Wednesday, September 4, 2013
Vince Fumo may have already been convicted and done his time, but that hasn't stopped the former state senator from taking his case to the U.S. Supreme Court.
On Tuesday, Peter Goldberger, an appeals lawyer representing Fumo, filed a 42-page petition for a writ of certiorari with the Supreme Court, requesting that it review lower court rulings involving Fumo.
The petition has three goals. First, Goldberger seeks to overturn Fumo's 2009 conviction on 137 counts because the trial judge, U.S. District Court Judge Ronald L. Buckwalter, refused to hold a hearing to determine whether the jurors who convicted Fumo had been exposed to prejudicial information.
Second, Goldberger asks the Supreme Court to return $3 million in restitution to Fumo, contending that the restitution award by Judge Buckwalter violated Fumo's constitutional rights. Finally, Goldberger contends that Judge Buckwalter didn't have the authority to make Fumo pay $366,279 in interest, as part of that restitution award of $3.8 million.
The petition to the U.S. Supreme Court is the legal equivalent of a Hail Mary. The nation's highest court gets about 8,000 such petitions every year for writs of certiorari, and every year, the court agrees to hear about 80 of these cases.
The 70-year-old Fumo was released last month after serving four years in a federal prison in Ashland, Kentucky. His petition to the Supreme Court is the latest legal challenge to Judge Buckwalter, widely criticized for leniency when he re-sentenced Fumo in 2011 to 61 months in jail and ordered him to pay $3.8 million in fines and restitution. (Prosecutors in the case have already successfully challenged Judge Buckwalter's original sentence, as well as his amended order for restitution).
The petition to the Supreme Court also comes at a time when Fumo is expected to return to Judge Buckwalter's courtroom in the near future for two ongoing federal cases. In the first case, the prosecutors who put Fumo away are seeking to extract an additional $800,000 in restitution from him. In the second case, Fumo is suing the IRS, which recently hit him with a bill for $3 million. In his lawsuit against the IRS, Fumo alleges that the prosecutors who put him away have conspired with the IRS to seek revenge on him.
The tainted jury issue was raised unsuccessfully on appeal; it directly involves this reporter. Back in August 2009, I wrote a story for Philadelphia magazine, "Power: Fumo, After The Fall," that interviewed the jurors who convicted the former state senator on 137 counts of fraud, conspiracy, obstruction of justice and filing a false tax return.
In the story, Juror No. 1 revealed that her co-workers at Verizon had told her two prejudicial things that Judge Buckwalter didn't want the jury to know. Prejudicial item No. 1: Fumo had previously been convicted in 1980 for placing "ghost" employees on the state payroll, a conviction subsequently tossed by a judge. Prejudicial item No. 2: John Carter, former president of the Independence Seaport Museum, and the guy who gave Fumo permission to take free yacht trips, was doing time for fraud.
Based on those disclosures, Fumo's defense lawyers petitioned Judge Buckwalter to hold an evidentiary hearing. The defense wanted to determine "whether jury deliberations were tainted by the jury's exposure during trial to pervasive media reports of excluded evidence," as Goldberger recounts in his petition.
Judge Buckwalter refused to hold the hearing; he also turned down a defense request for a new trial. Fumo's lawyers appealed, and the Third Circuit Court of Appeals ruled that Fumo was not entitled to the evidentiary hearing.
In the petition to the Supreme Court, Goldberger recounts how the defense in the Fumo case was beset by an onslaught of negative publicity.
"In addition to coverage in traditional print and broadcast media, there was widespread coverage by new media, including 'live blogging' direct from the courtroom on the evidence and proceedings, which then appeared on various websites in real time," Goldberger wrote. "The defense repeatedly voiced concerns that given the extensive coverage, the jury might be exposed" to prejudicial information about the Fumo case that the judge didn't want the jury to know.
"The district court, however, infrequently instructed the jury regarding exposure to extraneous influences, and refused to question the jury about potential exposure to such influences," the Supreme Court petition states. That included one juror who, on March 15, 2009, after eight days of deliberation, posted comments about the status of jury deliberations on his Facebook page and Twitter feed.
Fumo's lawyers filed motions that sought to interview the juror and disqualify him. In response, Judge Buckwalter interviewed the juror in chambers. Buckwalter ruled that although the juror had been exposed to media coverage, "there was no prejudice to Fumo."
In the Philadelphia magazine story, the jury foreman told me that on the day the Facebook juror was to be questioned, she and every other juror learned about the defense challenge from radio and TV news reports. Even though the judge had explicitly warned the jurors not to pay attention to media reports on the trial. The judge, however, allowed the tweeting juror to stay on the panel. The jury came back later that day and convicted Fumo on all 137 counts.
