, In The Supreme Court of fhe United States

4

Mark A. Ciavarella, Jr., Petitione~,

v. United Srates of America.,

Respondent ~- 4

On Petition for n Writ of Certiorari to the United States Court of Appeals

for the Third Circuit +

PETITION FOR WRIT OF CERTIORARI 4

Albert J. Flora, Jr., Esq. Counsel of Record

33 West South Street Wilkes-Bare, Pennsylvania 18701 570-825-6592 Email: afloralaw@ptd.net

William Ruzzo, Esq. 590 Rutter Avenue Kingsion, Pennsylvania 18704 570-288-7799

QKESTHCNS PRESENTED

Federal D i h c t Court Judge Edwin Kosik refused to recuse himself for writing letters to

the public, while this criminal case was pending before him, expressing his personal opinion

about Ciavarella and the merits of the case. Judge Kosik did not disclose to the parties these

letters until shortly before szntencing, well-after he rejected a plea agreement providing for an 87

month sentence and presided over Ciavarella's trial and conviction on 12 of 39 counts. He

sentenced Ciavarella to 28 years imprisonment. Judge Kosik had also denied a recusal motion,

and a request that the motion be referred to a diierent judge for disposition, that was based upon

media reports that he made extra-judicial statements about the merits of the case to a news

reporter. The question presented is as follows:

1. Whether Judge Kosik's secretive extra-judicial statements to non-parties expressing his

personal opinion about Ciavarella and the merits of the case pending before him created an

"appearance of impropriety" warranting recusal under 28 U.S.C. 5 455(a), even if the statements

were not derived from an "extra-judicial source"; and whether, inruling on a recusal motion

under Section 455(a), due process required Judge Kosik to refer the motion to a different judge

for disposition ifthere was a factual dispute regading his extra-judicial conduct?

11.

Under 18 U.S.C.$3282(a), a person cannot be charged, tried or punished for any offense,

not capital, unless an indictment or information is filed within five years after the offense has

been committed. Post-verdict, Ciavarella claimed that his convictions on R[CO, IUCO

Conspiracy and Money Laundering Conspiracy were time-bmed and that the statute of

limitations is a non-waivable jurisdictional bar. Both the District Court and Third Circuit

concluded at Ciwarella waived a stahte of limitations defense when he raised it for the first

time on apped. Tnz Third Circuit also refused to apply a plain error aiialysis under Fed. R.

Crim. P. 52(b) and United States v. Marcus, v. , 130 S.Ct. 2159 (2010). The question

presented is as follows:

2. Whether the statute of limitations defense is a non-waivable jurisdictional bar; and if

not, whether an appellate court must apply plain error review if the defense is waived?

m.

In fashioning a sentence, the district court considered conduct underlying the 27 counts

for which Ciavarella was acquitted to reach a base guideline level of 43 (life imprisonment)). Had

the acquitted conduct not been factored into the sentencing decision the base guideline level

would have been 34 (15 1-188 months). The court then departed fiom the base guideline of life

and sentenced Ciavarella to 28 years which is nearly double that provided under a guideline level

of 34. The question presented is as follows:

3. Did the district court's consideration of conduct, which had been specifically rejected

by a jwy and for which Ciavarella was acquitted, to fashion a sentence using a base sentencing

guideline level that was dramatically increased to life imprisonment due to the consideration of

acquitted conduct violate due process and the right to trial by jury?

PARTIES TO TRE PROCEEDINGS

The petitioner is Mark A. Ciavarella, Jr., defendant-appellant in the proceedings below.

Respondent is the United States of America, as government prosecutor.

TABLE OF CONTENTS

Questions Prese~ted.. ....................................................................................... .i . .

Parties to the Proceedings ................................................................................... 11

Table of Authorities.. ........................................................................................ v \

Opinions Below?. ............................................................................................. 1 . . . Junsdictlon.. .................................................. .:. ............................................ 1

Constitutional, Statutory and Other Provisions Involved. .............................................. .l Statenient.. .................................................................................................... .3

Reasons for granting the petition.. ......................................................................... .8

1. The Tbird Circuit's Application Of Lit& To A Judge's Secretive E'xtra-Judicial Statements To Non-parties Expressing His Personal Opinion About A Defendant And The Merits Of A Pending Case Deepens h Existing Conflict Among the Lower Courts Regardii Recusd Under Section 455(a).. ............................................................................... 9

2. Neither this Court nor Secdon 455(a) Have Provided h y Guidance To The Lower Courts As To Vv'hen A Judge Must Refer A Recusal Motion Under This Section To A Different Judge For An Evidentiary Hearing And Disposition. This Failure Has Created A Conflicting, Piecemeal Approach To The Procedure In Resolving Recusal Motions Under Section 455(a). ......................................................................

3. The Recusal Question Presented Is Exceptionally Important To The Preservation Of Public Confidence In The Federal Court System.. ........................ .17

4. The Third Circuit's conclusion that Ciavarella waived his statute of limitations defense by not requesting a jury instruction on that defense conflicts with the decisions of other Circuits that this defense is either a non-waivable jurisdictional bar or is a defense that constitutes a question of law. The Third Circuits refusal to apply plain error review

to Ciavarella's statute of limitations defense, if waived, conflicts with the decisions of this Court and other Circuit Courts.. ......................................... 18

5. The Third Circuit's decision, affirming the district court's consideration of conduct underlying charges rejected by a jury and for which Ciavarella was acquitted to fashion a sentence using the acquitted conduct to dramatically increase the base guideline range to life imprisonment, goes to the very core of Federal sentencing and presents an exceptional circumstance, not heretofore decided by this Court, as to whether such a sentencing scheme violates due process and the right to trial by jury.. .......

Co~lclusion ........... .. . ... .............................................................................. 24

.4P PENDIX

Opinion of rhe Third Circuit Court of Appeals ........................................................ l a

District Court memorandum and order of July 6. 2010 denying recusal ........................... 57a

Jud.m ent of Sentence of the District Corn.. .......................................................... 63a

Judgment of the Third Circuit Court of Appeals ...................................................... 66a

Order of the Third Circuit Court of Appeals denying rehearing .................................... 6Ka

Motion for Recusal ........................................................................................ 70a

Brief in Suppoa of Motion for Recusal ................................................................. 75a

Petition for Rehearing ..................................................................................... 90a

Jury Verdict Slip and Special Interrogatories ............................................................................................. 1Ola

TABLE OF AUTHORITIES

Cases

Apprendi 1, . Xew Jersey. 530 U.S. 466 (2000). ............................ .. ....................................................... 23 Caperton v . A . ~ . " b f a s s ~ Coal Co., 556 U.S. 868. 889 (2009) .................................................................. 9

