1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3277

_____________

UNITED STATES OF AMERICA

v.

MARK CIAVARELLA, JR.,

Appellant.

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3:09-CR-00272-002)

District Judge: Honorable Edwin M. Kosik

____________

Argued 

November 14, 2012

Before: RENDELL, FUENTES, and CHAGARES, 

Circuit Judges

(Opinion Filed: May 24, 2013 )

Albert J. Flora, Jr., Esq. [ARGUED]

33 West South Street
2

Wilkes-Barre, PA 18701

William Ruzzo, Esq.

590 Rutter Avenue

Kingston, PA 18704

Counsels for Appellant Mark Ciavarella, Jr.

Peter J. Smith, Esq., United States Attorney

Gordon A.D. Zubrod, Esq., Assistant United States Attorney 

[ARGUED]

Michael A. Consiglio, Esq., Assistant United States Attorney

Office of United States Attorney

Ronald Reagan Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

William S. Houser, Esq., Assistant United States Attorney

Amy C. Phillips, Esq., Assistant United States Attorney

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsels for Appellee United States of America

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OPINION OF THE COURT

____________

FUENTES, Circuit Judge:
3

Mark Ciavarella, a former state judge, was convicted 

by a jury in the Middle District of Pennsylvania of

racketeering, honest services mail fraud, money laundering 

conspiracy, filing false tax returns, and several other related 

crimes. The charges resulted from the so-called “Kids for 

Cash” scandal that erupted in Luzerne County, Pennsylvania 

in late 2008. Ciavarella and his fellow judge, Michael 

Conahan, were accused of receiving over $2.8 million in three 

years from a commercial builder, Robert Mericle, and an 

attorney and businessman, Robert Powell, in exchange for 

helping to construct and operate juvenile detention centers 

and placing juvenile offenders there. Ciavarella complains 

that the District Court Judge overseeing his case was biased 

and should have recused himself early on, when Ciavarella 

asked him to do so. Ciavarella also assigns numerous trial and 

sentencing errors, which we discuss in detail below.1

Over the course of several years, Ciavarella committed

hundreds of juveniles to detention centers co-owned by 

Powell, including many who were not represented by counsel, 

without informing the juveniles or their families of his 

conflict of interest. By the summer of 2008, Ciavarella and 

Conahan, aware that they were under criminal investigation, 

met with Mericle and Powell to collaborate on their stories, 

discuss how to mitigate the effects of damaging witnesses, 

and encourage the destruction of records. Unbeknownst to 

them, Powell was wearing a recording device during these

 

1 Ciavarella raises challenges to evidentiary rulings, 

sufficiency of the evidence, and the timeliness of his 

prosecution, as well as claims that his sentence violated his 

Sixth Amendment right to a jury trial and was substantively 

unreasonable. 
4

meetings, exposing Ciavarella and Conahan‟s efforts to 

obstruct justice. 

By early 2009, law enforcement officials gathered 

sufficient evidence to charge the two judges. Ciavarella and 

Conahan subsequently entered into an agreement with the

Government under which they pled guilty to an Information 

charging them with wire fraud and conspiracy in exchange for 

an agreed 87-month sentence. Noting that the stipulated

sentences were significantly lower than the advisory U.S. 

Sentencing Guidelines for the charged offenses, the District 

Court rejected the plea agreement, and Ciavarella and 

Conahan withdrew their guilty pleas. Shortly thereafter, a

grand jury returned a 48-count Indictment. Ciavarella 

proceeded to trial, was found guilty of twelve counts against 

him and was ultimately sentenced to 336 months‟ 

imprisonment, as well as restitution, forfeiture, and a special 

assessment. This appeal ensued. With the exception of Count 

7 for honest services mail fraud, we will affirm the judgments

of conviction and sentence on all counts. We will remand to 

the District Court to modify the judgment with respect to the 

special assessment as to Count 7. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

A. Replacement of the Existing County-Run

Juvenile Detention Center

Ciavarella served on the Luzerne County Court of 

Common Pleas from 1996 through January 2009. He 

primarily served on the Juvenile Court, and in January 2007, 

was named President Judge of the Court, succeeding Judge 
5

Michael Conahan who had served as President Judge since 

January 2002. 

The circumstances relating to the various counts in the 

Indictment began in 2000. That year, Ciavarella and Conahan, 

along with other county officials, began expressing concerns 

about the serious disrepair and deplorable conditions at the

Luzerne County Juvenile Detention Facility. Some county 

officials wanted to build a new county-run detention center, 

but Ciavarella advocated for the construction of a private 

facility, which could then be leased to the county. Ciavarella 

along with Conahan helped bring together potential investors

for this project, including Robert Powell, a lawyer and friend 

of Conahan, and Robert Mericle, a local commercial builder 

and friend of Ciavarella. Powell and his business associate, 

Greg Zappala, ultimately created Pennsylvania Child Care, 

LLC (“PACC”) to develop the new private juvenile detention 

center, and Powell hired Mericle Construction Company to 

build it. In July 2001, Mericle informed Ciavarella that he 

would pay him a referral fee of 10% of the contract price, and 

Ciavarella asked him to make the payment through Powell. 

Ciavarella and Conahan agreed to split the payment because 

Conahan “put the deal together.” App. 1205.

B. Kickbacks to Ensure Completion of the 

Juvenile Detention Center

As part of the plan to help Powell and Mericle ensure 

completion of the project, Ciavarella and Conahan engaged in 

various endeavors to stymie the county‟s efforts to build and 

operate its own facility. Most critically, when Powell had 

trouble securing financing for construction in late 2001, 

Ciavarella and Conahan agreed to create a lease between 
6

PACC and Luzerne County to secure a bank loan. The judges 

agreed that Conahan would sign a lease in January 2002, after 

he became President Judge and would have the authority to 

bind the county. The lease, which the judges prevented any 

county officials from seeing, committed the county to pay 

$1.314 million per year to PACC in exchange for PACC 

housing the county‟s juvenile offenders. 

In February 2002, after Powell secured financing,

Mericle and PACC finalized a construction contract, which 

included an agreement that Mericle would pay a $997,600

referral fee after he completed construction of the facility. It 

was Mericle‟s understanding that he would make the payment 

to Powell, but that Ciavarella would be the ultimate recipient. 

In January 2003, when construction was nearing completion, 

Conahan provided Powell with wire transfer instructions. 

Pursuant to the instructions, Mericle transferred the referral 

fee to Conahan and Ciavarella through a series of transactions 

between multiple individuals and companies to ensure the 

funds were not traceable. While Mericle Construction 

reported the payment for tax purposes, Ciavarella never 

reported the income. 

After PACC began operations, Powell and Mericle 

worked to develop a second juvenile detention center, 

Western PA Child Care (WPACC), and expand PACC from 

48 beds to 60 beds. Ciavarella received referral fees for each 

of these projects. In July 2005, Mericle paid Ciavarella a $1 

million referral fee for WPACC and in February 2006, 

Mericle paid Ciavarella a $150,000 referral fee for the PACC

expansion. Mericle received the instructions from Ciavarella

and made the payment by transferring funds to the Pinnacle 

Group of Jupiter, LLC, a corporation that Ciavarella, 
7

Conahan, and their wives formed in January 2004. 

Altogether, Mericle paid $2,147,600 in referral fees to 

Ciavarella and Conahan.

C. Ensuring Success for the New Detention 

Centers

In January 2002, Conahan appointed Ciavarella to the 

Juvenile Court, a position that Ciavarella leveraged to place 

juvenile offenders with PACC to perpetuate the scheme. 

Months earlier, the outgoing President Judge had removed 

Ciavarella from the Juvenile Court and appointed himself, but 

when Conahan became President Judge, Conahan instead 

reappointed Ciavarella to that position as Juvenile Court 

Judge. By February 2003, PACC had begun operating, and 

Ciavarella started keeping regular tabs on how many beds 

were utilized at any given time. In November 2003, 

Ciavarella and Conahan called Powell into a meeting to 

discuss how many juveniles Ciavarella had sent to PACC and 

what the county had paid PACC for housing the juveniles. In 

2003, alone, Ciavarella detained more than 100 juveniles at

PACC. Based on this information and on a cursory estimate 

of PACC‟s profits, Ciavarella concluded that PACC was 

“doing very, very well” and that he “want[ed] a part of it.” 

App. 532-33. After Powell responded with concerns about 

cash flow, Ciavarella said “he didn‟t care . . . [and] want[ed] 

to be paid” his share. App. 535-36. The judges told Powell 

that they had formed the Pinnacle Group and would use it to 

purchase a condo, and Powell could use it to make “rent”

payments. In February 2004, Pinnacle purchased an 

uninhabitable condo in Jupiter, Florida. From January to 

September 2004, Powell sent $590,000 in numerous personal 

and business checks to Pinnacle, identified as payments for 
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rent and marina fees, financed through Powell‟s draws on 

PACC and his law firm, which he kept hidden from his 

business partner Zappala. 

In July 2005 and February 2006, Ciavarella and 

Conahan received referral fees from Mericle for the 

construction of WPACC and expansion of PACC. Both 

payments were funneled through several conduits. Shortly 

thereafter, Ciavarella and Conahan again pressured Powell to 

make more payments. In June 2006, the judges called Powell 

into another meeting to discuss how much money Ciavarella 

had made for Powell by detaining juveniles at PACC and 

WPACC. For the year 2005, Ciavarella had detained more 

than 100 juveniles at PACC and had begun placing juveniles 

at WPACC. The judges told Powell, “Look, you‟re in this 

business, we helped you get into it, you‟re making a lot of 

money, you‟re going to give us some.” App. 568. Powell 

testified that he “wasn‟t paying them for any services 

rendered, [but] was paying them because they demanded it in 

their position of authority.” App. 568. Despite his reluctance, 

Powell began working with his law firm‟s Chief Financial

Officer, Pat Owens, to structure transactions to withdraw 

large sums of cash from his law firm and from PACC and 

WPACC. From August to December 2006, Powell made cash 

payments totaling $143,500 to Ciavarella and Conahan

through boxes filled with cash delivered by Powell and his 

law partner, Jill Moran, to Conahan and his judicial aide. 

