"Kids For Cash" Horror- A Lesson in Prosecuting Public Trust Corruption

Legal Intelligencer: Ciavarella prosecutors kept it simple
The Legal Intelligencer/The Pittsburgh Post-Gazette - COMMENTARY - February 21, 2011

The racketeering trial of former Luzerne County Common Pleas Judge Mark A. Ciavarella startled many observers by proceeding at what seemed like warp speed. The dispatch with which federal prosecutors made their case against the judge in the "kids-for-cash" trial stands in vivid contrast to the glacial pace of other political corruption trials, like that of former Democratic state Sen. Vince Fumo and the Bonusgate trials. The cases are unrelated, but the contrasts among them may provide lessons for prosecutors, defense counsel and citizens. The Ciavarella trial climaxed Friday when a federal jury returned guilty verdicts on racketeering charges and 12 of 39 total counts. Mr. Fumo's trial, by contrast, required five months to complete. (Jurors convicted him on 137 counts.) In the most high-profile Bonusgate case, former state Rep. Mike Veon, of Beaver County, was convicted in June on 14 of 59 counts after nearly six weeks of testimony. Another Bonusgate defendant, state Rep. Sean Ramaley, was acquitted on all counts in the first trial stemming from the attorney general's probe of alleged improper payments to legislative aides for political work. Mr. Ramaley's trial required only four days of testimony. The Bonusgate cases, unlike the prosecutions of Mr. Fumo and Judge Ciavarella, were tried in state courts by the state attorney general, not in federal court by U.S. attorneys. Prosecutors in the Ciavarella case, led by Assistant U.S. Attorney Gordon Zubrod, pursued a strategy of keeping the case straightforward -- emphasizing allegations that payments were made by the owners of two private juvenile detention facilities and de-emphasizing the process of sending minors to the facilities. Mr. Zubrod's decision had the effect of avoiding mini-trials on individual cases handled by Mr. Ciavarella.

Mr. Fumo's trial, in contrast, was a wide-ranging examination of every aspect of the former senator's office management, with forays into his personal life and even home improvement. More to the point, many of the main counts against Mr. Fumo included honest services fraud, which has been criticized as being vague, and at best remains elusive, especially to non-lawyers who serve on juries. In June, the U.S. Supreme Court, in the case of convicted Enron executive Jeffrey Skilling, said that honest services fraud could only be alleged in cases of bribery and kickbacks. Bribery and kickbacks are certainly at the heart of the case against Mr. Ciavarella. And he is charged with honest services fraud. Because he can point to money changing hands, Mr. Zubrod had the advantage of trying his case after the U.S. Supreme Court in the Skilling case focused on the honest-services fraud statute. Mr. Fumo's prosecutors, led by Robert Zauzmer, tried their defendant in the absence of direction from the Skilling court. They therefore had to draw a picture of an office where there was no proper line drawn between personal services to the former senator and work in the interest of constituents. Mr. Zauzmer's case at the end of the day was convincing to a jury that returned guilty verdicts on all 137 counts. In the Fumo case, it seems, the slow building up of a mountain of evidence and allegations seemed to overwhelm Mr. Fumo's basic argument that he did nothing that ran afoul of state Senate rules. At the end of the day, jurors are looking for credibility. Credibility was what Mr. Fumo was lacking, particularly after he told jurors on the stand that he received a $1 million gift to help pay off a divorce settlement. Credibility may have been forfeited -- at least in part -- by Mr. Ciavarella when he admitted to three instances of filing false tax returns last week in a Scranton courtroom.

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Federal Jury Finds Former Pa. State Sen. Vincent Fumo Guilty on All Counts
The Legal Intelligencer by Shannon P. Duffy - March 16, 2009

