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November 10, 2011

"US judge: Prosecutors overcharged ex-Pa. Sen. Fumo in 137-count corruption case" ... UPDATE: Fumo resentenced to 61 months

The title of this post is the headline of this interesting AP report on developments during day two of the resentencing hearing for a corrupt state politician. Here are excerpts:

A federal judge re-sentencing Vincent Fumo says the powerful former Pennsylvania senator was overcharged in the sprawling corruption case.  Senior U.S. District Judge Ronald Buckwalter says Thursday he thinks federal prosecutors violated their own policy manual in filing 137 counts against Fumo.

Fumo was convicted of all of them, including fraud, obstruction and tax counts.  The jury found he defrauded the senate and two charities of millions.

The Philadelphia Democrat faced about 20 years under federal guidelines at his 2009 sentencing, but Buckwalter sentenced Fumo to 4-1/2 years.  A federal appeals court threw out the sentence.

Defense lawyers are now asking for a break based on the 68-year-old Fumo's age and health problems.  Prosecutors say he is preparing to leave prison and exact revenge — and become a statehouse lobbyist.

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UPDATE: As detailed in this follow-up AP piece, Fumo now "has been re-sentenced to 61 months in prison in a sprawling corruption case, up from 55 months."

November 10, 2011 at 01:07 PM | Permalink


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And is it really a district court judge's place to question charging decisions so long as those decisions are supported by probable cause (as determined by a grand jury) and the prosecutor has a good faith belief that the charges can be proven beyond reasonable doubt at trial (a belief that is amply borne out in this case as convictions were secured), and so far as I can tell there is no hint that the prosecution acted in anything but a professional manner (unlike, say the Ted Stevens case). Prosecutorial guidance is just that, guidance, and is subject to review or outright replacement in appropriate circumstances. I almost have to wonder what dirt Fumo has on Buckwalter.

Posted by: Soronel Haetir | Nov 10, 2011 1:55:01 PM

Soronel --

With the exception of your last sentence, I agree 100%. The executive branch has exclusive authority to decide what charges are brought. If Buckwalter wants to resign and apply for a job as US Attorney, fine. Until then, let's see if he can do a better job with the mission actually assigned to him. His bosses on CA3 didn't think much of his first try, so now he just wants to blame someone else. Maybe he should blame the jury for convicting, too.

Posted by: Bill Otis | Nov 10, 2011 2:48:18 PM

Jurists in big city federal district courts question government charging decisions all the time. They have long been critical of federal task forces that sully their docket with unwanted "street crime" offenses.

The simple truth is that Judge Buckwalter, like many jurists, is not comfortable wearing the "black hat."

Posted by: mjs | Nov 10, 2011 5:01:43 PM

Bill, prosecutors regularly exercise their discretion by taking into account ways in which district court judges use their discretion. Is that inappropriate? If not, then what's the problem with district court judges using their discretion by taking into account how prosecutors use their discretion.

Posted by: anon | Nov 11, 2011 12:18:45 PM

And now it will be interesting to see if the prosecution appeals the new sentence of 61 months (6 months longer than the original, and that apparently based on disrespect toward the jury rather than the new guidelines calculation). And if the do appeal whether they have any success.

Like I have said before, I do think this would be an excellent case for SCOTUS to examine how much scrutiny a sentencing decision is to receive. But I also suspect that they are reasonably happy with the growing status quo of no scrutiny at all so long as the proper procedure was followed.

Posted by: Soronel Haetir | Nov 11, 2011 12:37:32 PM

Soronel --

I would be shocked if the government did not appeal, and its chances of success are 90%-95%. This is as close as you'll see to the district court spitting in the eye of the court of appeals. Courts of appeals tend not to like that, or let district judges get away with it, even in the age of Booker. You can get away with a lot, but not this. I also think that, when the government appeals, there's about a two-thirds chance the Third Circuit will remand to a different judge.

Posted by: Bill Otis | Nov 11, 2011 8:49:30 PM

personaly i think this whole thing is a crime and probably completley UNCONSTUTIONAL! just how many damn times does the state get to resentence someone! here i thought a sentence was a SENTENCE!

Posted by: rodsmith | Nov 12, 2011 1:30:53 PM

if the courts and govt have made the sentenceing sytem to scrwed up it takes a supercomputer to figure out WHAT any individual sentence is TIME TO SCRAP IT AND START OVER!

Posted by: rodsmith | Nov 12, 2011 1:31:44 PM

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