D. Failure to Disclose Conflicts of Interest 

Ciavarella and Conahan perpetuated their scheme by 

failing to disclose their receipt of payments from Mericle and 

Powell. Also, while obligated by Pennsylvania law to file 
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financial interest statements reporting on outside income, 

from 2003 through 2007, Ciavarella and Conahan filed false 

statements and failed to report their outside income, financial 

interests, or gifts related to PACC, Powell, or Mericle.

Additionally, though they were ethically required to disclose 

their financial relationships with parties in cases in which 

they presided over as judges, and required to recuse 

themselves from such cases, Ciavarella and Conahan 

repeatedly failed to disclose their financial relationships with 

Powell, Mericle, PACC, and WPACC despite presiding over 

several trials in which they were litigants between 2004 and 

2008. 

Furthermore, Ciavarella never disclosed his conflict of 

interest with the juvenile detention centers when he presided 

over the cases of juvenile offenders and committed them to 

detention at PACC or WPACC. In many cases, with the intent 

of increasing his personal gain, Ciavarella disregarded the 

recommendation of juvenile probation officers evaluating the 

juvenile offenders‟ cases and ordered their detention. 

Ciavarella also exerted pressure on the staff of the Court of 

Common Pleas to recommend the detention of juvenile 

offenders, and on certain occasions, as a result of pressure 

from Ciavarella, probation officers changed their 

recommendations from release of the juveniles to 

recommendations of detention. 

Following the discovery of this scheme, a special 

master was appointed by the Pennsylvania Supreme Court to 

review the cases of juveniles who were not represented by an 

attorney and were committed to PACC and WPACC by 

Ciavarella. The special master indicated that “a very 

substantial number” of the juveniles did not knowingly or 
10

intelligently waive their right to counsel. Confidential 

Presentence Report (“PSR”) ¶ 103. The investigation also 

revealed “that there was routine deprivation of children‟s 

constitutional rights to appear before an impartial tribunal and 

to have an opportunity to be heard.” PSR ¶ 103.

E. Ciavarella’s Obstruction of Justice

In 2007, Ciavarella, Conahan, and Powell learned that 

they were under criminal investigation when they heard that 

witnesses had received grand jury subpoenas. Ciavarella met 

with Mericle in November 2007 to let Mericle know that 

Ciavarella could go to jail if Mericle reported that he had paid 

Ciavarella a referral fee through Powell. Ciavarella also 

encouraged Mericle to destroy records. 

After learning about Mericle‟s testimony before a 

grand jury, in January 2008, Ciavarella and Conahan met with 

Powell to coordinate their “stories.” PSR ¶ 45. They 

instructed Powell to testify that he had never given them any 

boxes of cash. But by the summer of 2008, Powell had begun 

cooperating with investigators and wore a recording device 

during his conversations with Ciavarella and Conahan. In a 

July 2008 conversation, Ciavarella, Conahan, and Powell 

discussed how to discredit any testimony by Powell‟s law 

partner Jill Moran if she reported her delivery of Powell‟s 

cash to Conahan. 

F. The Indictment and Prosecution

In January 2009, Ciavarella and Conahan were 

charged with honest services wire fraud and conspiracy. Both 

subsequently pleaded guilty before District Judge Edwin M. 
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Kosik of the District Court for the Middle District of 

Pennsylvania, conditioned upon the Court‟s acceptance of 

binding plea agreements with a stipulated 87-month 

sentences. As noted above, Judge Kosik rejected the plea 

agreements because of his concern that the stipulated 

sentences were far below the Guidelines for the charged 

offenses. He also cited the Probation Office‟s presentence 

report prepared in connection with his review of the plea 

agreements, which represented that Ciavarella had continued 

to publicly deny receipt of money in exchange for committing 

juveniles to detention, despite the contradictory offense 

conduct proffered by the Government. Ciavarella also 

essentially denied committing juveniles in exchange for 

money at the plea hearing. Ciavarella and Conahan then 

withdrew their pleas, and in September 2009, a grand jury 

returned a 48-count Indictment against Conahan and 

Ciavarella.

2 Conahan eventually pleaded guilty to 

racketeering conspiracy and received a 17-year sentence. 

Ciavarella‟s trial began in February 2011. Throughout 

the trial, Ciavarella sought to demonstrate that Mericle‟s 

payments were legitimate referral fees and not bribes or 

kickbacks. Specifically, he argued that there was no quid pro 

quo, that is, no agreement that Ciavarella was sending

juveniles to PACC and WPACC in exchange for payments 

from Powell. As part of this defense, Ciavarella sought to 

prove that Powell was embezzling from his law firm and the 

detention centers in order to support his lavish lifestyle rather 

 

2 On September 29, 2010, a superseding Indictment 

was returned against Ciavarella containing the same charges 

but with revised language to conform with Skilling v. United 

States, 130 S. Ct. 2896 (2010). 
12

than to pay kickbacks to Ciavarella. Nevertheless, on 

February 18, the jury found Ciavarella guilty of 12 charges: 

racketeering (Count 1), racketeering conspiracy (Count 2), 

four counts of honest services mail fraud (Counts 7, 8, 9, and 

10), money laundering conspiracy (Count 21), conspiracy to 

defraud the United States (Count 35), and four counts of 

subscribing to a materially false tax return (Counts 36, 37, 38, 

and 39). Ciavarella was acquitted of honest services wire 

fraud, bribery, money laundering, and extortion. Thereafter, 

the District Court sentenced Ciavarella to 336 months of 

imprisonment and 3 years of supervised release and ordered 

Ciavarella to pay restitution in the amount of $1,173,791.94,

to forfeit $997,600, and to pay a special assessment of 

$1,200. 

II. ANALYSIS

Ciavarella raises several issues on appeal, addressing a 

host of challenges to the sufficiency of the evidence, the 

timeliness of his prosecution, the impartiality of the District 

Judge, the admissibility of evidence, and his sentence.3 We 

will address each of Ciavarella‟s arguments in turn.

A. Ciavarella’s Recusal Motions

Ciavarella challenges the denial of his three motions to 

recuse Judge Kosik. His initial recusal motions were premised 

on Judge Kosik‟s pretrial conduct, and his last motion was 

 

3

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. We have appellate jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a).
13

predicated on the opinions expressed by Judge Kosik in his 

responses to letters from the public.4

1. Statements in Citizens Voice Article

In July 2009, months after Ciavarella and Conahan 

entered guilty pleas, Powell also pleaded guilty before 

District Judge Kosik. During Powell‟s plea hearing, the 

District Court asked Powell whether there was “underlying 

consideration for the payments which was part and parcel 

with the concealment of the payments.” App. 29. The District 

Court‟s question was in response to media reports about 

Ciavarella and his claim that he never detained juveniles in 

exchange for money. Powell responded that “there was no 

quid pro quo per se,” that is, no detention of juveniles in 

exchange for payments, and that he had only acted as a 

conduit for Mericle‟s referral fees. App. 29. One month later, 

the District Court rejected Ciavarella‟s and Conahan‟s plea 

agreements. 

Days after the District Court rejected the plea 

agreements, the Citizens Voice newspaper published an 

article, which purported to detail a conversation between 

Judge Kosik and another individual that the reporter had 

overheard outside of the courtroom minutes after Powell‟s 

guilty plea. The article reported:

 

4 We review the District Court‟s denial of Ciavarella‟s 

recusal motions for abuse of discretion. Johnson v. 

Trueblood, 629 F.2d 287, 290 (3d Cir. 1980).
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Kosik stood near an elevator outside his 

courtroom and casually discussed what had just 

happened therein, including an attempt by 

Powell‟s attorney to portray some payments to 

the judges as a “finder‟s fee”—not as an 

incentive for them to sent a steady stream of 

juveniles to the detention facilities co-owned by 

Powell. . . . 

How could there not have been a “quid pro 

quo?” Kosik wondered, portending the 

sentiments he expressed Friday in a five-page 

memorandum rejecting plea agreements 

between former Luzerne County Judges Mark 

A. Ciavarella Jr. and Michael T. Conahan and 

federal prosecutors.

The evidence of Ciavarella and Conahan‟s 

judicial prostitution—of their so-called kids for 

cash scheme—was abundant and clear, Kosik 

continued. . . . 

App. 71. The article went on to quote repeatedly, with and 

without attribution, from the District Court‟s opinion 

rejecting Ciavarella‟s plea agreement.5

 

5

The Citizens Voice article reported that Kosik said, 

“Conahan, pounding the same callous, iron fist he used to 

force the county‟s use of the private facilities in 2003, 

„attempted to obstruct and impede justice, and failed to 

clearly demonstrate affirmative acceptance of responsibility 

with this denials and contradictions of evidence.‟” App. 71. 

The article went on say Kosik referenced Conahan‟s “denials 
15

After withdrawing his guilty plea, Ciavarella moved to 

disqualify Judge Kosik on the grounds that Judge Kosik had 

improperly relied on extrajudicial statements—including 

media reports and Ciavarella‟s presentence report—in 

denying the plea agreement, and that Judge Kosik‟s 

statements reported in the Citizens Voice article could be 

perceived as comments on the merits of the case and on 

Ciavarella‟s guilt. The District Court denied the recusal 

motion. 

