Prosecutors get go-ahead to appeal Fumo sentence

The legal war over the fate of former State Sen. Vincent J. Fumo is about to reignite, now that federal prosecutors have received the go-ahead to appeal Fumo's 55-month sentence.

The prosecutors denounced the prison term as too lenient after U.S. District Judge Ronald L. Buckwalter triggered a public furor when he imposed it 11 months ago.

But they have been waiting since for a decision from the Solicitor General's Office in Washington, which picks the appeals battles the Justice Department fights nationwide, on whether they could lodge an appeal.

Approval came last week, First Assistant U.S. Attorney Louis D. Lappen said Monday.

Now, the prosecution's appeal will go to the U.S. Court of Appeals for the Third Circuit. Defense attorneys will file an appeals case, too, seeking a new trial. The two appeals will be considered together.

Fumo turned 67 last month behind bars in a federal prison in Kentucky, convicted of 137 counts of fraud, conspiracy, and obstruction of justice.

The lawyers for the once-powerful Democrat are expected to argue that the trial was tainted because one juror posted messages about the case on Facebook and Twitter, and another juror had improperly learned about a past Fumo conviction (later overturned) in a corruption case.

Prosecutors declined to comment Monday on their pending filing - their brief is expected to be massive - but it seems certain to be scorching in its criticism of Buckwalter.

To undo the Fumo sentence, appellate precedent suggests, the prosecutors will have to attack in a roundabout fashion, not arguing directly that the sentence didn't fit the crime, but rather contending that the judge made legal errors.

Law professor Douglas A. Berman said the burden will be on the government.

"Candidly, I think they face an uphill battle," said Berman, who writes the Sentencing Law and Policy blog.

Ever since the U.S. Supreme Court struck down mandatory sentencing laws, in 2005, appellate courts have been reluctant to question the discretion given trial judges to decide punishments.

Indeed, the Third Circuit itself voted 8-5 last year to uphold a sentence sparing prison to a corrupt Western Pennsylvania contractor - even though he had been sentenced to home-confinement in the very mansion he had built via a tax-evasion scheme. This was an 8,000-square-foot house with a home theater, $1.8 million in furnishings, and $81,000 in fine art.

Even so, other Third Circuit rulings suggest, prosecutors may make headway if they launch an indirect attack on Buckwalter's performance, raising procedural issues about his decisions.

For example, they could argue that Buckwalter botched the calculation of the sentence Fumo would face under advisory guidelines. Prosecutors and prison officials had contended before the sentencing that Fumo's crimes meant he should face between 21 and 27 years in prison. But Buckwalter found that Fumo faced only an advisory-guidelines range of 11 to 14 years.

In a 2008 opinion, the Third Circuit ordered a new sentencing for a bank robber because the judge had messed up the guidelines math.

"We submit that the improper calculation of the guidelines range can rarely be shown not to affect the sentence imposed," the court found.

Prosecutors could also contend that Buckwalter failed to adequately delineate his reasoning, particularly on how the Fumo sentence compared with those given other corrupt politicians.

In reversing a probationary sentence given a man convicted of possessing child pornography, for example, a Third Circuit panel wrote last year that the trial judge had failed to explain how he dealt with "the need to avoid potential sentencing disparities among similarly situated individuals."

In a filing Monday, prosecutors Robert A. Zauzmer and John J. Pease asked to have until July 8 to file their appeals brief.

On Monday, Dennis Cogan, Fumo's lead defense attorney, said the solicitor general's decision was not unexpected. "The only surprise is why this took so long to process," he said.

Defense attorneys are closely following the issue of juror public communication - an issue that flared at the close of the Fumo trial.

Christopher Warren, a leading Philadelphia defense attorney, said that all too often defense lawyers now find themselves confronting a case both in court and on the Web.

"You are really trying two cases, the one in the courtroom with the rules of evidence, and the one on the Internet," he said. "And the Internet has no such rules."