Court ruling sought before July 23 Conahan hearing

SCRANTON – A federal judge has tentatively scheduled the guilty plea hearing for former Luzerne County Judge Michael Conahan for July 23.

In an order issued Monday, U.S. District Judge Edwin Kosik said he scheduled the hearing for July in hopes that the U.S. Supreme Court will have issued a ruling by then regarding the constitutionality of the federal honest services fraud statute, which is one of the underlying offenses included in the racketeering conspiracy charge filed against Conahan.

Conahan reached a plea deal last week with the U.S. Attorney’s Office that calls for him to plead guilty to the conspiracy charge. In exchange, prosecutors have agreed to dismiss 47 other counts that were included in an indictment filed in September against him and his co-defendant, former county Judge Mark Ciavarella.

Ciavarella has not reached a plea agreement and intends to take the case to trial, his attorney said.

In his order, Kosik notes that the conspiracy charge against Conahan relates to 13 separate acts of racketeering consisting of honest services fraud, bribery and extortion. Kosik said he did not believe Conahan’s plea hearing should be held until after the Supreme Court rules in two separate cases now before it that challenge the constitutionality of the honest services fraud statute.

The statute, enacted in 1988, is a single paragraph that states a person commits the crime of honest services fraud if the person engages in a scheme or artifice to defraud that would “deprive another of the intangible right to honest services.” It has been widely used by the U.S. Attorney’s Office to prosecute public officials and people in the private sector.

In the Conahan and Ciavarella case, prosecutors allege the men deprived the public of their honest services by accepting $2.8 million from the onetime co-owner and the builder of two juvenile detention facilities the county utilized without advising the public they had done so.

The constitutionality of the charge has been under attack, however. Last year, the Supreme Court heard arguments in two separate cases involving Bruce Weyhrauch, a former state representative from Alaska who was convicted of using his position to line up a job for himself after he left office; and Conrad Black, a media tycoon who was convicted of concocting a scheme that defrauded investors in his newspapers.

Weyhrauch and Black contend the language in the honest services fraud statute is so vaguely worded that it lends itself to multiple interpretations, making it unconstitutional.

The high court’s ruling, which is expected in June, will impact the case against Conahan and Ciavarella, as well as former judge Michael Toole.

Toole pleaded guilty in December to honest services fraud for having improper communication with an attorney regarding the appointment of an arbitrator in an uninsured motorist insurance case.

He was initially scheduled to be sentenced on May 13, but the sentencing has been postponed until June 24 in anticipation of the Supreme Court ruling.