Under 28 U.S.C. § 455(a), a judge must recuse himself 

“in any proceeding in which his impartiality might reasonably 

be questioned.” “The judge does not have to be subjectively

biased or prejudiced, so long as he appears to be so.” Liteky 

v. United States, 510 U.S. 540, 553 n.2 (1994). To ensure the 

integrity and impartiality of the judiciary, judges must 

scrupulously avoid making public comments on pending 

litigation. See Code of Conduct for United States Judges

(hereinafter “Code of Conduct”) Canon 3A(6) (Judicial 

Conference 2009) (“A judge should not make public 

comment on the merits of a matter pending or impending in 

any court.”). 

 

concerning his alleged offenses, „including the receipts of 

money.‟” App. 72. The article also noted that Kosik “bristled” 

that Ciavarella “„has resorted to public statements of remorse, 

more for his personal circumstances. . . . Yet he continues to 

deny what he terms “quid pro quo” his receipt of money as a 

finder‟s fee.‟” App. 72. Each of these statements that the 

Citizens Voice article attributes to statements by Judge Kosik 

is contained in the District Court‟s opinion rejecting 

Ciavarella‟s and Conahan‟s plea agreements. App. 21-22. 
16

Ciavarella urges us to rely on the First Circuit‟s 

approach in In re Boston’s Children First, 244 F.3d 164 (1st 

Cir. 2001). There a district judge had spoken with a 

newspaper reporter about a pending case, and the Court held 

that because the case involved a “matter of significant local 

concern” and because the judge‟s “comments were 

sufficiently open to misinterpretation so as to create the 

appearance of partiality, even when no actual prejudice or 

bias existed,” recusal was warranted under 28 U.S.C. 

§ 455(a). Id. at 169, 170.

This case, however, is different. Unlike in Boston’s 

Children First, it is not clear whether the comments attributed 

to Judge Kosik were ever actually made by him outside the 

context of a judicial proceeding. The Citizens Voice article 

implied that a reporter overheard Judge Kosik “casually 

discuss[ing] what had just happened” at Powell‟s plea hearing 

and “wonder[ing]” how there could “not have been a „quid 

pro quo?‟” App. 71. But despite the reporter‟s implication 

that the statements had been made outside the courtroom, 

every statement attributed to Judge Kosik had in fact been 

expressed by him in his judicial opinion rejecting Ciavarella‟s 

and Conahan‟s plea agreements or in the courtroom during 

Powell‟s plea hearing. In fact, in its opinion denying the 

recusal motion, the District Court denied ever having spoken 

with the media regarding a case or person charged and 

compared the Citizens Voice article with its July 31, 2009 

opinion. Judge Kosik stated that “[t]he article‟s sources were 

not extra-judicial, but [were] quoted from judicial filings.” 

App. 30. We agree. For this reason, Ciavarella‟s reliance on 

Boston’s Children First is unavailing. 
17

Nor do Judge Kosik‟s statements in his July 31, 2009 

opinion and at Powell‟s plea hearing warrant recusal on the 

basis that they gave an appearance of partiality. Cheney v. 

United States District Court for the District of Columbia is 

illustrative. In Cheney, Justice Scalia issued an opinion 

responding to a motion for recusal based on a trip and flight 

that he had taken the year before with Vice President Cheney. 

The recusal motion cited to newspaper articles, and Justice 

Scalia responded to correct inaccuracies and state that 

“largely inaccurate and uninformed opinions cannot 

determine the recusal question.” Cheney, 541 U.S. 913, 924 

(2004) (Scalia, J., mem.). To the contrary, “the recusal 

inquiry must be „made from the perspective of a reasonable

observer who is informed of all the surrounding facts and 

circumstances.‟” Id. (quoting Microsoft Corp. v. United 

States, 530 U.S. 1301, 1302 (2000) (Rehnquist, C.J., mem.) 

(citing Liteky, 510 U.S. at 548)). 

Here, too, no reasonable person who is informed of all 

of the facts would believe that Judge Kosik‟s impartiality 

could be questioned based on the statements in the 

proceedings as reported in the Citizens Voice article. The 

statements Judge Kosik made during Powell‟s plea colloquy 

and in the District Court‟s opinion rejecting Ciavarella‟s plea 

agreement were based on the knowledge he gained over the 

course of judicial proceedings. “[O]pinions formed by the 

judge on the basis of . . . prior proceedings[] do not constitute 

a basis for a bias or partiality motion unless they display a 

deep-seated favoritism or antagonism that would make fair 

judgment impossible.” Liteky, 510 U.S. at 555. Ciavarella has 

failed to demonstrate such a “deep-seated favoritism or 

antagonism.” Id. To the contrary, Judge Kosik‟s statements 

were merely “assessments relevant to the case, whether they 
18

are correct or not.” United States v. Wecht, 484 F.3d 194, 220 

(3d Cir. 2007). “As such, they do not demonstrate bias, even 

if they are „expressions of impatience, dissatisfaction, [or] 

annoyance.‟” Knoll v. City of Allentown, 707 F.3d 406, 411 

(3d Cir. 2013) (quoting Liteky, 510 U.S. at 555) (alteration in 

original).

Finally, we note that under § 455(a), “[d]iscretion is 

confided in the district judge in the first instance to determine 

whether to disqualify himself because the judge presiding 

over a case is in the best position to appreciate the 

implications of those matters alleged in a recusal motion,”

particularly when “the district court judge has presided over 

(i) an extraordinarily complex litigation (ii) involving a 

multitude of parties (iii) for an extended period of time.” In re 

Kensington Int’l Ltd., 353 F.3d 211, 224 (3d Cir. 2003) 

(internal quotation marks, citation and alterations omitted). 

Here, at the time of Ciavarella‟s initial March 1, 2010 recusal 

motion and subsequent renewals of that motion, Judge Kosik 

had presided over Ciavarella‟s highly complex case for well 

over a year, and over many of Ciavarella‟s co-conspirators‟ 

cases, and he was well-suited to understand the implications 

of the Citizens Voice article. We find no abuse of discretion in 

the District Court‟s denial of the recusal motions. 

2. Information Received by the District 

Court Prior to Rejecting Plea

Ciavarella next contends that Judge Kosik‟s recusal 

was also warranted following the rejection of Ciavarella‟s 

guilty plea. He argues that Judge Kosik relied on the 

presentence report during his plea hearing, which contained 
19

factually disputed evidence,6to prejudge both the strength of 

the Government‟s case and Ciavarella‟s guilt. He also asserts 

Judge Kosik considered media reports as support for his 

conclusion that Ciavarella “has resorted to public statements 

of remorse, more for his personal circumstances, yet he 

continues to deny what he terms „quid pro quo‟ his receipt of 

money as a finder‟s fee.” App. 21.

But Ciavarella has not pointed to any extrajudicial 

source on which the District Court relied. Rather, his denials 

of sending juveniles to detention for money were contained in 

the record, including in Ciavarella‟s plea colloquy stating that 

he was “not in complete agreement at this time on all of the 

facts alleged in the Information.” Supp. App. 60-61. As we 

recently stated, “[t]o warrant reassignment under § 455(a), a 

case generally must involve apparent bias deriving from an 

extrajudicial source, meaning something above and beyond 

judicial rulings or opinions formed in presiding over the 

case.” United States v. Bergrin, 682 F.3d 261, 282 (3d Cir. 

2012). As there is no showing of extrajudicial sources that 

Judge Kosik relied on, Ciavarella‟s argument fails.

Nor can the District Court‟s ability to preside 

impartially over the remaining jury trial be questioned due to 

its exposure to the presentence report. We have never held 

that a judge must recuse him or herself after viewing a 

presentence report and rejecting a plea. To the contrary, we 

have recognized that “circumstances often may arise when 

 

6 Because Ciavarella did not object to the presentence 

report when given the opportunity to do so, his contention 

that it contained factually disputed evidence is not properly 

before us. 
20

the judge views a defendant‟s presentence report for 

legitimate purposes before trying him or presiding over his 

trial.” United States v. Small, 472 F.2d 818, 822 (3d Cir. 

1972). Furthermore, “[i]t has long been regarded as normal 

and proper for a judge to sit in the same case upon its remand, 

and to sit in successive trials involving the same defendant.” 

Liteky, 510 U.S. at 551. Ciavarella fails to demonstrate any 

sufficient basis for recusal.

3. Judicial Response to Citizen Letters

In response to media requests and prior to sentencing, 

the District Court disclosed that it had received nearly 200 

letters from the public regarding the case and authored seven

letters in response to some of those letters. In disclosing the 

public‟s letters, the District Court stated that it had “not read 

or considered, nor will it read or consider, the bulk of such 

materials in determining the sentence to be imposed [on 

Ciavarella].” App. 42. The Court then publicly released all of 

the letters, with the exception of those requesting 

confidentiality. The seven responses that Judge Kosik sent 

contained the following statements: 

February 20, 2009 . . . 

Thank you for your letter and expressed 

concerns over the corruption which has come to 

light in Luzerne County, and most seriously 

with the courts. 

My personal opinions are in complete sympathy 

with those you express. The only difference is 
21

that my personal beliefs cannot guide my 

responsibility and judgments.

As you know, the government has entered into 

an agreement with the defense with regard to 

the sentence which is binding if neither side 

rejects it. According to the government, this 

resulted because of the legally questionable 

Count I of the indictment. To proceed, it would 

result in litigation and appeals which could 

extend any finality in the case for at least one 

year. I need to determine if the government‟s 

reasoning is correct, and I must do so as 

detached as possible.

I am not sure we have seen the end of many 

transgressions in your county.

App. 1507 (hereinafter “Wojack response”).

March 2, 2009 . . . 

Thank you for your letter and frank expressions. 

If personal opinions were our only guide, we 

are on the same page. . . . 

The prosecution stated the plea bargain was 

reached because of some legal uncertainties in a 

law which prohibits corrupting public service. 

To litigate the uncertainties before finality

would result in extending the presumption of 

innocence for a least a year. Accordingly, they 
22

claim to have been guided by the need of 

closure.

App. 1510.

July 16, 2009 . . . 