Commonwealth Coatings Corp . v . Conf'lCas . Co.. 393 U.S. 145, 150 (1968) ....................................... 8 Guy v . UnitedStates, 41 1 U.S. 974 (1973) (Douglas, J., dissenting) ............... ... .................................. 17 Hurles v . Ryan . 706 F.3d 1021 (9th Cir . 2013j ..................................... ... ................................................... 16 In re . Winship, 397 U.S. 358 (1970) .............................................................................................. 21, 22 In Re: Boston's Children First, 244 F.3d 164 (1st Cir . 2001) , ....................... ........... ...................... 11, 12, 17 In Re: IBMCorp . .45 F.3d641 (2ndCir . 1995) ...................... .. ............................................................ 10 In Re . United States (Frmco). 158 F.3d 26, 28-29(lst Cir.. 1998). ........................................................... 15 Jacbon v . Microsof. 135 F.Supp. 2d 38. 40 (D . D.C. 2001) ................... .... ...................................... 11 Johnson v . Mississippi, 403 U.S. 212. 215-216 (1971) .............................................................................. 13 Liljeberg v . Health Services Acquisition Corp., 486 U.S. 847, 865 (1988) ........................................... 14, 15 Liteky v. UnitedStates. 510 U.S. 540 (1994) ...................... .... ................................................ passim

.W cMillan v . Pennsylvania. 477 U.S. 59 (1986) ........................................................................................ 24 iWisfpetta v . UnitedStates, 488 U.S. 361, 407 (1989) ........................................ 9, 17 h'EC Corp . v . IntelCorp., 654 F.Supp. 1256 (N.D. Cal . 1987). vacatedper curium as moot, 835 F.2d

1546 (9th Cir . 1988) ............................................................................................................................... 15 hrichols v . Alley, 71 F.3d 347, 352 (10th Cir . 1995) ................. ... .......................................................... 14 People v . Conner, 34 Cal . 3d 141. 146, 666 P.2d 5, 7 (1983) .................... .. .............................................. 9 Potashnick v . Port City ConsTranscript of Co., 609 F.2d 1101, 1106 (5th Cir., 1980) cert denied. 449

U.S. 820 (1990); ................................................................................................................................... 15 Ritav . UnitedStates; 551 U.S. 338 (2007) ............................................................................................... 22 SCAServices. Inc . v . Morgan. 557 F.2d 110, 116 (7th Cir.1977) ........ ; ..................................................... 15

Spieser v . Randall, 357U.S. 513 (1958) ................................................ .................................................. 22 Steering Comm . vs . Mead Corp., 614 F.2d 958. 963 n.9 (5th Cir . 1980) .................................................. 16 US. v . Allyene, --U.S.--. 133 S . Ct.2151 (2013) ...................................................................................... 23 U S . v . Cooley, 1 F.3d 985 (10th Cir . 1993) ....................................................................................... 9, 12 UnitedStates v . Haldeman, 559 F.2d 3 1 (D.C. Cir., 1976) ........................................................................ 9

OPlitedStates v . Heldt, 668 F.2d 1238, 1271 (D.C. Cir . 1981) ......................... .. ................................... 14 Unitedstates v . Mmcw, 130 S.Ct. 2159, 2164(2013) ................................................................. .. .... ii, 20 UnitedStates v . Marcus, 628 F.3d 36, 42 (2d Cir.. 2010) ......................................................................... 20 UnitedStntes v . Microsoft, 231 F.Supp.. 2nd 144 (U.S. Dist . Ct., D.C. 2001) ........................... 9, 10, 12, 14 UnitedStates v . Mkrosoj?, 253 F.3d 34 (D.C. Cir . 2001) ................................................................. 1 0 , 14

UnitedStares v . Olano, 507 U.S. 725, 734-735 (1993) ............................................................................. 20

Unitedstates v. South Florida Water iManagement Disbicl, 290 F.Supp2d 1356 (S.D. Fla . 2003) ........... 11 UnitedStates v . Vebeliunas, 76 F.3d 1283(2nd Cir . 1996) ............................ .. .................................. 19 Unitedstates v . Wms , 519 U.S. 148(1997) ................................................................................... 8, 21, 24

UnitedStates v . Wilson: 605 F.3d 985 (D.C.Cir. 2010) .......................................................................... 20

UniiedSiates vs . Cooper. 956 F.2d 960. 961-962 (10th Cir . 1992) ............................................................ 19

UniredSrntes vs . Forsythe. 560 F.2d 1127. I134 (3rd Cir . 1977) ............................................................... 19

united ~ t a t e s vs'~',.~rosslcy. 224 F.3d 847(6th Cir . 2000j .......................................................... 19 UnitedStater v.~. Jakes. 281 F.3d 123 (3rd C h . 2002) ................... ..................... ........................................ 19

UnifedStates vs . Persico, 832 F.2d 705. 714 (2d Cir . 1987) ...................................................................... 19

Unitedstates vs . Starrett, 55 F.3d 1525 (1 l Cir . 1995) .......................................................................... 19

UnitedStates vs . Titterington. 374 F.3d 453 (6th Cir . 2004) ......................................... .... ......................... 19 Unitedstates vs.-Tomes Lopez. 851 F.2d 520. 525 (1" Cir . 1988) ........................................................ 19

W v . Family Court. 247 N.E. 2d, 253. 259 (1968) ................................................................................... 22

Versalv . Sexton. 674F.3d 1010. 1020(8th Cir . 2012) ........................................................................... 4. 9

Statutes

18 U.S.C. $3282(a) .................................................................................................. 7,19

IS U.S.C. $3661 ........................................................................................................................................ 21

28 U.S.C.§455(a) .............................................................................................................................. passim

Other Authorities

Canon 3A(4) ofthe Code of Judicial Conduct ........................................................................ 9 Canon 3A(6j of the Code of Judicial Conduct ............................ .. ................................................... 6 9

Canons 1 and 2 of the Code of Judicial Conduct ................................................................. 9. 17 Commentary to Canon I .............................................................................................................................. 17

Fed . R . C r i i . P . 52(b) .................................................................................................................... 2, 7. 19

Treat ises

Bloom. Judicial Bias and Financial Interest as Ground for Disqualificcntion ojFederal Judges. 35 Case W.Res.L.Rev. 662. 697 (1985) ...................... .. .................................................................................... 16

Comment, Disqz~alificatrion ofFederai Cowt Judges for Bias or Prejudice. 46 U.Chi.L.Rev. 236, 266

Comment. Disqualtj?cafion of Federal District Court Judges for Bias or Prejudice: Problem. Problematic Proposals and a ProporedProcedtve. 46 Alb.L.Rev. 229. 247 (1981) ............................ 16

Note. Disqual$ticntion cfJzdges for Bias in the Federal Cowts. 79 Haw.L.Rev. 1435. 1439 (1966) ..... 16

PETITION FOR WRIT 08 CERTTlOR4HU

hiark A. Ciavareiia, jr. respectfuliy petitions for a w i t of certiorari to review the

judment of the Unired States Court of Appeals for the Third Circuir in this case.

