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SCRANTON — A former Luzerne County judge at the center of the Kids for Cash juvenile justice scandal argued in a federal court filing Thursday that a recent Supreme Court holding is grounds to vacate his corruption conviction and 28-year federal prison sentence.
Mark A. Ciavarella Jr., 66, is currently incarcerated at a federal prison in Kentucky after being found guilty in 2011 of charges stemming from the former president judge’s involvement in a $2.8 million kickback scheme connected to the construction of two for-profit, private juvenile detention centers and the placement of youths in the facilities.
Ciavarella, along with co-defendant and former Luzerne County President Judge Michael T. Conahan, resigned in January 2009 amid federal indictments. Conahan, 64, was sentenced to 17 ½ years in federal prison.
The former judge argues in the pro se filing that a June 27 Supreme Court decision, United States of America v. McDonnell, established “a new constitutional rule” that he is entitled to have retroactively applied to a previous motion to throw out his conviction and sentence filed in July 2015.
He asks the court to amend the prior motion to include the McDonnell decision, which overturned the conviction of former Virginia Gov. Robert McDonnell who, like Ciavarella, was convicted of violating the Honest Services Fraud statute.
“The McDonnell rule alters the meaning of a criminal statute by limiting its application,” Ciavarella argues. “It limits conduct that may no longer be illegal.”
The decision, Ciavarella now argues, deemed an “official act” under the federal bribery statute as “broad and overly inclusive.” He argues the court noted in its opinion that “setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) without more does not qualify as an ‘official act.’”
The former judge argues both Robert Mericle, who built the detention centers, and former attorney Robert Powell, who co-owned them, testified at trial that Ciavarella’s only involvement in the pair’s business dealings was to set up their initial meeting. Powell testified the former judge never spoke to him about Mericle’s hire.
Ciavarella’s verdict form indicates the jury found him guilty of racketeering and conspiracy at which he committed wire fraud when he transferred $2.6 million in January 2003.
The jury also found Ciavarella guilty of honest services mail fraud for filing fraudulent statements of financial interest with a state agency and five tax counts for filing false tax returns.
Ciavarella was acquitted on multiple counts of bribery, extortion and money laundering relating to more than $700,000 that was paid to him and Conahan.
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