Thank you for your note concerning the 

pending case before me. I appreciate your views 

and hope that ultimately you can respect the 

final consideration in the case before me.

App. 1518.

July 23, 2009 . . . 

Thank you for your letter of July 21 concerning 

the case of two judges out of Luzerne County.

Your sentiments are noted. However, I have yet 

to receive a pre-sentence report which will aid 

in making a decision.

App. 1516.

Feb. 24, 2010 . . . 

Thank you for your letter . . . voicing your 

concerns regarding Judge Michael Conahan.

This is just another example of why Judge 

Conahan and his cohort have been indicted and 

expect to go to trial in the federal criminal case.
23

App. 1512.

May 6, 2010 . . . 

I thank you for the letter expressing interest in 

and opinions concerning the judicial process as 

it may play out in the case of former Judge 

Conahan.

I appreciate your views and hope that ultimately 

you can respect the final consideration in the 

case before me.

App. 1520.

June 15, 2010 . . . 

Thank you for your letter dated April 30, 2010, 

and received by me on June 14, 2010. I am 

sorry justice is so slow, but ultimately I hope 

you find it to be true.

App. 1514. Ciavarella renewed his prior recusal 

motion based on these letters. 

When a sitting judge comments on a pending case, he 

or she should heed the clear tenets expressed in our Code of 

Conduct for United States Judges. Judges should adhere to 

the following standards:

[3A(1)] A judge should be faithful to, and 

maintain professional competence in, the law 
24

and should not be swayed by partisan interests, 

public clamor, or fear of criticism. . . . 

[3A(6)] A judge should not make public 

comment on the merits of a matter pending or 

impending in any court. A judge should require 

similar restraint by court personnel subject to 

the judge‟s direction and control. The 

prohibition on public comment on the merits 

does not extend to public statements made in 

the course of the judge‟s official duties, to 

explanations of court procedures, or to scholarly 

presentations made for purposes of legal 

education. . . . 

[3C(1)(a)] A judge shall disqualify himself or 

herself in a proceeding in which the judge‟s 

impartiality might reasonably be questioned, 

including but not limited to instances in which: 

[] the judge has a personal bias or prejudice 

concerning a party, or personal knowledge of 

disputed evidentiary facts concerning the 

proceeding . . . . 

Code of Conduct Canon 3. Given the Canon‟s clarity, we 

emphasize that writing letters to non-parties about a case 

during its pendency is highly discouraged.7

 

7 Nonetheless, we recognize that the “Code is designed 

to provide guidance to judges,” and adherence is not 

mandatory. Code of Conduct Canon 1 cmt. (emphasis added). 

Furthermore, “it is possible to violate the Code without 

creating an appearance of partiality; likewise, it is possible for 
25

The inquiry here, however, is whether Judge Kosik‟s 

conduct violates 28 U.S.C. § 455(a) and triggers a duty to 

recuse. We have carefully analyzed the contents of each letter 

and are troubled by the correspondence and the expressions of 

Judge Kosik‟s thoughts on Ciavarella and his conduct. 

Nevertheless, though Judge Kosik‟s personalized responses to 

any letters from the public was ill-advised, their contents do 

not mandate his recusal because no reasonable person would 

question Judge Kosik‟s impartiality under these unique 

circumstances. Nor does our review of the record show 

anything other than proceedings conducted by a fair and 

impartial jurist.

We find that the letters fall into three categories: (1) 

those in which Judge Kosik expressed his personal opinion 

about the case but clearly stated that those opinions could not 

affect his judgments; (2) those in which Judge Kosik never 

expressed an opinion but stated that he “appreciated” the 

recipient‟s viewpoint; and (3) those where Judge Kosik 

neither expressed an opinion nor took note of the recipient‟s 

comments but responded with the status of the case. The 

second and third groups of letters abide by the Code of 

Conduct‟s standards because they merely provided 

“explanations of court procedures,” Code of Conduct 3A(6), 

and took “particular care so that the comment does not 

denigrate public confidence in the judiciary‟s integrity and 

impartiality.” Commentary to Code of Conduct Canon 3A(6). 

No reasonable person could question Judge Kosik‟s

impartiality based on these letters. 

 

a judge to comply with the Code yet still be required to recuse 

herself.” Boston’s Children First, 244 F.3d at 168. 
26

The first category of letters, however, causes us greater

concern because the letters in that category contain Judge 

Kosik‟s personal opinions about Ciavarella and the case 

before him. Because Ciavarella must only demonstrate that 

Judge Kosik appears to be biased, see Liteky, 510 U.S. at 553 

n.2, we must consider whether a reasonable person might 

question Judge Kosik‟s impartiality based on the opinions 

expressed in this correspondence. As the Supreme Court has 

stated, when a judge‟s opinion is formed by the proceedings 

before him, his opinions do not constitute bias “unless they 

display a deep-seated favoritism or antagonism that would 

make fair judgment impossible.” Id. at 555. Because, as 

noted, Judge Kosik‟s opinions did not result from any

extrajudicial source, but from events occurring in the course 

of proceedings, for recusal to be warranted, Ciavarella must 

meet Liteky‟s high bar of deep-seated antagonism. We 

conclude that Ciavarella has failed to do so given that in each 

letter in which Judge Kosik expressed his opinion, he also 

expressly stated that his personal opinion would not guide his 

rulings. This stands in stark contrast to United States v. Antar,

where we required recusal of a district judge who commented 

at the sentencing hearing that his “object in this case from day 

one ha[d] always been to get back to the public that which 

was taken from it as a result of the fraudulent activities of this 

defendant and others.” 53 F.3d 568, 573, 579 (3d Cir. 1995), 

abrogated on other grounds by Smith v. Berg, 247 F.3d 532 

(3d Cir. 2001). Judge Kosik‟s comments do not “display [the] 

high degree of antagonism” we found in Antar. Id. at 576.

At oral argument, defense counsel cited the response to 

Wojack as most exemplary of Judge Kosik‟s perceived bias 

and apparent partiality. Wojack had written to Judge Kosik to 
27

“search the deepest veins of [his] soul and find reason not to 

let these two judges off lightly,” pleading that “[s]even and a 

third years and some forfeiture of wealth is not severe enough 

punishment to begin the healing of the public trust.” App. 

1506. Wojack said that Ciavarella and Conahan had 

“committed the most serious crime against the people” by 

using their courtrooms as “a business for profit at the expense 

of children.” App. 1506. The defense contends that Judge 

Kosik‟s response evidenced his partiality. This view, 

however, requires consideration of only certain sentiments 

expressed—“My personal opinions are in complete sympathy 

with those you express” and “I am not sure we have seen the 

end of many transgressions in your county”—while 

disregarding others—“The only difference is that my personal 

beliefs cannot guide my responsibility and judgments” and “I 

need to determine if the government‟s reasoning is correct, 

and I must do so as detached as possible.” Wojack response. 

As the Supreme Court noted in Liteky, “[i]mpartiality is not 

gullibility. Disinterestedness does not mean child-like 

innocence. If the judge did not form judgments of the actors 

in those court-house dramas called trials, he could never 

render decisions.” Liteky, 510 U.S. at 551 (internal quotation 

marks and citations omitted). Viewing Judge Kosik‟s 

statements in the Wojack correspondence as a whole, no 

reasonable observer who is informed of all of the surrounding 

facts and circumstances would believe that Judge Kosik could

not, and did not, act impartially. Recusal was not required. 

4. Overall Perception of Bias

Finally, Ciavarella contends that “the totality of Judge 

Kosik‟s pre-trial and trial conduct conveyed a message that he 

loathed Ciavarella and believed that he accepted bribes, thus 
28

warranting disqualification.” Ciavarella‟s Br. at 22. We must 

consider whether recusal is warranted considering the totality 

of the circumstances involved in the proceedings. See, e.g.,

United States v. Kennedy, 682 F.3d 244, 259-60 (3d Cir. 

2012).

Viewing the record in its entirety, it appears that Judge 

Kosik had serious concerns about Ciavarella‟s alleged 

conduct. In his correspondence, in the Memorandum rejecting 

Ciavarella‟s plea agreement, and in his denial of the initial 

recusal motion, Judge Kosik expressed his belief that 

Ciavarella‟s conduct amounted to “corruption,” Wojack 

response, that the undisputed evidence showed that Ciavarella 

committed the county to housing juvenile offenders “under 

circumstances amounting to constitutional deprivations,” 

App. 29, and that due to Ciavarella‟s conduct, “confidence in 

the judicial system . . . may be corrupted for a time well after 

this case.” App. 22. Yet a judge‟s negative view of a 

defendant based on evidence in the record does not constitute

actual or apparent bias for the purpose of a recusal motion. 

The judge who presides at a trial may, upon 

completion of the evidence, be exceedingly ill 

disposed towards the defendant who has been 

shown to be a thoroughly reprehensible person. 

But the judge is not thereby recusable for bias 

or prejudice, since his knowledge and the 

opinion it produced were properly and 

necessarily acquired in the course of the 

proceedings, and are indeed sometimes (as in a 

bench trial) necessary to completion of the 

judge‟s task. . . . Also not subject to deprecatory 

characterization as „bias‟ or „prejudice‟ are 
29

opinions held by judges as a result of what they 

learned in earlier proceedings. 

Liteky, 510 U.S. at 550-51. Here, any negative views that 

Judge Kosik had of Ciavarella do not arise from extrajudicial 

source and do not amount to the extreme animus necessary to 

make fair judgment impossible. See id. at 555. Rather, they 

arose from the very matters presented to him, especially in the 

setting of the rejected plea agreement wherein Ciavarella 

essentially admitted the underlying conduct later found by the 

jury to be criminal. For these reasons, we hold that there was 

no abuse of discretion in the District Court‟s denial of the 

recusal motions. 

