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pay to play

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probationDauphin County Judge Richard Lewis will allow two defendants charged in the Pennsylvania Turnpike “pay-to-play” corruption case to enter into a probation program.

Jeffrey Suzenski, a vendor consultant, and Dennis Miller, a Turnpike vendor, were admitted into Accelerated Rehabilitation Disposition (ARD). The two men will stay in the probation program for two years, perform 100 hours of community service and pay standard ARD fees at the cost of about $1,200.

If they successfully complete the program, the charges against them will be dropped and their records will be expunged.

Judge Lewis said he had “no hesitation” to admit Miller and Suzenski into the ARD program after “thoroughly” reviewing evidence and testimony presented at the preliminary hearing as well as “a plethora” of pre-trial motions. He said their admission into the program is “more than appropriate.”
J.J. Abbott, a spokesman for Attorney General Kathleen Kane, said the ARD deal was an “appropriate resolution and proper disposition of these two cases.” He could not elaborate or comment more broadly on the case.

Lawyers for Miller and Suzenski said there is no agreement for the two men to cooperate with the prosecution of the remaining defendants.

“My client has maintained his innocence since day one. He continues to do so. There is no admission of any guilt here,” said Mark Sheppard, Miller’s lawyer. “This is a disposition that allows him to finally get on with his life.”

“Obviously the fact that the single charge against my client will be dismissed at the end of this process and the fact that his record will be expunged certainly is an indication that Mr. Suzenski is an individual who should not be characterized as someone who violated the law here,” said Suzenski’s lawyer, Michael Engle. “Mr. Suzenski is not entering this program because of an admission of any wrongdoing.”

Miller was brought up originally on charges including unlawful bid-rigging, theft, restricted activities and conspiracy charges. Suzenski was charged with one count of restricted activities.
Both men were lesser known defendants in the Office of Attorney General’s broader investigation into bid-rigging at the Pennsylvania Turnpike, which has ensnared former Sen. Bob Mellow, and former Turnpike officials Mitchell Rubin, a former commissioner; Joseph Brimmeier, a former CEO; and George Hatalowich, a former COO.

Those four men were charged with participating in a corrupt conspiracy where thousands of dollars in political contributions translated into lucrative, multimillion dollar Turnpike contracts. Judge Lewis is still reviewing motions that asked for the charges to be dismissed or at least separate trials for the four remaining defendants.
-Kevin Zwick, Capitolwire

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    Pittsburgh Post-Gazette
    Pittsburgh Post-Gazette

    Defense attorneys took turns trying to poke holes in the state’s criminal case against a former Senate leader, three former Turnpike officials, a vendor and a consultant during a pre-trial hearing Monday on an alleged Turnpike corruption scandal.

    They argued the state’s case is “fundamentally flawed” and should not move forward to a jury trial scheduled for mid-November in Dauphin County court.

    The catchphrase of the day-long hearing was “quid pro quo” and defense attorneys aimed to prove the state’s case lacked this critical element in proving how thousands of dollars in political contributions directly led to millions of dollars in Turnpike contracts.

    “It is very easy to take contributions in one column and contractors in another and draw a line,” said defense lawyer William Fetterhoff, who pointed to contributions received by Corbett from firms with PennDOT contracts.

    But, Fetteroff said, the attorney general needs to show the contributions influenced official action.

    Former Senate Democratic leader Bob Mellow, former Turnpike CEO Joseph Brimmeier, former Turnpike commissioner Mitchell Rubin, and former Turnpike COO George Hatalowich face various charges including bribery, bid-rigging, conflict of interest and corruption organization. Their lawyers are seeking dismissal of charges, or at least separate trials, while all but one – Rubin – argued for a speedy trial on the charges resulting from an investigation started under then-Attorney General Tom Corbett.

    At one point, a defense lawyer threw the term “quid pro quo” back at the attorney general’s office, citing a press release that said an aborted sting operation, first reported by The Philadelphia Inquirer, “failed to establish the critical criminal element of ‘quid pro quo’ or cash payments directly in exchange for official action.”

    Vendor Dennis Miller and vendor consultant Jeffrey Suzenski face lesser charges. They also are seeking a dismissal and, at the very least, trials separate from the higher-profile defendants. Mark Sheppard, Miller’s lawyer, said his client’s contributions “weren’t enough” to get him out of the case, claiming the investigation let larger contributors off the hook for political reasons. Both Sheppard and Suzenski lawyer Michael Engle asked for charges to be dismissed because they were selectively prosecuted.

