peter J. Henning, a professor at Wayne State University Law School, is the author of “The Prosecution and Defense of Public Corruption: The Law & Legal Strategies.” In February, Henning wrote an article — “The Challenge of Sentencing White-Collar Defendants” — that asks whether white-collar defendants are treated more favorably than other criminals when it comes to sentencing.

He wrote that one method frequently used in white-collar cases involves letter-writing campaigns to point out the many positive attributes of the defendants. He said the emphasis is usually on charitable contributions and close family ties to show that a reduced punishment reflects the sentencing factor to “provide just punishment for the offense.”

Henning cited one case in which a district judge noted that more than 100 letters had been sent attesting to the defendant’s “humble beginnings and his many community and charitable activities, both before and after the charges in this case.”

Among the reasons for giving a short sentence was evidence of the defendant’s strong community and family involvement, and business expertise that included starting a new company achieving growing success, Henning wrote.

However, Henning said the appeals court rejected those grounds as insufficient for such a significant departure from the recommended guidelines.

“It was troubled by the district judge’s reference to his work as a reason for giving a lighter sentence, rejecting the position that a defendant ‘should be sentenced lightly on the asserted ground that they offer more to society than those who do not possess such knowledge and skill,’” Henning wrote. “There is no simple answer to what is the appropriate sentence for any defendant, and especially for those who commit business crimes.”

Heidi Havens, spokeswoman for U.S. Attorney Peter J. Smith, said in 2011 that she could not comment on why the change was sought. On Friday, Havens said she could not comment on what sentencing guidelines Mericle may face “due to the fact that this is a still-pending criminal case.”

Havens did offer a generic statement on what federal judges must take into consideration when sentencing defendants.

“Under the federal sentencing guidelines, the judge is required to consider and weigh a number of factors, including the nature, circumstances and seriousness of the offense; the history and characteristics of the defendant; and the need to punish the defendant, protect the public and provide for the defendant’s educational, vocational and medical needs,” Havens said.

A review of media coverage of other white-collar sentencings turns up frequent references to defendants’ lawyers invoking charitable deeds in hopes of earning their clients reduced sentences. How much impact such arguments hold, in combination with the unique factors of each case, is another matter.

Other cases

According to The Associated Press, an attorney for Grammy-winning singer Lauryn Hill sought probation in her $1 million tax-evasion case earlier this year, arguing Hill’s charitable works, her family circumstances and the fact that the mother of six paid back the taxes she owed should merit consideration. In May, a federal judge sentenced Hill to three months in prison. She had faced up to three years in prison.

Also in May, according to the AP, Connecticut hedge fund founder Anthony Chiasson was sentenced to 6-1/2 years in prison for his role in a $70 million insider-trading scandal, over the argument of his lawyers that the 39-year-old had made significant charitable contributions. He had faced a decade behind bars.

If “the history and characteristics of the defendant” to be considered by a judge may include legitimate charitable donations, Misericordia’s Curran suggested there is nothing unethical about Mericle continuing to give to worthy causes, as he has done, with that in mind.

Mericle’s personal motivations are still left unsaid.

“We’ve taken an across-the-board position that … because of our situation, we aren’t commenting,” attorney Kim Borland said on behalf of his client Friday afternoon.

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