Fumo Denied Bail, Likely to Report to Prison Monday

By Shannon P. Duffy
U.S. Courthouse Correspondent

It seems almost certain that former state Sen. Vincent Fumo will be reporting to a federal prison in  Kentucky on Monday now that the 3rd U.S. Circuit Court of Appeals has rejected his 11th-hour motion for bail pending appeal.

Without comment, a two-judge motions panel -- Chief Judge Anthony J. Scirica and Judge Thomas L. Ambro -- rejected Fumo’s argument that he deserves bail because his appeal will present several “substantial” issues.

Fumo, 66, who served nearly 30 years in the Senate, was convicted in March on all 137 counts against him including conspiracy, fraud, tax and obstruction of justices charges. He was sentenced in July to 55 months in prison by U.S. District Judge Ronald L. Buckwalter.

Initially, it seemed that Fumo was willing to forgo any appeals and simply serve his sentence. But when prosectors announced that they were considering an appeal of Fumo's sentence as too lenient, Fumo responded by saying he, too, would now appeal and challenge his conviction.

In recent days, Fumo’s lawyers have been busy waging several unsuccessful battles to extend Fumo’s freedom. Buckwalter refused to grant his motion for bail and later rejected a second motion asking that Fumo’s reporting date of Aug. 31 be delayed so that he could undergo treatment for an addiction to prescription drugs before entering prison.

The appeal to the 3rd Circuit appeared to be Fumo’s final chance to avoid prison and now that, too, has been rejected.

But the court papers filed in recent days reveal a glimpse of the issues that Fumo intends to pursue in his appeal.

In his 3rd Circuit motion, Fumo’s lawyers -- Dennis Cogan of Philadelphia, Peter Goldberger of Ardmore and Samuel Buffone of Ropes & Gray in Washington, D.C. -- focused on three issues that they contend are strong enough to justify delaying his imprisonment.

The first issue, they say, is Buckwalter’s refusal to hold a post-trial voir dire of jurors to ferret out the truth about claims that they were exposed to “improper outside influences” as recounted in an article in Philadelphia magazine, and Buckwalter’s failure to cure other claims of juror misconduct that arose during deliberations when a juror commented on his Facebook page and on Twitter.

Buckwalter also erred, they argued, by failing to instruct the jury that Fumo must have acted with a “requisite consciousness of wrongdoing” to be found guilty on any of the obstruction of justice counts.

Finally, they said, Buckwalter  erred “in allowing the government to present what in effect was an honest services fraud case to the jury, despite charging the allegations of political corruption as money and property fraud under the mail and wire fraud statutes.”

In response, Assistant U.S. Attorneys John Pease and Robert Zauzmer argued that none of the three issues truly qualified as a “substantial” issue that justified extending Fumo’s bail.

Two of the issues relate to only some of the charges, the prosecutors noted.

As for the arguments about juror conduct, the prosecutors insist that the defense claims are “not debatable among reasonable jurists” because Buckwalter properly investigated both claims and found there was no prejudice to Fumo.

“Fumo’s current presentation does not involve, as he suggests, a jury exposed to rife communications from the outside world posing extreme prejudice. Rather, he focuses on a juror who posted innocuous sentences on the Internet, and did not communicate with anyone, and another single juror who allegedly learned extrajudicial facts which did not pose the risk of prejudice in the context of the entire trial,” Pease and Zauzmer wrote.

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