    Philadelphia lawyer David Shapiro said his client, Rubin, who acted as a member of the commission and eventually the commission’s chairman, had a “good faith belief” that as long as there was no quid pro quo, he did not have a criminal intent.

    Other lawyers said their clients did not agree with Shapiro’s argument – Briar said Shapiro’s argument was hostile to the other defendants, who are calling for separate trials to avoid a confused jury if the charges are not dropped.

    One of the requests from former Mellow’s lawyers, Dan Brier and Sal Cognetti, was a motion to dismiss on claims of double jeopardy. Assistant U.S. Attorney Francis Sempa on Monday said he handed over to state investigators FBI and IRS files stemming from a federal investigation into Mellow prior to state charges being announced against the former top Senate Democrat. Mellow’s lawyers claim federal investigators encouraged the state to file additional charges against him. Sempa said he did not discuss any ongoing state investigation involving Mellow when he met with state investigators.

    Dauphin County Judge Richard Lewis suggested Mellow’s lawyers faced an uphill climb to show the charges were the same, to which Briar responded that it’s not the same offense or charge but the same conduct.

    Senior Deputy Attorney General Laurel Brandstetter would not comment after Monday’s hearing, a spokesman said. She is set to argue the state’s case on the pre-trial motions Tuesday at 10 a.m. in Dauphin County Court.

    Recent newspaper reports have indicated Brandstetter has submitted her resignation from the Office of Attorney General, and will be leaving the OAG by the end of the month. The OAG has not offered any comment regarding the Brandstetter situation, other than to say the OAG “will be ready to proceed” at trial.

    Five of the defendants were in the courtroom Monday. Mellow did not attend due to health reasons, Cognetti said.
    –Kevin Zwick, Capitolwire

     

     

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    pay to play 2The state’s case in an alleged bid-rigging and bribery scheme at the Turnpike Commission is one of “first impression,” according to the Office of Attorney General, which said the court could “break new legal ground.”

    Deputy Attorney General Laurel Brandstetter said the case, given that it’s focused on commercial bribery and not a different part of the bribery statutes, “can be based upon circumstantial evidence and it can be based upon a pattern of conduct,” not the “neat, tidy quid pro quo” scenario presented in court by defense attorneys on Monday.

    “There need not be an overt discussion,” Brandstetter said.
    William Winning, a defense lawyer for former Turnpike CEO Joseph Brimmeier, said “an appearance is not a substitute for evidence in a courtroom where six defendants are accused of serious charges.”

    “There’s a cloud…an appearance, judge,” he said.

    William Fetterhoff, lawyer for former Turnpike COO George Hatalowich, said unlike other public corruption cases like “Bonusgate” and “Computergate,” which in their core said public money could not be used for political purposes, “the core of the Turnpike case has been elusive.”

    He said it has never been unlawful for public employees to solicit campaign contributions from vendors working or seeking work from their agency.

    “Maybe that should be against the law,” Fetterhoff said, but noted a criminal prosecution is not the proper place to establish a bright legal line “at the expense of the lives of the defendants.”

    Instead, he suggested changing the law should be left to the Legislature.

    Lawyers for former Senate Democratic Leader Bob Mellow, former Turnpike chairman Mitchell Rubin, Brimmeier, Hatalowich, vendor Dennis Miller and vendor consultant Jeffrey Suzenski are making a last-ditch attempt to have charges against them dropped before a mid-November jury trial in Dauphin County court.

    The charges stem from a three-and-a-half year grand jury investigation that found they were allegedly involved in a “pay to play” scheme where political contributions resulted in millions of dollars-worth of Turnpike contracts for certain contributors.

    On the issue of bribery, Dauphin County Judge Richard Lewis questioned Brandstetter about her assertions that fund-raising invitations became, in effect, directives by Brimmeier, Hatalowich and former Turnpike chairman Mitchell Rubin to vendors to contribute in order to be considered for state contracts.

    Reacting to Brandstetter stating that one contractor said “he believed that the contributions would improve the likelihood of getting a contract with the Pennsylvania Turnpike,” Lewis asked: “Wouldn’t any corporation, contracting firm, whatever the case may be, come to that same conclusion?”