OPMOWS BELOW

The opinion of the court of appeals (Pet. App., infra, la- 56a) is reported at 716 F.3d 705

(2013). The opinion of the District Court pe t . App., i$-a, 57a-63a) are not reported.

The judgment of the court of appeals was filed on May 24,2013, and the order denying

rehearing was filed on July 24,2013. This Court's jurisdiction is invoked under 28 U.S.C. §

CONSTITUTIONAL, STATUTORY AND OTHER PROVISIONS PWOILYED

28 U.S.C.§455(a) provides,

"Any justice, judge or magistrate judge of the United States s h d disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Code of Conduct for United States Judges

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

" ... A judge should maintain.. .high standards of conduct.. .so that the integrity and independence of the judiciary may be preserved.. .''

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety In A11 Activities

(A) Respectfor Lmv.. .A judge ... should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Commentary.

"Cano~ 2A: iin appearance of iiipr~priety occuis vqhen rezsonzble m;J.ds, with knowledge of all of tne relevam circumstances disclosed by a reasonable ilquiry, would conclude that the judge's. ..impartiality to serve as a jndge is Lni2aued.. ."

"Canon 3:A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

A(4):Except as set out below, a judge should not initiate, pennit or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a judge receives an unauthorized ex part- communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication apd allow the parties an opportunity to respond, if requested. A judge may: (a) initiate, permit or consider ex parte communications as authorized by law; (b) when circumstances require it, permit ex parte communications for scheduling, administrative or emergency purposes, but only if the ex parte communication does not address substantive matters.. ."

(6) ".4 judge should not make public comment on the merits of a matter pending or impending in any court.. .The prohibition on public comment on the merits does not extend to public statements made in the course of the judges official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education."

18 U.S.C.3 3282. Offenses not capital

"(a). In general. - Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or information is instituted within five years next after such offense shall have been committed."

Rule 52@) Plain Error. "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."

Fed. R. Crim. P. 52(b).

18 U.S.C. 3 3661 - "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."

USSG§IB1.3. Relevant Conduct, in relevant part,

(a). . .the base offense level.. .shall be determined on the basis of the following:

(l)(A) a!l acts and orissions committed; aided, abetted, coumeled. Commanded, induced, procured or willfully ca~sed by the defendant.. ."

Fifth Amendment to the United States Constitution provides, in relevant part:

"No person shall. ..be deprived of life, liberty, or property without due process of law ..."

Sixth Amendment to the United State Constitution provides, in relevant part:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.. ."

US. Const.amend. VI.

STATEMENT

In this Federal criminal prosecution which has been labeled by the media, albe'it

incorrectly, as the "Kids-for-Cash" scandal, Mark A. Ciavatella, Jr. and Michael Conahan,

former state court judges, originally pled guilty, under the terms of a conditional plea agreement

providing for an 87 month sentence, to conflict of interest-type honest services fraud and income

tax evasion. The basis for the plea was that Ciavarella and Conahan, as judges, failed to disclose

their receipt of money from the owner and builder of a private juvenile detention facility. Judge

Kosik, to whom the case was assigned, rejected the plea agreement and permitted Ciavarella and

Conahan to withdraw their pleas. Thereafter the Government filed a 39 count Superseding

Indictment alleging that Ciavarella and Conahaii, as state court judges, conspired to and engaged

in one overall fraudulent scheme to obtain money, through kickbacks and extortion, for

facilitating the construction and use of privately owned juvenile detention facilities. The alleged

targets of this scheme were Robert Mericle, the builder, and Robert Powell, the owner of these

facilities.

JuQe Kosik presided oiier Ciavarella's trial which resulted in convictions on only I2 of

39 counts fo; substantive FUCO, FUCO Conspiracy and Money Laundering Conspiracy, Honest

Services Mail Fraud and related tax offenses. Judge Kosik sentenced Ciavarella to 28 years

imprisonment.

1. This Court has recognized that "the legitimacy of the Judicial Branch ultimately

depends on its reputation for impartiality.. ." MistPetta v. United States, 488 U.S.' 361,407

(1989). "Maintaining the appearance of impartiality is systemic in nature, as it is essential to

protect the judiciary's reputation for fairness in the eyes of all citizens" and is integral to

preserving our justice system. Wersal v. Sexton, 674 F.3d 1010, 1020 (8th Cir. 2012). This case

affords this Court the opportunity to clarify the circumstances when a judge's extra-judicial

comments about a defendant's character and the merits of a pending case cross the line and

create an "appearance of partiality" warranting recusal under 28 U.S.C. §455(a) and when due

process requires a recusal motion under section 455(a) to be referred to a different judge f o ~

disposition.

Amidst a s tom of public clamor, Judge Kosikc, while the case was pending before him,

received nearly 200 letters from the public condemning Ciavarella. Judge Kosik wrote some

letters in response expressing his complete sympathy with the public condemnation that

Ciavarella prostituted his judicial office by sending children to juvenile facilities in exchange for

cash. Excerpts from some of these letters and his rsplies follow (Pet. App.20a-23a):

Robert Wojack: "...Judges Ciavarella and Conahan have committed the most serious crime against the people, they turned their courtrooms and their power into a business for profit at the expense of children.. ." Letter received Feb. 20, 2009.

Judge K o s k "Thank you for your letter and y o u expressed concerns over the corruption which has come to light in Luzerne County, and most seriously with

!he courts. My gersonal opiilions are in complete sympathy with those you express.. ." Letter dated Feb. 20,2009.

George Spohrer, Esq.: " ... %%en ! listened to the announcement of the U.S. Atty. concerning the guilry plea and bargain with two corrupt judges I became physically ill. Our honorable profession has been sullied, and it will take drastic and dramatic action to clear out the Stygean stable represented by the actions of these two scoundrels who have betrayed their trust.. ." Letter dated Feb. 26, 2009.

Judge Kosik: "...In 1949, when I first applied to law school, the Luzerne County Bench was first among county courts in Pennsylvania. What a fall! Francis Bacon, in his essay on "Judicature," in writing about judges wrote that above all things, integrity is their lot and proper virtue; the landmark, and he that removes it compts the fountain. .." Letter dated March 2, 2009.

Thomas and M a q IKoskk: "This complaint involves a decision by Judge Michael Conahan.. .During the bench trial Judge Conahan acted very disinterested and bored ... My wife and I felt that this was a kangaroo style court because he knew before hand his decision.. .regardless of the evidence.. . With the recent legal problems of Luzeme County judges (Conahan and-Ciavarella) this only confirms our decision about this case ..." Letter received Feb. 24, 2010.

Judge Kosiic: "...This is just another example of why Judge Conahan aod his cohort have been indicted.. ." Letter dated Feb. 24, 2010.

Wosmarie Cressman: "...As a citizen ... who was impacted by the actions of Conahan & Ciavarella by having my son taken away in handcuffs ... take into consideration the will of the people who are extremely embarrassed by the actions of these criminals.. ." Letter of April 30,2010.

Judge Kosik: "...I am sorry justice is slow, but ultimately I hope you find it to be true." Letter of June 15,2010.

