PHILADELPHIA (CN) – The 3rd Circuit ordered resentencing for a former Pennsylvania state senator convicted of massively defrauding taxpayers, but said a juror’s frequent Facebook updates do not justify a new trial.
Vincent Fumo was convicted of misusing Senate staffers to run his personal errands, like driving his daughter to school and driving cars full of luggage to Martha’s Vineyard for the legislator’s annual excursion, and using state funds to pay private detectives surveiling Fumo’s ex-wife, girlfriends, ex-girlfriend’s boyfriends and political rivals.
The scandal knocked Vincent Fumo from his status as one of Pennsylvania’s most powerful political figures, with 30 years of service in the state Senate. Fumo, who once served as chairman of the Senate Democratic Appropriations Committee, was sentenced last year to 55 months at a Kentucky federal prison for 137 counts of fraud, tax evasion and obstruction of justice.
A three-judge appellate panel affirmed the conviction Tuesday, agreeing that Fumo should pay for using state resources for his personal life.
U.S. District Judge Ronald Buckwalter had declined to use the guideline sentencing range of 121 to 151 months, saying the penalty was too harsh in light of Fumo’s “extraordinary good works” as a purported public servant.
But Buckwalter never specified whether he was granting a departure or a variance, and failed to specify the precise guideline range under which he was sentencing.
The panel also noted that Buckwalter was wrong to deny sentence enhancements for Fumo’s use of sophisticated means and a charitable organization in connection with his crime. It ordered the judge to take that criticism into account at resentencing.
Buckwalter also specify whether he is granting a departure or a variance so the 3rd Circuit can adequately address a possible future appeal by the government, which argued for 262 to 327 months.
The 3rd Circuit agreed with prosecutors that the District Court fell short in estimating that Fumo’s wrongdoing had caused just under $2.5 million in losses. Since “the difference in the loss would place Fumo into a higher offense level, the error was not harmless,” Judge Julio Fuentes wrote for a three-judge panel.
Fumo’s three-decade tenure as a state senator was marked by repeated use of publicly paid staffers to attend to the legislator’s personal errands, such as managing renovations to Fumo’s 33-room Philadelphia mansion.
He used senate funds to hire contractors for nonlegislative tasks, including conducting surveillance on his former wife, girlfriends and political rivals. He also founded the supposedly nonprofit Citizens Alliance for Better Neighborhoods, which he used for personal enrichment.
In his appeal, Fumo claimed that the government presented irrelevant evidence concerning state ethics law that only served to prejudice and confuse the jury.
The 3rd Circuit disagreed Tuesday, holding that discussion of Pennsylvania’s Ethics Act was “clearly relevant” to the government’s case against Fumo.
The panel also rejected Fumo’s claim that Facebook postings by a juror while the trial was ongoing created prejudice that demanded a new trial.
The trial court had twice denied that demand, and the 3rd Circuit agreed Tuesday that there was no evidence that the posts were prejudicial.
Buckwalter had characterized the posts as “nothing more than harmless ramblings.” The juror had updated his Facebook status with comments like “can’t believe tomorrow may actually be the end!!!” and “”Stay tuned for the big announcement on Monday everyone!”
The panel also agreed that another juror wasn’t substantially prejudiced after her co-workers informed her of Fumo’s prior, overturned conviction and about the imprisonment of one of Fumo’s associates.
In a dissenting opinion, Judge Richard Lowell Nygaard said resentencing was unnecessary because Buckwalter had been sufficiently specific about his decision.
U.S. Attorney Zane David Memeger said his office is “pleased with the decision” and “will prepare for the next step in the process.”