Two disgraced former Luzerne County, Pa., judges have asked that a federal judge reconsider his decision to reject their plea agreements.
Michael T. Conahan and Mark A. Ciavarella Jr. made a joint filing Thursday, petitioning U.S. District Judge Edwin M. Kosik to reinstate their agreed-upon sentence of 87 months in prison because neither could be found at fault for his post-plea hearing actions.
Neither attempted to "obstruct and impede justice" or contradict the government's evidence in public comments, as Kosik had written, the ex-judges argued. In fact, the filing continued, Conahan and Ciavarella only did what the law entitled them to do.
The 12-page memorandum asserts that Conahan's objections to the federal probation office's pre-sentence report were within the guidelines established by the Federal Rules of Criminal Procedure and that Ciavarella was right to make public comments denying "quid pro quo" in the scandal that has been called "kids for cash" in some media outlets.
Both men conditionally pleaded guilty early this year to accepting more than $2.6 million from the owner and builder of a private juvenile detention center, but Kosik rejected the deal with federal prosecutors in late July.
"As the court is aware, there are two different types of honest services fraud," attorneys Philip Gelso and Al Flora wrote for their clients. "The first type involves bribery, which is established by either an express or implicit quid pro quo. The second type involves the non-disclosure of a conflict of interest. ... After lengthy and intense good faith negotiations between the parties, the government, in its executive capacity, elected to charge the Defendant Ciavarella with the second type of honest services fraud, i.e. non-disclosure of a conflict of interest. Of course, the court at the time of its memorandum order was not privy to the substance of the negotiations between the parties."
Gelso and Flora also wrote that Kosik was unaware of 45 letters from Ciavarella's friends and family "imploring this Court to accept the terms of the plea agreement."
Further, Gelso and Flora wrote, Conahan's refusal to accept certain portions of the pre-sentence report were allowed under F.R.Cr.P. 32(f) and was done in good faith. His refusal to discuss a motivation for committing the crime was similarly grounded in law, the attorneys wrote, and that silence cannot be held against him when determining an acceptance of responsibility.
"Defendant Conahan was cooperative with the Probation Officer in obtaining records and/or information relevant to the presentence investigation," Gelso and Flora wrote. "Defendant Conahan timely responded either personally or through counsel to requests and/or questions by the probation officer for financial and background information, provided analysis of certain financial records at the probation officer's request and volunteered additional relevant information. Moreover, the fact that the initial version of the presentence report concluded that Defendant Conahan should receive a three (3) level reduction for 'Acceptance of Responsibility' pursuant to U.S.S.G. § 3E1.1 reflects that Defendant Conahan did not 'obstruct and impede justice' since the entry of his guilty plea."
The filing comes nearly three weeks after Kosik filed a stunning memorandum and order July 30, taking issue with both judges' post-plea hearing actions.
Ciavarella was "self-serving," Kosik wrote, and Conahan was an obstructionist. Kosik wrote that Conahan had 12 unresolved objections to the pre-sentence report at the time of his memorandum.
"In light of the post-guilty plea conduct and expressions from the defendants that contradict some offense conduct, the negotiated pleas, which were grounded in the good faith of the government, are well below the sentencing guidelines for the charged offenses," Kosik wrote in his five-page order.
"We paraphrase what has been written about judges, that, above all things, integrity is their lot and proper value, the landmark, and he that removes it, corrupts the fountain. In this case, the fountain from which the public drinks is confidence in the judicial system a fountain which may be corrupted for a time well after this case."
Sources familiar with the situation have expressed doubt that Kosik would reverse himself and accept the original plea agreements.
Gelso, Conahan's attorney, said he would not comment on his motivation behind filing the motion for reconsideration. Gelso also said he had no comment when he was asked if Kosik had indicated to the judges' attorneys that he would not be willing to negotiate a ceiling on a sentencing.
Ciavarella's attorney, Flora, did not return a call seeking comment.
While the federal government's case against the former judges centers on their roles in taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges' alleged abuse of the rights of juveniles sentenced to the facility, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled "kids for cash" was just the tip of the iceberg and only the most blatant example of the corruption overseen by the two judges.
The two judges ran the courthouse like a mafia family, according to several sources. And while The Legal Intelligencer has previously reported Conahan's ties to admitted felons, including reputed mob boss William "Billy" D'Elia, multiple sources have said that Conahan's links to organized crime go back decades.
The Legal Intelligencer has previously reported that federal investigators are looking at allegations of case-fixing in Luzerne County, particularly UM/UIM arbitration cases, as well as criminal case-fixing.