B. AUSA Zubrod’s Statements as a Party 

Admission

Ciavarella contends that the District Court erred by 

excluding statements made by Assistant U.S. Attorney 

Gordon Zubrod at Mericle‟s plea hearing, arguing that the 

evidence would have reinforced Ciavarella‟s defense that the 

payments were not bribes or kickbacks.8

Following presentation of the Government‟s case-inchief, Ciavarella sought to admit the following statement by 

Zubrod made at Mericle‟s plea hearing.

 

8 We review the District Court‟s decision to exclude 

evidence for abuse of discretion. United States v. Bobb, 471 

F.3d 491, 497 (3d Cir. 2006). “However, to the extent the 

District Court‟s admission of evidence was based on an 

interpretation of the Federal Rules of Evidence, the standard 

of review is plenary.” Id.
30

Referral fees are a common place practice. . . . 

Fee splitting between the parties, for example, 

between Judge Ciavarella and Mr. Powell, that 

kind of fee splitting is also a common practice 

in the real estate business. . . . 

This is not a kickback or a bribe in any sense. It 

is a common practice. It is not a legal quid pro 

quo. It is a common practice between 

businessmen in real estate transactions. Mr. 

Mericle simply paid a finder‟s fee to the judges 

in accordance with standard practice. To him, 

his payment of the fee was what he had done 

hundreds of times before and was not related to 

the office that the judges held or any decisions 

by the judges. . . . 

App. 1537. In response, the District Court sought to clarify 

that Zubrod‟s description of referral fees addressed only 

Mericle‟s state of mind and not the intent of other 

participants. The Court inquired: 

THE COURT: What you‟re suggesting is that 

any relationship Mr. Mericle had to the juvenile 

centers that were constructed by him or his 

company was entirely different than any

relationship that may have existed between Mr. 

Powell and the two judges that you were 

referring to; is that correct?

MR. ZUBROD: That‟s correct . . . . [Powell] 

understood it to be a quid pro quo that he would 
31

not get juveniles anymore if he didn‟t pay up 

the money. . . . 

THE COURT: [I]t‟s my recollection that in the 

case of the two judges you represented that 

there was a quid pro quo between Mr. Powell 

and between the judges. That is not the case [as 

to Mericle‟s intent]; is that correct?

MR. ZUBROD: That‟s correct, Your Honor. 

There‟s no quid pro quo.

App. 1539.

Ciavarella argued that Zubrod‟s statement was a party 

admission that Mericle‟s payments were not a bribe or 

kickback but were permissible referral fees. The District 

Court refused to allow the statements to be used as party 

admissions but permitted Ciavarella to represent that the 

statements supported Mericle‟s mental state concerning the 

payments. 

Federal Rule of Evidence 801(d)(2)(A) permits the 

admission of statements made by a party opponent. Ciavarella 

argues that “[t]he rule simply requires that the admission at 

issue be contrary to a party‟s position at trial.” Ciavarella‟s 

Br. at 30.9 We must consider whether the Government has 

 

9 We have stated that “[t]o be admissible [under Rule 

801(d)(2)], a party‟s admission „must be contrary to that 

party‟s position at the time of the trial.‟” United States v. 

Ferri, 778 F.2d 985, 991 (3d Cir. 1985) (quoting Butler v. S. 

Pa. Co., 431 F.2d 77, 80 (5th Cir. 1970)). However, other 
32

adopted inconsistent or mutually contradictory positions in its 

successive series of suits against Mericle and Ciavarella. 

Zubrod‟s statement only referred to Mericle‟s intent about the 

payments and not the intent or state of mind of Ciavarella, 

Conahan, or Powell, which was the focus of the 

Government‟s case against Ciavarella. Zubrod stated that 

Powell “understood it to be a quid pro quo,” while to Mericle, 

his payment was a fee and was “standard practice,” not a 

“quid pro quo.” App. 1539. Thus, the Government‟s position 

at Ciavarella‟s trial—that Ciavarella ordered juvenile 

offenders to detention in exchange for money—is neither an 

inconsistent nor a mutually contradictory position from its 

theory at Mericle‟s plea hearing. Accordingly, we find no 

abuse of discretion in the District Court‟s exclusion of 

Zubrod‟s statements at Mericle‟s plea hearing.10

 

courts have addressed whether the admission must be against 

the party‟s interest and have concluded that Rule 

801(d)(2)(A) contains no such limitation. See, e.g., United 

States v. McGee, 189 F.3d 626, 632 (7th Cir. 1999) (citing 

cases). Because Ciavarella only argues that Zubrod‟s 

statements should have been admissible because they were 

contrary to the Government‟s position at trial, we need not 

address whether to relax our limitation on the admissibility of 

a party opponent‟s statements. 

10 Moreover, under the District Court‟s ruling, 

Ciavarella could have introduced Zubrod‟s statement through 

Mericle‟s cross-examination.
33

C. Cross-Examination of Powell and Owens

Ciavarella contends that the District Court violated his 

Sixth Amendment right of confrontation when it limited his 

cross-examination of Powell and Powell‟s CFO, Patrick

Owens, on substantial facts in controversy that went to the 

core of his defense and undermined Powell‟s credibility.11 To 

determine whether limitations on cross-examination violate 

the Confrontation Clause, we employ the following two-step 

test:

First, we must determine whether that ruling 

significantly inhibited [a defendant‟s] effective 

exercise of her right to inquire into [the] 

witness‟s “motivation in testifying”; and 

second, if the District Court‟s ruling did 

significantly inhibit [the defendant‟s] exercise 

of that right, whether the constraints it imposed 

on the scope of [the] cross-examination fell 

within those “reasonable limits” which a trial 

court, in due exercise of its discretion, has 

authority to establish.

 

11 We review the District Court‟s limitations on crossexamination based on relevancy for abuse of discretion. 

United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008). 

We review for plain error objections that were not specifically 

raised before the District Court. United States v. Christie, 624 

F.3d 558, 567 (3d Cir. 2010) (applying plain error review for 

claim that admission of testimony violated the Confrontation 

Clause).
34

United States v. Chandler, 326 F.3d 210, 219 (3d Cir. 2003). 

Ciavarella sought throughout the trial to portray 

Powell as a large and powerful figure, who was incapable of 

being extorted by Ciavarella and instead was embezzling 

from his companies to support his lavish lifestyle. The 

defense inquired into Powell‟s credit card statements, 

confronting him about a December 2003 statement containing 

over $21,000 in charges, a January 2004 statement containing 

over $13,000 in charges, and a February 2004 statement 

containing over $15,000 in charges. After the questioning of 

Powell about his third credit card statement, the District Court 

asked the defense about the relevance of the line of 

questioning and subsequently sustained an objection by the 

Government. 

Ciavarella also attacked Powell‟s credibility through 

the testimony of Owens regarding Powell‟s demeanor and his 

structuring of transactions. Owens testified that Powell‟s 

demeanor changed in 2006 and 2007 and that Powell had 

become paranoid, quick tempered, and demanding. Around 

that time, according to Owens, Powell had directed Owens to 

withdraw large amounts of cash from Powell‟s companies. 

The defense on cross-examination sought to demonstrate that 

it was Powell‟s embezzlement from his companies that had 

led to his changed demeanor and not Ciavarella‟s alleged 

extortion demands. However, after Ciavarella had asked 

Owens about Powell‟s business partner Greg Zappala‟s lack 

of knowledge of Powell‟s withdrawals from the companies 

they jointly owned, the District Court inquired as to the 

relevance of Powell‟s embezzlement, prompting an objection 

from the Government that the District Court sustained. The 

Government then conceded that “[t]he issue of paranoia, 
35

however, as a motive separate from the extortion may be 

marginally relevant.” App. 729. Nevertheless, the District 

Court maintained its ruling. 

“[T]rial judges retain wide latitude insofar as the 

Confrontation Clause is concerned to impose reasonable 

limits on . . . cross-examination based on concerns about, 

among other things, harassment, prejudice, confusion of the 

issues, the witness‟ safety, or interrogation that is repetitive or 

only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 

673, 679 (1986). “Van Arsdall requires us to strike a balance 

between the constitutionally required opportunity to crossexamine and the need to prevent repetitive or abusive crossexamination.” United States v. Casoni, 950 F.2d 893, 919 (3d 

Cir. 1991). 

Although Ciavarella initially argued at trial that 

Powell‟s testimony addressing his credit card statements was 

relevant to the defense‟s theory that Powell‟s lavish lifestyle 

made him incapable of being extorted, on appeal, Ciavarella 

now argues that the evidence was relevant instead to show 

that Powell was embezzling from his companies to support 

his lifestyle. However, Ciavarella failed to demonstrate either 

at trial or on appeal any different conclusion that the jury 

might have reached had it learned more about Powell‟s 

specific spending habits, and thus we cannot conclude that the 

District Court abused its discretion. Regarding Owens‟s 

testimony, while we agree that evidence related to Powell‟s 

change in demeanor and structuring of transactions may have 

been relevant to support Ciavarella‟s argument that Zappala

did not know that Powell was stealing from their companies, 

we hold that the District Court did not abuse its discretion in 

excluding this evidence. Ciavarella had already questioned 
36

Owens about Zappala‟s lack of knowledge about Powell‟s 

withdrawals from his companies, and further questioning 

would have been repetitive. Ciavarella has not explained what 

the jury may have learned from further testimony on Powell‟s 

withdrawals. As “the Confrontation Clause does not grant 

unfettered rights to cross-examine witnesses,” United States 

v. Friedman, 658 F.3d 342, 356 (3d Cir. 2011), we conclude 

that the District Court‟s ruling “fell within those „reasonable 

limits‟ which a trial court, in due exercise of its discretion, 

has authority to establish.” Chandler, 326 F.3d at 219.

D. Use of Evidence of Ciavarella’s and 

Conahan’s Conflicts of Interest 

Ciavarella argues that the District Court erred under 

Federal Rule of Evidence 404(b) by admitting evidence that 

demonstrated that he and Conahan failed to disqualify 

themselves in certain lawsuits over which they presided. 

