Prosecutors Tuesday urged a federal judge to resentence former State Sen. Vincent J. Fumo to at least 15 years in prison, more than triple his current penalty, to properly punish him for "detestable" crimes that cost taxpayers and charities $4 million.
But in a rival filing, Fumo's defense team urged U.S. District Judge Ronald L. Buckwalter to simply reinstate the controversial 55-month sentence he imposed two years ago.
They said Buckwalter should again grant Fumo a break for what the lawyers called his "extraordinary level" of public service, as well as for private acts of generosity. His attorneys described the 68-year-old Fumo as in poor health, facing the "real chance" of dying in prison, yet still mentoring fellow inmates.
In August, the U.S. Court of Appeals for the Third Circuit ordered Buckwalter to resentence Fumo. Without specifying what new sentence should be imposed, it said Buckwalter's legal reasoning had been shot through with errors, including a badly underestimated figure for the cost of Fumo's crimes.
Buckwalter is to decide after a resentencing hearing Nov. 9.
In a 84-page filing, the prosecutors set out to dismantle the public-service rationale initially cited by Buckwalter in 2009 in a sentencing decision that triggered widespread public anger at the time.
Assistant U.S. Attorneys John J. Pease and Robert A. Zauzmer argued that it was myth that Fumo was such a devoted public servant. In fact, they said, the FBI showed that he spent four months a year or more vacationing.
Moreover, they said, court precedent made it plain that convicted politicians should get no special credit for doing their jobs well any more than a corrupt baseball player should get a break because "during his day job, he hit home runs."
In Fumo's marathon trial, the two prosecutors showed that Fumo had boasted of how he lived well by spending "other people's money." To give him sentencing credit for steering taxpayer money to worthwhile projects would mean Fumo had also invoked "other people's money" to reduce his time behind bars, they said.
That's why Fumo's original sentence "was so widely seen as offensive and provoked such a storm of public revulsion," they said.
Once one of the most powerful Democrats in Harrisburg and Philadelphia, Fumo was found guilty on all 137 counts he faced.
The jury found that he had defrauded the state Senate by handing out no-work contracts, wildly overpaying his staff while they did personal and partisan tasks for him, and paying a private investigator state money to dig up dirt on political enemies and an ex-girlfriend.
Fumo also siphoned off money and staff time from a South Philadelphia civic organization and took free vacations year after year on luxury motor yachts that belonged to Philadelphia's Independence Seaport Museum.
Finally, the jury found that he orchestrated a campaign to delete tens of thousands of e-mails in a cover-up that the government said could have masked even more crimes.
In sentencing Fumo originally, Buckwalter had said his crimes cost taxpayers and nonprofit organizations $2.4 million, a figure criticized as too low by the Third Circuit court. The figure Buckwalter designated was significant because U.S. sentencing guidelines call for punishment to potentially ratchet up when the toll exceeds $2.5 million.
But in their filings Tuesday, the prosecutors and Fumo's defense team both agreed that, in light of the instructions laid out in the appellate ruling, Fumo's fraud had reached $2.5 million.
The prosecutor contended that meant Fumo should serve more time and pay almost $2 million more in restitution and interest.
The two sides now agree that, absent special leniency, the sentencing guidelines suggest that Fumo face a resentence of at least 17 years.
These guidelines are only advisory, though. And the defense urged Buckwalter to leave the original sentence and restitution unchanged.
The legal team includes Pennsylvania lawyers Dennis J. Cogan and Peter Goldberger and Washington appeals expert Samuel Buffone.
Fumo did not sell his office or take a bribe, his lawyers said. Thus, they argued that it was unfair to compare his case to those of politicians hammered with tough sentences, such as former Philadelphia Treasurer Corey Kemp, sent away for 10 years in 2005 for steering contracts to favored firms in return for payments and gifts.
"Fumo's offense is thus more akin to financial fraud than to most cases of political corruption," they wrote.
The lawyers asked for leniency because of Fumo's age and poor health. With a history of heart attacks, anxiety, diabetes, and other ailments – and an addiction to prescription drugs that hit 1,000 pills a month before he was jailed – Fumo faces a potentially grave outcome if he has to serve more than his original sentence, his lawyers said.
The lawyers called their client a man of "exceptional generosity and limitless devotion to the needs of others." In their filing, reflecting issues raised by the Third Circuit court, they put new emphasis on personal acts of kindness by Fumo, and less on his role in government.
In prison in Ashland, Ky., over the last two years, his lawyers said, Fumo has helped one inmate improve his reading skills, counseled another about investments, and comforted others about divorces when their wives left them after they were convicted.
He has also enrolled in a gardening class that lets him tend to a local community garden and taught classes to other convicts on military history.
The prosecution had a different view of Fumo's character.
The government said that the evidence, especially Fumo's own e-mails, revealed him to be a "profane, vindictive and frequently petty person" who, in one characteristic ugly action, ordered his Senate technical staff to snoop on his daughter's computer.
In his personal life, prosecutors said, Fumo was not particularly generous in his giving, despite the wealth evidenced by his ownership of five homes. A 2003 tax return showed that he gave less than 1 percent of his income that year to charity.
The government's brief also noted that Buckwalter in 2009 had made a point of saying he had received only five letters critical of Fumo.
But he badly misjudged the public mood, the prosecutors said.
After Buckwalter ruled, the prosecutors said, "an avalanche of letters, calls, e-mails, and published commentaries" poured in, all angry at the judge's decision.
"The public does care, and cares passionately, about the honesty of its public officials and about the essential American principle that no individual person in our system of justice is above the law," Pease and Zauzmer wrote.
To underscore the point, they filed with Buckwalter a thick selection of 50 such messages. "Your honor, you have failed us," one man wrote Buckwalter, providing a copy to the U.S. Attorney's Office.
Along with Fumo, the jury convicted Ruth Arnao, a former top aide on his Senate staff. Arnao has now served her one-year sentence, but Buckwalter must reconsider her punishment, too, at the Nov. 9 hearing.
In their filing, the prosecutors also urged that Arnao be resentenced to more time, possibly eight years or more. They said she had been an eager handmaiden to Fumo's crimes and had "gleefully participated in the lifestyle" financed by the thefts.
Arnao's attorney, Patrick J. Egan, said she was a changed woman, repentant and free of her Fumo dependency.
Arnao has been punished enough and should simply be resentenced to time served, Egan said.