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First Posted: 2/16/2011
The jury in the federal corruption trial of former Luzerne County judge has gone home for the day and will begin deliberations at 8:30 a.m. Thursday
Former Judge Mark Ciavarella (center) leaves the federal courthouse in Scranton on Tuesday with his attorney Al Flora (far left) at the end of proceedings in the Ciavarella’s trial on corruption charges. (PETE G. WILCOX/THE TIMES LEADER)
Additional Photos Below
Related Documents
176 2-1-10 gov proposed jury instructions
134 9-29-10 Superseding indictment for Ciavarella
201 gov proposed verdict slip
2:46 p.m.
SCRANTON – U.S. Judge Edwin Kosik has concluded his instructions to the jury in the trial of Mark Ciavarella and sent the jury into deliberations. Ciavarella’s fate now lies in how 12 people,some from distant counties, interpret the evidence presented by both sides over six days of testimony.
1:58 p.m.
SCRANTON -Judge Edwin Kosik worked through 37 of 39 counts in the Mark Ciavarella indictment but took a short break before launching into instructions on racketeering charges, which are predicated on multiple other charges.
For the most part, Kosik’s instructions have been word for word the same instructions proposed by the prosecution in an earlier court filing. The defense did not object to that filing. The government has also proposed a jury verdict sheet, which is posted here along with the proposed jury instructions here.
The instructions set the bar relatively low on proof of some charges by broadly defining things like conspiracy. For example, Ciavarella need not have taken any action to be guilty of a conspiracy, but the government did have to prove he agreed to participate in a conspiracy – in this case with Michael Conahan. The government also does not have to prove any of the objectives of the conspirators were achieved, only that they plotted to achieve something illegal – in one count of the indictment, that means they plotted to defraud the U.S. Government.
In fact, Kosik noted, the second count on the indictment, whichis also a conspiracy charge, doesn’t even require proof that an “enterprise” or group of people existed or that actions were taken to commit a crime, only that the players intended to form such an enterprise and commit such an act, and that Ciavarella joined in that plot.
But many of the charges – particularly the first two racketeering charges and several related charges – do hinge heavily on whether the jury believes Ciavarella ever received a kickback or bribe, a point he rigorously denied and the defense repeatedly attacked.
Posted 12:01 p.m.
SCRANTON – Jurors in the Mark Ciavarella corruption trial will soon begin considering whether the evidence presented fits the legal definition of the 39 counts included in the federal indictment.
The 86-page instructions will provide guidance to the panel in determining what the government did, and did not, need to prove in order to obtain a conviction.
Among the key areas:
Bribery – The government must show that Ciavarella used his position as a judge to solicit and/or accept something of monetary value with the intent of being influenced in making a decision. The government does not have to prove, however, that he took any specific action. It need only show that he took a bribe with the “intent” of being influenced. Also, if the jury finds that he accepted the payment with the intent of being rewarded for a decision already made, it does not matter that the payment was not accepted or solicited until after the transaction occurred
Extortion: Like the bribery charge, the government must show that Ciavarella used his position to obtain something of value that he had no right to receive. The government is not required to show that the payment was made as the result of some actual threat of force or fear, however, or Ciavarella that actually had the authority to influence an action. It need only prove that the Powell “reasonable belief’ that Ciavarella had that authority.
That’s a key issue in the case because Powell never testified that Ciavarella and/or Conahan made a direct threat against him. He stated he believed he had to pay the money because the knew the judges had the power to stop sending juveniles to his facility.
Conspiracy: The government must prove that Ciavarella conspired with at least one other person to commit at least some of the crimes that alleged. It does not have to prove that Ciavarella was part of the conspiracy from the start, or that he had actually participated or had knowledge of every crime that was committed. He can be found guilty if it was shown that he at any point engaged in the conspiracy and took actions that help furthered the criminal scheme it was involved in.
Honest services wire and mail fraud: The government must prove that Ciavarella accepted a bribe or kickback as part of a willful scheme to defraud the public of its right to his honest services as a judge. This charge is tied to wire transfers of the money the government alleges Ciavarella received in kickbacks and bribes, as well as his mailing of a statement of financial interest to a state agency in which he did not declare he had received the money from the kickbacks and bribes.
U.S. District Judge Edwin Kosik began reading through the instructions at around 11 a.m. He got through the first 10 counts and will resume instructions following the lunch break at 1 p.m. The panel is expected to begin deliberating some time after 2 p.m.
Posted 11:44 a.m.
SCRANTON – In his closing statements, Mark Ciavarella’s attorney Al Flora tried to put the onus for the case on Michael Conahan, insinuating that if anything improper occurred, it was between Conahan and Attorney Robert Powell. “If something was going on, I suggest to you there was a back room deal going on between Robert Powell and Michael Conahan. Mark Ciavarella had no idea.”
Flora also gave a possible explanation as to why Powell paid the judges so much money in “rental fees.”
Flora insinuated Powell was not paying money for rent but was in fact a “silent partner” int he condominium, and that Ciavarella had no knowledge of that
During a rebuttal, U.S. Attorney Gordon Zubrod urged the jury to make their decision solely on the evidence presented.
Judge Edwin Kosik called a short recess and said he will begin to “charge the jury,” or give them instructions on legal considerations in making their decision, when they return. Kosik is expected to largely use instructions proposed by the prosecution in a court filing because no objections to those instructions were filed by the defense. Those instructions are posted here.
Updated 10:45 a.m.
Posted 10:37 a.m.
SCRANTON – Mark Ciavarella’s lead attorney Al Flora has attempted to discredit the prosecution case by insisting the sequence of events they allege happened “makes no sense.”