Judge Kosik did not disclose to the parties the letters he received t?om or wrote to the

public until shortly before sentencing, and he refused to recuse himself for expressing his

personal opinions about Ciavarella and the merits of the case in response to the letters he

received eom the public. Pet. App.20a, 23a.

Ciavarella had dso soug??t Judge Kosik's recusal for his extra-judicial statements about

the merits of the case made to a news iepoitei two days after he rejected the original plea

agreement. Excerpts of the story follows:

"Defiance doomed Ciavarella, Conahan's plea deals"

"U.S. District Judge Edwin M. Kosik dissected the flawed logic of two disgraced former judges . ..Kosik stood near an elevator outside his courtroom and casually discussed what had just happened therein, including an attempt by Powell's attorney to portray some payments to the judges as a "fmder's fee", not as an incentive for them to send a steady stream of juveniles to the detention facilities co-owned by Powell. How could there not have been a "quid pro quo?' Kosik wondered, portending the sentiments he expressed Friday in a five page memorandum rejecting plea agreenents ... The evidence of Ciavarella and Conahan's judicial prostitution-of their so-called kids-for-cash scheme-was abundanr and clear, Kosik continued. The evidence of Powell's goals and those of the other kickbacker, developer Robert K. Mericle, was also clear: Kosik said- alluding to the pattern of facts established by federal prosecutors and juvenile advocates.. ." Pet. App.70a-74a.

Ciavarellarequested that this recusal motion be referred to a different judge for an

evidentiary hearing and disposition. Pet. App.75a, 82a. Instead, Judge Kosik made a self-

assessment that the extra-judicial comments attributed to him by the media were not derived

&om any conversations between a reporter and him and therefore, recusal was not warranted

under Section 455(a). Pet. App.57a-62a.

On appeal, the Third Circuit was "troubled by the correspondence and the expressions of

Judge Kosik's thoughts on Ciavarella and his conduct" and ncted that "writing letters to non-

parties about a case during its pendency is highly discouraged" under Canon 3A(6) of the Code

of Judicial Conduct. Nevertheless, the court concluded that Judge Kosiks' statements did not

create an appearance of impropriety under Section 455(a) warranting recusal because they were

not derived from an extra-judicial source and did not display a high degree of deep-seated

antagoilism or bias required wder Liteky v. UzitedStates, 5 10 U.S. 540 (1994). Pet. App.24a-

28a. Tne Cow also concluded that Judge Kosik's self-assessment that he did not make extza-

judicial statements to a media reporter negated the need for an evidentiary hearing before a

different judge and affirmed that recusal was not wkanted. Pet. App.12a-l8a.

2. After the withdrawal of Ciavarella's plea, the Govenunent fded an Indictment on

September 9,2009. The jury returned a verhct finding only 2 out of 24 predicate acts to

support the substantive RICO count, namely, Honest Services Wire Fraud and Money

Laundering Conspiracy. The jury further found that the predicate act of Honest Services Wire

Fraud involved three separate wire transfers arising from a single payment made by the

contractor who built the juvenile facilities , the last wire transfer occurring on January 28,2003.

Other than this one payment, the jury rejected all other overt payments claimed by the

government and acquitted Ciavarella on 27 counts. Pet. App.lOla-113a.

Post-verdict, Ciavarella claimed, based upon the jury's special interrogatories, that his

convictions for substantive RICO, RICO Conspiracy and Money Laundering Conspiracy were

time barred under a five year statute of limitations. 18 U.S.C.§3282(a). Judge Kosik ruled that

the statute of limitations defense was waived because Ciavarella did not request a jury instruction

on this defense. On appeal. the Third Circuit rejected the argument that this defense was a non-

waivable jurisdictional bar, affirmed Judge Kosik's ruling that the defense was waived and

refused to review the merits of this claim by applyicg plain error review cs permitted m-der Fed.

R. Crim. P. 52(b). Pet. App.46a-49a, 68a, 90% 95a.

3. At sentencing, Judge Kosik, over Ciavarella's objection, considered conduct rejected

by the jury and for which Ciavarella was acquitted to fashion a sentence using a dramatically

increased base guideline level of life imprisonment. This increase was due to the consideration of

the acquitted conduct. Had Judge Kosik only considered the conduct fcr which Ciavarella was

convicted, rlicn the base guideline level would have been 151 to 184 months. Having established

a base guideline of life imprisonment, Judge Kosik then departed from that guideline and

sentenced Ciavarella to 28 years. The Third Circuit aftinned the sentence concluding that Judge

Kosik's consideration of acq&ted conduct in sentencing was consistent with this Court's

holding in VnitedStates v. Watfs, 519 U.S. 148(1997). Pet. App. 53a-56a, 101a-113a.

REASONS FOR GRANTING THE WTITZBN

1

This Court should grant certiorari to provide authoritative guidance to lower courts on

whether the "extra-judicial source" doctrine under Liteky applies to a judge's secretive

communications with non-parties expressing his personal opinions about a defendant and the

substantive merits of a case pending before him, when such extra-judicial conduct crosses the

line to create an appearance of partiality requiring recusal under Section 455(a), and when due

process requires a judge, who is the subject of a Section 455(a) recusal motion, to refer the

matter to a different judge for disposition.

The Third Circuit's decision that Judge Kosik could participate in this case, despite

engaging in secretive extra-judicial conduct which may have run afoul of at least three Canons of

the Code of Judicial Conduct, creates a systemic problem which will undermine public

confidence in the impartiality of the judiciary, znd is inconsistent with this Court's repeated

admonition thaf to foreclose the possibility of actual judicial bias, a judge "must avoid even the

appearance of bias.'' Commonwealth Coatings Corp. v. Cont'l Cas. Co., 393 U.S. 145, 150

(1968) (emphasis added). Ir also deepens the conflict among the lower courts regarding the

standard governing recusal for extra-judicial statements made to non-parties and further

exacehates the lack ofproced~ial guidaace as to whether and whez a recusal notion under

section 455 (a) should be referred to a diffeicnt judge for disposition.

1. The Third Circuit's Application Of Liteky To A Judge's Secretive Extra-Judicial Statements To Non-parties Expressing His Personal Opinion About A Defendant And The Merits Of A Pending Case Deepens An Existing Conflict Among the Lower Courts Regarding Recusal Under Section 455(a).

