In re Lowry, 1 JD 13

• Decision Date: 25 October 2013
• Docket Number: No. 1 JD 13,1 JD 13
• Citation: 78 A.3d 1276
• Parties: In re: Michael Lowry, Traffic Court Judge of Philadelphia County
• Court: Pennsylvania Court of Judicial Discipline

78 A.3d 1276

In re: Michael Lowry, Traffic Court Judge of Philadelphia County

No. 1 JD 13

Court of Judicial Discipline of Pennsylvania

October 25, 2013

Hon. Robert A. Graci, Chief Counsel, Judicial Conduct Board Francis J. Puskas, II, Deputy Chief Counsel, Judicial Conduct Board

Samuel C. Stretton, Esquire, West Chester, PA, for Respondent

BEFORE: Honorable Bernard L. McGinley, P.J., Honorable Charles A. Clement, Jr., Honorable John R. Cellucci, Honorable Timothy F. McCune, Honorable Robert J. Colville, Honorable Carmella Mullen, JJ.

OPINION BY PRESIDENT JUDGE McGINLEY

I. INTRODUCTION

We have before us the Petition of the Judicial Conduct Board (Board) for an Interim Order Suspending Respondent, Michael Lowry, From His Judicial Office Without Pay, filed January 31, 2013. The Petition is based on an Indictment filed on January 29, 2013 in the United States District Court for the Eastern District of Pennsylvania, charging Respondent with felonies. The Board seeks this order under Article V, § 18(d)(2) of the Pennsylvania Constitution. That section provides:

Prior to a hearing, the court may issue an interim order directing the suspension, with or without pay, of any justice, judge or justice of the peace against whom formal charges have been filed with the court by the board or against whom has been filed an indictment or information charging a felony. An interim order under this paragraph shall not be considered a final order from which an appeal may be taken.¹

The Court heard oral argument on July 29, 2013 on the Board's Petition in addressing the question whether we should act to enter an order of interim suspension with or without pay under Section 18(d)(2) in this case and we also consider Respondent's Answer to the Board's Petition, filed June 21, 2013, and the respective Memoranda filed by the Board and the Respondent on the question whether Respondent's suspension should be with or without pay.

II. FINDINGS OF FACT

Findings of Fact are set forth in the Discussion.

III. DISCUSSION

The Indictment charging this Respondent, filed on January 29, 2013 in the United States District Court for the Eastern District of Pennsylvania, also charged five other “Traffic Court Judges” with conspiring to defraud the Commonwealth of Pennsylvania and the City of Philadelphia of fines and costs by engaging in a scheme of “ticket fixing” over a period of years. On February 1, 2013, the Supreme Court of Pennsylvania entered interim orders of suspension without pay against all six traffic court judges named in the Indictment. One of the other five judges named in the Indictment along with this Respondent was Judge Mark Bruno. Bruno filed an Answer in this Court to the Board's Petition for Interim Suspension Without Pay and, on May 24, 2013, this Court entered an order suspending Bruno with pay.²

In reviewing this 79–page Indictment against nine named defendants, ³ one is struck by the realization that federal investigators spent over three years (July 2008 to September 2011) (Indictment, para. 27, p. 10) investigating the daily activities of the defendants during which time thousands (actually hundreds of thousands) of cases came through the Traffic Court, i.e., were filed in Traffic Court during that time and disposed of by these defendants during that time.⁴ One is struck then, upon review of the Indictment, which is the end product of the three-year investigation, that the federal investigators, were able to identify only five cases in which they believed they had uncovered facts relating to the conduct of this Respondent, which, if alleged (in an Indictment) and proved (at trial), would establish any conduct of a criminal nature, specifically, here, the federal crime of wire fraud ( 18 U.S.C. § 1343). This court recognizes that prudent selectivity can be a virtue and, if that were the modus operandi of the federal investigators in this case, this court would expect that the five cases that “made the cut” would constitute conspicuously flagrant violations of the law and be easily and surely establishable as such. Instead, we find the opposite. This court finds that in none of the five cases does the Indictment contain allegations which even aver the elements of the federal crime of wire fraud.⁵

A close examination of the Indictment makes manifest the thorough failure of the Indictment to charge this Respondent with conspiracy and wire fraud.

