Conahan likely facing prison

SCRANTON – For the second time in 16 months, former Luzerne County judge Michael Conahan has agreed to plead guilty to a corruption charge. Unlike the first deal he reached, this time there’s no turning back.

Conahan, 57, on Thursday broke ranks with his co-defendant and former judge, Mark Ciavarella, and signed a deal with federal prosecutors that calls for him to plead guilty to a single count of racketeering conspiracy. No date has been set for the plea hearing.

Ciavarella’s attorney, Al Flora Jr., said Ciavarella, 59, has no intention to plead guilty and will continue to prepare his defense to the 48-count indictment that was filed against him and Conahan in September.

“As of right now, Mark is going to trial,” Flora said. “His attitude is he is presumed innocent and the prosecution has to prove its case.”

Flora also said he “has no reason to believe” Conahan will testify against Ciavarella.

Conahan’s decision leaves his fate in the hands of U.S. District Judge Edwin Kosik – the man who last July rejected a separate plea deal that called for Conahan and Ciavarella to plead guilty to honest services fraud and tax evasion and serve 87 months in prison.

Unlike the first plea agreement, the new deal reached by Conahan does not specify the prison term or give him the option to withdraw his guilty plea if he is unhappy with the sentence Kosik imposes.

That’s a huge gamble for Conahan, who could face up to 20 years in prison and a $250,000 fine – the maximum for the offense.

Federal sentencing guidelines rarely call for the maximum sentence, but Conahan’s case could easily qualify based on the allegations contained in the indictment, said attorney Ernest Preate of Scranton, who handles many federal criminal cases.

Racketeering conspiracy carries a base sentence of 21 to 27 months in prison for a person who agrees to plead guilty and has no prior criminal record, according to federal sentencing guidelines. Preate said it’s highly unlikely Conahan would get that sentence, however, because there are several “enhancements” that would likely be added to his guideline range.

Those enhancements are based on the amount of money involved in the offense, the number of victims and Conahan’s alleged role as one of the principal persons involved in the conspiracy.

“He’s really throwing himself on the mercy of the court,” said Preate, an ex-state attorney general. “The sentencing guidelines here could absolutely justify a 20-year sentence.”

That’s still less time than Conahan would have faced if he went to trial. He could have been sentenced to several decades in prison if convicted of some of the more serious counts in the indictment, which included extortion, bribery, money laundering, honest services fraud and tax evasion.

The U.S. Attorney’s Office has agreed to dismiss all other counts in exchange for the plea. But the agreement permits prosecutors to present any evidence regarding Conahan’s character, including the conduct alleged in the charges that are dismissed, for Kosik’s consideration at sentencing.

Conahan and Ciavarella were initially charged in January 2009 with accepting more than $2.6 million in improper payments from Robert Powell, the one time co-owner of the PA Child Care and Western PA Child Care juvenile detention centers, and Robert Mericle, the contractor who built the facilities. The government later determined they had accepted $2.8 million.

Prosecutors allege Conahan and Ciavarella conspired to increase the placement of juveniles at the two facilities, which were utilized by the county, in order to enhance profits. They then demanded kickbacks from Powell. Powell and Mericle each pleaded guilty to charges related to the scheme last year and are awaiting sentencing.

Conahan and Ciavarella initially agreed to plead guilty to honest services fraud and tax evasion, but withdrew their pleas in August after Kosik rejected the terms of the deal, finding they had failed to adequately demonstrate they accepted responsibility for their actions.

The ex-judges indicated they planned to vigorously fight the charges. Attorneys for the men last month filed a total of 23 pre-trial motions, including several that sought to suppress key evidence in the government’s case.

Conahan’s attorneys, Philip Gelso and Arthur Donato, declined to comment on Conahan’s reasoning for accepting the deal. They also declined to say if Conahan plans to testify against Ciavarella or provide information on any other pending investigations.

The plea agreement does not contain a cooperation clause, but Preate and other attorneys familiar with federal law said that does not necessarily mean such an agreement is not in place.

“Just because there is no cooperation agreement does not mean he is not cooperating,” said Douglas McNabb, an attorney from Washington, D.C., who specializes in federal law. “I’m not suggesting he is, but it does not make any difference, from a practical standpoint, if there is cooperation language in the plea agreement or not.”

Heidi Havens, spokeswoman for U.S. Attorney Dennis Pfannenschmidt, said he would not comment on the plea agreement.

Under the deal, Conahan also agreed to forfeit his law license and to forgo any challenge to a criminal or civil forfeiture action that may be filed. The government will recommend any money collected through the forfeiture first be used to pay restitution to victims of his alleged crimes.

The plea agreement does not specify who would be considered a victim, but it’s anticipated some of the money will be placed in a fund to compensate juveniles who claim they were wrongly incarcerated as part of the scheme.

The agreement also assures Conahan he will not be charged with any other offenses directly related to the racketeering charge. It provides no protection, however, against other charges that could be filed if it’s determined Conahan committed other crimes that have not yet been uncovered.