Case: 18-1498 Document: 003113197109 Page: 1 Date Filed: 03/29/2019
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
Nos. 18-1498 & 18-1499 ________________
UNITED STATES OF AMERICA
Appellee/Cross-Appellant
v.
MARK A. CIAVARELLA, JR.,
Appellant/Cross-Appellee ________________
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 3-09-cr-00272-002) District Judge: Honorable Christopher C. Conner ________________
Submitted Under Third Circuit L.A.R. 34.1(a) March 7, 2019
Before: AMBRO, RESTREPO, and GREENBERG, Circuit Judges
(Opinion filed March 29, 2019)
________________
OPINION* ________________
AMBRO, Circuit Judge
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Case: 18-1498 Document: 003113197109 Page: 2 Date Filed: 03/29/2019
This is a habeas appeal in the infamous “kids-for-cash” scandal. A former
Pennsylvania judge argues that his trial counsel was ineffective by failing to raise a
statute-of-limitations defense, and the appeal centers on the prejudice wrought by the
deficient lawyering: Would a proper timeliness defense have resulted in the judge’s
acquittal on charges of racketeering, money-laundering conspiracy, and mail fraud?
Because we determine the answer is “yes” as to racketeering and money-laundering and
“no” as to mail fraud, we affirm the District Court in full.
Background
Mark Ciavarella, a judge of the Pennsylvania Court of Common Pleas, accepted
nearly $3 million in kickbacks from the owner and builder of two private prisons that
housed juvenile inmates. In exchange, he sentenced children to long stays in juvenile
detention for minor offenses. He was convicted of racketeering, money-laundering, mail
fraud, tax fraud, and conspiracy to defraud the United States.
We focus on the failure by Ciavarella’s trial counsel to raise a statute-of-
limitations defense. Both parties agree that his counsel was ineffective. But was that
prejudicial? That, in turn, depends on whether any of Ciavarella’s convictions punished
conduct that should have been off-limits by the statute of limitations — in this case,
crimes committed before September 2004.
Based on the jury’s verdict, the following facts were proven beyond a reasonable
doubt. Ciavarella received kickbacks in the form of three wire transfers in 2003. To
conceal these payments, he lied about his income in annual filings to the Administrative
Office of Pennsylvania Courts in April 2004 and each April thereafter through 2007. In
2 Case: 18-1498 Document: 003113197109 Page: 3 Date Filed: 03/29/2019
addition, the jury convicted Ciavarella of racketeering and money-laundering
conspiracies that, as charged, straddled the limitations period by running from 2001 to
2009.
On direct appeal, we affirmed all but one conviction. Unlike their faulty approach
to most other counts, Ciavarella’s trial lawyers had raised a timeliness challenge to the
conviction for the April 2004 financial filing. Because that filing occurred before the
limitations window of September 2004, we vacated the conviction. See United States v.
Ciavarella, 716 F.3d 705, 734 (3d Cir. 2013).
Seeking collateral relief, Ciavarella brought a motion to vacate other convictions
under 28 U.S.C. § 2255. The District Court did so for racketeering and money-
laundering on the ground that Ciavarella’s counsel was ineffective, denied the motion to
vacate as to the counts for mail fraud, and denied Ciavarella’s claim that the jury
instructions were faulty in light of the Supreme Court’s subsequent decision in United
States v. McDonnell, 136 S. Ct. 2355 (2016). Both Ciavarella and the Government have
appealed.
Analysis
We deal with three discrete issues. Each devolves to whether an error by trial
counsel was prejudicial. To meet his burden as to prejudice, Ciavarella must show a
“reasonable probability” that, absent his counsel’s error, the outcome of his trial would
have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
3 Case: 18-1498 Document: 003113197109 Page: 4 Date Filed: 03/29/2019
A. Racketeering and Money-Laundering Conspiracies
The jury convicted Ciavarella of receiving kickbacks in 2003 (outside the
limitations period) but acquitted him of charges relating to kickbacks from 2004 and later
(within the limitations period). As noted, it also convicted him of racketeering and
money-laundering conspiracies that were alleged to have run from 2001 to 2009.
Targeting those conspiracy convictions, Ciavarella argues that competent trial
counsel would have excluded the 2003 kickbacks on limitations grounds. As a result, he
maintains that the jury would have had nothing on which to base its convictions for
racketeering and money-laundering. In response, the Government points out that
Ciavarella was also convicted of submitting fraudulent financial filings in 2005, 2006,
and 2007 — in other words, well into the limitations period. The Government maintains
that the filings furthered the conspiracies by concealing the kickbacks.
