Judge ‘guilty’ of two charges

SCRANTON – Michael Toole walked into the courtroom Tuesday morning, much as he has done hundreds of times before in his position as a Luzerne County judge.

There was one key difference at this proceeding: This time he was the defendant.

A subdued Toole appeared before U.S. District Judge Richard P. Conaboy to plead guilty to charges of honest services fraud and tax evasion.

“Your honor, with the strength of my faith and the support of my family and friends, I take complete responsibility for what I’ve done and will accept whatever punishment the court imposes,” Toole told Conaboy during the 45-minute hearing.

What Toole did, prosecutors say, is “corruptly abuse” his position as a judge to improperly influence an uninsured motorist arbitration case that came before him in 2006. In a separate matter, he also failed to report on his income taxes a $30,000 fee he received from another attorney.

The U.S. Attorney’s Office has not identified the attorneys involved in either case. Details contained in the charges indicate the attorney involved in the arbitration case was Harry Cardoni of Kingston. A source familiar with the probe identified the attorney who paid the referral fee as Robert Powell of Butler Township.

Toole, 49, of Wilkes-Barre, is the third county judge to be nabbed in the ongoing county corruption probe, which as of Tuesday had resulted in the arrest of 23 people.

No family members or friends accompanied Toole as he arrived at the courthouse more than an hour before the hearing. He read a book for part of that time, then mulled about the hallway as he waited for the hearing to start.

The guilty plea ensures the end of Toole’s five-year judicial career. How much prison time he will serve remains to be seen.

Federal sentencing guidelines call for a sentence of 37 to 46 months. But Toole could face far less time dependent upon how the U.S. Supreme Court rules on a pending challenge to the constitutionality of the honest services fraud statute.

The nation’s high court heard argument earlier this month in two cases that seek to strike down the law. It has not yet issued a ruling.

Despite his plea, Toole retains the right to file a motion to dismiss the honest services fraud charge should the Supreme Court overturn the statute, Conaboy said.

In Toole’s case, the charge relates to Toole’s failure to reveal that he had improper communication with the opposing party’s attorney in the uninsured motorist case.

Uninsured motorists cases involve drivers who sue their own insurance company for injuries caused by a driver who had no or little insurance. The disputes are decided by a three-member arbitration panel.

Federal prosecutors say Toole, through an intermediary, asked the attorney who that attorney wanted to have appointed as the third arbitrator. Toole, who had vacationed at the attorney’s New Jersey beach home free of charge, then appointed that person.

Assistant U.S. Attorney Michael Consiglio said Toole had a duty to recuse himself from the case, but failed to do so. His actions deprived the public of Toole’s honest services, Consiglio said.

The government’s use of the honest services statute has been hotly contested by defense attorneys, who contend the statute is too vaguely worded.

If the Supreme Court strikes down the law, Toole would have a legal basis to seek to have that count dismissed, said David Debold of Gibson, Dunn and Crutcher, a Washington, D.C., law firm that specializes in federal criminal law. The fact he already pleaded guilty to the charge would not matter, DeBold said.

If the charge is dismissed, Toole would only face sentencing on the tax evasion charge.

That charge relates to Toole’s failure to report a $30,000 fee he received in 2006 for referring a personal injury case involving a relative of his wife to another attorney, Consiglio told Conaboy.

Conaboy did not indicate the sentencing guideline range for that tax offense, but Debold said it appears the charge would carry a range of zero to six months.

Debold, who is not involved in the Toole case, stressed his calculation of the guideline was an estimate. The sentence could be slightly higher or lower, dependent upon other factors that are not known to him, he said.

It’s not known if the U.S. Attorney’s Office would attempt to contest Toole’s challenge to the honest services fraud charge. Consiglio declined to comment on any aspect of the case after the plea.

Toole and his attorney, Frank Nocito, also declined to comment after the hearing.

Toole’s plea agreement calls for him to resign within 10 days of acceptance of the plea. He had not done so as of late Tuesday afternoon.

Toole was suspended with pay by the state Supreme Court the day after he was charged. Court of Commons Pleas judges earn $161,850 annually. The court could now opt to suspend Toole without pay. No order to that effect had been issued as of Tuesday evening.

Conaboy allowed Toole to remain free pending sentencing, which is scheduled for March 30.