In re Lowry
| Decision Date | 15 April 2019 |
| Docket Number | 6 JD 2015 |
| Parties | Re: In re Michael Lowry |
| Court | Pennsylvania Court of Judicial Discipline |
Court of Judicial Discipline
Pennsylvania Judicial Center
601 Commonwealth Avenue
Suite 5500
P.O. Box 62595
Dear Judge Barton,
Kindly be reminded that I, Michael Lowry, am proceeding pro se in this matter. Please accept this Letter as my Brief on the Merits as well as my request for a hearing in this matter (see Section III). Additionally, I am humbly asking this Court to reconsider its denial of my request to defer pending conclusion of the matter in the United States Supreme Court (see Section II).
On January 29, 2013, a Grand Jury charged Lowry, along with five other Philadelphia Lowry, a Magisterial District Court judge, an employee of the traffic court, and two businessmen in a single indictment in connection with alleged "ticket fixing" in the Philadelphia Traffic Court. Lowry was charged with conspiracy to commit mail and wire fraud (18 U.S.C. 1349), five counts of wire fraud (18 U.S.C. 1343), and one count of making a false declaration (18 U.S.C. 1623). Although the Supreme Court initially suspended Lowry without pay on February 1, 2013, this Court suspended him with pay on October 25, 2013. See In re Lowry, 78 A.3d 1276 (Ct. Jud. Disc. 2013). After a 28-day trial, Lowry was acquitted of conspiracy and the wire fraud counts,but he was convicted of making a false declaration before the grand jury. On January 14, 2015, Lowry was sentenced to twenty months imprisonment, which he has fully served.
On April 14, 2015, the Judicial Conduct Board ("the Board") filed a complaint against Lowry, alleging two counts alleging conduct in violation of Article V, § 18(d)(1) of the Pennsylvania Constitution. Count One alleges that Lowry's conviction in violation of 18 U.S.C. § 1623 violates Article V, § 18(d)(1) because the offense is classified as a felony under federal law. Count Two alleges that Lowry's conviction, and the conduct underlying it, "brings the judicial office into disrepute" in violation of the same section. After the complaint was filed, this Court postponed proceedings pending the conclusion of Lowry's direct appeal. On January 18, 2019, the Third Circuit Court of Appeals issued a final amended opinion affirming the convictions of Lowry and his co-Appellants. Currently the matter is pending before the United States Supreme Court, with the Petition for Writ of Certiorari due on May 18, 2019. See Henry Alfano et al. v. United States, No. 18A1048 (Docketed April 10, 2019).
On March 15, 2019, this Court denied Lowry's request for an additional deferral of this matter and ordered the parties to file their respective briefs by April 2, 2019. Following two extension requests to file the merits brief, this Court ultimately extended the deadline to April 15, 2019. Lowry is proceeding pro se in this matter.
Lowry submits that his conviction has not "achieved the requisite finality to warrant the imposition of discipline by this Court" because he (along with several co-Petitioners) are filing a Petition for a Writ of Certiorari, which is due on May 18, 2019. Cf. In re Joyce, 26 A.3d 577, 580 (Ct. Jud. Disc. 2011) (). Lowry's (and his co-Petitioners') Motion to Extend (Exhibit "A") previews the important questions of federal statutory law that Lowry and his co-Petitioners will argue in their Petition/s.
First, Lowry was gravely prejudiced by the spillover effect of evidence relating to the conspiracy and fraud counts. As this Court pointed out in In re Lowry, 78 A.3d 1276 (Ct. Jud. Disc. 2013), the government's theory that the City and Commonwealth had a "property right" in the fines and costs associated with unadjudicated traffic tickets was a "frivolous" theory. See In re Lowry, 78 A.3d at 1285-86, n.11. Although Lowry was acquitted of the fraud counts, the jury heard voluminous evidence over a two-month period involving other defendants and uncharged "co-conspirators" unrelated to his alleged false statement, resulting in a prejudicial spillover effect. See Exhibit A.
