News

September 30, 2010

Ciavarella facing new indictment

Nine of 48 counts originally filed in ’09 dropped because of Supreme Court ruling.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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SCRANTON – A federal grand jury on Wednesday issued a new indictment against former Luzerne County judge Mark Ciavarella that drops nine of the original 48 counts that had been filed against him and former judge Michael Conahan relating to the county juvenile justice scandal.

The 39-count indictment is virtually identical to the previous charges that had been filed against the former judges, except it drops four counts of honest services fraud that were filed against Ciavarella relating to his mailing of false statements of financial interest to a state office.

The revised indictment also drops one count of money laundering conspiracy against Ciavarella and four counts of tax evasion that were filed against Conahan, who has entered a plea deal with prosecutors and is not named as a defendant in the new document.

Perhaps the most significant difference between the two indictments relates to modified language that is included in the new document, which more directly ties charges of honest services wire fraud to a bribery and kickback scheme.

In a press release, U.S. Attorney Peter J. Smith said his office sought the new indictment in response to a U.S. Supreme Court decision issued in June that declared portions of the honest services fraud statute unconstitutional.

Smith did not elaborate on the precise reason the new indictment was required. But changes in the language between the two indictments indicate prosecutors wanted to clarify that the basis of the charge is Ciavarella’s alleged acceptance of bribes and kickbacks, rather than his concealment of a conflict of interest.

That’s a key distinction because the Supreme Court, ruling in the case of former Enron executive Jeffrey Skilling, said the honest services statute cannot be utilized to prosecute those who are accused of failing to disclose a conflict of interest.

The original indictment, filed last September, alleged Ciavarella and Conahan deprived the public of their right to honest services by failing to perform their duties as judges “free from deceit, favoritism, bias, self-enrichment, self-dealing, concealment and conflicts of interest.”

The new indictment says the former judges devised a scheme to deprive the public to their right to honest services through “bribery, kickbacks and the concealment of material information.”

Conahan’s role in the criminal scheme is detailed extensively in the new indictment. He is not listed as a defendant, however, because he opted to plead guilty in July to one count of racketeering conspiracy.

Charges in the new indictment against Ciavarella include multiple counts of racketeering, money laundering, bribery, extortion, honest services wire fraud and tax violations.

Federal prosecutors allege Conahan and Ciavarella accepted $2.8 million in bribes and kickbacks over a several-year period from Robert Powell, the one-time co-owner of the PA Child Care and Western PA Child Care juvenile detention centers, and Robert Mericle of Mericle Construction, which built the facilities.

As with the first indictment, the new document alleges Ciavarella and Conahan accepted the money in exchange for issuing rulings that benefited the centers.

Those rulings included depriving juveniles of their right to a fair trial and closing the juvenile detention center that was owned by the county. That ensured the PA Child Care center, located in Pittston Township, retained a high occupancy rate. That, in turn, led to the construction of the Western PA Child Care center near Pittsburgh.

The indictment further alleges that Ciavarella conspired with Conahan and others to conceal the source of the income in a variety of ways, including falsely portraying part of the money as rental fees paid by Powell for his use of a Florida condominium that was owned by the ex-judges’ wives.

Smith could not be reached for comment about why the money laundering conspiracy and the honest services charges relating to Ciavarella’s filing of false statements of financial interest were dropped.

The original indictment alleged Ciavarella deprived the public of his honest services by mailing the documents, which failed to reveal he had a financial relationship with Powell and Mericle, to the Administrative Office of Pennsylvania Courts.

It appears that charge might fall within the exception the Supreme Court carved out for the honest services statute, since it does not directly involve the acceptance of bribes or kickbacks.

It was not immediately clear Wednesday how much of an impact the exclusion of the five charges might have on Ciavarella’s case, which is scheduled to go to trial in February. It’s also not known whether the new indictment will result in the trial being continued.

Ciavarella’s attorney, Al Flora, did not immediately return a phone message Wednesday seeking comment.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.

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