Lawyers: 2 judges to get more than ‘slap on wrist’

WILKES-BARRE – The plea deal that calls for two Luzerne County judges to serve 87 months on corruption charges has sparked anger among some members of the public, but two attorneys familiar with federal sentencing guidelines say the sentence is far from a “slap on the wrist.”

Attorneys William Manifesto of Pittsburgh and William Costopoulos of Harrisburg said they realize it may be hard for the public to understand, but the proposed sentences for judges Mark Ciavarella and Michael Conahan are fairly stiff in relation to federal sentencing guidelines.

“My experience in doing federal court work, seven years, except in drug cases and multimillion-dollar fraud schemes, that’s a long sentence,” said Manifesto, a defense attorney who formerly served as a prosecutor for Allegheny County. “The public may have reason to be angry about this situation, but if you were to examine empirical data of sentences for similar cases I think you would find this would be at the top.”

The attorneys, both of whom specialize in defending persons charged with federal crimes, stressed their opinions are based only on information revealed in the criminal complaint that was filed against the judges last week. They therefore do not know of other allegations that might have impacted the case and/or sentence.

More details of the alleged criminal activity likely would have been included in an indictment, but the case never got to that point because the judges agreed to the plea deal.

Ciavarella and Conahan are scheduled to appear in federal court on Feb. 12 to plead guilty to single counts of tax evasion and honest services fraud. The U.S. Attorney’s Office says the men accepted more than $2.6 million in kickbacks in exchange for rulings that benefited the operators of a local juvenile detention facility.

Costopoulos said that based on information contained in the complaint, it’s likely the government could have sought an indictment for multiple counts of money laundering and mail fraud. That would not necessarily translate to a stiffer sentence, however, because federal guidelines are based on the amount of money involved, not the number of counts.

While $2.6 million is a significant sum, in pales in comparison to some ponzi schemes – an investment fraud where money from one investor is paid to another – that can involve tens of millions of dollars, Manifesto said.

“I had a client involved in a bank fraud who ended up with a sentence of 96 months, and that was $35 million bank fraud,” Manifesto said. “You won’t find many sentences that are beyond or greater than these two judges have agreed to in the plea agreement, short of some multibillion-dollar ponzi scheme.”

The Conahan and Ciavarella case differs in that they allegedly abused positions of trust. That makes the case more egregious, but that is also taken into consideration in the sentencing guidelines, the attorneys said.

Federal sentencing guidelines are extremely complex, Manifesto said. They start with a base offense score, dependent upon the crime. A defendant then either gets upward or downward “departures” based on a wide variety of factors relating to the actual crime and the defendant’s background.

Manifesto said the judges likely received at least two upward departures that increased their sentences – using a position of trust and using specialized knowledge in the commission of a crime.

Costopoulos said it appears to him that “both sides gave a lot” in securing the deal.

“The government could have brought other charges that legislatively carried more years. But the defense could have taken a position of ‘we want our day in court’ and put the government to the task of taking it to a grand jury and calling witnesses to obtain an indictment,” he said. “The defense could have drug the charges out with appeals for many years to come. Both sides appeared to have agreed this is the appropriate conclusion.”

Whether the judge assigned to case – Senior U.S. District Judge Edwin M. Kosik – agrees remains to be seen. Kosik could opt not to accept the terms of the plea. Then either prosecutors or the defense can withdraw it.

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

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