A. The Conspiracy Charge,No allegation adjudications corrupt or improper.

In four of the five cases the Indictment alleges that this Respondent was the judge who adjudicated the case. In those four cases, that is the only connection which this Respondent is alleged to have had with the supposed criminality charged in those four cases.⁶

This was exactly the situation in one of the cases in In re Bruno, 69 A.3d 780 (Pa.Ct.Jud.Disc.2013) in which Bruno was charged with participating in “the fix” by his adjudication of the case. This court pointed out:

There is no allegation that Perri, Alfano, or anyone else spoke to Bruno about those citations nor any allegation that Bruno was asked by anyone to enter an adjudication of not guilty irrespective of the facts of the case. As a matter of fact, who is to say that Judge Bruno's finding was anything other than the delivery of justice in the case? The federal prosecutors imply otherwise but they have fashioned no allegation upon which a finding can legitimately be made that Judge Bruno's finding was corrupt—or even incorrect. ⁷

Id. at 784. Likewise, there is no allegation in this Indictment that anyone spoke to Lowry about these four citations nor any allegation that he was asked by anyone to enter an adjudication of not guilty irrespective of the facts of the case.

As a matter of fact, in this case, the only participation by Lowry in the “fixing” of Ticket No. 8 is alleged in para. 61, p. 33 of the Indictment which avers:

61. On or about November 30, 2010, defendant MICHAEL LOWRY adjudicated the citation as guilty of a different offense, which was a lower offense and which reduced the fine and costs.This court is surprised to learn that the federal investigators consider such a disposition to be a crime—a federal crime—for if it is, that crime is being committed by judges hundreds of times a day across the Commonwealth.

B. The Wire Fraud Charges.(1) Lowry did not participate in any interstate telephone calls. Calls not made in regular course of business.

In two of the cases the Wire Transmission is stated to be an “interstate telephone call.” These cases have to do with Ticket No. 8 and Ticket Nos. 26–29.

The elements of the crime of wire fraud are set out in 18 U.S.C. § 1343 as follows:

1. The defendant devised or intended to devise a scheme or artifice

a. to defraud, or

b. to obtain money or property by means of false or fraudulent pretenses, representations or promises, and

2. for the purpose of executing the scheme or artifice or attempting to do so,

3. the defendant knowingly caused to be transmitted by means of wire communications in interstate commerce, writings, signs, and signals.

The Indictment alleges the essential element in establishing wire fraud in the case of Ticket No. 8 was an “interstate telephone call” made on November 30, 2010. See Indictment, para. 3, pp. 57–58 (Count 5). That interstate telephone call is described in para. 59, p. 33 of the Indictment as follows:

59. On or about November 30, 2010, in an interstate telephone call between Fortunato N. Perri, Sr., in Pennsylvania, and defendant HENRY P. ALFANO, in New Jersey, defendant ALFANO asked about the ticket. Perri said that it was a state police ticket and that he was “on top of it” and told ALFANO that “when you give me something it's important brother.”

This call is alleged to have been between Perri and Alfano. The Indictment contains no allegation that this Respondent was a participant in the call or knew anything about it.

The Indictment alleges the essential element in establishing wire fraud in the case of Ticket Nos. 26–29 was an “interstate telephone call” made on November 30, 2010. See Indictment, para. 3, pp. 57, 60 (Count 23). That telephone call is described in para. 103, p. 43 of the Indictment as follows;

103. On or about November 30, 2010, in an interstate telephone call between V.B., in New Jersey, and defendant WILLIAM HIRD, in Pennsylvania, V.B. asked defendant HIRD “how we make out for tomorrow?” HIRD, speaking in code, said, “I'm gonna see ya for coffee, ain't I?” V.B. said, “I just want to make sure,” and HIRD responded, “I'm gonna be available for coffee.” V.B. asked, “We're in good shape, then?” HIRD responded, “Yeah, I'll talk to you tomorrow for coffee.” V.B. suggested that they meet at 8:30 a.m. to which HIRD responded, “closer to 9.”

This call is alleged to have been between V.B. and Hird. Like Ticket No. 8, the Indictment contains no allegation that this Respondent was a participant in the call or knew anything about it.

As we pointed out in Bruno, supra, at 789–90, the federal prosecutors emphasize, however, in their “Guilty Plea Memorandum” filed in the case of U.S. v. Fortunato N. Perri, Sr., supra :

The government is not required to prove that the defendant actually used a wire communication in interstate commerce or that he even intended that anything be transmitted in interstate commerce by means of a wire... communication to further, or to advance, or to carry out the scheme.

Id.at 4–5, n. 3. However, further explaining the elements of the federal crime of wire fraud, the Memorandum goes on to say that:

The government must show that the defendant knew that the use of the wire communication would follow in the ordinary course of business or events, or that the defendant should have anticipated that the wire communication in interstate commerce would be used. [Citing:] Third Circuit Instructions at 6.18.1343–1. (Emphasis added.)

The Indictment contains no allegation that Perri's call to Alfano was made in the ordinary...