Ciavarella argues that this evidence was not relevant, failed to 

assist the jury in understanding whether the payments were 

bribes or part of a scheme to defraud, and that even if 

relevant, was unfairly prejudicial.12 Even if we assume 

Ciavarella is correct that Rule 404(b) applies in this instance 

because extrinsic offense evidence is at issue,13 we find no 

abuse of discretion.

 

12 We review the District Court‟s admission of Rule 

404(b) evidence for abuse of discretion, and “the district court 

has significant leeway in reaching its decision.” United States 

v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994).

13 The Government maintains that the District Court 

correctly ruled that the evidence is “intrinsic evidence of 
37

The Government sought to introduce evidence under 

Rule 404(b) that Ciavarella and Conahan failed to disqualify 

themselves or disclose their conflicts of interest in cases over 

which they presided involving Mericle, Powell, PACC, and 

WPACC as litigants. The American Bar Association‟s Model 

Code of Judicial Conduct requires all judges to either 

disqualify themselves from or disclose their interest in 

proceedings in which their impartiality may be questioned 

due to their economic interest in the subject matter in 

controversy. Model Code of Judicial Conduct R. 2.11 (2011). 

“Almost every State . . . has adopted the American Bar 

Association‟s objective standard . . . .” Caperton v. A.T. 

Massey Coal Co., 556 U.S. 868, 888 (2009).

14 Ciavarella 

testified that though he knew of the affirmative duty to 

disqualify himself in certain cases, he failed to do so. 

Multiple attorneys that represented opposing parties in cases 

 

Ciavarella‟s guilt on the honest services fraud counts.” Gov‟t 

Br. at 47. “Rule 404(b) does not extend to evidence of acts 

which are „intrinsic‟ to the charged offense.” United States v. 

Cross, 308 F.3d 308, 320 (3d Cir. 2002) (internal quotation 

marks omitted).

14 Pennsylvania has adopted a similar rule for 

disqualification. PA. CODE OF JUDICIAL CONDUCT Canon 

3(C)(1)(c) (“Judges should disqualify themselves in a 

proceeding in which their impartiality might reasonably be 

questioned, including but not limited to instances where[] 

they know that they . . . have a substantial financial interest in 

the subject matter in controversy or in a party to the 

proceeding, or any other interest that could be substantially 

affected by the outcome of the proceeding . . . .”).
38

before Ciavarella against Powell or companies owned by 

Mericle testified about the judges‟ failure to disqualify 

themselves or disclose their financial relationships. When the 

relationships were specifically inquired about, Ciavarella 

downplayed them or responded angrily. In each case, there 

had been rulings squarely in favor of Mericle, Powell, and the 

juvenile detention centers. Witnesses testified that had the 

opposing counsels known about Ciavarella‟s and Conahan‟s

relationships, it would have affected the counsels‟ handling of 

their cases. 

As is relevant to Ciavarella‟s argument on appeal, 

extrinsic evidence of other bad acts is admissible under 

Federal Rule of Evidence 404(b) if three requirements are 

met. First, the evidence must be offered for a proper purpose 

under Rule 404(b); second, the evidence must be relevant 

under Rule 402; and third, the probative value of the evidence 

must outweigh its potential for unfair prejudice under Rule 

403. Huddleston v. United States, 485 U.S. 681, 691 (1988).

15

Proper purposes for the evidence include “motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Fed. R. Evid. 

404(b). “Rule 404(b) is a rule of inclusion, not exclusion, 

which emphasizes the admissibility of other crimes 

evidence.” Gov’t of V.I. v. Edwards, 903 F.2d 267, 270 (3d 

Cir. 1990). 

 

15 As a fourth requirement under Rule 404(b), evidence 

must also “be accompanied by a limiting instruction (where 

requested) about the purpose for which the jury may consider 

it.” Cross, 308 F.3d at 320-21.
39

To determine the relevance of the Rule 404(b) 

nondisclosure evidence, we must consider whether it would 

aid in the proof of a “fact . . . of consequence in determining 

the action.” Fed. R. Evid. 401(b). For the Government to 

prove honest services mail fraud, it must demonstrate, among 

other things, that there was a scheme to defraud, which 

includes any course of action to deprive another of money, 

property, or the intangible right to honest services through 

fraudulent representations reasonably calculated to deceive a 

person of “ordinary prudence.” United States v. Pearlstein, 

576 F.2d 531, 535 (3d Cir. 1978); 18 U.S.C. §§ 1341, 1346; 

see also United States v. Riley, 621 F.3d 312, 325 (3d. Cir. 

2010) (setting forth the elements of honest services mail 

fraud). Fraudulent representations include the concealment of 

material facts and a failure to disclose information when the 

defendant is under a known legal duty to disclose. Third 

Circuit Model Jury Instructions 6.18.1341-1 (2012); see also

Bonilla v. Volvo Car Corp., 150 F.3d 62, 70 (1st Cir. 1998).

Here, the nondisclosure evidence serves a proper purpose 

under Rule 404(b) and is relevant to proving that the 

payments furthered the scheme to defraud through 

Ciavarella‟s failure to disclose his financial relationships in 

cases he presided over when there was an affirmative duty to 

do so and by assisting Mericle and Powell with favorable 

rulings during trial.

However, Ciavarella argues that the Rule 404(b) 

evidence could only be relevant to support a conflict-ofinterest theory of honest services fraud, which is no longer 

viable after Skilling v. United States. In Skilling, the Supreme

Court held that for the honest services fraud statute, 18 U.S.C. 

§ 1346, to survive constitutional scrutiny, it may only be 

interpreted to criminalize fraud based on bribes and kickbacks 
40

and not based on a failure to disclose a conflict of interest. 

130 S. Ct. at 2931-33. The bribery-and-kickback theory of 

honest services fraud requires “a quid pro quo, that is, a 

specific intent to give or receive something of value in 

exchange for an official act.” United States v. Wright, 665 

F.3d 560, 567-68 (3d Cir. 2012) (internal quotation marks and 

citations omitted). Thus, while the evidence of nondisclosure 

by itself may not constitute honest services fraud based on a 

conflict-of-interest theory under Skilling, we believe that 

where there is also evidence of bribery or kickbacks, as there 

was before the District Court, then the evidence may be 

relevant to proof of a scheme to defraud under a bribery-andkickback theory of honest services fraud. Furthermore, the 

District Court had instructed the jury that the Government 

was required to prove that the scheme to defraud must be 

conducted through the use of bribes and kickbacks and that a 

government official could breach his or her duty of honest 

services through the use of bribes and kickbacks. 

Finally, Ciavarella maintains that even if the evidence 

is relevant, it still should have been excluded as unfairly 

prejudicial because it touched on the impermissible conflictof-interest theory of honest services fraud. However, there is 

no indication that the Government used the Rule 404(b) 

evidence to demonstrate a conflict of interest, and the District 

Court clearly instructed the jury as to the limited purpose for 

which it could use the evidence and that the honest services 

charges required proof of a bribe or kickback. Thus, contrary 

to Ciavarella‟s contention otherwise, the District Court was 

within its “significant leeway,” Jemal, 26 F.3d at 1272, in 

admitting the Rule 404(b) nondisclosure evidence, and there 

was no abuse of discretion. 
41

E. False Financial Disclosures as Evidence of 

Honest Services Mail Fraud

Ciavarella contends that the evidence of false financial 

disclosure statements cannot sustain a conviction for honest 

services mail fraud based on a conflict-of-interest theory 

under Skilling, without evidence that Ciavarella accepted a 

bribe in exchange for filing the false disclosure statements.16

Under Pennsylvania law, judges must file annual financial 

interest statements reporting on their outside financial 

interests, creditors, income, and gifts. 204 Pa. Code. § 29.52.

For the years 2003 through 2007, Ciavarella and Conahan 

filed false financial interest statements in which they failed to 

disclose their receipt of payments from Mericle and Powell. 

Ciavarella‟s argument is without merit. While the 

Skilling Court confined criminality under 18 U.S.C. § 1346 to 

schemes involving bribes or kickbacks, Skilling, 130 S. Ct. at 

2931, “[t]he bribery theory does not require that each quid, or 

item of value, be linked to a specific quo, or official act. 

Rather, a bribe may come in the form of a „stream of 

benefits.‟” Wright, 665 F.3d at 568 (quoting United States v. 

Bryant, 655 F.3d 232, 240-41 (3d Cir. 2011)). As noted, 

concealment of material information through false disclosure 

statements, by itself, cannot serve as the basis for an honest 

 

16 We apply de novo review over questions of statutory 

interpretation. United States v. Pavulak, 700 F.3d 651, 671 

(3d Cir. 2012). “We review the legal accuracy of a district 

court‟s jury instructions de novo.” United States v. Maury, 

695 F.3d 227, 261 (3d Cir. 2012).
42

services mail fraud conviction, but when there is evidence 

that the concealment by false disclosures furthers a scheme to

defraud through bribes and kickbacks, then the false 

disclosure statements can support such a conviction. Here, the 

false financial disclosures that Ciavarella mailed are relevant 

to both the “use of the mails” and the “scheme to defraud” 

elements. The District Court properly instructed the jury that 

the Government was required to prove that the scheme to 

defraud was conducted through the use of bribes or kickbacks 

through the use of the mails. It also instructed that a 

government official may breach his or her duty of honest 

services through bribery or kickbacks and that the jury must

find that the defendant engaged in undisclosed biased

decision making through bribery or kickbacks. 

