Ex-judges want pleas reconsidered

SCRANTON – Former judges Mark Ciavarella and Michael Conahan have asked a federal judge to reconsider his rejection of their guilty pleas, arguing that they were within their rights to engage in the conduct that the judge cited in refusing to honor their plea agreements.

The motion for reconsideration, filed Thursday, says Ciavarella was merely trying to correct inaccurate information relayed by the media when he made public statements rebutting allegations that he jailed juveniles for financial profit.

Conahan contends he was lawfully invoking his right to remain silent when he declined to discuss the motivation for his crimes with a federal probation officer. That decision cannot now be held against him, his attorney Philip Gelso says in the court document.

Senior U.S. District Judge Edwin Kosik cited the former judges’ behavior as the key reason for his July 31 ruling that rejected the plea agreement that called for the men to serve 87 months in prison on corruption charges.

Ciavarella and Conahan pleaded guilty on Feb. 12 to charges of depriving the public of their honest services and tax evasion. The plea was conditioned on Kosik’s acceptance following the completion of the pre-sentence report.

In his order, Kosik said he did not feel either defendant had adequately demonstrated they accepted responsibility for their conduct.

He noted that Conahan declined to discuss his motivation with the probation officer conducting the pre-sentence investigation. Kosik also found that Conahan had taken other action to impede that investigation.

Kosik said Ciavarella was cooperative with probation officials, but the judge took issue with what he deemed to be “self-serving” statements Ciavarella has made regarding his culpability.

Ciavarella has been critical of multiple media sources that have repeatedly reported that he and Conahan pleaded guilty to accepting “kickbacks.” In their motion, Ciavarella’s attorneys, Al Flora and William Ruzzo, say Ciavarella’s statements were meant to clarify confusion regarding the charge of honest services fraud.

The attorneys noted there are two elements of that crime: one involves accepting a bribe; the other involves the failure to disclose a conflict of interest.

The judges were charged with the section relating to non-disclosure of a conflict of interest. That was based on their failure to disclose to juveniles and others affected by their rulings that they had accepted more than $2.6 million from attorney Robert Powell and developer Robert Mericle related to the construction and operation of two juvenile detention centers the county utilized.

“Defendant Ciavarella, in his public statements commenting on his plea, has repeatedly acknowledged acceptance of responsibility ... to honest service fraud involving the non-disclosure of a conflict of interest and tax related crimes. (He) has repeatedly and rightfully denied inaccurate media reports regarding the nature of his plea,” the motion says.

Regarding Conahan, Gelso says Conahan was exercising his legal right to challenge findings the probation officer reported in his pre-sentence investigation.

Sentencing statutes specifically state that a defendant does not have to admit to conduct beyond the charges they pled to in order to receive credit for acceptance of responsibility.

“Even if his motivation were considered relevant conduct, defendant Conahan’s maintaining his right to remain silent and his silence cannot be used against him in considering whether his conduct failed to demonstrate an acceptance of responsibility,” Gelso says.

Gelso also disputes that Conahan impeded the investigation. He says Conahan provided all documents that were requested and that he even volunteered additional information and helped the probation officer analyze some financial records.

The defense attorneys note the U.S. Attorney’s Office did not concur with the filing of the reconsideration motion because prosecutors and defense attorneys had previously appeared before Kosik to ask him to reconsider his decision and he declined.

“Although the court denied the parties joint request at that time, the defendants believe it is necessary to file the instant reconsideration motion of record,” the motion states.

It is not known when Kosik might rule on the motion. Should he reject the request, Ciavarella and Conahan would be left with several options.

They could withdraw the plea and go to trial or try to renegotiate a new deal that would also be subject to Kosik’s approval. They could also opt to go ahead with the plea, but Kosik would not be bound by the 87-month sentence, which means he could sentence the men up to the maximum of 25 years in prison and $500,000 fine.

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

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