For a third time in the past five years, the case of the United States of America v. Vincent J. Fumo may be headed back to the courtroom of U.S. District Court Judge Ronald L. Buckwalter.
Buckwalter is the judge who back in 2009 originally sentenced Fumo to 55 months in jail and ordered him to pay $2.7 million in fines and restitution after a federal jury convicted the former state senator on 137 counts of fraud, conspiracy and obstruction of justice.
But then the government filed two successful appeals with the Third Circuit of the U.S. Court of Appeals.
First, the government successfully appealed Judge Buckwalter's original jail sentence of 55 months, and the Third Circuit sent Fumo back to Judge Buckwalter for re-sentencing. On Nov. 14, 2011, Judge Buckwalter added 6 months to Fumo's jail sentence, and boosted the amount of restitution Fumo had to pay by $1.1 million.
All told, Fumo was sent to jail for 61 months, and ordered to pay the government $3.8 million.
Next, the feds appealed Judge Buckwalter's restitution order, seeking to extract from Fumo an additional $783,284. In February, that second appeal to a three-judge panel of Third Circuit Court of Appeals judges was also successful.
This time it was Fumo's chance to protest, and he lost.
In a decision reached this week, the Third Circuit judges dealt Fumo yet another defeat, denying a request from the defendant's lawyers to grant a rehearing before all 15 Third Circuit appeals judges on the matter of restitution.
So unless Fumo's defense lawyers petition the state Supreme Court for a hearing, and have a sudden reversal of fortune, the issue of how much more Fumo should pay in restitution will probably be decided at a future hearing presided over by Judge Buckwalter.
In a May 6 decision, Senior Judge Robert E. Cowen wrote that Fumo's request for a rehearing on restitution had been submitted to all 15 judges on the Third Circuit Court of Appeals, and that a majority of the judges had voted against the request.
The exact vote was not divulged. Instead, Cowen, writing on behalf of all 15 appeals court judges, wrote that the defense request for a rehearing "is hereby denied."
Fumo turned 70 on Wednesday at the federal prison in Ashland, Kentucky, where he has been held since 2009. Fumo's appeals lawyer, Peter Goldberger, declined comment on what his client's next move would be.
In their original decision on restitution, the Third Circuit appeals court judges made it clear that they wanted Judge Buckwalter to raise the amount of restitution imposed on Fumo, and to decrease the amount of restitution imposed on Ruth Arnao, Fumo's co-defendant.
At issue is $1.5 million stolen from the Citizens Alliance for Better Neighborhoods [CABN], and how much Fumo and Arnao should each have to pay back to the government.
The appeals court judges wrote that that Judge Buckwalter would be abusing his discretion "yet again" if he failed to "order Fumo to pay all of the Citizens Alliance restitution" or "at the very least ... apportion Fumo's share of the restitution in such a way as to reflect the clearly disproportionate culpability and economic circumstances of the two co-defendants."
According to pre-senence reports, Fumo was worth $11.3 million, and Arnao, the former executive director of CABN, $1.5 million.
"Although clearly not destitute," Cowen said at the time, "Arnao was obviously much less well off than her multimillionaire co-defendant. He [Fumo] clearly possesses the means to pay the remaining share of the Citizens Alliance apportioned to Arnao by the district court" and could "do so immediately."
Fumo's lawyers, however, say Fumo is no longer worth $11.3 million, after paying $3.8 million in restitution, and shelling out nearly $4 million in legal fees to various attorneys over the years. In addition, on March 21, the IRS served Fumo in prison with a bill for $2.9 million.