Thus the habeas petition presents whether the jury based its conspiracy
convictions on the 2003 kickbacks alone (in which case the conspiracy charges should
have been time-barred) or on the subsequent financial filings (if so, the charges were
timely). Because it concluded there was a “reasonable probability” of the former
scenario, the District Court vacated Ciavarella’s conspiracy convictions.
We agree and thus affirm. We cannot say for certain whether the jury believed
that the racketeering and money-laundering conspiracies ended before September 2004.
But such a belief seems “reasonably probable” in light of the jury’s acquittal on all
kickbacks after 2003.
4 Case: 18-1498 Document: 003113197109 Page: 5 Date Filed: 03/29/2019
B. Mail Fraud
Ciavarella was convicted of mail fraud for filing financial statements in 2005,
2006, and 2007 (within the limitations period) that concealed his kickback income earned
in 2003 (before the limitations period). He argues that an adequate statute-of-limitations
defense by his trial counsel would have resulted in an acquittal on the charges of mail
fraud.
Here we disagree. Although the underlying conduct that supported the fraud
occurred before 2004, the financial statements were not submitted — and the crime of
mail fraud was therefore not completed — until after 2004. Indeed, our Court on direct
appeal already explained that the 2003 kickbacks were enough to support convictions for
mail fraud in 2005–07. See Ciavarella, 716 F.3d at 730. As a result, we affirm the
District Court’s denial of habeas relief on these convictions.
C. McDonnell Instruction
After Ciavarella’s trial, the Supreme Court clarified the meaning of “official act”
for purposes of bribery. See McDonnell, 136 S. Ct. at 2361. In light of this decision,
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 18-1498 Document: 003113197109 Page: 1 Date Filed: 03/29/2019
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
Nos. 18-1498 & 18-1499 ________________
UNITED STATES OF AMERICA
Appellee/Cross-Appellant
v.
MARK A. CIAVARELLA, JR.,
Appellant/Cross-Appellee ________________
Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 3-09-cr-00272-002) District Judge: Honorable Christopher C. Conner ________________
Submitted Under Third Circuit L.A.R. 34.1(a) March 7, 2019
Before: AMBRO, RESTREPO, and GREENBERG, Circuit Judges
(Opinion filed March 29, 2019)
________________
OPINION* ________________
AMBRO, Circuit Judge
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Case: 18-1498 Document: 003113197109 Page: 2 Date Filed: 03/29/2019
This is a habeas appeal in the infamous “kids-for-cash” scandal. A former
Pennsylvania judge argues that his trial counsel was ineffective by failing to raise a
statute-of-limitations defense, and the appeal centers on the prejudice wrought by the
deficient lawyering: Would a proper timeliness defense have resulted in the judge’s
acquittal on charges of racketeering, money-laundering conspiracy, and mail fraud?
Because we determine the answer is “yes” as to racketeering and money-laundering and
“no” as to mail fraud, we affirm the District Court in full.
Background
Mark Ciavarella, a judge of the Pennsylvania Court of Common Pleas, accepted
nearly $3 million in kickbacks from the owner and builder of two private prisons that
housed juvenile inmates. In exchange, he sentenced children to long stays in juvenile
detention for minor offenses. He was convicted of racketeering, money-laundering, mail
fraud, tax fraud, and conspiracy to defraud the United States.
We focus on the failure by Ciavarella’s trial counsel to raise a statute-of-
limitations defense. Both parties agree that his counsel was ineffective. But was that
prejudicial? That, in turn, depends on whether any of Ciavarella’s convictions punished
conduct that should have been off-limits by the statute of limitations — in this case,
crimes committed before September 2004.
Based on the jury’s verdict, the following facts were proven beyond a reasonable
doubt. Ciavarella received kickbacks in the form of three wire transfers in 2003. To
conceal these payments, he lied about his income in annual filings to the Administrative
Office of Pennsylvania Courts in April 2004 and each April thereafter through 2007. In
2 Case: 18-1498 Document: 003113197109 Page: 3 Date Filed: 03/29/2019
addition, the jury convicted Ciavarella of racketeering and money-laundering
conspiracies that, as charged, straddled the limitations period by running from 2001 to
2009.
On direct appeal, we affirmed all but one conviction. Unlike their faulty approach
to most other counts, Ciavarella’s trial lawyers had raised a timeliness challenge to the
conviction for the April 2004 financial filing. Because that filing occurred before the
limitations window of September 2004, we vacated the conviction. See United States v.
Ciavarella, 716 F.3d 705, 734 (3d Cir. 2013).
