IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Transcription

1 Case 309-cr EMK Document 155 Filed 11/15/10 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR MARK A. CIAVARELLA, JR. (Kosik, J.) Defendants BRIEF IN SUPPORT OF MOTION OF DEFENDANT, MARK A CIAVARELLA, JR.S, MOTION TO DISMISS COUNTS OUTSIDE THE STATUTE OF LIMITATIONS Pursuant to L.R. 7.5, the Defendant Mark A. Ciavarella, Jr., by and through his counsel, hereby submits this brief in support of his motion to dismiss Counts 3,4,5,7,8,9,11,12,13,14,22,23,24,25,27,28,29 and 30 of the Indictment because the charges contained therein are outside the applicable statute of limitations. For the reasons stated herein, the Defendant respectfully requests that his Motion be granted and that Counts 3,4,5,7,8,9,11,12,13,14,22,23,24,25,27,28,29 and 30 of the Indictment be dismissed. I. PROCEDURAL HISTORY OF THE CASE AND STATEMENT OF FACTS On January 26, 2009, an Information was filed against the Defendants, Michael Conahan and Mark A. Ciavarella, Jr., charging them

2 Case 309-cr EMK Document 155 Filed 11/15/10 Page 2 of 5 with honest services wire fraud in violation of 18 U.S.C and 1346 and with conspiracy to file false tax returns in violation of 18 U.S.C (MDPA Docket #3CR-09-28; Doc. Entry 1). The filing of the Information was accompanied by the filing of plea agreements with a binding recommendations of sentence pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). (MDPA Docket #3CR-09-28; Doc. Entries 3 & 5). On July 31, 2009, this Honorable Court rejected the aforesaid plea agreements in a written Memorandum and Order. (MDPA Docket #3CR ; Doc. Entry 39). On August 24, 2009, the Defendants withdrew their guilty pleas and entered pleas of not guilty to the aforesaid Information. (Doc. Entries 44 and 45). On September 29, 2009, a federal grand jury sitting in this District returned a 48-Count Indictment against the Defendants. Concerning the following Counts, the specified criminal violation was alleged to have occurred on the indicated dates a). Count 3 18 U.S.C. 1343, 1346 (July 14, 2004); b). Count 7-18 U.S.C. 1343, 1346 (April, 2004); c). Count U.S.C. 666 (a)(1)(b) (February 15, 2004 to February 24, 2004); d). Count U.S.C. 666 (a)(1)(b) (April 30, 2004); e). Count U.S.C. 666 (a)(1)(b) (July 12, 2004); f). Count U.S.C. 1956(a)(1)(B)(i) (January 20, 2004 and January 20, 2004); g). Count 27 2

3 Case 309-cr EMK Document 155 Filed 11/15/10 Page 3 of 5 18 U.S.C. 1956(a)(1)(B)(i) (February 24, 2004); h). Count U.S.C. 1956(a)(1)(B)(i) (May 3, 2004) i).count U.S.C. 1956(a)(1)(B)(i) (July 12, 2004); j). Count U.S.C (February 15, 2004 to February 24, 2004); k). Count U.S.C (April 30, 2004); and l). Count U.S.C (July 12, 2004). On September 29, 2009 the U.S. filed the instant indictment against Defendant Ciavarella listing multiple counts. Undersigned counsel on behalf of Mr. Ciavarella on November 1, 2010 filed a motion requesting the court to dismiss counts 3, 4, 5, 9, 8, 9, 11, 12, 13, 14, 22, 23, 24, 25, 27, 28, 29 and 30 of the indictment. The undersigned filed this memorandum in support of that motion to dismiss. II. STATEMENT OF QUESTION INVOLVED WHETHER THE DEFENDANT S MOTION TO DISMISS COUNTS 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 22, 23, 24, 25, 27, 28, 29 AND 30 SHOULD BE GRANTED? III. ARGUMENT The applicable statute of limitations concerning the charges identified herein is five years 18 U.S.C. Section 3282(a). No non-capital offense may be charged unless the indictment is found or information is instituted within five years after such offense has been committed. Id. Paragraph 5 of Ciavarella s November 1, 2010 motion sets forth the applicable dates of the 3

4 Case 309-cr EMK Document 155 Filed 11/15/10 Page 4 of 5 alleged criminal conduct relied upon by the U.S. to institute the instant charges. The dates alleged are all beyond five years from the filing of the indictment here, September 30, The dates of the alleged misconduct are not in dispute; they are set forth in the indictment. The only questions remaining are whether the Defendant Ciavarella waived the statute of limitations and whether the superseding indictment substantially alters the charge. As set forth in Defendant Conahan s brief, which Defendant Ciavarella joined, supporting the original motions to dismiss, the Defendants did not waive the statute of limitations based on their signing the original plea agreement. That agreement provided that the Defendants waived the statute of limitation if the charges were set aside or vacated. See Paragraph 1 of the Plea Agreement and P5, n.1 of the joined brief. The Third Circuit has held that the statute of limitations may be tolled by a preceding indictment only if the superseding indictment does not substantially alter the charges. U.S. v. Birks, 656 F.Supp. 2d 454, 458 (D.N.J. 2009). Citing U.S. v. Friedman, 649 F.2d 199, 203 (3d Cir. 1981). In our case the charges have been substantially altered. We started with charges of honest services by information on January 29, 2009 ending with a 4

5 Case 309-cr EMK Document 155 Filed 11/15/10 Page 5 of 5 September 29, 2010 indictment of 39 counts superseding a September 9, 2009 indictment. The initial brief filed by counsel for Mr. Conahan and joined by Mr. Ciavarella sets forth substantial differences between the January 29, 2009 information and the indictment of September 9, U.S. v. Grady, 544 F.2d 598 (2d Cir. 1976) cited in the brief stands for the proposition that the original indictment will toll the statute of limitations only if the subsequent indictment does not broaden or substantially amend the charges. Id. at 602. In our case, as set forth in the original brief, the charges fit within the Grady prohibitions. The statute of limitation has not been waived; moreover, the original charges have been amended and broadened. The Defendant s motion should be granted. IV. CONCLUSION For the reasons set forth herein this Court should grant Defendant Ciavarella s motion to dismiss. Respectfully submitted, WILLIAM RUZZO, ESQUIRE /s/ AL FLORA, JR., ESQUIRE /s/ 5