Analysis

Former Luzerne County Judge Mark A. Ciavarella Jr. has joined his co-defendant, former Judge Michael T. Conahan, in awaiting sentencing after a federal judge denied his post-trial motions late last month.

But white-collar defense attorneys and former federal judges not involved in the case said Conahan and Ciavarella could end up receiving very different sentences.

In February, a federal jury in Scranton found Ciavarella guilty of 12 of 39 counts of corruption filed against him, including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges. Ciavarella was cleared of extortion, bribery and honest services wire fraud charges, however.

Conahan pleaded guilty to one racketeering charge in April 2010.

Stephen S. Stallings, chair of Pittsburgh-based Burns White’s white-collar criminal defense group, said the sentencing guidelines for Ciavarella are likely to be significantly higher than those for Conahan, and not just because he was found guilty of more crimes than Conahan pleaded to.

Stallings said the nature of Ciavarella’s crimes, including that he was a public official, would initially set the bar high, while a number of potential enhancements under the U.S. Sentencing Guidelines could then raise the sentencing levels further.

For example, Stallings said, if it’s determined there were vulnerable victims involved in the case, Ciavarella’s sentencing guidelines would jump two levels.

The money laundering and tax charges would also raise the guidelines several levels, Stallings said.

With all of those convictions, Stallings said, Ciavarella could “very easily be looking at a guideline range of 24-plus years.”

As a co-defendant, many of the same enhancements could apply to Conahan, Stallings said, but since he pleaded guilty, he would likely drop three levels for acceptance of responsibility under the Sentencing Guidelines, shaving six or seven years off his sentence at the outset.

Bruce W. Kauffman, who served as a judge for the U.S. District Court for the Eastern District of Pennsylvania from 1998 to 2009, said defendants should generally be given some type of motivation to plead out, otherwise they’d never do it.

“It seems to me there should be some incentive to a defendant, to save the judicial time and uncertainty of a trial, to have some differential made. It depends, of course, on the nature of the crime and the facts of each case,” he said, adding, “It’s hard to generalize other than to say that you don’t want to take away from the government the effective tool of being able to offer someone a plea bargain, which, by the way, the court is never bound by.”

Conversely, according to Stallings, that Ciavarella opted to go to trial rather than plead could actually hurt him during sentencing.

Still, Stallings said, Conahan could conceivably still face more than 10 years in prison depending on the number of enhancements that are applied, while Ciavarella could receive a sentence of 20 or more years.

Stallings pointed to the fact that U.S. District Judge for the Middle District of Pennsylvania Edwin M. Kosik already tossed out Ciavarella’s and Conahan’s previous plea bargains in which each would have served 87 months in prison as a sign that neither defendant is likely to receive a lenient sentence.

“That’s not a good starting point for these folks,” he said.

Plus, Stallings said, the sentencing judge could even take into consideration the crimes for which Ciavarella was acquitted.

“To the extent that it is a victory to be acquitted of some charges, it’s often a hollow one,” he said.

Kauffman said that while a prior arrest record would certainly factor into a sentence, punishing a defendant for crimes he was acquitted of by a jury “doesn’t sound fair” and is not something he would have taken into consideration as a sentencing judge.

One of Ciavarella’s lawyers, Al Flora, said he plans to meet with federal prosecutors and probation officials “in the very near future” to go over Ciavarella’s pre-sentence report, which is currently in draft form.

Stallings said the report is “likely to be highly contested” by the defense.

According to Stallings, the parties will likely try to resolve any differences before the sentencing hearing, but may still have some issues to work out at the hearing itself.

Following the sentencing hearing, according to Flora, Ciavarella will have an opportunity to appeal to the 3rd U.S. Circuit Court of Appeals.

In March, Ciavarella petitioned either to be granted a new trial or to have his racketeering and honest services fraud convictions overturned, which would have left him guilty of only tax fraud charges.

But in a five-page order issued May 26, Kosik said the former judge’s arguments were groundless.

In a series of motions filed in March, Ciavarella argued that the prosecution’s evidence failed to prove that the allegations of racketeering and money laundering conspiracy occurred within the five-year statute of limitations or that money he received from the builder of two juvenile detention facilities was illegal in any way.

Kosik, in his order, sided with he prosecutors in the case, who had argued that this issue was waived because the defense failed to bring it up before trial.

Ciavarella had also argued in his motions that Kosik had erred by not allowing him to introduce into evidence comments made by Assistant U.S. Attorney Gordon Zubrod during plea hearings for developer Robert K. Mericle and a former co-owner of the juvenile detention facilities, Robert J. Powell.

Ciavarella had hoped to use those statements, which included Zubrod saying Mericle’s payments to Ciavarella amounted to nothing more than a finder’s fee, in his defense.

Kosik, however, said in his order that Zubrod’s statements “were not the equivalent of testimonial statements of fact” and that, even if the court had erred by not allowing those statements as evidence, “the exclusion of a statement by an attorney in another trial, while held to be a party admission, was ruled a harmless error.”

Ciavarella had also hoped to keep out of the case any reference to civil cases he heard as a judge involving Mericle or Powell. Kosik let prosecutors mention those cases and, in Thursday’s order, sided with their argument that the evidence was “intrinsic” and part of the proof of the charges.

Kosik also denied Ciavarella’s motion for recusal, which had been part of the defense’s pretrial motion as well, saying the defense provided no new reasons for recusal.  •