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

Transcription

1 Case 309-cr EMK Document 181 Filed 02/03/11 Page 1 of 1 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 MOTION IN LIMINE REGARDING STATEMENTS OF A.U.S.A. GORDON ZUBROD MADE AT PLEA HEARING OF ROBERT MIRACLE Defendant, Mark A. Ciavarella, Jr., through undersigned counsel, requests this Court to admit as admissions statements A.U.S.A. Gordon Zubrod made at the plea hearing of Robert Mericle held on September 2, 2009 at page 17, lines These statements are statements of fact by a party(government) and are directly inconsistent with the Government s position in this case that the money paid by Mericle was a bribe or kickback. Respectfully submitted, WILLIAM RUZZO, ESQUIRE /s/ AL FLORA, JR., ESQUIRE /s/ Counsel for Defendant

2 Case 309-cr EMK Document 183 Filed 02/03/11 Page 1 of 3 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 MOTION IN LIMINE REGARDING CERTAIN CASES HEARD BY MARK CIAVARELLA Defendant, Mark A. Ciavarella, Jr., through undersigned counsel requests that this Court deny admission into evidence matters relating to his conduct in following cases heard by Mark Ciavarella in his capacity as a judge in Luzerne County Court of Common Pleas as follows Slusser v. Laputka No C of 2000; Mericle Oak Street, LLC v. Shopping Center Developers, LLC, No C of 2006; Mericle Properties v. Alliance Fund Services, Inc., et al, No. 75-E of 2004; Mericle Development v. Preferred Development Corporation, No C of 2005; Frank Pollock and Theresa Pollock v. Mericle Development Corp., No C of 2001;

3 Case 309-cr EMK Document 183 Filed 02/03/11 Page 2 of 3 Wherefore, undersigned counsel respectfully requests that this Court deny admission into evidence matters relating to the Defendant s conduct in the above-referenced cases. Respectfully submitted, WILLIAM RUZZO, ESQUIRE /s/ AL FLORA, JR., ESQUIRE /s/ IN THE UNITED STATES DISTRICT COURT

4 Case 309-cr EMK Document 183 Filed 02/03/11 Page 3 of 3 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA vs. 3CR MARK A. CIAVARELLA, JR. (Kosik, J.) Defendants ORDER AND NOW this day of, 2011, in accord with the enclosed Motion, it is hereby ORDERED and DECREED that admission of evidence relating to the Defendant s conduct of the following cases heard by Mark Ciavarella in his capacity as a judge in Luzerne County Court of Common Pleas be DENIED. Slusser v. Laputka, No C of 2000; Mericle Oak Street, LLC v. Shopping Center Developers, LLC, No C of 2006; Mericle Properties v. Alliance Fund Services, Inc., et al, No. 75-E of 2004; Mericle Development v. Preferred Development Corporation, No C of 2005; and Frank Pollock and Theresa Pollock v. Mericle Development Corp., No C of KOSIK J.

5 Case 309-cr EMK Document 185 Filed 02/03/11 Page 1 of 2 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 MOTION IN LIMINE REGARDING MONEY LAUNDERING EXPERT Defendant Mark Ciavarella through undersigned counsel moves this Court to limit government s money-laundering expert s testimony by directing government counsel to refrain from eliciting testimony as to the mental state of the Defendant including any design by the Defendant to conceal laundering or the source of funds. Respectfully submitted, WILLIAM RUZZO, ESQUIRE /s/ AL FLORA, JR., ESQUIRE /s/

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7 Case 309-cr EMK Document 182 Filed 02/03/11 Page 1 of 4 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 MOTION IN LIMINE REGARDING STATEMENTS OF A.U.S.A. GORDON ZUBROD MADE AT PLEA HEARING OF ROBERT MIRACLE Federal Rule of Evidence 801(d)(2)(A) allows an admission to be offered against a party. The rule simply requires that the admission at issue be contrary to a party s position at trial. Butler v. Southern Pacific Co., 431 F.2d nn, 80 (5 th Cir. 1970). The admissibility of statements of a party opponent is not grounded in the presumed trustworthiness of the statements, but on a kind of estoppel or waiver theory that a party should be entitled to rely on his opponents statements. U.S. v. DiDomenico, 78 F.3d 294, 303(7 th Cir. 1996). U.S. v. Delgado, 903 F.2d 1495 (11 th Cir. 1995) is instructive. There the defendant sought to admit evidence in the form of a plea agreement and colloquy between a co-defendant and the government dismissing charges of

