By Leo Strupczewski
Of the Legal Staff
Convicted last month of racketeering and honest services fraud, Former Luzerne County Common Pleas Court Judge Mark A. Ciavarella has filed a series of motions to have the most serious charges against him tossed.
Three separate documents filed by Ciavarella's attorneys Friday challenged the sufficiency of evidence presented by federal prosecutors and rulings made by the judge who oversaw the seven days of trial and two days of jury deliberations. In them, Ciavarella asks for an arrest of judgment, acquittal or new trial on seven of his 12 convictions.
Absent from the challenges are any mentions of Ciavarella's five tax fraud and fax fraud conspiracy convictions, to which he admitted near universal guilt while on the witness stand during trial.
Instead, the former judge has targeted the two counts of racketeering, four counts of honest services wire fraud and one count of money laundering conspiracy.
In his motion for acquittal, Ciavarella argued that the prosecution's evidence failed to prove that the allegations of racketeering and money laundering conspiracy occurred within the five year statute of limitations or that money he received from the builder of two juvenile detention facilities was illegal in any way.
Further, Ciavarella argued, the U.S. Supreme Court's decision last year in U.S. v. Skilling, which limited the honest services fraud to bribery and kickbacks, barred him from being tried on those charges.
Ciavarella argued the premise of his conviction on the honest services charges was "non-disclosure of conflicts of interest."
Ciavarella also argued in his motion for a new trial that U.S. District Court Judge for the Middle District of Pennsylvania Edwin M. Kosik had erred by not allowing him to introduce into evidence comments made by Assistant U.S. Attorney Gordon Zubrod during plea hearings for developer Robert K. Mericle and a former co-owner of the juvenile detention facilities, Robert J. Powell.
Ciavarella had hoped to use those statements -- which included Zubrod saying Mericle's payments to Ciavarella amounted to nothing more than a finder's fee -- in his defense.
He had also hoped to keep out of the case any reference to civil cases he heard as a judge involving Mericle or Powell. Kosik let prosecutors mention those cases.
Ciavarella was accused by federal prosecutors in January 2009 of concocting a "kids-for-cash" scheme with fellow former Luzerne County Common Pleas Court Judge Michael T. Conahan and taking more than $2.8 million from Mericle and Powell.
A jury, however, only found Ciavarella took $997,000 from Mericle in his capacity as a judge, conspired to launder that money and lied about it on his tax returns.
Conahan pleaded guilty to a racketeering charge in an open-ended agreement with federal prosecutors.
Mericle and Powell also admitted wrongdoing for their roles in the case.
A spokeswoman for the U.S. Attorney's Office, Heidi Havens, was not available for comment.
One of Ciavarella's attorneys, Al Flora, said briefs to support the motions must be filed within 14 days under court rules. Prosecutors are then able to file briefs in opposition and Kosik will make rulings on the issues.
Meanwhile, federal probation officials have already begun the process of putting together Ciavarella's pre-sentence report, Flora said.
Leo Strupczewski can be e-mailed at [email protected].
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