Luzerne County Judges

December 31, 2009

Top court ruling impacting county

Judges accused of corruption could face fewer charges, lighter sentences.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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WILKES-BARRE – The three former and current Luzerne County judges who are facing corruption charges are among more than a dozen defendants nationwide who would benefit if the U.S. Supreme Court declares the federal honest services fraud statute to be unconstitutional, experts in federal law say.

The high court heard arguments on the issue earlier this month. Prosecutors and defense attorneys across the country are anxiously awaiting its ruling, which would impact current cases, as well others that have been decided in the 21 years since the law was enacted, the attorneys said.

“The impression I have from reading about other cases is it’s definitely more than a dozen and could be in the 20 to 100 range,” attorney Chris Myers of Virginia, a former federal prosecutor who specializes in federal law. “It affects not just the cases that are pending now, but those people who have been convicted and are already serving jail sentences.”

Locally, Judge Michael Toole, who pleaded guilty Wednesday to the charge and a tax offense, appears to have the most at stake.

The honest services fraud charge is the key charge against him. If the statute is declared unconstitutional, it’s possible he would be sentenced only on the tax evasion charge. That could reduce his sentence from up to nearly four years in prison to just months, according to analysis of sentencing guidelines.

Former judges Mark Ciavarella and Michael Conahan also have an interest in the ruling, although the impact would likely be far less significant for them given that the charge is just one of 48 counts filed against them.

The statute has been widely used by the U.S. Attorney’s Office to prosecute both public officials and persons in the private sector, Myers said. Controversy over its use has been swirling for years as federal courts struggled to interpret precisely what it means, Myers said.

The statute, enacted in 1988, is a single paragraph that states a person commits the crime of honest services fraud if they engage in a scheme or artifice to defraud that would “deprive another of the intangible right to honest services.”

The problem, Myers and other attorneys said, is the wording is so vague that it lends itself to multiple interpretations.

“It could cover an employee of a company calling in sick and going to a ball game instead of going to work that day and getting paid for a sick day,” Myers said.

Under the U.S. Constitution, a person must know they are committing a crime in order for their conduct to be criminal, Myers said.

That’s the key problem with how honest services fraud statute is written, said Peter Vaira, a Philadelphia attorney who formerly served as U.S. Attorney for the Eastern District of Pennsylvania.

Public officials often find themselves in a situation where they have to make a judgment call regarding ethical issues. A person may “cross a line” and do something that’s unethical, but that doesn’t mean they knew it was criminal, Vaira said.

“It’s vague. Even though you are supposed to know what the law is before you violate it, it’s hard to know what the violation is,” he said. “There doesn’t have to be money involved. Even if you do a favor, it could be a crime.”

In Conahan and Ciavarella’s case, they are accused of depriving the public of their honest services by accepting millions of dollars from the owner and operator of two juvenile detention facilities. They then failed to disclose that information to juveniles who appeared before Ciavarella, who sentenced youths to the facilities, or to litigants who had opposed the center’s owner, attorney Robert Powell, in other civil cases, prosecutors say.

Prosecutors say Toole deprived the public of his honest services when he failed to reveal that he had secret communication with an attorney, with whom he had a financial relationship, regarding an arbitration case the judge presided over.

Toole is also charged with tax evasion for failing to report on his income taxes a $30,000 fee he received for referring a case to a different attorney.

If the Supreme Court declares the honest services fraud statute unconstitutional, Myers said he does not believe prosecutors would be able to try Conahan and Ciavarella, or any other defendant facing the charge, on those counts.

That’s because the issue before the Supreme Court is an all or nothing battle. The statute will either be declared constitutional or not. The ruling will be binding on all cases, regardless of differences in the individual facts of the cases.

Conahan and Ciavarella would not be off the hook entirely, however, as they still would still face a number of other serious charges, including racketeering, bribery, extortion and mail fraud.

As for Toole, even though he has pleaded guilty, he would be able to file a motion seeking to dismiss the charge after the fact.

Should Toole succeed, he would be sentenced only on the tax charge, which would likely carry a sentence of zero to six months or possibly six to 12 months, according to an analysis of federal sentencing guidelines.

It is possible the U.S. Attorney’s Office could bring other charges against Toole, however, according to the terms of his plea agreement.

The agreement states that should he successfully vacate the plea or sentence, he agrees to waive his right to present any defense to additional charges which could have been filed at the time of the plea.

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