8 Case 309-cr EMK Document 182 Filed 02/03/11 Page 2 of 4 the co-defendant. Delgado argued that dismissing the charge meant the government admitted he, (Delgado), was innocent as well as his codefendant. The circuit court held that the district court s exclusion of the evidence was proper. However, the circuit court excluded the evidence not because the Rule 801(d)(2)(A) did not apply, but because the dropping of charges in exchange for a guilty plea does not mean the government thinks the beneficiary of the deal is innocent. The Delgado court examined the colloquy at issue and found nothing that could constitute an admission that Ajami, Delguado s co-defendant was not guilty on a conspiracy count. Therefore, it affirmed the district court s refusal to admit the plea agreement colloquy. Id at In our case the Mericle plea hearing statements made by AUSA Zubrod speaking on behalf of the government constitutes an admission that directly contradicts one of government s theories in this case, i.e. that Robert Mericle paid a bribe/kickback to the defendant. The statements at issue were made in an unequivocal manner by one acting as an attorney for a party, and they referred to a matter within the scope of the attorney s (Mr. Zubrod) authority. The statements were made in open court and are as follows Mr. Zubrod All right. This is not a kickback or a bribe in any. sense. It is common practice. It is not a legal (sic) quid pro quo.

9 Case 309-cr EMK Document 182 Filed 02/03/11 Page 3 of 4 It is a common practice between businessmen in real estate transactions. Mr. Mericle simply paid a finder (sic) fee to the judges in accordance with standard practice. To him, his payment of the fee was what he had done hundreds of time before and was not related to the office that the judges held or any decisions by the judges. He had contracted with a private party. Mr. Powell, to build a business--a private business. The judges steered Mr. Powell to Mr. Mericle because he can build the building cheaper than anyone else. In fact, he was the lowest bidder. That is why Mr. Powell chose him. Plea transcript of Robert Mericle dated September 2, 2009 at page 17, lines (copy of hearing transcript attached) These circumstances mirror those present in U.S. v. Ojala, 544 F.2d 940 (6 th Cir. 1976). There the court of appeals affirmed the admission into evidence statements made by Defendant s attorney. Id at 945. The circumstances were that the defendant s attorney made unequivocal statements to a government agent, with the defendant present and the defendant made no objection to those statements. Likewise, Mr. Zubrod was authorized by the Government to make statements at the Mericle Plea hearing. Neither Mericle, his counsel nor anyone else present made any objection to these statements or take any action to further clarify the record. These statements were made in an unequivocal manner, by Zubrod who was acting as the Government attorney at the time and were made within the scope of his authority.

10 Case 309-cr EMK Document 182 Filed 02/03/11 Page 4 of 4 As stated in Blackledge v. Allison, 431 U.S. 63, (1977), representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. (emphasis added). For the reasons set forth in this memorandum, the court should allow the defendant to introduce the statements made by the Assistant U.S. Attorney at the plea hearing of Robert Mericle as admissions against the Government s interest. Respectfully submitted, WILLIAM RUZZO, ESQUIRE /s/ AL FLORA, JR., ESQUIRE /s/

11 Case 309-cr EMK Document 184 Filed 02/03/11 Page 1 of 3 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 DEFENDANT S BRIEF IN SUPPORT OF HIS MOTION IN LIMINE REGARDING CERTAIN CASES HEARD BY MARK CIAVARELLA The United States is seeking to admit statements that Mark Ciavarella made in the matter of Slusser v. Laputka, 6741-C of 2000 Luz. Co. Ct. Com. Pleas. The United States alleges that these statements concealed and denied a relationship between Robert Powell and Mr. Ciavarella. Additionally, the United States seeks to introduce evidence that Mr. Ciavarella engaged in discretionary decision making in civil matters involving Robert Mericle or his business interests. These cases are Mericle Oak Street, LLC v. Shopping Center Developers, LLC, No C of 2006; Mericle Properties v. Alliance Fund Services, Inc., et al, No. 75-E of 2004; Mericle Development v. Preferred Development Corporation, No C of 2005; and Frank Pollock and Theresa Pollock v. Mericle Development Corp., No C of 2001.