Flora said it makes no sense to believe that Robert Mericle offered a finder’s fee to Mark Ciavarella in the summer of 2001 for helping him land the job as developer for PA Child Care, a private detention facility. Flora said Mericle had no contract at that time to build the facility, and co-owner Robert Powell had no financing or even land.
Flora said it makes much more sense to believe Ciavarella’s contention that he learned of the finder’s fee in 2002 after Powell had arranged financing, found land and hired Mericle.
“If you look at the facts and you look at the sequence of events (prosecutors) are alluding to, it does not make any sense,” Flora said.
Flora reiterated Ciavarella’s claim that he pushed for the construction of a new juvenile detention facility by the county from his first year as judge in 1995, but that he clearly lacked the power the prosecution claims he had because no facility was built. Flora also said Ciavarella’s efforts were honorable.
“That request was pure. That request was innocent. There was no evil intent.”
Flora also said Ciavarella and Conahan were not “acting in their official capacity” as judges in their efforts to get a new facility built.
Flora noted a placement agreement signed by Conahan promising to spend $1.3 million annually at PA Child Care, the private facility, was common practice among judges in other counties.
Regarding involvement by Conahan and Ciavarella in helping Powell get PA Child Care off the ground, Flora said “When a person is elected judge, that doesn’t mean your a judge 24 hours a day .. It doesn’t mean they can’t recommend someone ” for a job and if they do it’s not “in their official capacity as a judge.”
Flora attacked testimony by Robert Powell, who claims he was extorted into paying money to the judges to make PA Child Care succeed.
“Do any of you really believe anybody could push that man around?” he asked the jury. he then recounted how Powell used the Florida condominium owned by Ciavarella and Conahan during the time he claims he was being extorted by them, as well as the fact that Powell was at Ciavarella’s celebration the night he was retained as a judge in the 2005 election, and the fact that Powell gave Ciavarella’s children graduation gifts.
“That makes no sense,” Flora kept repeating.
Flora hit hard on the fact that, at his plea hearing, Mericle said he believed his payments to Ciavarella were legal finder’s fees, not kickbacks or bribes. This is a central point in the case, as many of the prosecution’s charges require the jury to decide they were bribes or kickbacks.
Flora also noted that Mericle continued to make that claim in testimony at this trial, and said to convict Ciavarella the jury would have to decide Mericle lied both times.
But U.S. Assistant Attorney Addressed the Jury and reminded them the government position has always been that Mericle was only saying how he saw the transaction, and that his perception of it is irrelevant in the legal proceedings. “It’s what is on Ciavarella’s mind” that matters, Zubrod said.
SCRANTON – U.S. Assistant Attorney Gordon Zubrod concluded his closing remarks by noting Mark Ciavarella’s cloak of “presumption of innocence” has “been stripped away” by the testimony and facts presented, and that his guilt “has been proven beyond a reasonable doubt.
Zubrod had said that, while Ciavarella had known since 1996 that Luzerne County needed a new juvenile facility, but did nothing until 2002. “Why?” Zubrod asked, “Because he knew he had a whopping payday coming” from Mericle once PA Child Care, a private facility, was built.
Pointing out that Ciavarella was a judge and lawyer yet claimed he didn’t believe payments from Mericle and Attorney Robert Powell were kickbacks or bribes,Zubrod likened the claim to a doctor not recognizing a simple sear infection.
Recounting a conversation among Ciavarella, Powell and Conahan that was taped when Powell wore a wire, Zubrod dismissed Ciavarella’s claim he was surprised by talk of cash payments from Powell yet remained silent throughout the discussion. “”It is laughable,” Zubrod said.
Judge Edwin Kosik called for a break before Ciavarella’s defense attorney gives the closing comments. The judge will then give the jury instructions, which will almost certainly be lengthy because Ciavarella is charged with 39 counts.
9:38 a.m.
SCRANTON-U.S. Assistant Attorney Gordon Zubrod has been laying out at great length the string of incidents that link Mark Ciavarella to Michael Conahan and the private juvenile detention facility PA Child Care. Zubrod said they show a conspiracy because of the sheer volume of linked events. “This is not a coincidence,” he keeps repeating, this is a plan.
Zubrod told the jury there are four components the conspiracy law allows “broad discretion” in proof precisely because smart white collar criminals use their office and status to hide their involvement in criminal activity. He said the case hinges on four elements: Concealment, coincidence, cash and control.
He then repeated the numerous efforts by Ciavarella and Conahan to conceal money they received from Robert Mericle, the builder of PA Child Care, and Attorney Robert Powell, a co-owner of the facility Citing Powell’s rental of a Florida Condominium for $590,000 for seven months when the condo was worth $780,000, Zubrod said “I don’t care how often he uses it, nobody pays $590,000 in seven months to rent a condo.”
Zubrod dismissed Ciavarella’s repeated claims that he didn’t know about the rent or other activities arranged by Conahan. He said Ciavarella was effectively saying “I didn’t rob the bank, I just drove the getaway car.”
“It was his condo. He was raking in cash. He knew where the money comes from.” Zubrod said, adding that Ciavarella admitted on the stand he was trying to hide the money paid by Powell and Mericle.
Zubrod said that all people know coincidences happen, but that “when critical elements start lining up one after another towards a goal, it’s not a coincidence,e it’s a plan.”
Zubrod said Ciavarella and Conahan knew in 2002 that if they worked together they would reap a large profit from Mericle and Powell once PA Child Care was built, and that they could continue making money as the facility succeeded.
“This is like an open wound that cuts all across this case,” Zubrod said.
8:56 a.m.
SCRANTON – U.S. Assistant Attorney Gordon Zubrod has begun giving his closing argument in the trial of Mark Ciavarella. Luzerne County Judge Joseph Augello had been seen near the courtroom but disappeared briefly in an attorney/witness room before departing without taking the stand.