Seeking collateral relief, Ciavarella brought a motion to vacate other convictions
under 28 U.S.C. § 2255. The District Court did so for racketeering and money-
laundering on the ground that Ciavarella’s counsel was ineffective, denied the motion to
vacate as to the counts for mail fraud, and denied Ciavarella’s claim that the jury
instructions were faulty in light of the Supreme Court’s subsequent decision in United
States v. McDonnell, 136 S. Ct. 2355 (2016). Both Ciavarella and the Government have
appealed.
Analysis
We deal with three discrete issues. Each devolves to whether an error by trial
counsel was prejudicial. To meet his burden as to prejudice, Ciavarella must show a
“reasonable probability” that, absent his counsel’s error, the outcome of his trial would
have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
3 Case: 18-1498 Document: 003113197109 Page: 4 Date Filed: 03/29/2019
A. Racketeering and Money-Laundering Conspiracies
The jury convicted Ciavarella of receiving kickbacks in 2003 (outside the
limitations period) but acquitted him of charges relating to kickbacks from 2004 and later
(within the limitations period). As noted, it also convicted him of racketeering and
money-laundering conspiracies that were alleged to have run from 2001 to 2009.
Targeting those conspiracy convictions, Ciavarella argues that competent trial
counsel would have excluded the 2003 kickbacks on limitations grounds. As a result, he
maintains that the jury would have had nothing on which to base its convictions for
racketeering and money-laundering. In response, the Government points out that
Ciavarella was also convicted of submitting fraudulent financial filings in 2005, 2006,
and 2007 — in other words, well into the limitations period. The Government maintains
that the filings furthered the conspiracies by concealing the kickbacks.
Thus the habeas petition presents whether the jury based its conspiracy
convictions on the 2003 kickbacks alone (in which case the conspiracy charges should
have been time-barred) or on the subsequent financial filings (if so, the charges were
timely). Because it concluded there was a “reasonable probability” of the former
scenario, the District Court vacated Ciavarella’s conspiracy convictions.
We agree and thus affirm. We cannot say for certain whether the jury believed
that the racketeering and money-laundering conspiracies ended before September 2004.
But such a belief seems “reasonably probable” in light of the jury’s acquittal on all
kickbacks after 2003.
4 Case: 18-1498 Document: 003113197109 Page: 5 Date Filed: 03/29/2019
B. Mail Fraud
Ciavarella was convicted of mail fraud for filing financial statements in 2005,
2006, and 2007 (within the limitations period) that concealed his kickback income earned
in 2003 (before the limitations period). He argues that an adequate statute-of-limitations
defense by his trial counsel would have resulted in an acquittal on the charges of mail
fraud.
Here we disagree. Although the underlying conduct that supported the fraud
occurred before 2004, the financial statements were not submitted — and the crime of
mail fraud was therefore not completed — until after 2004. Indeed, our Court on direct
appeal already explained that the 2003 kickbacks were enough to support convictions for
mail fraud in 2005–07. See Ciavarella, 716 F.3d at 730. As a result, we affirm the
District Court’s denial of habeas relief on these convictions.
C. McDonnell Instruction
After Ciavarella’s trial, the Supreme Court clarified the meaning of “official act”
for purposes of bribery. See McDonnell, 136 S. Ct. at 2361. In light of this decision,
Ciavarella argues that he deserves a new trial with different jury instructions on the
meaning of “official act.”
For two reasons, we disagree. First, Ciavarella’s counsel failed to preserve this
claim by challenging the jury instructions at trial, and Ciavarella cannot provide any
reason to excuse this procedural default. In particular, it is no excuse that he was
convicted before McDonnell was decided. Although “subsequent legal developments
have made counsel’s task easier,” a McDonnell-style challenge was “available” at the
5 Case: 18-1498 Document: 003113197109 Page: 6 Date Filed: 03/29/2019
time of Ciavarella’s conviction. See Smith v. Murray, 477 U.S. 527, 537 (1986) (noting
that “various forms of the claim [the petitioner] now advances had been percolating in the
lower courts for years at the time of his original appeal”).
Second, Ciavarella’s bribery-related actions still satisfy even a post-McDonnell
understanding of “official act.” If sentencing hundreds of juvenile offenders to excessive
terms of incarceration is not an “official act,” then nothing is. See 18 U.S.C. § 201(a)(3)
(defining “official act” in part as “any decision or action on any question, matter, cause,
suit, proceeding or controversy . . . which may by law be brought before any public
official, in such official’s official capacity”); see also McDonnell, 136 S. Ct. at 2371–72.
In this context, we affirm the District Court in full.