    Lewis later continued: “Where are you drawing the line – if I’m starting a contracting company, and I was interested in getting some work on the Turnpike … and I wanted to get my company noticed, would I improve my chance if I show up at some of these events?

    “It has nothing to do with my competence as a contractor, I just want to get my name known, to get my company to be known – I want people to notice me; how else will they [Turnpike officials] notice me out of 25 applications for a project? What’s going to make mine stand out?”

    Brandstetter responded that in Lewis’ scenario, the company or its owner is making a choice to contribute, not, she argued, Turnpike officials calling a company and suggesting the owner participate in or contribute to a Turnpike-hosted event.

    “That’s the distinction … what makes it an issue – it demonstrates they are no longer acting without influence,” argued Brandstetter. She said the problem occurs when “you have people in positions of public trust exerting influence over those they’re doing business with.”

    The commonwealth also argues that Mellow, as Senate leader, used his power and the Senate’s institutional control of the Turnpike to steer business and solicit contributions. His lawyers are asking charges against him be dismissed under “double jeopardy” claims that the state only charged Mellow after he pled guilty to one federal count of conspiracy to commit mail fraud.

    Dan Brier, one of Mellow’s lawyers, claimed state and federal prosecutors colluded in a “malicious, vindictive, harassing” attempt to charge Mellow for “substantially the same” conduct. Brandstetter said the federal charges were on the misuse of Mellow’s staff in his Lackawanna County Senate office, not related to the Turnpike.
    Judge Lewis said he would make a decision “as soon as possible.”

    –Kevin Zwick & Chris Comisac, Capitolwire

     

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    turnpike logoThe state Supreme Court may have made it a bit harder for the Office of Attorney General to bring its case against a former Senate leader and Pennsylvania Turnpike Commission employees by the current trial date scheduled for mid-November.

    The court on Monday ordered Attorney General Kathleen Kane’s office to produce relevant material but protect confidential information contained in millions of documents obtained from the Pennsylvania Turnpike through subpoenas during three years of grand jury proceedings.

    Ultimately, criminal charges were filed last year against former Sen. Bob Mellow, former Turnpike CEO Joseph Brimmeier, former Turnpike chairman Mitchell Rubin, and other former Turnpike employees, vendors and consultants in an alleged “pay-to- play” scheme that found political contributions equaled millions of dollars in state contracts.

    Combing through the material – 12 terabytes of data likely to include 30 million documents – is likely to be a lengthy process and could delay the start of the trial, which has already been delayed from its August start date.

    The OAG declined to comment. Matthew Haverstick, a lawyer representing the Turnpike, also declined comment.

    The Turnpike Commission sought relief from orders from the Superior Court and the Dauphin County Court of Common Pleas which “effectively allow the production of allegedly confidential and privileged material sought in discovery requests served upon the Office of Attorney General (the “OAG”) in these criminal cases…’ according to a concurring statement from Supreme Court Chief Justice Ron Castille.

    The Dauphin County Court of Common Pleas in April determined the OAG can turn over the material – which Castille called “obviously privileged and intensely private” – to defense attorneys who would determine which information “shall not be used” outside of the criminal matter.

    The Turnpike Commission argued in its May brief that the disclosure without proper redactions amounted to the “potential ringing of a bell that cannot be unrung, i.e., the exposure to defendants of legally privileged information and statutorily protected confidential information that they have no right to see.”

    Castille said the county trial court’s approach was “obviously inadequate.”

    “It is one thing for a bell that cannot be unrung to sound in the narrow confines of a confidential, sealed grand jury investigation; it is quite another when it is in the context of a specific criminal prosecution, and the protection of private and privileged information consigned to defense counsel whose primary duty is to their specific clients and not to the Commission or its personnel,” Castille wrote.

    He also noted the OAG received the documents three years ago, and “apparently has not yet reviewed those documents such that it can properly respond to defense discovery requests issued in its own prosecution…”

    “In criminal matters, discovery is governed by specific rules, and the obligation is upon the prosecution to determine what material in its possession is properly discoverable,” Castille wrote in his statement, joined by Justices Thomas Saylor, Max Baer, Debra Todd, and Correale Stevens. Justice Seamus McCaffery did not participate.

    –Kevin Zwick, Capitolwire