Prosecutors argue for stiffer sentence for Fumo

Federal prosecutors Monday again ripped into a judge's decision to reduce former State Sen. Vincent J. Fumo's sentence for corruption in return for what the judge called Fumo's "extraordinary" public service.

Drawing upon an FBI investigation of Fumo's travel, the prosecutors said the claim that Fumo toiled tirelessly for the public was both a cliché and a myth.

In fact, Fumo "devoted a huge amount of time to vacationing and leisure activities," spending a quarter of his time on holiday in Martha's Vineyard and Florida.

The two prosecutors noted that besides serving as a Democratic legislator, Fumo worked as a "rainmaker" for a Philadelphia law firm and was the chairman of a bank. The firm paid him nearly $1 million yearly to drum up business, and the bank also compensated him heavily.

While Fumo's defenders praised him for returning phone calls and e-mails during family meals, holidays, or vacations, Assistant U.S. Attorneys Robert A. Zauzmer and John J. Pease said that if he hadn't done that, "he would not have returned most messages at all."

FBI agents Vicki Humphreys and Kathleen McAfee, in a government exhibit introduced at Fumo's trial, tracked Fumo's whereabouts from 2001 to early 2004, using credit-card and FedEx invoices. In that time, he spent 23 percent of his days in Europe, in Florida, or on Martha's Vineyard. The agents excluded from their analysis Fumo's many stays at the Jersey Shore, where he owns two properties.

On Monday, the prosecutors fired their final salvo, a 204-page brief, in their fight to have Fumo hauled back into court to face a resentencing in his 2009 corruption conviction.

In a decision that stirred widespread public outrage, U.S. District Judge Ronald L. Buckwalter sentenced Fumo to serve 55 months in prison for his crimes. A jury found Fumo guilty on every count in a massive indictment that charged the once-powerful legislator with defrauding the state Senate and two nonprofit organizations, and with leading the cover-up to try to thwart the FBI's probe.

The government sought a much stiffer term, agreeing with a conclusion by the U.S. Probation Office that Fumo's wrongdoing meant he should face up to 27 years behind bars under nonmandatory federal sentencing guidelines.

Buckwalter interpreted the guidelines far differently. He said they called for Fumo to receive a punishment of at most 14 years. Then, he gave the Democrat a big break because of his record in office over 30 years.

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

Fumo, 67, has now served 17 months of his sentence, at a prison in Kentucky. After one more filing from the defense and probable oral arguments, he and the public will likely learn later this year whether the U.S. Court of Appeals for the Third Circuit will affirm his sentence or order a new sentencing hearing.

In a defense filing last month, Fumo's legal team said that Buckwalter was on firm legal ground in crafting the sentence and that the Third Circuit court should not second-guess the judge.

In Monday's brief and an even longer one filed last year, the prosecutors said Buckwalter had made numerous errors in calculating the guidelines applicable to Fumo and a codefendant, former Senate aide Ruth Arnao. Arnao is now free, having served her sentence of one year behind bars.

Buckwalter, they wrote in Monday's filing, made "fundamental mistakes, on the basis of no stated reasoning, which contributed significantly to the grossly lenient sentences imposed in this case."

Citing a Third Circuit precedent, they said that the judge had failed to heed a rule that corrupt officials should not get special credit for "civic and charitable work," because "we expect such work from our public servants."

Such credit should only be given when the official "goes well beyond the call of duty and sacrifices for the community," the appellate court ruled.

But Fumo, the prosecutors said, did not work especially hard. And, they added, "he presented no evidence that he sacrificed in any other way; rather he used his public position to gain great riches (and steal more), and gave almost none of it to charity."

Pease and Zauzmer also argued that Buckwalter put far too low a price tag on the cost of Fumo's greed.

The prosecutors said it had cost taxpayers and the nonprofits $4 million, but the judge put the loss at just $2.4 million. This was significant because the bigger the theft, the bigger the potential sentence under the guidelines.

In key areas, the prosecutors said, the judge simply abdicated his responsibility to put a value of the loss.

For instance, they said Fumo had paid wildly excessive salaries to a core group of Senate aides who served as his political foot soldiers or personal servants. This cost taxpayers nearly $1 million, they said.

Buckwalter attached no value to this loss, though the jury found Fumo guilty of specific counts related to these employees.

The prosecutors said this was reversible error.

Buckwalter, they wrote, "unquestionably committed clear error in simply erasing $1 million of loss to the taxpayers proved by the government."