The Philadelphia Traffic Court judges charged with a scheme to defraud the city of Philadelphia by allegedly fixing tickets should not face prosecution because the possibility that the city might have received money from those traffic offenses is too attenuated to support the criminal cases, a defense attorney argued in federal court Monday.

Defense counsel argued that the crimes of mail and wire fraud require schemes to deprive victims of legally recognized, vested property rights, and that no property interest is implicated until guilty adjudications are reached.

The value of the tickets that were allegedly fixed did not vest until those tickets resulted in findings of guilt, defense attorney Henry Hockeimer of Ballard Spahr argued. Only then did the city of Philadelphia have a right to the money and any property interest in having those tickets paid, he said.

U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania said understanding what the U.S. Supreme Court meant in this area of law is "mind-bending." But he also grappled with several questions about what the Supreme Court has said in prior decisions about what constitutes crimes when defendants have taken actions that allegedly diverted funds that would otherwise be collected by the government.

Hockeimer argued the U.S. Supreme Court was seeking to come up with some sort of bright-line in its cases with its 2004 ruling in Pasquantino v. United States and its 2000 ruling in Cleveland v. United States interpreting what it means to use the mail or electronic transmissions to further "'scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises.'"

Kelly cited the U.S. Supreme Court's 1987 decision in Carpenter v. United States as an example that the justices were "walking back the requirement of property." Co-authors of an investment column in TheWall Street Journal were convicted of using the mail or electronic transmissions to commit a fraudulent scheme of depriving the newspaper of its right to exclusive use of the investment information prior to public disclosure.

The Cleveland case, as well as the Supreme Court's ruling in the 1987 case McNally v. United States, were the only two cases that found no property interest stemming out of the intangible right to have governmental affairs conducted honestly, Kelly said.

The analysis with money is different, Kelly added.

At one point, Kelly asked if judges arranging to handle adjudications outside of the usual system deprived the city of its property, or at least its 50-50 chance that the cases would result in guilty adjudications.

Until Congress passes a law that criminalizes state-court judges being involved with ticket-fixing, no federal crimes were charged in the case, Hockeimer said.

At the time, what was going to happen with the tickets was unknown, Hockeimer said.

"Stuff has to happen" first, Hockeimer said. "It's not a property interest."

The federal prosecutors are trying to turn a matter for the Pennsylvania Judicial Conduct Board into a crime, Hockeimer said.

The success of the scheme is not relevant, federal prosecutor Anthony Wzorek argued, stressing instead that the judges allegedly engaged in a scheme to help ticketholders keep money in their pockets and avoid paying fines and costs that might have been rightfully due to the city.

What the government must show is that they used the mail and the wires of commerce in the furtherance of their scheme to defraud, not that the defendants obtained any money or that the government suffered any loss, Wzorek said.

Until the U.S. Supreme Court rolled back what constitutes honest services fraud in Skilling v. United States, the defendants likely would have been charged with honest services fraud, Hockeimer said. Now, in order to show honest services fraud, prosecutors must show a defendant received a kickback or was bribed, Hockeimer said.

Hockeimer represents Michael J. Sullivan, who took the bench in January 2006 and was appointed administrative judge of the court April 27, 2011. Sullivan has been charged with conspiracy to commit wire and mail fraud, 18 counts of wire fraud and three counts of mail fraud.

Federal prosecutors allege that Sullivan fixed tickets on behalf of family, friends, customers of his tavern, a former politician and a Philadelphia ward leader, according to court papers.

Other judicial defendants joined with Sullivan's motion to dismiss.

One part of the indictment cites an alleged text message between Sullivan and "M.S." about M.S.'s brother "K.S."'s traffic case of disregarding two consecutive red signals and driving his car with fraudulent inspection and emissions certificates, the defense papers said. Sullivan allegedly said in his text that "'it's all good he have to show.'" K.S. was adjudicated guilty of two of three violations, court papers said.

The defense argument is like a murderer who kills both of his parents and then asks for the court's mercy because he is an orphan, Wzorek said. Now that the judges have messed up the Traffic Court, they are seeking mercy because the fixed tickets did not result in guilty pleas, he concluded.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.