Feds seek longer Fumo sentence

Former State Sen. Vincent J. Fumo, now serving a 55-month prison term, got an "enormous" break and should receive a much longer sentence, prosecutors said Thursday in a voluminous attack on the punishment imposed last July by a federal judge.

"Common thieves" routinely receive harsher sentences than the once-powerful Democrat, who engaged in "breathtaking" corruption, Assistant U.S. Attorneys Robert A. Zauzmer and John J. Pease contended in their 268-page brief.

"It is likely impossible to identify a defendant in recent years who stole over $2 million, abused a position of public trust, and obstructed justice in the process, who received a sentence anything like Fumo's," they wrote.

The prosecutors asked the U.S. Court of Appeals for the Third Circuit to order U.S. District Judge Ronald L. Buckwalter to resentence Fumo and codefendant Ruth Arnao, a longtime aide, who received a prison term of one year and a day.

Later Thursday, Peter Goldberger, one of Fumo's lawyers, criticized prosecutors for the sheer length of their filing - and for what he said was its overheated rhetoric. "I don't expect an appellate court to find that persuasive," he said.

The sentence Buckwalter imposed on Fumo and comments by the judge expressing sympathy for him ignited a furor. Buckwalter criticized the FBI, prosecutors, and the news media during the trial and, at one point, dismissed public comments about the case posted on the Internet as "crap."

"It's not murder. It's not robbery. It's not even assault," Buckwalter said of Fumo's wrongdoing. "It's nothing violent. It's not the selling of a political office."

The prosecutors' appeal of the length of the sentence was unusual, and legal experts agreed that persuading the court to force Buckwalter to hold new sentencings could be an uphill battle.

Appeals courts give judges considerable leeway in sentencing, and to undo a sentence, prosecutors cannot merely attack it as unjust. They must make their case on procedural grounds, showing that a judge miscalculated or misconstrued federal sentencing guidelines or made other serious legal errors.

Those guidelines, advisory since a U.S. Supreme Court decision in 2005, require judges to enumerate a number of factors, including the nature of the crime, the amount of money taken, and the typical range of sentences for similar wrongdoing, before imposing punishment.

In two recent cases in the Third Circuit, there were mixed outcomes. In April of last year, the court refused to order a new sentence for a contractor given probation for a massive tax fraud, saying the judge had adequately explaining his reasoning.

Yet four months later, it ordered a new sentence for a man given probation for having child pornography. It said the judge had failed to properly explain why she departed so substantially from guidelines that called for a prison term. The court also said the judge "did not consider the need to avoid potential sentencing disparities among similarly situated individuals."

In Fumo's case, prosecutors had agreed with the federal Probation Office conclusion that he should go to prison for 21 to 27 years.

But Buckwalter interpreted the guidelines differently, finding the sentence range to be just 10 to 14 years. Beyond that, he gave Fumo a huge break for his public service.

"You worked hard for the public, and you worked extraordinarily hard, and I'm therefore going to grant a departure from the guidelines," Buckwalter said.

The prosecutors said Buckwalter had made significant mistakes. "The errors are clear, and the absence of explanation for all of the rulings is glaring," they wrote.

Zauzmer and Pease also said there were numerous miscalculations by Buckwalter, a former Lancaster County district attorney appointed to the federal bench in 1990 by President George H.W. Bush.

They cited several factors that should have subjected Fumo to extra punishment, beginning with what they described as a week of lying on the witness stand. They also said Fumo had ripped off charities and had orchestrated an especially sophisticated criminal scheme. Buckwalter rejected those findings.

Fumo is serving his sentence at a low-security prison in Kentucky. Arnao is at a halfway house and is scheduled to be released Wednesday.

Fumo and Arnao were convicted in March 2009 after a five-month jury trial. Fumo was found guilty of 137 counts of fraud, conspiracy, and obstruction of justice. Arnao was convicted of 45 counts.

The jury found that Fumo, now 67, had turned his staff in the Senate into personal servants and political minions. The jury also found that he had defrauded a pair of nonprofit organizations - Citizens' Alliance for Better Neighborhoods, a civic-improvement group headed by Arnao, and the Independence Seaport Museum, of which Fumo was a board member. Once Fumo and Arnao realized the FBI was on their trail, the jurors agreed, they tried to obstruct the probe.

The prosecutors said Fumo's sentence was much more lenient than the prison terms in other local corruption cases: Former City Treasurer Corey Kemp got 10 years, former City Councilman Rick Mariano got 61/2 years, and the former head of the Independence Seaport Museum, John Carter, got 15 years for crimes unrelated to the Fumo case.

Fumo's sentence, Zauzmer and Pease said, "promotes not respect for the law, but disgust and outrage."

Fumo will have two months to file a response - and to make his own argument as to why his conviction should be set aside. He is expected to focus in part on one juror's postings on Facebook and Twitter, as deliberations were winding down, in which the juror said a big development was about to take place - an apparent reference to the verdict. The defense sought a mistrial, but Buckwalter rejected the request.

Oral arguments before a three-judge panel of the appellate court are expected early next year.

Buckwalter, in sentencing Fumo, said he had taken into account the more than 200 letters submitted on Fumo's behalf. They were submitted by Gov. Rendell and some of the top movers and shakers in the city.

In their filing, the two prosecutors ripped into how Buckwalter had calculated the scale of Fumo's thievery.

His decision to reduce the cost to taxpayers of Fumo's rip-offs from $4 million to $2.4 million, they said, "had the effect of slicing Fumo's guidelines range in half," making the final sentence "look less extreme" in its leniency than it was.

For Fumo, reducing the monetary value of his crimes was especially significant because the recommended prison term increases dramatically once a theft exceeds $2.5 million. Thefts over that threshold expose a defendant to four extra years.

In particular, the government said, the judge cut Fumo an unfair break by refusing to attribute any loss at all to his misuse of eight selected state employees even though the jury had convicted Fumo of numerous counts related to those employees.

The jury found that Fumo had gotten staffers to go along with his wrongdoing by wildly overpaying them. In all, the government said, Fumo overpaid eight such employees by $996,000. Buckwalter struck that figure from the loss calculation.

Similarly, the prosecutors said, Buckwalter helped Fumo out by lowballing the amount of personal items and tools he stole from Citizens' Alliance.

By painstakingly going over credit-card bills and store receipts, FBI agents Vicki Humphreys and Kathleen T. McAfee determined that Fumo had stolen at least $133,000 in such goods.

After first telling the public that he had gotten nothing of value from the charity, Fumo told the jury that he had pocketed tens of thousands of dollars in items billed to the group.

He denied that his rip-off amounted to $133,000. In his sentencing process, Buckwalter credited Fumo with being truthful on this, and the judge found that the theft was less than the full $133,000.

By contrast, the prosecutors wrote in their filing, Fumo was "grossly perjurious in all respects" - and had lied as well about the size of his thefts from Citizens' Alliance.