"Maintaining the appearance of impartiality is systemic in nature, as it is essential to protect

the judiciaries reputation for fairness in the eyes of all citizens." Wersal v. Sexton, 674 F.3d

1010, 1020 (8th Cir. 2012) citing, Mistretta v. G'nitedStates, 488 U.S. 361, 407 (1989). It is

generally recognized that extia-judicial public comments that bear specifically upon pending

litigation is an activity that judges should scrupulously avoid. United States v. Haldeman, 559

F.2d 3 1 (D.C. Cir., 1976). Such conduct raises the specter that a judge has engaged in the

"appearance of impropriety" implicating the recusal provision of 28 U.S.C.§455(a) and the Code

of Judicial Conduct applicable to United States judges. The rationale underlying section 455 (a)

and recusal to is "promote confidence in the judiciary by avoiding even the appearance of

impropriety," and to "assure fairness to the accused and to sustain public confidence in the

integrity and impartiality of the criminal justice system." UnitedStates v. hlicrosoft, 253 F.3d 34,

11 1-1 12 (D.C.Cir. 2001); People v. Conner, 34 Cal. 3d 141, 146,666 P.2d 5,7 (1983). Codes of

Judicial Conduct are designed to maintain the integrity of the judiciary and rule of law. Caperton

v. A.T. Massey Coal Co., 556 U.S. 868,889 (2009). Judges who engage in secretively expressing

their opinions about the substance of pending litigation to non-parties bring to bear Canon 1

(should act in amanner to avoid the appearance of impropriety), Canon 3A(4) (judges shall not

initiate, pennit or consider ex-parte communications about the subject matter of a pending case

and shall prom~tly notifj the parties of such communications) and Canon jA(6) Cjudges should

not make extra-judicial comments about a pending matter).

Few cases hwe dealt with the issue of judges being subject to recusal under section

455(a) .where they have inade extra-judicial public cornmefit on csses pending before them.

In a case decided while Liteky was pending before this Court, United States. v. Cooley, 1

F.3d 985 (10th Cir. 1993), the Tenth Circuit held that recusal was warranted under Section

455(a) .when a trial judge appeared on national television and stated his intent to enforce an order

prohibiting abortion protesters from demonstrating outside a clinic. The court in Cooley reasoned

that the judge's voluntary appearance on national television and his remarks on a case pending

before hirn "unavoidably created an appearance that the judge would bring law and order to bear

upon the protesters, rather than remaining as a detached adjudicator." Cooley, 1 F.3d at 995.

Interestingly, the Tenth Circuit considered the "extra-judicial source" doctrine in light of Liteky

and concluded that the doctrine did not apply because the court was codonted with judicial

appearance occurring outside of a legal proceeding. Cooley, 1 F.3d at 994, fn.7.

h United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001) and In Re: IBM Corp., 45

F.3d 641 (2nd Cir. 1999, boih the District of Columbia Circuit and Second Circuit found that

recusal was warranted under section 455(a) when a judge madeextra-judicial statements about

the merits of a pending case to the news media. The D.C. circuit, which remanded ihe case for

proceedings before a different district court judge, United States v. Microsoft, 231 F.Supp., 2nd

144 (U.S. Dist. Ct., D.C. 2001), held that public confidence in the impartiality and integrity of

the judiciary were seriously jeopardized when the judgz secretly s h e d his thou&ts abcut the

case with the media. ~Wicicrosoft, 253 F.3d 34 @.C.Cir. 2001). h reaching this conclusion, the

D.C. Circuit determined that the "extra-judicial source" rule had no bearing on the case because

the circumstances are different when a judge makes statements outside the courtroom, in private

and unknown to the paties. Under these circumstances, a party has no opportunity to object or

persuade or maits a record for review on appeal. In IBAI; the Second Circuit found that a judge's

extra-judicial comiients to the m e l a conceining a party's activities and the role of government

counsel after the parties signed a stipulation of dismissal, but before the stipulation was approved

by the court, warranted recusal.

The First Circuit, in IB Re: Boston's Children First, 244 F.3d 164 (1st Cir. 2001),

considered the issue of whether a judge's public comments to the media about the merits of a

pending case required recusal under section 455(a). In that case, the trial judge defended her

rulings on standing and class certification in a telephone interview with a reporter. The First

Circuit, acknowledging the lack of reported cases dealing with extra-judicial statements to the

media, drew a distinction between comments made in a judicial context and those made to the

media, which are outside the course of a judicial proceeding. The First Circuit did not apply

Liteb to the circumstances of the case before it. Even though the judge's statements were not

derived from an "extra-judicial source", the First Circuit held that recusal was warranted under

section 455(a) because "the very rarity of such public statements, and the ease with which they

may be avoided, make it more likely that a reasonable person will interpret such statements as

evidence of bias." Id.; 244 F.3d at 170.

Other district collrt cases decided after Liteb have also reached results similar to the First

and Tenth Circuit decisions. See, Jackron v. Microsofr,l35 F.Supp. 2d 38,40 (D. D.C.

2001)Gudge recused himself under section 455(a) h employment discrir&ation case because of

extra-judicial interview with reporter about his decisions in different case involving Microsoft);

United States v.South Horida Water Management District, 290 F.Supp2d 1356 (S.D. Fla. 2003)

(recusal under section 455(a) required where judge gave interview with reporters and commented

on pending case).

In this case, however, the Third Circuii has extended the holding of l i t e b to secretive

extra-judiciai comments mace by a judge to non-parties while the case is pending before him.

Litelj deait with public comments made by the triai judge aspart ofhis judicial rulings in the

course o f a trial. (emphasis added). The parties were immediately aware of the comments which

could be objected to and evaluated on appeal based upon a trial record. Because the judge's

comments were not derived from an "extra-judicial source" and did not display "deep-seated

antagonism", this Court concluded that recusal was not w a n t e d under Section 455(a).

In contrast, Judge Kosik's personal opinions were expressed in secretive letters sent to

non-parties in response to letters received from them, made outside of the proceedings and not in

the course of his official duties.

Judge Kosik's conduct is very similar to the conduct of the judges addressed in Cooley,

Microsoft, I M a n d Boston S Children First. The judges in those cases abdicated their role as

detached adjudicators and instead adopted the role of advocates. By secretively telling non-

parties that he sympathized with their opinions, Judge Kosik showed an uncommon involvement

and degree of personal interesr in the case. To a reasonable perspn, his opinions were designed to

ingratiate himself with a vengeful public and assure the public that he would take care of the

"Kids for C a s h judge by bringing law and order to bear upon Ciavarella. Any reasonable person

would conclude as such despite the letters containing Judge Kosiks contradictory assertions that

his personal opinions would not influence his decisions. Such assertions do nothing to dispel the

impropriety of such conduct and the very purpose for which the letters were sent. Judge Kosik

could easily have not responded to the public letters and informed counsel, in a timely fashion, of

the ex-parte communications with non-parties.

Secretive e:ctra-judicial comnents in a newswort5y case attracting international attention,

regardless of the source of &ose comments: which convey to a reasonable person a message tkat

judicial decision-making will satisfy the outcry of a vengeful public, are the type of conduct

requiring recusal under Section 455(a).

Considering the conflicting views on recusal under Section 455(a), this Court should

grant review to provide the lower courts with authoritative guidance regarding the recusal

standard under Section 455(a) and the circumstances in which that standard requires the recusal

of a judge who makes extra-judicial statements about a defendant and the merits of a case

pending before him.