Second, Lowry's conviction is based on a fundamentally ambiguous question and answer and the Third Circuit did not properly apply Supreme Court precedent. See Exhibit A. An example of the ambiguity of the exchange is demonstrated in this Court's opinion in In re Lowry, 78 A.3d 1276 (Ct. Jud. Disc. 2013). This Court rationally concluded that the charged question posed to Lowry in the grand jury appeared to be limited "by the Indictment itself", i.e. only those "four adjudications specified in the Indictment." Id. at 1287. However, the government's theory at trial was much broader than those specific tickets and the Third Circuit's opinion affirming Lowry's conviction did not even mention specific citations. The Third Circuit's reasoning in affirming Lowry's conviction gravely contradicts Supreme Court precedent because it put the burden on the witness to clarify the scope and meaning of "special favors" at the time it was asked.
Based on the above, Lowry respectfully requests this Court to stay proceedings until the Supreme Court rules on the Petition for a Writ of Certiorari.
The Board alleges that Lowry violated Article V, § 18(d)(1) by virtue of his conviction under 18 U.S.C. § 1623. The complaint specifically cites to the following phrase: "a justice, judge, or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony." See JCB Complaint, at 6. Lowry respectfully requests the Court to reject Congress' classification of 18 U.S.C. §1623 as a felony, for purposes of the Pennsylvania Constitution, and find that his conviction is not a "per se basis for discipline."
Lowry was not convicted of the federal perjury statute, which is a violation of 18 U.S.C. § 1621. Rather, he was convicted of making a false declaration under 18 U.S.C. § 1623. Congress passed § 1623 in order to "facilitate Federal perjury prosecutions" by reducing the mens rea requirement, requiring only that the accused "knowingly" made a false declaration, as opposed to "willfully" which is required under section 1621. See United States v. Gross, 511 F.2d 910, 914-15 (3d Cir. 1975); United States v. Sherman, 150 F.3d 306, 311 (3d Cir. 1998). The Pennsylvania Commonwealth Court has drawn the same distinction between 18 U.S.C. 1623 and the federal and Pennsylvania perjury statutes. See Roche v. State Employees' Retirement Bd., 731 A.2d 640 (Pa. Commonwealth Ct. 1999). Additionally, unlike the federal perjury statute (18 U.S.C. § 1621) and the Pennsylvania perjury statute (18 Pa.C.S. § 4902(a)), the federal government is not required to follow the "two-witness rule" to prove a violation under 18U.S.C.1623. See Gross, at 511 F.2d at 915-16. In other words, the government may prove falsity of a statement under § 1623 with the uncorroborated testimony of one witness.
By contrast, the Pennsylvania statutes that criminalize "knowingly" making a false statement are graded as misdemeanors, not felonies. See, e.g., 18 Pa.C.S.A. § 4903 (); 18 Pa.C.S.A. § 4904 (); 18 Pa.C.S.A. § 4906 (); 18 Pa.C.S.A. § 4906.1 (). The Pennsylvania General Assembly clearly intended offenses involving knowing false statements to be graded as misdemeanors unless the statutes require an enhanced mens rea. See, e.g., 18 Pa.C.S.A. § 4911 ().
Based on the above, Lowry requests this Court to reject the federal classification of 18 U.S.C. § 1623 as a felony for purposes of the Pennsylvania Constitution and find that Lowry's conviction is comparable to a misdemeanor under Pennsylvania law, and therefore find that his conviction is not a per se basis for discipline.
The Board alleges that Lowry's conviction, and the underlying conduct, "brought the judicial office into disrepute" in violation of Art. V, § 18(d)(1). See JCB Complaint, at 6. The Board has the burden to prove this charge (as well as the first charge) "by clear and convincing evidence." See Pa. Const. Art. V., § 18(b)(5). In particular, the Board "must make a persuasive showing that(1) the judicial officer has engaged in conduct which is so extreme that (2) it has resulted in bringing the judicial office into disrepute." In re Smith, 687 A.2d 1229 (1996). This inquiry "must be made on a case by case basis." In re Cicchetti, 697 A.2d 297, 312 (Pa. Ct. Jud. Disc. 1997).
The complaint appears to rely on the Indictment to support Count Two. The indictment alleged that Lowry "fixed" seven tickets issued to four ticket holders—one ticket issued to Diandra Salvatore; one ticket issued to Richard Holmes; four tickets issued to Camden Iron & Steel; and one ticket issued to Natisha Mathis. As this Court correctly noted in In re Lowry, 78 A.3d 1276 (2013), nothing in the indictment suggested "that those adjudications provided anything less than perfect justice." In re Lowry, 78 A.3d 1276, 1286-87 (2013)....
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