12 Case 309-cr EMK Document 184 Filed 02/03/11 Page 2 of 3 Mark Ciavarella contends that the prospective evidence is not relevant under F.R.E. 401 in that this evidence is not of any consequence to determining whether Mark Ciavarella took a bribe, gratuity, or kickback from Robert Mericle or extorted Robert Powell. Moreover, assuming the evidence is relevant the relevance is substantially outraged by the prejudice and confusion that this evidence would create. Additionally, the United States in its communication to undersigned counsel on January 24, 2011, indicated that we (meaning defense) may consider the proffered evidence 404(b). The inference the United States wishes the jury to draw is that Mr. Ciavarella was a person of bad character because he did not recuse himself from the referenced cases involving Robert Powell or Robert Miracle. Assuming this evidence is offered or admitted under Rule 404(b), its admission would be an abuse of discretion. This evidence does not prove motive, opportunity, intent, preparation or knowledge. The evidence goes to Mr. Ciavarella s use of discretion in his former capacity as a judge. The standard for recusal in Pennsylvania is that there is no need to find actual prejudice. Instead, the appearance of impropriety is sufficient to require recusal. In re Cunningham, 538 A.2d 473, 480 (Pa. 1998). A jurist is required to recuse his or herself even if he or she may not harbor an intent to show favor. id.

13 Case 309-cr EMK Document 184 Filed 02/03/11 Page 3 of 3 A juror hearing evidence that Mark Ciavarella, as a judge, did not recuse himself from certain cases will be left with the incorrect implication that Ciavarella did something nefarious in not recusing himself from the cases cited by the United States. Whether Mark Ciavarella recused himself is not relevant here. The Defendant is unaware of an allegation that Robert Mericle bribed Ciavarella to take any action in the cases we have cited or to convince Ciavarella to refuse recusal. Nor does the United States accuse Mark Ciavarella in the indictment of extorting Robert Powell to render a favorable decision in the Laputka matter. Respectfully submitted /s/ William Ruzzo WILLIAM RUZZO, ESQUIRE /s/ Al Flora AL FLORA, ESQUIRE

14 Case 309-cr EMK Document 186 Filed 02/03/11 Page 1 of 3 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 DEFENDANT S MOTION IN LIMINE REGARDING MONEY LAUNDERING EXPERT Federal Rule of Evidence 704(b) forbids an expert from testifying on the issue of whether the Defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. U.S. v. Combs, 369 F.3d 925, 940 (6 th Cir. 2004). Ultimate issues are for the trier of fact. U.S. v. Warshak, F.3d, 2010 WL (6 th Cir. 2010). In Warshak the government money-laundering expert testified that the defendant commingled funds and it was done with an intent to conceal their true nature. Additionally he testified that certain cash transactions were designed to conceal money laundering. Finally, the expert said, in his opinion multi-layered transactions were designed to conceal the source and

15 Case 309-cr EMK Document 186 Filed 02/03/11 Page 2 of 3 application of funds. This testimony was allowed in over the defense s rather ardent objections. Id. at 47. The Warshak Court held that Simpson s [the expert] statement clearly ran afoul of Rule 704(b). Expert s statements referencing intent to conceal and with respect to design implicate the issue of intent. See also U.S. v. Welley, 57 F.3d 1374, 1389 n.29 (5 th Cir. 1995) ( designed to conceal is forbidden by Rule 704(b). U.S. v. Watson, 260 F.3d 301 (3d Cir. 2001))condemning questions regarding purpose of a trip of Defendant). Based on the foregoing authority, Defendant through undersigned counsel requests this Court to grant the within Motion in Limine. Respectfully submitted, WILLIAM RUZZO, ESQUIRE /s/ AL FLORA, JR., ESQUIRE /s/

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