2. Neither this Court nor Section 455(a) Bas Provided Any Guidance To The Lower Courts As To When A Judge Must Refer A Recusal Motion Under This Section To A Different Judge For An Evidentiary Hearing And Disposition. This Failure Has Created A Conflicting, Piecemeal Approach To The Procedure In Resolying Recusal Motions Under Section 455(a).

Ciavarella also sought Judge Kosik's recusal based upon a news story appearing in a

local newspaper two days after he rejected Ciavarella's plea agreement. The story attributed

Judge Kosik with statements that he made about the merits of this case to a news reporter in an

elevator outside his courtroom. Pet. App.70a-74a. Ciavarella sought an evidentiary hearing

before a different judge to resolve the factual dispute of whether Judge Kosik made the extra-

judicial statements attributed to him by the media. Pet. App. 75% 82a. Though the motion on its

face set forth suEcient grounds for recusal under Section 455(a), Judge Kosik, rather than

referring the matter to a different judge, made a self-assessment of his disputed conduct. In

denying recusal, Judge Kosik concluded that he did not discuss this case with any reporter and

that the statements attributed to him "were not extra-judicial, but as quoted fiom the judicial

filings.. ." Pet. App.57a-62a.

The right to an impartial judge is an eiement of due process. Johnson v. ~bfississippi. 403

U.S. 212,215-216 (1971). Recusal determinations under Section 455(a) inevitably turn on the

facts requiring an independent examination of unique facts and circumstances,. Liljeberg v.

Health Services Acquisition Corp., 486 U.S. 847, 865 (1988); Nichols v. Alley, 71 F.3d 347, 352

(10th Cir. 1995). The absence of procedural guidance has created a piecemeal approach by the

courts in resolving Section 455(a) motions. Unitedstates v. Heldt, 668 F.2d 1238, 1271 (D.C.

Cir. 1981).

In this case: the Third Circuit f i r m e d Judge Kosik's decision not to refer the recusai

motion to a different judge for an evidentiary hearing. Judge Kosik viewed Section 455(a) as

imposing a self-enforcing obligation upon him to determine the facts involving his own conduct.

This approach can result, and did result, in an unreasonable determination of the facts as Judge

Kosik's fmdings and conclusions are based upon an untested memory and misunderstanding of

events.

In Unitedstates v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981), the District of Columbia

Circuit, considered whether a trial judge abused his discretion denying a Section 455(a) recusal

motion alleging an appearance of bias created by courtroom security measures. The court noted

that there is no procedural guidance for handling Section 455(a) recusal motions. Heldt. 668 F.2d

at 1271. In affmning the trial judge's decision denying recusal, the court reasoned that

"allegations regarding actual extrajudicial conduct oi involvement may typically present a more

compelling case for a hearing before a different judge than rulings or comments made during

actual courtroom proceedings urged as bias stemming from an extrajudicial source." Heldt, 668

F.2d at 1271, n. 69, 70.

The D.C. Circ-it, in UnitedStntes v. Mcrosofi, supra, took a different approach in.

addressing on appeal a Section 455(a) recusal issue of a district court trial judge who was alleged

to have made extra-judicial statements attributed to him by the media. The court declined to

remand the case to the district court for evidentiary hearing before a different judge on whether

the judge actually made the statements attributed to him. h t e a d the court opted to assume that

the trial judge had ex-parte communications with the media that were extra-judicial in nature and

that the statements attributed to the trial judge by the media were m e . Based upon these factual

assumptions, the court concluded that disqualification was warranted mder Section 455(a).

In In Re: Unitedstates (Franco), 158 F.3d 26,28-29(lst Cir., 1998), the First Circuit

noted that a trial judge should have, but was not required to, assign a recusal motion to a

different judge for hearing. Nevertheless, the court affirmed the judge's own self-assessment that

recusal was not warranted based on an allegation that the judge treated financial borrowers

differently due to fmancial diiculties experienced by the judge and her husband. In reaching

this conclusion, the court concluded that "recusal motions under Section 455(a) are customarily

decided by the judge whom the movant seeks to disqualify, almost always involve actions of the

judge, and almost always require the judge to appraise her own situation." Franco, 158 F.3d at

34.

This and other courts have, without explanation, recognized the assignment of Section

455(a) recusal motions to a different judge for heaing. LiG22be~g v. Ejler1:h S2rvices Acquisiri'on

Corp., 486 U.S. at 851 (different trial judge for factual findings pertaining to disqualification);

Potashnickv. Port City CunsTranscript ofCo., 609 F.2d 1101,1106 (5th Cir., 1980) cerr.

denied, 449 U.S. 820 (1980); NEC Corp, v. Intel Corp., 654 F.Supp. 1256 (N.D. Cal. 1987),

vacatedper curium as moot, 835 F.2d 1546 (9th Cir. 1988).

In SCA Senices, Inc. v. Morgan, 557 F.2d 110. 116 (7th Ci:.1977), the Seventh Circuit

noted the difficulty of applying Secfion 455(a) when the judge m s t apply the stadard borh as iis

interpreter and as its object. The court detcnnincd that the trial judge was subjecr to recusal

under Section 455(a), but only after noting "the philosophical dilemma created by the objective-

subjective conundm" in which judges find themselves when considering recusal under Section

455(a). Commentators argue that the better procedure is to transfer a motion to disqualify under

Section 455!a) to a different judge for disposition. Bloom, Judicial Bias and Financial Interest

as Grounds for Disqualijfcation ofFederal Judges, 35 Case W.Res.L.Rev. 662,697 (1985);

Comment, Disqual$cation of Federal District Court Judges for Bias or Prejudice: Problems,

Problematic Proposals and a Proposed Procedure, 46 Alb.L.Rev. 229,247 (1981); Comment,

Disqual$cation ofFederal Court Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236,266

(1978). See also Note, Disqualification ofJudges for Bias in the Federal Courts, 79

Harv.L.Rev. 1435, 1439 (1966). But see, Steering Comm. vs. Mead Corp., 614 F.2d 958,963 n.9

(5th Cir. 198O)(district court had initial responsibility to recuse self from case).

Though not involving a Section 455(a) recusd motion, the Ninth Circuit , in Hurles v.

Ryan, 706 F.3d 1021 (9th Cir. 201?), assessed the concept of a judge's self-assessment of

disputed conduct in resolving recusal raised in a challenge to a state court conviction under

federal habeas. The petitioner had sought recusal of the state trial judge claiming bias arising

during the ccurse of tbe proceedings. The state trial judge, without ga? t ig a7 evidentiary

hearing, made a self-assessment of his conduct and denied recusal. In granting habeas relief, the

Ninth Circuit concluded that the state trial judge's reliance on personal knowledge to resolve

disputed facts: which can't be tested by cross-examination, constituted an unreasonabIe

determination of the facts.

