Juvenile Defenders Association of Pennsylvania (JDAP): Ciavarella Found Guilty on 12 of 39 Counts

Ciavarella Found Guilty on 12 of 39 Counts

February 19th, 2011
By The Times Leader

SCRANTON – A federal jury on Friday convicted former Judge Mark Ciavarella of illegally accepting money relating to the construction of the PA Child Care center, but entirely rejected allegations he extorted Robert Powell or accepted money relating a second juvenile center.

The verdict, which was reached after about 13 hours of deliberations over two days, left both prosecutors and the defense declaring victory in the corruption case that has captivated the public for more than two years.

The jury found Ciavarella guilty of racketeering, racketeering conspiracy, money laundering and money laundering conspiracy relating to the $997,600 finder’s fee he received from Robert Mericle, the builder of the center. It also found him guilty of honest services mail fraud for filing fraudulent statements of financial interest with a state agency and five tax counts for filing false tax returns.

He was acquitted on multiple counts of bribery, extortion and money laundering relating to the more than $700,000 that was paid to him and former Judge Michael Conahan by Powell, as well as honest services wire fraud relating to money paid by Powell and Mericle. Conahan pleaded guilty last year to one count of racketeering conspiracy and is awaiting sentencing.

“The government really got hurt today on this entire case. It stands for the proposition of what Mark Ciavarella said all along was true: He never took a kickback, he never took a bribe, he never extorted Robert Powell,” Ciavarella’s attorney, Al Flora, said at a press conference after the verdict was read. “This was not a cash for kids case, and we hope somebody starts getting the message.”

U.S. Attorney Peter J. Smith took exception to that characterization, noting the government obtained convictions on several serious charges.

“The defendant . . . has been found guilty of racketeering, one of the most serious offenses in the criminal code, originally intended to be aimed at thugs and street criminals and organized crime,” Smith said. “I find it interesting that a man just convicted of racketeering is claiming it as sort of a victory out there today. I’m wondering what he would consider a defeat.”

Assistant U.S. Attorney Gordon Zubrod, the lead prosecutor, said the verdict did not indicate that the jury did not believe Ciavarella took a bribe or a kickback, but that the jury was “bending over backwards to be fair to the defendant, and to make sure that they could trace the money before they nailed him down.”

The government could clearly show through bank records the flow of the initial payment of nearly $1 million from Mericle to Ciavarella, Zubrod said, but other payments allegedly funneled through Pinnacle Group of Jupiter, a Florida corporation the ex-judges set up, came out as cash and thus could not be traced with the same precision.

“I think that’s really what went on, that they felt, not that he was innocent, but that the burden of proof had not been met,” Zubrod said.

The charges carry a maximum sentence of 157 years in prison, but it’s more likely Ciavarella will be sentenced within the federal sentencing guideline range, which calls for a minimum sentence of 12 years, 7 months to 15 years, 8 months in prison, according to Assistant U.S. Attorney William Houser, who prosecuted the case with Zubrod and Michael Consiglio.

Ciavarella also was ordered to forfeit $997,600, the amount of money relating to the counts for which he was convicted.
Prosecutors sought to have Ciavarella taken immediately into custody, arguing he was a flight risk given the prison sentence he is facing.

U.S. District Judge Edwin Kosik declined that request, however, noting Ciavarella has complied with all conditions placed upon him while on bail awaiting trial. The judge, in an apparent attempt at lightheartedness, released him “into the custody of his pregnant daughter,” Nicole Oravic, who is seven months pregnant.

Despite the potentially lengthy prison sentence, Ciavarella and his family members took solace in the verdict because it showed the jury rejected the allegations Ciavarella had most vehemently protested: that he jailed juveniles for cash and that he extorted Powell.

“Now everyone knows Bob Powell is a liar,” Oravic said moments after the verdict was read. “It’s been proven by a jury of 12 he’s a liar, not just by us.”

The indictment against Ciavarella alleged he routinely incarcerated juveniles for minor offenses, allowed them to appear before him without an attorney and pressured juvenile probation officers to recommend detention, even when they felt it was not necessary. It was part of a scheme to ensure occupancy at PA Child Care remained high.

Prosecutors opted not to present that portion of the case to the jury, however, focusing instead on the monetary transactions.
Smith said the investigation included an intense review of Ciavarella’s rulings in juvenile court, but prosecutors decided, based on “very good legal and evidentiary reasons,” not to pursue that at trial.

“It was concluded that the facts and the evidence indicated by his pattern of conduct as a judge, while perhaps alarming to many people and of great concern, was not directly relevant to what was necessary for the government . . . to meet its burden of proof.”
Ciavarella took a different view of the government’s decision to forgo the “kids for cash” angle: They knew they could not prove that element of the case.

“I never took a dime to send a kid anywhere. If that was the case, that would have been in this trial,” Ciavarella said. “This case was about extortions and kickbacks. That’s what this case was about, not about kids for cash, because if it was, they’d have had that on trial.”

The charges for which Ciavarella was found guilty relate solely to PA Child Care in Pittston Township. Prosecutors alleged he and Conahan took various actions to pave the way for the center’s construction, including shutting down the county’s juvenile center and Conahan’s signing a placement agreement that guaranteed the county would pay $1.3 million annually to the center.

The jury found him not guilty of all charges related to a second, $1 million finder’s fee Mericle paid relating to construction of the Western PA Child Care Center in Butler County, as well as $150,000 he paid for an expansion done at PA Child Care.

Ciavarella said he was “surprised” the jury convicted him of the charges relating to the Mericle money. Both he and Mericle testified they believed the fee, which is routinely paid in real estate deals, was legal.

“I didn’t understand how I could be guilty of a kickback from Robert Mericle when he testified he never gave me a kickback,” he said.
Kim Borland, Mericle’s attorney, declined to comment on the verdict.
Powell, a once prominent Hazleton area attorney, testified Ciavarella and Conahan began shaking him down in 2004, after they spent the nearly $1 million fee Mericle paid. The alleged extortion continued until 2006, he said. The money he paid was disguised as rental payments for a condo the judges wives’ owned in Jupiter, Florida, he said.

Joseph D’Andrea, Powell’s attorney, said the fact jurors found Ciavarella not guilty of those counts may have been a product of the legal definition of extortion, and not because they did not believe him.

D’Andrea explained that the extortion count required that the jurors find that some threat, or perceived threat, had been made. In Powell’s case, he never said the judges directly threatened him. He made the payments based on his belief that they would stop sending juveniles to him and that they could ruin is civil practice.

“There had to be a threat. Maybe the jury believed Bob paid all this money, but did not buy it was done under such a threat to him to meet the element of extortion,” D’Andrea said.

Ciavarella will remain free pending sentencing, which has not been set. Flora said a pre-sentence investigation must be completed. He expects sentencing will take place within 60 days.

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Ciavarella Found Guilty on 12 of 39 Counts