After a five-month trial that was riddled with unusual twists, a federal jury on Monday convicted former Pennsylvania state Sen. Vincent Fumo on all 137 counts, delivering a sweeping victory to the federal prosecutors who accused Fumo of abusing his power to fund a lavish lifestyle on the tabs of taxpayers and a charity he created and controlled. The jury of 10 women and two men also convicted Fumo of orchestrating a massive cover-up scheme in which he instructed key staff members to systematically erase thousands of e-mails to and from Fumo, using a sophisticated method designed to make it impossible for the FBI to retrieve them when the computers were seized. Fumo's co-defendant, longtime aide Ruth Arnao, was also convicted on all charges -- 45 counts -- including conspiring with Fumo to embezzle funds from Citizens Alliance for Better Neighborhoods. Prosecutors quickly moved to revoke Fumo's bail, saying they feared that he would now flee and that he has the resources to do so. But U.S. District Judge Ronald L. Buckwalter refused, saying, "I'm not going to revoke the bail just flat out as you've suggested." In a bail hearing Monday afternoon, Buckwalter increased Fumo's bail to $2 million and ordered that Fumo post the deeds to four properties as security. But the judge refused to order Fumo to wear an anklet with an electronic monitor. Arnao's bail was also increased, to $500,000, and she was required to post the deed to her home.

Assistant U.S. Attorney John Pease had argued that Fumo is a flight risk because he has access to large amounts of cash and is facing a significant prison term. The verdict came on the heels of yet another bizarre twist in the case that, for a few hours at least, seemed to threaten the possibility of a mistrial. Proceedings on Monday morning began with a closed-door hearing on the issue of whether one of the jurors had engaged in misconduct by discussing the case on his Facebook page and via Twitter. The juror, Eric Wuest, strongly hinted in a Facebook posting on Friday that the jury had reached a verdict, saying: "Stay tuned for a big announcement on Monday everyone!" That posting prompted an emergency motion by Fumo's lawyers, who demanded that Wuest be individually voir dired to determine whether he had violated Buckwalter's instructions by discussing the case outside of court. The defense team argued in court papers that if it were found that Wuest had engaged in misconduct, he should either be removed from the jury and replaced by an alternate, or that Buckwalter should declare a mistrial. Buckwalter held a 75-minute hearing in chambers that included a 30-minute grilling of Wuest. In the end, Buckwalter concluded that Wuest was credible and that he had not engaged in conversations with any others about the case. For court watchers, the chatty juror was just another in a string of strange events in the Fumo case. A key prosecution witness, Leonard Luchko, was set to testify that he had assisted Fumo in a scheme to obstruct justice, but prosecutors changed their minds at the eleventh hour, saying they had discovered that Luchko was secretly posting comments on blogs that criticized the government and had been e-mailing extensively with the defense. The trial had also gotten off to the rockiest of starts when U.S. District Judge William H. Yohn Jr. became seriously ill during jury selection in September and was forced to step down from the case. Nearly a year before, in late 2007, Yohn held extensive hearings on a motion by prosecutors demanding that Fumo's lawyers at Sprague & Sprague be disqualified. Yohn denied the motion and allowed attorneys Richard A. Sprague, Geoffrey Johnson and Mark Sheppard to continue on the case, finding that although they suffered from conflicts of interest, all of the conflicts were "waivable" and that it was up to Fumo to decide.

In perhaps the first bizarre twist in the case, Fumo soon after dropped Sprague & Sprague, saying an outside lawyer had advised him not to waive the conflict. Fumo's new lawyer, Dennis Cogan, soon after declared that Fumo would be relying on an "advice of counsel" defense in which Fumo would argue that any destruction of evidence committed by him or his staff at his behest was the result of flawed advice given to him by Richard Sprague and Robert Scandone. In another strange twist, Sprague and Scandone were called as witnesses at the trial, but not by Fumo. Instead, both lawyers were called by the prosecution as rebuttal witnesses to contradict Fumo's claim that he had relied on their advice. U.S. Attorney Laurie Magid called the verdict a "victory for good government" and a rejection of Fumo's claim that he was simply behaving like many other senators. "'Everyone is doing this' is not a defense," Magid said. Magid said Fumo now faces a "very significant" prison term that she anticipates will be "well in excess of 10 years." Cogan vowed to file post-trial motions and an appeal and said, "This is not over." Without discussing any specifics, Cogan said he believed he has "significant" issues to raise in seeking a new trial. The jurors assembled in a courtroom on a different floor to answer questions from news reporters. "We really looked for reasonable doubt," one juror said. Another juror interjected that each charge was tied to specific documents that were introduced as exhibits in the trial and that the jury simply considered each charge separately. Several jurors commented that Fumo's personal life ‹ including his divorces and his estrangement from his daughter ‹ was a "sad" fact in the case, but had no bearing on their decision. The jurors also said they had flatly rejected Fumo's argument that his conduct was no worse than other senators', and that the prosecutors had failed to call a single senator as a witness. Instead, they said, the prosecutors had proven that Fumo broke the rules, and Fumo himself had a duty to call senators as witnesses if he was relying on the defense that such rule breaking was standard practice in the Senate. When asked for their response to Fumo's testimony, one juror focused on Fumo's remark that he had no legal duties as a senator other than to cast his votes. "How dare he?" juror Kimm Guckin said. Gov. Edward G. Rendell was an impressive witness, several jurors said, but not because of the testimony he gave under direct examination by Cogan about Fumo's reputation for hard work. Instead, the jurors said, it was Rendell's testimony under cross examination by Pease when the governor said that "rules are rules" and they apply to everyone.


