Former state Senator Vincent Fumo has enough money to pay back the $1.6 million he stole from the Citizens’ Alliance for Better Neighborhoods and the court should require him to do so, federal prosecutors told the U.S. Court of Appeals for the Third Circuit on Friday.
“So you would be satisfied if he was found liable for the whole works,” Senior Judge Morton Greenberg said.
“Correct,” answered Robert A. Zauzmer, of the U.S. Attorney’s Office.
After Fumo was convicted of various charges related to his theft of over $4 million in public funds, U.S. District Judge Ronald Buckwalter erred when he divided the restitution requirement for the money stolen from Citizens’ Alliance between Fumo and his co-defendant, Ruth Arnao, Zauzmer argued. Arnao was Fumo’s aide in the Senate. She became the director of the organization, which was created by Fumo and his staff, according to court filings.
She was sentenced to a year and a day in prison and has been paying $1,000 a month for her part of the restitution. It will take 65 years for her to repay her portion, Zauzmer told the court.
At that rate, he said, the organization will never get its money back.
The three-judge panel appeared to be sympathetic to the argument.
“How can that not be error?” Senior Judge Robert Cowen asked Fumo’s lawyer, Peter Goldberger.
“That victim is never going to be reimbursed,” Cowen said.
Fumo has paid the full amount of the restitution he was ordered to pay under his sentence, which is over $3 million, his lawyer said after the argument. The U.S. government has enormous powers to collect, Goldberger said, and it hasn’t pursued Arnao as forcefully as it could.
Arnao’s personal worth was less than $100,000 in 2009, when she went to jail, Zauzmer said, and she now has a job that pays $3,000 a month.
“You simply cannot get blood out of a rock,” he told the court.
Although Cowen noted that Arnao and her husband have boats and houses, Zauzmer said that the government can’t reach joint assets unless there is a death or divorce.
After Goldberger told the appeals court that the sentencing judge is allowed to distribute the full amount of the restitution as he sees fit among responsible parties, Cowen said of Buckwalter, “Hasn’t he abused his discretion?” Since she doesn’t have the money, Cowen said, “it’s never going to happen.”
Goldberger disagreed, arguing that Buckwalter found that she would be able to complete the payment, about $750,000, and that it was part of a carefully conceived sentencing package that included jail time and supervised release.
If Fumo is made to be 100 percent liable for the restitution, “she will have zero to pay,” Goldberger said of Arnao, which would disrupt the balance of Buckwalter’s sentence.
“So, she’s getting off easier than he intended,” Greenberg said of Buckwalter’s goal with his sentence. Greenberg then asked Goldberger if an additional levy could be added to Arnao’s restitution payments. It could, he answered.
Citing Buckwalter’s lengthy sentencing speech, the transcript of which is 46 pages, Goldberger told the appeals court that the district judge didn’t want Arnao to go without having to pay back money.
Zauzmer argued that Buckwalter violated the Mandatory Restitution Act when he split the amount owed to the Citizens’ Alliance between Fumo and Arnao. That act requires that restitution be split among responsible parties according to two considerations, which are “the level of each defendant’s contribution to the victim’s loss, and the economic circumstances of each defendant,” according to Zauzmer’s brief.