Because of Judge Buckwalter's actions, Fumo "was denied a hearing into substantial suggestions of jury misconduct and taint," Goldberger writes. The Third Circuit Court of Appeals, in upholding Judge Buckwalter's decision, relied on prior case law that said that "a post-trial motion alleging jury exposure to extraneous and potentially prejudicial information" -- if nothing more could be proven -- "would be insufficient to grant relief."
"That (Third Circuit) rule is insufficient to protect the rights of federal criminal defendants to a fair trial by an impartial jury," Goldberger argues. The ruling of the Third Circuit "disregards clear precedent" of the Supreme Court and "conflicts with similar (and even with less egregious) cases in many of the other circuits," Goldberger writes.
In the Second Circuit, which governs cases in the New York area, based on United States v. Vitale, "A trial court is required to hold a post-trial jury hearing when reasonable grounds for investigation exist" of evidence of "impropriety ... which could have prejudiced the trial of a defendant."
"The 'better part of valor,' " Goldberger writes, quoting from the Vitale decision, "would have been to hold an evidentiary hearing. While it is likely that nothing would have come of such a hearing," the Second Circuit wrote about Vitale's case, "the lack of one leaves too much room for more surprises to occur."
In the Seventh District, which sets precedent in Chicago and surrounding states, the court held in United States v. Bishawi that "a hearing in which all interested parties are permitted to participate is not only proper but necessary," Goldberger writes. "A court faced with a post-verdict question of jury prejudice is obligated to ascertain and examine these basic facts ... To hold otherwise would undermine the integrity of the jury process."
The Supreme Court also held in Wellons v. Hall that "the remedy for allegations of juror partiality is a hearing" so the defendant would have the opportunity and burden "to prove actual bias," Goldberger writes.
In Marshall v. United States, information about a prior conviction reached the jury, despite the trial court's rulings to exclude it. This was "information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence," Goldberger writes, quoting from that 1959 decision. "The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts." In Marshall, the Supreme Court reversed the conviction and ordered a new trial," Goldberger notes.
In his petition to the Supreme Court, Goldberger also writes that the $3 million restitution award against Fumo "was not authorized by the convictions alone." The "amount of victim loss is a fact neither alleged in the indictment nor found by the jury beyond a reasonable doubt." On that basis, Goldberger contends the penalty against Fumo violated the Sixth Amendment right to trial by an impartial jury.
"The indictment in this case did not charge that (Fumo) caused the financial losses he was ordered at sentencing to pay to the state Senate," the nonprofit Citizens Alliance for Better Neighborhoods, and the Independence Seaport Museum, Goldberger writes. The jury also didn't have to find any loss in funds to convict Fumo of fraud, Goldberger writes.
But the decision in the Fumo case is inconsistent with Supreme Court case law in the past dozen years, Goldberger argues. The maximum sentence must be based on either a jury verdict or an admission by the defendant, Goldberger argues. In his petition, Goldberger quotes from another recent Supreme Court case concerning fines, Southern Union Co. v. United States: "Thus, while judges may exercise discretion in sentencing, they may not inflict punishment that the jury's verdict alone does not allow."
Regarding the $300,000 in prejudgment interest, Goldberger writes that the crime "did not deprive a victim of an interest-bearing asset." So Goldberger argues that Judge Buckwalter did not have the authority to include the interest in the restitution award.
The Supreme Court agrees, Goldberger writes. "As early as 1921, in a unanimous opinion by Justice Brandeis," the Supreme Court held "it was plain error to impose prejudgment interest on the amount of a criminal fine." In a 1947 case, Rodgers v. United States, the Supreme Court decided "a criminal penalty does not bear interest," Goldberger writes, unless explicitly required by a statute. No federal statute allows prejudgement interest to be added to restitution, the petition notes.
In the Fumo case, no evidence was ever presented that any of the losses that Fumo was ordered to make restitution for "represented a taking of funds that were, or were intended to be, held by any victim for the production of income," Goldberger argues. The loss to the state Senate was for excessive salaries that Fumo approved for his official staff. Regarding the Citizens Alliance, the biggest expenditure involved capital improvements to a building owned by the alliance.
"If prejudgment interest can ever be awarded as restitution," Goldberger writes, "It is only in an exceptional, defined sub-category of cases; it is not the rule. The present case does not fall into that class. The petition (for certiorari) should be granted."
A spokesperson for the U.S. Attorney's Office, Patricia Hartman, replied via email, "Our response will be filed with the court."
After the government has an opportunity to respond, the Supreme Court is expected to announce by the end of the year whether to accept Fumo's case for full review of any or all of the issues raised in the petition. It's still a long shot, but if the Supreme Court does take the case, a decision would be expected in the spring.