A resolution of dispcted facts in.~olving extra-judicial conduct that remains untested

presents a compelling case for disposiag of a Sectioil 455(a) recusal motion through an

evidentiary hearing before a different judge. Certiorari is warranted to provide procedural

guidance to the courts for resolving Section 455(a) recusal motions which allege extra-judicial

conduct and thereby end the conflicting piecemeal approach that has been taken by the courts.

3. The Question Presented on Recusal Is Exceptionally Important To The Preservation Of Public Confidence In The Federal Court System

This case raises an issue of far-reaching importance reflecting on the inte-gity and

impartiality of the Federal Judiciary, namely, the conduct of judges, who in the face of public

outcry and an inflammatory media, are called upon to sit in judgment of fellow judges. No task

can be more difficult.

"Any appearance of impartiality may reflect adversely on the federal judiciary as a

whole" and the "federal judiciary adheres scrupulously to the principles of impartial

adjudication" as set forth under Canons 1 and 2 of the Code of Judicial Conduct. Gay v. United

States, 41 1 U.S. 974 (1973) (Douglas, J., dissenting). The Commentary to Canon 1 states that

judges "should comply with the Code" and "violations of the Code d i s h public confidence in

the judiciary.. ." This Court has "repeatedly emphasized the importance of maintaining the

court's reputation for impartiality and nonpartisamhip." ,4fiistretta, 488 U.S. at 407.

It is, however, difficult to reconcile these aspirations with the type of extra-judicial

conduct that the Third Circuit has now sanctioned. It is true that all extra-judicial statements do

not violate the Code of Judicial Conduct, nor do such violations always create an appearance of

partiality requiring recusal under Section 455!a). Boston's Children First, 244 F.3d at 168. But

this is the exceptional case because Judge Kosik engaged in secretive extra-judicial conduct in a

high-profile case which may have violated three Canons of the Code of Judicial Conduct. Any

objective obsemer v~ould wonder whether Judge Kosik's judgment was influenced by the media

and public sentinent and whether he was posturing foi posteiity. Howe-ver, in the eyes of the

Third Circuit, a judge's secretive extra-judicial comments expressing personal opinions to non-

parties about a defendant and the substantive merits of a pending case, unless derived from an

"extra-judicial source", cannot serve as the basis for recusal under Section 455(a). This approach

opens a "Pandora's box" and will do nothing but erode confidence in the judiciary. Judges will

be insulated from recusal, despite expressing extra-judicial personal opinions on cases pending

before then, by simply making a self-assessme~t that their opinion ie not derived from an extra-

judicial source. This case therefore represents an ideal opportunity for this Court to provide the

lower courts with guidance as to when extra-judicial statements about the substantive merits of a

pending case warrant recusal under Section 455(a).

Unfortunatelyl there is little reason to believe that public outcry and media attention in

high profile cases will diminish. In fact, given the age of the Internet and modem technology, the

judiciary's exposure and susceptibility to pressure fkom the media to satisfy public clamor will

continue to increase substantially. In order to preseme public confidence in the integrity of a

Federal Judicial System, this Court should pant certiorari and clarify the circumstances when

Section 455(a) and due process mandate the recusal of judges who engage in expressing extra-

judicial opinions about pending cases and the procedure for addressing recusal motions under

Section 455(a).

II.

The Third Circuit's conclusion that Ciavarella waived his statute of limitations defense

by not requesting a jury instruction on that defense conflicts with the decisions of other Circuits

that this defense is either a non-waivable jurisdictional bar or is a defense that constitutes a

\

question of law. In addition, the Third Circ'rlits refusal to apply plain error review to Ciavarella's

statute of limitations defense, if waived, conflicts with the decisions of this Court and other

Circuit Courts.

A five year statute of limitations applies to Ciavarella's convictions for substantive RlCO

md the conspiracy related offenses. 18 U.S.C. §3282(a). To convict a defendant of substantive

RICO, the jury must find that the defendant committed at least tw-o acts of racketeering activity,

one of which occurred within five years of the date of the Indictment. United Srates vs.-Tor~es

Lopez, 851 F.2d 520, 525 (Ist Cir. 1988), rev'd, on other grounds, 851 F.2d 520 (1988), citing

United States vs. Persico, 832 F.2d 705, 714 (2d Cir. 1987). The limitations period is measure6

from the time the crime is completed as alleged in the Indictment and proved at trial. United

States vs. Forsythe, 560 F.2d 1127, 1134 (3rd Cir. 1977); (inited~rates vs. Star~ett, 55 F.3d 1525

(11 Cir. 1995). In conspiracy cases, the crime is complete when the purpose of the conspiracy

either has been completed or abandoned. Persico, supra.

There is currently a split of authority on whether the statute of limitations is a waivable

defense. See, United States vs. Jakes, 281 F.3d 123 (3rd Cir. 2002)(waivable); United States vs.

Tifferington, 374 F.3d 453 (6th Cir. 2004)(non-waivable jurisdictional bar); United States vs.

Grossley, 224 F.3d 847 (6th Cir. 2000)(absent explicit waiver, statute of limitations presents bar

to prosecution that may be raised first time on appea1);United States vs. Cooper, 956 F.2d 960,

961-962 (10th Cir. 1992)(non-waivable); See also, United Stfifes v. Yebe!!'tr?zcs, 70 F.3d

1283(2nd Cir. 1996)(when statute of limitations issue question of law, no point in requiring

defendant to seek jury instruction).

Even if this Court were to resolve the conflict that the statute of limitations defense is

waivable, the Third Circuit has departed from decisions of this Court and other circuits applying

plain error review under Fed. R. Crim. P. 520). In this case, the Third Cirwi:, while

acknowledging the plain error doctrine, rehsed to apply a plain eror analysis to Cia-varella's

statute of limitations defense. Pet. App. 46a-49a, 90% 95% 68a.

Federal Rule of Criminal Procedure 52(b) permits an appellate court to correct an error

not raised at trial where an appellant demonstrates that there is error and there is a reasonable

probability that the error affected a substantial right or the outcome of the trial. The application

of this rule has been recognized over the years by this Court in United States v. Marcus, 130

S.Ct. 2159, 2164 (2010) and United Srates v. Olano, 0 7 U.S. 725, 734-735 (1993). Both the

District of Columbia and Second Circuits have been consistent in applying plain error review

when warranted. See; United States v. Wilson: 605 F.3d 985 (D.C.Cir. 2010); United States v.

Marcus, 628 F.3d 36,42 (2d Cir., 2010).

This case and Marcus are very similar. In Marcus, the Second Circuit held that the

defendant's failure to request a jury instruction on the expost facto doctrine as a defense to the

charge was reviewable on its merits. The court reasoned "there was a reasonable probability that

the charge affected the outcome of the trial and the fairness, integrity or public reputation of the

proceedings." Marcus at 628 F.3d 44. In this case, as in Marcus, the jury was not charged with

an appropriate instruction on a statute of limitations defense to the charges nor was an objection

made to the instruction. There is a reasonable probability that this error affected the outcome.