Ciavarella also cites to United States v. Genova, 333 

F.3d 750 (7th Cir. 2003), for the proposition that the “mere 

mailing” of false disclosure statements cannot constitute mail 

fraud because “the mailing of false statements does not read 

like the definition of bribery.” Ciavarella‟s Br. at 46. Genova

involved the city prosecutor‟s payment of kickbacks to the 

mayor in exchange for the city‟s legal business. Genova, 333 

F.3d at 754. While the Court held that false financial 

disclosure statements were not predicate offenses under RICO

because the state‟s disclosure requirement “does not read like 

a definition of bribery,” it permitted the false disclosures to 

support the mail fraud convictions. Id. at 758. Thus, contrary 

to Ciavarella‟s position, Genova reaffirms our view that the 

false financial statements at issue in the instant action can 

support Ciavarella‟s honest mail fraud convictions. In 

Genova, the Court held that the false disclosures were part of 

a scheme to defraud because “[k]eeping a lid on the 

kickbacks was essential to permit their continuation” and “[a] 
43

jury sensibly could conclude that the false mailings were 

integral to this scheme.” Id. at 759. Here, too, a jury could 

conclude that Ciavarella‟s mailing of false financial 

disclosure statements was “integral” to his scheme to defraud 

through the use of bribes or kickbacks and that the false 

disclosures helped “keep a lid on the kickbacks” received by 

Ciavarella. 

F. Sufficiency of the Evidence 

Ciavarella next challenges the sufficiency of the 

evidence supporting his convictions for RICO, RICO 

conspiracy, honest services mail fraud, and money laundering 

conspiracy.17

1. RICO Conviction (Count 1)

Ciavarella was convicted of racketeering in violation 

of 18 U.S.C. § 1962(c) based on two predicate acts—honest 

services wire fraud based on three wire transfers on January 

21, 24, and 28, 2003 (Racketeering Act One) and money 

laundering conspiracy (Racketeering Act Thirteen). The 

January 2003 wire transfers involved the $997,600 payment

from Mericle to Ciavarella and Conahan. In essence, 

Ciavarella contends that the RICO conviction cannot be 

sustained because the 2003 payment from Mericle did not 

 

17 We affirm the jury‟s verdict when there is 

substantial evidence that, viewed in the light most favorable 

to the government, would permit a reasonable finder of fact to 

convict. Wright, 665 F.3d at 567. A defendant raising a 

sufficiency of the evidence challenge has an exceedingly high 

burden. Id.
44

constitute a bribe given the jury acquitted him of the bribery 

counts related to Mericle‟s 2005 and 2006 payments and 

because Mericle testified that the 2003 payment was also a 

legitimate referral fee. Absent evidence that the January 2003 

payment was a bribe, the racketeering predicate act of honest 

services wire fraud cannot be sustained.

A payment constitutes a bribe “as long as the essential 

intent—a specific intent to give or receive something of value 

in exchange for an official act—exists.” United States v. 

Kemp, 500 F.3d 257, 282 (3d Cir. 2007). The Government is 

not required to prove that the payments were intended “to 

prompt a specific official act. . . . [Rather,] payments may be 

made with the intent to retain the official‟s services on an „as 

needed‟ basis, so that whenever the opportunity presents itself 

the official will take specific action on the payor‟s behalf.” Id.

(internal quotation marks and citations omitted). 

Here, the Government presented the following 

evidence to support the jury‟s conclusion that the payment 

Ciavarella received from Mericle in 2003 constituted a bribe:

the 2003 payments were transferred through multiple 

individuals to a company owned by Conahan, which 

ultimately transferred the funds to Ciavarella and Conahan; 

Ciavarella agreed to split the fee with Conahan because 

Conahan had done much of the work to confer the benefit on 

Mericle; Powell treated the payment as income for tax 

purposes; Conahan‟s company falsely reported the funds in 

the company books as a consultant‟s fee; Ciavarella worked 

to close down the existing county facility and move its best 

employees to PACC; Conahan, with Ciavarella‟s knowledge,

signed a lease to assist Powell in securing financing; 

Ciavarella and Conahan failed to disclose the conflicts of 
45

interest in civil cases before them; and Ciavarella and 

Conahan mailed false financial disclosure statements. While 

Ciavarella and Mericle testified that the payment was a 

referral fee and not a bribe, the jury was free to disbelieve

them. Thus, there was sufficient evidence for a reasonable

jury to conclude that the 2003 payment from Mericle 

constituted a bribe to support the predicate act for honest 

services wire fraud and to sustain the RICO conviction.

Ciavarella fails to meet his high burden.

2. Honest Services Mail Fraud Convictions

(Counts 7, 8, 9, and 10)

There was also sufficient evidence to allow a 

reasonable jury to convict Ciavarella on each of the honest 

services mail fraud convictions based on the mailing of the 

Statement of Financial Interests in April 2004, March 2005, 

April 2006, and March 2007. For an honest services mail 

fraud conviction, in addition to the traditional mail fraud 

elements and that the scheme was conducted through the use 

of bribes or kickbacks, the Government must also prove: (1) 

“that the payor provided a benefit to a public official 

intending that he will thereby take favorable official acts that 

he would not otherwise take”; and (2) “that the official 

accepted those benefits intending, in exchange for the 

benefits, to take official acts to benefit the payor.” Wright, 

665 F.3d at 568. Because the jury found that the 2003 

payment constituted a bribe or kickback to support 

Racketeering Act One, there was sufficient evidence for a 

reasonable jury to conclude that Ciavarella‟s nondisclosure of 

that payment in his Statements of Financial Interests 

constituted honest services mail fraud.
46

3. RICO Conspiracy and Money 

Laundering Conspiracy Convictions

(Counts 2 and 21)

Ciavarella also contends that the conspiracy 

convictions cannot be sustained absent proof of a bribe or 

kickback. Because we hold that there was sufficient evidence 

for a rational jury to conclude that the 2003 payment from 

Mericle constituted a bribe to support the racketeering 

predicate act, Ciavarella‟s challenges to the RICO and money 

laundering conspiracy convictions also fail. 

G. Statute of Limitations 

Ciavarella argues that the RICO, honest services mail 

fraud, and conspiracy convictions are time-barred.18

 

18 “We exercise plenary review over whether counts of 

an [I]ndictment should have been dismissed for violating the 

statute of limitations.” United States v. Bornman, 559 F.3d 

150, 152 (3d Cir. 2009). However, when a defendant waived 

a challenge to the statute of limitations, then we review for 

plain error. United States v. Jake, 281 F.3d 123, 132 (3d Cir. 

2002). A five-year statute of limitations applies to all of the 

convictions. 18 U.S.C. § 3282(a). For a RICO charge, at least 

one of the predicate acts must have occurred within five years 

of the indictment. Manna v. U.S. Dep’t of Justice, 51 F.3d 

1158, 1168 n.1 (3d Cir. 1995) (Becker, J., concurring in part 

and dissenting in part) (citing United States v. Persico, 832 

F.2d 705, 714 (2d Cir. 1987)).
47

On January 23, 2009, after an Information was filed, 

Ciavarella signed a plea agreement, waiving any statute-oflimitations defense to charges under investigation in the event 

Ciavarella “vacates or sets aside any conviction or sentence of 

incarceration imposed pursuant to [the] plea agreement.” 

Supp. App. 41. After the District Court rejected the plea 

agreement, on September 9, 2009, a grand jury returned an

Indictment, charging Ciavarella with numerous offenses. A 

superseding Indictment was returned on September 29, 2010, 

containing the same charges but with revised language to 

conform with Skilling. 

Following the return of the superseding Indictment, 

Ciavarella sought dismissal of certain charges as time-barred, 

including the honest services wire fraud counts (Counts 3, 4, 

and 5), honest services mail fraud counts (Counts 7, 8, and 9), 

bribery counts (Counts 11, 12, 13, and 14), money laundering 

counts (Counts 22, 23, 24, and 25), and extortion counts 

(Counts 27, 28, 29, and 30). The District Court denied the 

motion, holding that the charges were timely as of the filing 

of the original Indictment and that that the superseding 

Indictment did not expand on the charges. Post-trial, 

Ciavarella sought dismissal of the racketeering conviction and 

the conspiracy convictions (Counts 1, 2, and 21), arguing that 

the 2003 payment that served as a basis for the convictions 

was outside the statute of limitations. The District Court 

denied the motion as untimely. On appeal, Ciavarella 

challenges those convictions as time-barred, and reasserts his 

statute-of-limitations challenge to Count 7, the honest

services mail fraud conviction, based on the April 2004 

disclosure statement. 
48

1. RICO, RICO Conspiracy, and Money 

Laundering Conspiracy (Counts 1, 2, and 

21)

Ciavarella argues that the two predicate acts for his 

RICO conviction—honest services wire fraud based on three 

wire transfers, the last of which occurred on January 28, 

2003, and money laundering conspiracy—occurred more than 

five years before the September 9, 2009 Indictment, and thus 

the RICO count is time barred. Additionally, the conspiracy 

convictions are time barred, according to Ciavarella, because 

the conspiracy was completed on the date of its final act—

January 28, 2003. However, while Ciavarella objected prior 

to trial to other counts as time-barred, he did not include 

Counts 1, 2, or 21 in his objection. 

“[I]n criminal cases[,] the statute of limitations does 

not go to the jurisdiction of the court but is an affirmative 

defense that will be considered waived if not raised in the 

district court before or at trial.” United States v. Karlin, 785 

F.2d 90, 92-93 (3d Cir. 1986). While Ciavarella would have 

been entitled to an instruction on the applicable statute of 

limitations to inform the jury of the need to prove that at least 

one predicate act occurred within five years of the date of the

indictment, Jake, 281 F.3d at 129, he did not request it.

Accordingly, under our current precedent, Ciavarella failed to 

preserve this objection, and we will not consider it on appeal. 

