Feds want court to take another look at Vince Fumo's sentence

Posted: July 09, 2010

Federal prosecutors alleged in a 281-page brief submitted yesterday to the U.S. Court of Appeals in Philadelphia that a federal judge made "numerous errors" when he handed down "unduly lenient" sentences for former state Sen. Vince Fumo and onetime aide Ruth Arnao.

The feds want the appellate court to send the prison sentences and restitution orders back to district court for resentencing.

Fumo, 67, and Arnao, 53, were convicted in March 2009 of conspiracy, fraud, obstruction of justice and related offenses, and sentenced to prison terms of 55 months, and a year and a day, respectively.

U.S. District Judge Ronald L. Buckwalter also ordered Fumo and Arnao to pay almost $2.4 million and $800,000, respectively, in restitution.

In the appeal submitted to the U.S. Court of Appeals for the Third Circuit, Assistant U.S. Attorneys Robert Zauzmer and John Pease cited "numerous procedural errors" allegedly made by Buckwalter, including:

* Buckwalter "miscalculated" the advisory guideline ranges for both defendants by erroneously figuring the fraud loss of more than $2 million. Prosecutors said the loss was "at least double" what the judge determined. They said, for example, he had not accounted for almost $1 million in public funds paid to eight Senate employees of Fumo for mostly personal and political work.

* Buckwalter erred at Fumo's sentencing by not stating or considering a final guideline range. Although he announced a guideline range of 11 to 14 years, prosecutors cited a posttrial memorandum by Buckwalter in which he said he "never enunciated" a guideline level from which he departed at sentencing. (Judges are required by law to determine an applicable advisory guideline range as a first step in creating a sentence.)

* Buckwalter erred at Fumo's sentencing by not distinguishing between a departure and variance based on Fumo's "extraordinary" public service.

* The judge failed to consider "numerous compelling reasons" prosecutors cited at sentencing to justify a longer sentence for Fumo.

For example, prosecutors argued in their appeal that they had identified 27 specific areas of false testimony by Fumo at trial but that Buckwalter had not addressed them at all during sentencing.

* Buckwalter failed to state a justification for the leniency granted Arnao, who faced a guideline range of 70 to 87 months. Prosecutors said the sentence was "extremely disparate" to sentences imposed on similarly situated defendants. (Co-defendant Leonard Luchko got a 30-month sentence from U.S. District Judge William H. Yohn Jr. for conspiracy and obstruction.)

Prosecutors had recommended sentences of 15 years for Fumo and at least five years for Arnao.

Fumo's sentence unleashed a deluge of critical letters, phone calls and e-mails to Buckwalter's chambers and the U.S. Attorney's Office.

Prosecutors here rarely appeal sentences and did not appeal any in fiscal year 2009, according to U.S. Sentencing Commission data.

There were 57 resentencings or other modifications of sentences in the Eastern District of Pennsylvania last year, 15 of which were the result of remand by the Third Circuit.

Defense attorneys, who will have 60 days to respond to the feds' appeal, weren't impressed with the feds' massive tome. The defendants are also cross-appealing their convictions.

Peter Goldberger, one of Fumo's appellate attorneys, said: "[The prosecutors] mention a long list of what they say are procedural errors the judge made, but they never make the legal argument that [Fumo's] sentence was unreasonable. Of course, we don't think the sentence was unreasonable."

Patrick Egan, Arnao's attorney, said that he believed Buckwalter had been "completely appropriate" in the way he sentenced Arnao and that the sentence would be upheld.

But it may be a year or more before the Third Circuit renders a decision in the case.

Meanwhile, Arnao is to be released from a federal halfway house in Philadelphia on July 14.

Fumo is incarcerated at a federal prison in Kentucky with a projected release date of Aug. 26, 2013.