Former State Sen. Vincent J. Fumo's resentencing shines spotlight on judge

Former State Sen. Vincent J. Fumo is back in Philadelphia to be resentenced Wednesday, but the real focus will be on a 74-year-old federal judge who must wrestle with how to respond to a rebuke from his bosses.

Ordered by the U.S. Court of Appeals for the Third Circuit to resentence Fumo, U.S. District Court Judge Ronald L. Buckwalter must now decide whether to give Fumo more time or simply fix his legal errors and reinstate Fumo's hotly debated 55-month sentence.

The defense wants the judge to stand pat.

The prosecutors want Buckwalter to impose at least 15 years; Fumo has already served two years and two months.

In an e-mail released Friday by his lawyers, Fumo, now 68, cried out at the prospect of a tripling of his sentence. "That's a death sentence for me," he wrote. "This is really scary."

From his prison camp in Ashland, Ky., Fumo wrote that the uncertainty about his future had been excruciating. "This is EXTRA punishment!" he wrote in a recent e-mail. "The emotional roller coaster of not knowing is and has been horrible!"

Perhaps Buckwalter has been having some anxious times, too. Douglas Berman, a law professor at Ohio State University and an expert on sentencing, said being reversed stings.

"There's no doubt that the district judge doesn't like being told, 'You got a F on your paper, and now redo it,' " Berman said.

At the same time, Berman said, judges have broad discretion to impose sentences, and Buckwalter may still feel strongly that he fashioned a sentence that fits the crime, regardless of public criticism or the stiffer sentence that sentencing guidelines call for.

Berman guessed that Buckwalter would give Fumo "a slight increase, but only a slight increase."

Dan Richman, a law professor at Columbia University and a former federal prosecutor, said the guidelines were only that - guidelines.

"If you look at white-collar sentencing across the country - corruption, securities cases - a lot of it adheres to the guidelines," Richman said. "But you will also regularly see judges do all sorts of things, going up or down."

After a five-month trial that ended in 2009, a jury found Fumo, a Democratic state senator for three decades, guilty on all 137 counts he faced.

Jurors convicted him of defrauding the state Senate by using his aides as personal servants and partisan operatives. They said he defrauded a South Philadelphia nonprofit organization, then known as Citizens Alliance for Better Neighborhoods. They said he took luxury yacht cruises and stuck a maritime museum with the bill.

And they said he tried to stage a coverup once he learned he was under investigation.

Avuncular throughout the grueling trial, the white-haired Buckwalter, a Republican and former Lancaster County district attorney, turned angry on sentencing day in 2009.

He accused prosecutors of using "hyperbole" about the magnitude of the Fumo case and the sweep of his crimes. He praised Fumo's service in the state Senate. And he imposed a sentence that the appeals judges later concluded improperly lowballed the dollar haul of Fumo's crimes and failed to take into account the sophistication of Fumo's scheming and his rip-off of a charity.

Last month, in the one hearing in the Fumo case after the Third Circuit court's August ruling, Buckwalter, his genial demeanor firmly restored, gave no hint as to what he might do.

But he did take steps to dim the spotlight a bit. In 2009, Buckwalter staged the sentencing in the big ceremonial courtroom on the first floor of the federal courthouse, accommodating a larger crowd that way. This time around, Buckwalter has announced, the hearing will be in his regular, smaller courtroom on the 17th floor. The session starts at 10 a.m. Wednesday.

He also told prosecutors and the defense team he might not rule until the next day, giving himself the evening to think through his sentencing and what to say publicly about it.

The problem facing Buckwalter is the yawning gap between 55 months and the recommended sentence under federal guidelines. Unless the judge cuts Fumo a break for such factors as his age or health, prosecutors and the defense now agree the advisory range would be at least 17½ years behind bars.

The prosecutors' recommendation - at least 15 years - is lower than the guideline.

In 2009, Buckwalter had computed the advisory range to be at least 11 years and then imposed less than half that.

But the Third Circuit court told him he failed to properly compute the extent of Fumo's crimes. Prosecutors and defense also now agree that, under the appellate ruling, Fumo's fraud cost taxpayers and two nonprofits about $4 million.

