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Prosecutor’s statement an issue

U.S. attorney wants words by a federal prosecutor on Mericle’s guilty plea kept out.

SCRANTON – The U.S. Attorney’s Office has asked a federal judge to prevent Mark Ciavarella’s attorneys from presenting statements at trial that a prosecutor made regarding the legality of payments made by Robert Mericle.

In a motion filed Wednesday, U.S. Attorney Peter J. Smith said Ciavarella’s attorneys advised him they plan to introduce assistant U.S. Attorney Gordon Zubrod’s statement that payments made by Mericle “were not a kickback or bribe in any sense.”

Zubrod made the statement at Mericle’s Sept. 2, 2009, guilty plea to a charge of failure to report a crime. At the hearing, Zubrod stated a $997,600 payment Mericle made to Ciavarella and former Judge Michael Conahan after he obtained the contract to build the PA Child Care Center was a “finders fee.” The fee was a legitimate business transaction that is common place in real estate transactions, Zubrod said.

“This is not a kickback or a bribe in any sense. It is a common practice," Zubrod said. “Mr. Mericle simply paid a finders fee to the judges in accordance with standard practice. To him, his payment of the fee was what he had done hundreds of times before and was not related to the office the judges held or any decisions by the judges ... .”

Jury selection in Ciavarella’s trial is scheduled to begin on Monday in federal court in Scranton. He faces a 39-count indictment that charges him with racketeering, bribery, extortion, money laundering, wire fraud and tax evasion.

Prosecutors allege Ciavarella and Conahan, who pleaded guilty last year to one count of racketeering conspiracy, accepted a total of $2.8 million from Mericle and Powell in exchange for issuing rulings that benefited the PA Child Care and Western PA Child Care juvenile detention centers. The centers were co-owned by Powell and were built by Mericle’s company, Mericle Construction.

In his motion, Smith said Ciavarella’s attorneys, Al Flora and William Ruzzo, plan to assert that Zubrod’s statement amounts to an admission by the government that Mericle’s payment was not a kickback or bribe.

“The government disputes the contention that the statements by counsel constitute any such admissions," Smith says.

Smith said Zubrod’s statement that “this is not a kickback or bribe in any sense” refers to the general practice of paying a finders fee, not the specific payment in this case.

Smith further argues that Zubrod’s statement that “Mericle simply paid a finders fee to the judges in accordance with standard practice” refers to Mericle’s intent, and not the intent of Ciavarella, Conahan or attorney Robert Powell, who has admitted he passed the money from Mericle to the judges.

“The government has consistently taken the position that Robert Powell, Michael Conahan and Mark Ciavarella intended the Mericle payments as kickbacks/bribes and that the convoluted financial transactions they initiated to hide the payments are evidence of their intent,” Smith says.

Flora and Ruzzo filed their own brief Thursday in which they argue Zubrod’s statements should be admitted.

The attorneys say Zubrod’s statement was made on behalf of the government and “constitutes an admission that directly contradicts one of the government’s theories in the case, i.e. that Robert Mericle paid a bribe/kickback to the defendant.”

“Neither Mericle, his counsel nor anyone else present made any objection to these statements or (took) any action to further clarify the record,” the attorneys say.

Smith argues Zubrod’s statement is not admissible under the rules of evidence. In the alternative, he argues it should be precluded because it would cause confusion and its probative value is outweighed by the prejudice it would cause to the government’s case.

“The inference that the defendant wishes to draw would be unfair and would preclude an innocent explanation for any apparent inconsistency,” Smith says.

It’s not clear from the filings whether Flora and Ruzzo plan to try to call Zubrod as a witness, or whether they might rely on a transcript of Mericle’s plea hearing to introduce the information.

If the attorneys seek to call Zubrod personally, that could lead to his ouster from prosecuting the case, said Douglas McNabb, a Washington, D.C., attorney who specializes in federal law.

“You can’t prosecute a case if you also become a witness in the case,” McNabb said.

Zubrod is the lead prosecutor in the case, but several other assistant U.S. attorneys have also worked on it. Should he be forced off, it’s expected the case would be taken over by other prosecutors.

U.S. District Judge Edwin Kosik will review the government’s motion and is expected to issue a ruling before the start of testimony in the trial.

First reported online at

9:09 a.m.

on timesleader.com

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