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Feds Seeking Tougher Punishment For Pennsylvania Politicians Convicted On 137 Counts Of Fraud, Obstruction

The Legal Intelligencer Maryclair Dale - July 8, 2010

PHILADELPHIA, PA — U.S. prosecutors took the rare step Thursday to appeal the sentence handed down to long-powerful state Sen. Vincent Fumo in a sprawling corruption case. Fumo is serving a 4 1/2-year sentence for defrauding the state Senate, a museum and a nonprofit of millions. Prosecutors had sought at least a 15-year term for the Philadelphia Democrat, who was convicted last year of all 137 fraud and obstruction counts after a five-month trial. In an appeal filed Thursday, they call Senior U.S. District Judge Ronald Buckwalter's decision "unreasonable" and "unduly lenient." The 67-year-old Fumo was convicted last year of using the victim groups to maintain his mansion, spy on political rivals, pay for yachting vacations and otherwise support his extravagant lifestyle. "The corruption exposed in this case was breathtaking," prosecutors wrote in filing the 281-page brief. "Defendant Fumo, a 30-year member of the Pennsylvania Senate, used his control of a well-funded Senate committee and of a nonprofit organization he created and supported (Citizens Alliance for Better Neighborhoods), as well as his influence over another nonprofit institution, to support a lavish lifestyle and illegally amass political power." Fumo's appellate lawyer, Peter Goldberger, said Fumo would pursue an appeal to his conviction since the government is appealing the sentence. "We were ready to accept the conviction if they would accept the sentence," he said. Prosecutors also appealed the one-year term Buckwalter gave to ex-Fumo aide Ruth Arnao. The sentences were a fraction of the federal guidelines, which are based on the crimes and the defendant's criminal history. Prosecutors calculated that Fumo faced up to 21 to 27 years in prison, and Arnao, convicted of 45 counts, up to 10 to 12 years in prison. They also argued that Fumo's fraud topped $4 million, twice the fraud total assessed by the judge. In their brief, they also said Buckwalter failed to explain how he calculated the fraud total or sentencing range. The sentence provoked a firestorm in Philadelphia, where Fumo was perhaps the most powerful Pennsylvania lawmaker in a generation, controlling scores of jobs in and out of state government. At sentencing in July, Buckwalter praised Fumo for his "extraordinary" public service and called co-defendant Ruth Arnao "remarkable" for moving from teen mother to Fumo top aide. By comparison, U.S. District Judge William H. Yohn Jr. once called the conspiracy to destroy e-mail evidence in the case "egregious" and sentenced a low-level Fumo aide to 30 months for far fewer crimes than Arnao. At Arnao's sentencing, Buckwalter disclosed that he had expected the uproar over Fumo's sentence a week earlier. "I wasn't the least bit surprised. I knew it would be a tremendous firestorm of reaction against what I did," said the 74-year-old Buckwalter, who said he tries to live by the 19th-century virtues of "rugged individualism" and "antique courage." He called his decisions "fair, not punitive" and questioned the notion of deterrence. "There's been a whole lineup of Philadelphia politicians that have gone to jail, and it doesn't seem to deter crime," the judge said.