In their aggressive counterattack on the 2009 sentence, prosecutors John J. Pease and Robert A. Zauzmer said Fumo should no more get credit for his successes as a politician than a Wall Street embezzler should get a break because "during regular working hours, his successful trades earned millions of dollars for his firm and its customers."

The defense says Fumo deserves a break because of his age, poor health, and performance as a lawmaker, as well as for his private acts of generosity.

Buckwalter, appointed to the federal bench by President George H.W. Bush two decades ago, does not have a record as an especially tough judge when it comes to sentencing.

As a senior judge, Buckwalter has handled a limited caseload, but he has imposed sentences more lenient than the guidelines in 60 percent of his cases, like Fumo's, in which the defendants had not cooperated with authorities.

Nationally, judges imposed terms below the guidelines in only a quarter of such cases.

Even Fumo's lawyers, in a filing with the court last week, made it plain how rare the Fumo sentence was. Of several thousand defendants in circumstances similar to Fumo's, only 26 received as big a break from the guidelines range, according to a study by experts hired by the defense and their review of cases since 2005. That was the year the U.S. Supreme Court made the guidelines nonmandatory.

Though sentences like Fumo's are not routine, "neither are they unheard of, as the government seeks to imply," wrote defense lawyers Dennis J. Cogan, Peter Goldberger, and Samuel Buffone.

"Year after year," the lawyers wrote, judges have given defendants such breaks. They said Buckwalter "should not hesitate" to do so again.

Fumo is already back in town. In leg irons and chained at the waist, he was put on the road in recent weeks, traveling aboard prison buses and "Con Air," the federal prisoner-transport system, to return to Philadelphia.

Fumo arrived in the city a week ago and has been held at the federal facility near the U.S. Courthouse. He departed prison in Kentucky on Oct. 20, and later made stops at federal facilities in Atlanta, West Point, N.Y., and Brooklyn.

The Fumo corruption saga burst into public view in 2004, when The Inquirer reported he was under FBI investigation. The sensational case reached its latest climax in the last 10 days, with both sides releasing scores of e-mails Fumo wrote behind bars.

Citing a U.S. Supreme Court decision that permits judges to weigh post-conviction behavior at resentencings, prosecutors on Oct. 28 argued that the e-mails showed Fumo was vengeful, unrepentant, and a likely recidivist.

In his messages, Fumo blasted the prosecutors as "evil," his jury as "dumb, corrupt, and prejudiced," and his offenses as "my so-called crime." He promises an old ally - a serving state senator - that upon release, he will make a comeback in politics and "begin building again."

This would hardly be without precedent in Pennsylvania politics. Notably, Fumo's predecessor in his South Philadelphia district - the late State Sen. Henry J. "Buddy" Cianfrani - set up lucrative shop as a political consultant after serving time on a federal corruption conviction.

On Friday, the defense released its own set of e-mails, sketching a different portrait of Fumo from the massive number he sent.

The defense argued the e-mails showed that, in his "more reflective moments," Fumo realized he was too old to restart his career as a lobbyist and that he probably would be barred from doing that anyway.

In one e-mail, Fumo wondered why the government seemed to treat him like the "Unabomber and Oklahoma bombers combined?"

Of course, Timothy McVeigh, who blew up a federal building in Oklahoma, has been executed. "Unabomber" Theodore Kaczynski is serving life without parole.

Minus profanities, Fumo also wrote, "It is VERY frustrating. Plus I've been here almost 2 years and I don't have any finality to my sentence! This is not fair or just! It is cruel.

"I too am a human being. Albeit a felonious one!:-(" The e-mail war left lawyers in town pondering its impact, if any.

Under one school of thought, the electronic evidence might give Buckwalter a new reason to increase Fumo's sentence.

On the other hand, it might reaffirm Buckwalter's previous view that prosecutors had overreached, said Berman, the Ohio State sentencing expert.

"It may harden the judge's desire to stick it to the government," Berman said.

Richman, the Columbia professor, said Buckwalter may well be pondering how much the Third Circuit court was focusing on his legal missteps, as opposed to the bottom line of the 55-month sentence he imposed two years ago.

"If he focuses on the process and reinstates the same sentence," Richman said, "he may well find out."

By that, Richman said, he meant the prosecutors could lodge yet another appeal should Buckwalter not increase the sentence.