The jury acquittec! Ciavarella of dl predicate acts that occurred within the 5 year window. Had

the jury realized that it could only find Ciavarella guilty of racketeering if it found a predicate act

that occurred within the applicable statute of limitations, it may well have acquitted him of

racketeering and the conspiracy related charges.

L In order to resolve the conflict as to whether t e stature o f lhitztinns defense is non-

waivable and to provide guidance to the lower courts on plain error review, this Court should

grant certiorari on this issue.

m.

The Third Circuit has decided an important question affecting the very core of Federal

sentencing proceedings which has not been resolved by this Court. In sentencing Ciavarella, the

district court made factual and credibility determinations regarding conduct underlying charges

rejected by a jury and for which Ciavarella was acquitted. The district court's consideration of

this acquitted conduct dramztically increased the base guideline level to life imprisonment. The

use of acquitted conduct to dramatically increase the base guideline level is a recurrent question

affecting hundreds of sentencing proceedings within the Federal system. Simply put, where is the

line drawn in using conduct underlying a charge for which a defendant was acquitted to

determine a guideline level for sentencing purposes? 18 U.S.C. $3661 imposes no limitation on

the consideration of conduct for purposes of imposing an appropriate sentence. But, does the

exercise of such unbridled discretion in sentencing violate due process and a right to a jury trial

when a sentencing judge's consideration of conduct rejected by a jury has the effect of

undercutting a verdict of acquittal and dramatically increasing the base guideline sentencing

level to life imprisonment?

In this case, the jury rejected the ffiajority of the Government's allegatioas by acquitting

Ciavarella of 27 counts of a 39 count indictment. In returning special verdict interrogatories, the

court and parties could identify the specific conduct underlying each charge for which Ciavarella

was acquitted and convicted. Pet. App. 10 1 a-1 13a

In f irming Ciavarella's 28 pear sentence, the Third Circuit, relying on Uvited S?otes v.

Watts, 5 19 U.S. 149, 156 (1997), rejected Ciavarelia's claim that the district court's use of

acquitted conduct, found by a preponderance of the ewjence, did not violate his rights to due

process and a jury trial. Pet. App. 53a-56a.

This Court has explicitly rejected the preponderance of evidence standard in criminal

cases and emphasized necessity of holding the government to a reasonable doubt standard. In re.

Winship, 397 U.S. ?58 (1 970) teaches that reasonable doubt standard plays a vital role in the

American scheme of criminal procedure. It is a prime instrument for reducing the risk of res:L?g

on factual error. Winin,.hip, 397 U.S. at 363. Winship reasons further in agreement with the

dissenters in the court below, "we agree that a person accused of a crime would be at a

disadvantage amounting to a lack of fundamental fairness if he could be adjudged guilty and

imprisoned for years on the strength of rhe same evidence as would suffice in a civil case."

Winship quoting W v Family Court, 247 N.E. 2d, 253,259 (1968).

The imprisonment of a person for years based on the same standard of proof that would

suffice in a civll case is exactly what occurred in this case. The district court found by a

preponderance of evidence, which is the civil standard, that Ciavarella was guilty of conduct

underlying charges for which he was acquitted and sent him to jail for 28 years. This is more

than double the time called for by a guidelines sentence. Even more offensive, the district court

considered Ciavarella's denial of the relevant conduc:, not found by a jury, as evidence of his

lack of acceptance of responsibility. If this practice of allowing a person's liberty to be taken

based on conduct not proven beyond a reasonable doubt standard continues unrestrained, it will

violate traditional notions of fairness long held by the American people. As this Court has held,

due process commands that no man shall lose his liberty unless the Government has proven by

the production and bli~den of proof con-vincir,g &e fct-fmder of his guilt beyond a reasonable

doubt. Spieser v. Randall, 357 U.S. 513 (1958) (cite with approval) In re: Finship, 397 U.S. at

364.

Despite the discretion granted to a district court to impose a reasonable sentence within

the statutory maximum, the sentencing judge must fust determine the guideline range. The

guideline range is presumed reasonable. Rita v. UnitedStates, 551 U.S. 338 (2007).

The district court's consideration of acquitted conduct for sentencing purposes resulted in

a drastic departure from the prescribed range of sentence to which Ciavarella was exposed. The

departure here, as many as 10 levels driven by the acquitted conduct, is more si&cant to a

defendant than an increase in a mandatory minimum sentence addressed in UnitedStates. v.

Allyene, --U.S.--, 133 S. Ct. 2151 (2013).

In Allyene, the jury returned a verdict finding that the defendant carried or used, but did

not brandish, a weapon in commission of crime of violence. This crime mandates a minimum

sentence of 5 years. However, the sentencing judge found that the defendant "brandished" the

weapon, thereby increasing the mandatory minimum to 7 years..This Court, applying Apprendi v.

New Jersey, 530 U.S. 466 (2000), concluded that any fact which increases a mandatory

minimum sentence is an "element" of the offense which must be submitted to a jury. Apprendi

at 490.

As a practical matter, the district court's findings undercut Ciavarella's acquittal on 27

charges and dramatically increased the base guideline range to life imprisonment. The use of the

acquitted conduct put a floor on Ciavarella's sentence as surely as the mandatory minimum put a

floor on the sentence in Allyene, In Allyene, the restriction on the defendant's liberty was two

years more mandated by facts found by a judge using a preponderance of evidence standard. For

Ciavarella. the increased deprivation of his liberty converted to about 15 years driven primarily

by facts not found beyond a reasonable doubfiy a jury. This increased deprivation reflects the

district court's consideration of the acquitted conduct. Even though it sentenced Ciavarella to 27

years, which was below the base guideline range of life imprisonment, the district court's use of

the acquitted conduct established the baseline of life imprisonment from which a sentence was

then fashioned.

In United States v. FVaiis, 519 U.S. 145, 156 (1997), this Court acknowledged a divergence

of opinion among the circuits as to whether a higher standard of proof is required where in

extreme circumstances relevant conduct increased the sentence. The case before the Court in

Watts did not present such circumstances. Nor were extreme circumstances before this Court in

McMillan v. Pennsylvania, 477 U.S. 79 (1986)(upholding use of preponderance standard where

there was no allegation that the sentencing enhancement was the tail w-hich wags the dog of the

substantive offense) ~McVfillan, 477 U.S. at 85, cited by Wnirs at 519 U.S. at 156,162. This case

presents the extreme circumstance where acquitted conduct dramatically increases a sentence.

The dramatic increase in the guideline range to life imprisonment caused primarily by the district

court's fmdings of facts not found by the jury is the dog's tail that wags the dog of the

substantive offense.

This Court should therefore grant certiorari to address these extreme circumstances which

affect the very core of Federal sentencing proceedings and a defendant's &de process a d juii

trial rights.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

/ 33 West SOUL? St. Wi!kes-Bare, Pa. 18701 570-825-6592 Email: afloralaw@ptd.net

5 90 Rutter Avenue Kingston, Pa. 18704 570-288-7799