Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : NO. 3:CR-09-000272 vs. : : MARK A. CIAVARELLA, JR. : (JUDGE KOSIK) BRIEF IN SUPPORT OF BRADY MOTION I. PROCEDURAL HISTORY OF THE CASE On September 29, 2010, the Government filed a superseding Indictment charging the defendant with Racketeering, 18 U.S.C. 1962 (c), Racketeering Conspiracy, 18 U.S.C. 1962 (d), four counts of Honest Services Wire Fraud, 18 U.S.C. 1343, 1346 and 2), four counts of Honest Services Mail Fraud, 18 U.S.C. 1341, 1346 and 2), ten counts of Corrupt Receipt of Bribe/Reward for Official Action, 18 U.S.C. 666(a)(1)(B), Money Laundering Conspiracy, 18 U.S.C. 1956(h), five counts of Money Laundering, 18 U.S.C. 1956 (a)(1)(b)(i), eight counts of Extortion under Color of Official Right, 18 U.S.C. 1951, Conspiracy to Defraud the United States, 18 U.S.C. 371, and four counts of Subscribing and Filing a Materially False Tax Return, 18 U.S.C. 7206 (1). Document #134. Thereafter, the defendant waived arraignment and entered a plea of not guilty to the charges contained in the Indictment. Document #140. On October 20, this court entered an order granting the defendant an extension of time to file pre-trial motions to October 31, 2010. Document #144. 1
Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 2 of 8 The defendant filed four timely pretrial motions which are now pending before this court for disposition. These motions are: to Dismiss certain counts based upon the Statute of Limitations, Document #149, to Compel Disclosure of Brady Material, Document#150, to Dismiss Honest Services related Counts, Document #151, and to Transfer Venue, Document #152. 1 This brief is filed in support of defendant s Brady motion. II. STATEMENT OF FACTS The underlying factual basis of the Indictment is that Ciavarella, along with Michael T. Conahan, breached his fiduciary duties as an elected state court judge by accepting bribes and kickbacks from the builder and the owner of two juvenile detention facilities in exchange for agreeing to use these facilities to detain juveniles charged with delinquent acts. Robert Powell is the owner identified as Participant #1 and Robert Mericle is the builder identified as Participant #2 in the Indictment. Conahan previously entered a plea of guilty to a Rico Conspiracy count under a prior Indictment on July 23, 2010. III. STATEMENT OF QUESTIONS INVOLVED 1. Whether this Court should order the Government to disclose all exculpatory 1 The defendant had also given notice to the Court that he did not abandon claims set forth in prior pretrial motions or those in which he joined with the co-defendant Conahan and which had been left undecided. The defendant also renewed his request for this Court s recusal based upon those reasons previously provided. Document #153. This Court again denied recusal and granted in part and denied in part the prior outstanding motions. Document #154 2
Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 3 of 8 information in its possession received from Robert Mericle, Robert Powell and Sandra Brulo, including their written or substantially verbatim oral statements and their grand jury testimony? IV. ARGUMENT Brady requires the Government to disclose materially exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963); U.S. v. D Elia, 2007 WL245847 (M.D.Pa. 2007). Unlike impeachment evidence which does not usually require substantial advance time to prepare for its effective use, exculpatory evidence may require significant pre-trial investigation. U.S. v. Beckford, 962 F.Supp. 780, 789 (E.D. Va. 1997); U.S. v. Ridings, 931 F.2d 888, 1991 WL65538 (4th Cir.). Statements made by a witness in the possession of the Government which are exculpatory are subject to early production under Brady despite any Government assertion that such disclosure would violate the Jencks Act, 18 U.S.C. 3500. Compliance with the statutory requirements of Jencks does not satisfy Brady. U.S. v. Starusko, 729 F.2d 256 (3rd Cir. 1984). A Federal District Court may dictate by court order when Brady material must be disclosed. Id. The Government charges that the defendant accepted over 2 million dollars in bribes/kickbacks from Robert Mericle, who was the builder of the juvenile detention facilities owned by Powell. See Racketeering Acts 1-3, pages 12-16 of Document #134. Despite this allegation, the Government has in its possession 3
Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 4 of 8 evidence from Mericle which is exculpatory under Brady, i.e. that the money which Mericle paid to the defendant was neither a kickback nor bribe. The Government s possession of this exculpatory evidence is borne out through the following statement made by AUSA Gordon Zubrod at the plea hearing of Robert Mericle: This is not a kickback or a bribe in any sense. It is common practice. It is not a legal quid pro quo Mr. Mericle simply paid a finder s fee to the judges in accordance with standard practice. To him, his payment of the fee was what he had done hundreds of times before and was not related to the office that the judges held or any decisions by the judges Exhibit 1-Tr. of Mericle Plea Hearing, pp.17-19 attached to Brady Motion. Brady mandates that the Government immediately turn over to the defendant all evidence in its possession, including any statements of Robert Mericle, showing that the money which he paid to the defendant was neither a bribe nor kickback and was not related to the office that the defendant held or any decision made by him as a judge. The Government further alleges that Powell paid over $700,000.00 as a quid pro quo to the defendant who detained juveniles at the facilities owned by Powell. Exhibit 1-Tr. of Mericle Plea hearing, p. 19; Document #134, parag. 23, 25, 26. The Government, however, has in its possession evidence from Powell which is exculpatory under Brady, i.e. that the money which Powell paid to the defendant was neither a kickback nor bribe. 4
Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 5 of 8 The following exchange, to which AUSA Gordon Zubrod gave the Government s imprimatur, occurred between this Court and counsel for Powell at Powell s plea hearing on July 1, 2009: THE COURT: What did they expect from the judges? What were the judges to do for these payments? MR. SHEPPARD: Well, your honor, there was--there was no quid pro quo per se. That s why the crime was honest services fraud ********************************** THE COURT: What was the felony that he was aware of that they were committing? MR. SHEPPARD: Mr. Powell was aware that the judges were not disclosing and were, in fact, disguising these payments in terms of their obligations to report to the Commonwealth and the citizens of Luzerne County Exhibit 2-Excerpts of Tr. of Powell Plea hearing, pp. 20-21, attached to Brady Motion. The Indictment also alleges that Powell paid some of the money to Conahan and the defendant in cash. However, the Government, in its June 9, 2009 news release posted on its website, states that Powell transferred tens of thousands of dollars in cash to Michael Conahan, thus excluding the defendant as a recipient. Exhibit 4 attached to Brady Motion. Brady mandates that the Government immediately turn over to the defendant all evidence in its possession, including any statements and financial records of Robert Powell, showing that any money Powell paid to the defendant was not a quid pro quo and that the defendant did not receive any cash. 5
Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 6 of 8 The Government alleges, beginning at paragraph 80 of the Indictment, that as part of the scheme and artifice to defraud, that, on a number of occasions, accused juvenile offenders were ordered detained by the defendant even when Juvenile Probation Officers did not recommend detention During the period in which this scheme to defraud is alleged to have occurred, Sandra Brulo was the Chief Juvenile Probation Officer and/or Deputy Director of Forensic Services for the Luzerne County Juvenile Probation Office. Brulo was responsible for making the treatment and rehabilitation recommendations on behalf of her office to the Luzerne County Juvenile Court relating to juvenile offenders who appeared before the court. On March 26, 2009 Brulo entered a guilty plea in the U.S. Middle District Court for Pa. to Obstruction of Justice. Brulo admitted to creating a fabricated recommendation with respect to a juvenile who appeared before the Luzerne County Juvenile Court in September of 2007, and backdating the fabricated recommendation to September 4, 2007 materially changing her original recommendation of detention to a recommendation of probation. The Government has exculpatory evidence in its possession that the defendant, in fact, followed the recommendations of juvenile probation regarding placement and yet has failed to disclose this evidence to the defendant. Possession of this exculpatory evidence is borne out by a press release of Office of United States 6
Case 3:09-cr-00272-EMK Document 158 Filed 11/15/10 Page 7 of 8 Attorney for the Middle District of Pa. regarding Brulo. The release states that Brulo s recommendations were relied upon by the Court in the determination of an adjudicated delinquent offender s placement in a treatment and rehabilitation program Exhibit 5 attached to Brady Motion. V. CONCLUSION This Court should enter an order directing the Government to immediately disclose to the defendant the following exculpatory evidence, including statements made by Powell, Mericle and Brulo: 1. Evidence showing that the money paid by Mericle was neither a bribe nor kickback nor related to the office held by the defendant or any decision made by him as a judge. 2. Evidence showing that the money paid by Powell was not a quid pro quo. 3. Evidence, including Powell s financial records, showing that the defendant did not receive any cash from Powell. 4. Evidence showing that the defendant followed the recommendations of juvenile probation officers in detaining juveniles. /s/ Al Flora Jr. Al Flora, Jr., Esq. /s/ William Ruzzo William Ruzzo, Esq. Counsel for Defendant 7
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