Ciavarella looks to the Sixth Circuit, which has held 

that while the statute of limitations is not a jurisdictional bar, 

it is of such importance that it can be raised for the first time 

on appeal. United States v. Titterington, 374 F.3d 453, 458-60
49

(6th Cir. 2004). But this is not the law in our Circuit. Rather, 

we have held, consistent with nearly all of our sister Circuits,

that the statute of limitations is an affirmative defense that 

will be waived if not properly preserved prior to or during 

trial. See Karlin, 785 F.2d at 92-93; see also United States v. 

Arky, 938 F.2d 579, 582 (5th Cir. 1991) (“[I]t is difficult to 

conceive why [the statute of limitations defense] alone, of all 

the defendant‟s affirmative defenses, should not be waived if 

not asserted at trial.”). 

2. Honest Services Mail Fraud (Count 7)

(a) Application of Statute of 

Limitations

Ciavarella adequately preserved his objection to Count 

7‟s statute of limitations by raising it in his pre-trial motion to 

dismiss. Count 7 alleges a violation of honest services mail 

fraud based on the mailing of a Statement of Financial 

Interests in April 2004. The original Indictment was filed on 

September 9, 2009, over five years after the conduct alleged 

in Count 7. This count is clearly time-barred absent any 

waiver by Ciavarella.

The Government argues that Ciavarella expressly 

waived the statute-of-limitations defense through his January 

2009 plea agreement. The plea agreement states:

The defendant further agrees to waive any 

defenses to the prosecution of [any] charges 

[currently under investigation related to this 

matter] based upon laches, the assertion of 

speedy trial rights, any applicable statute of 
50

limitations or any other grounds in the event 

that the defendant successfully vacates or sets 

aside any conviction or sentence of 

incarceration imposed pursuant to this plea 

agreement. 

Supp. App. 41. As previously stated, Ciavarella signed the 

plea agreement, later withdrew his guilty plea, and proceeded 

to trial where he was found guilty of Count 7 on February 18, 

2011. The Government contends, though, that Ciavarella‟s 

“conviction” was established by his guilty plea, and that “[b]y 

withdrawing his plea, Ciavarella „vacated and set aside‟ his 

conviction.” Gov‟t Br. at 60-61.

We see no basis for the Government‟s interpretation of 

the waiver provision in the plea agreement. The language—

“vacates or sets any conviction . . . imposed pursuant to this 

plea agreement”—clearly contemplates a conviction that was 

achieved due to that plea agreement. Here, Ciavarella‟s 

conviction on Count 7 was achieved not as a result of the plea 

agreement, as Ciavarella withdrew his plea and proceeded to 

trial, but as a result of the jury‟s verdict. Moreover, the plea 

agreement also states that “either party has the right to 

withdraw from this agreement and withdraw any guilty plea 

entered” if the District Court fails to accept the stipulated 

sentence. Supp. App. 48. This is precisely what occurred 

here. Accordingly, even if we found the agreement regarding 

the statute-of-limitations waiver to include this type of 

situation, the waiver was nullified by the Court‟s rejection of, 

and the parties‟ withdrawal from, the agreement. For these 

reasons, we hold that Ciavarella did not waive his statute-oflimitations defense to the honest services mail fraud count 
51

based on a mailing in April 2004, and we will vacate the 

conviction for Count 7.

(b) Effect of Vacatur

Having vacated Count 7, we address whether we must 

remand for resentencing de novo. Resentencing on all counts 

is warranted “when a multicount conviction produces an 

aggregate sentence or sentencing package.” United States v. 

Davis, 112 F.3d 118, 122 (3d Cir. 1997) (internal quotation 

marks omitted). Resentencing de novo is necessary 

when a defendant is found guilty on a 

multicount indictment, there is a strong 

likelihood that the district court will craft a 

disposition in which the sentences on the 

various counts form part of an overall plan. 

When a conviction on one or more of the 

component counts is vacated, common sense 

dictates that the judge should be free to review 

the efficacy of what remains in light of the 

original plan, and to reconstruct the sentencing 

architecture upon remand . . . if that appears 

necessary in order to ensure that the punishment 

still fits both crime and criminal.

Id. (citing United States v. Pimienta-Redondo, 874 F.2d 9, 14 

(1st Cir. 1989)). 

District courts should resentence de novo when an

interdependent count of an aggregate sentence is vacated. Id.

at 123. In United States v. Miller, the defendant‟s two child 

pornography counts were grouped, but when one of the 
52

counts was vacated on appeal, the remaining count had a 

lower total offense level, and thus we held that de novo

resentencing was appropriate. 594 F.3d 172, 181 (3d Cir. 

2010). Similarly, in Davis, the defendant‟s counts for drug 

offenses and for use of a firearm in connection with a drug 

trafficking offense were grouped. 112 F.3d at 119. After 

vacating the firearm offense, we recognized that those counts 

were interdependent because without the firearm offense, the 

total sentence would be calculated differently. Id. at 121.

Here, the District Court combined the offenses into 

multiple groups, each of which received its own sentence that 

ran consecutive to the other groups‟ sentence. In the group

containing Count 7, Counts 1, 2, 8, 9, 10, and 21 were also 

included because the offense level for those counts is 

determined largely based on loss amount. See U.S.S.G. 

§ 3D1.2(d). Under the Sentencing Guidelines, when multiple 

counts are grouped, the court applies the Guideline for the 

count with the highest offense level. Id. § 3D1.3(a). In the 

relevant group, the money laundering conspiracy, Count 21, 

led to the highest offense level, and resulted in an adjusted 

offense level of 44. See id. §§ 2B1.1(b)(1)(J), 2C1.1(a)(1), 

(b), 2S1.1(a)(1), 3A1.1(b), 3C1.1. Because the remaining 

groups‟ offense levels are far lower, they did not affect 

Ciavarella‟s total offense level. Id. § 3D1.4(c). With the 

maximum offense level of 43 and a criminal history category 

of I, his advisory Guideline range is life imprisonment.

Absent Count 7, Ciavarella‟s total offense level and advisory 

Guideline range is identical. Ultimately, however, the District 

Court sentenced Ciavarella to a below-Guidelines sentence of 

336 months‟ imprisonment, which included a 240-month

sentence for the group of offenses containing Count 7. Thus, 

because the vacated count did not affect Ciavarella‟s total 
53

offense level, Guideline range, or sentence, we hold that 

resentencing de novo is not required. Davis, 112 F.3d at 121-

23. However, because Ciavarella was ordered to pay a special 

assessment of a hundred dollars for each count, including 

Count 7, totaling $1,200, we will vacate the imposition of the 

special assessment as to Count 7 and remand to the District 

Court to amend the judgment to reduce the special assessment 

consistent with this opinion. 

H. The District Court’s Consideration of 

Evidence During Sentencing

Finally, we consider Ciavarella‟s challenges to his 

sentence. He argues that the District Court relied on improper 

evidence and made findings of fact that were inconsistent 

with the jury verdict, in violation of his Sixth Amendment 

right to a jury trial, and imposed a substantively unreasonable

sentence.

19

Contrary to Ciavarella‟s contention, his Sixth 

Amendment right to a jury trial is not implicated by fact 

finding during a sentencing proceeding unless those facts 

increase the statutory maximum punishment. Apprendi v. New 

 

19 We review a district court‟s factual findings for clear 

error. United States v. Grier, 475 F.3d 556, 561 (3d Cir. 

2007) (en banc). We “consider the substantive reasonableness 

of the sentence imposed under an abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 51 (2007). In 

evaluating the substantive reasonableness of a sentence, we 

consider “whether the record as a whole reflects rational and 

meaningful consideration of the factors enumerated in 18 

U.S.C. § 3553(a).” Grier, 475 F.3d at 561.
54

Jersey, 530 U.S. 466, 490 (2000); Grier, 475 F.3d at 562 

(“Once an individual has been convicted by a jury beyond a 

reasonable doubt of the predicate facts of illegal conduct, 

triggering a statutory maximum penalty, a court may impose 

any sentence on the individual up to that maximum.”). Here, 

the total sentence imposed was 336 months‟ imprisonment, 

less than the maximum statutory penalties, which total 137 

years‟ imprisonment, excluding Count 7. See 18 U.S.C. §§ 

371, 1341, 1956(a), 1962(c),(d), 1963; 26 U.S.C. § 7206(1). 

Ciavarella‟s argument that the District Court relied on 

improper evidence in sentencing him is also without merit. 

He asserts that the District Court should not have considered 

Powell‟s testimony, any payments by Powell, or the 2005 and 

2006 payments by Mericle, which the jury had rejected. 

Additionally, because the jury rejected the bribery charges 

and the notion of a conflict of interest, according to 

Ciavarella, the District Court improperly increased his 

sentence based on his failure to disclose that conflict of

interest to juvenile offenders. But “a jury‟s verdict of 

acquittal does not prevent the sentencing court from 

considering conduct underlying the acquitted charge, so long 

as that conduct has been proved by a preponderance of the 

evidence.” United States v. Watts, 519 U.S. 148, 157 (1997). 

“[T]he jury cannot be said to have necessarily rejected any 

facts when it returns a general verdict of not guilty.” Id. at 

155 (internal quotation marks omitted). Here, the District 

Court considered Powell‟s testimony and evidence of 

additional payments from Powell and Mericle, and it found 

the relevant conduct was proved by a preponderance of the 

evidence. We find no clear error in the District Court‟s factual 

findings because there is sufficient evidence in the record to 
55

support the finding of multiple payments and an ongoing 

conflict of interest. 

Additionally, Ciavarella‟s challenge to the District 

Court‟s consideration of letters from the public also fails 

because a “court may consider relevant information without 

regard to its admissibility under the rules of evidence 

applicable at trial, provided that the information has sufficient 

indicia of reliability to support its probable accuracy.” 

U.S.S.G. § 6A1.3(a). While Ciavarella asserts that the letters

lack reliability, he fails to provide any basis for this 

conclusion sufficient to establish a violation of his due 

process rights. See United States v. Matthews, 773 F.2d 48, 51 

(3d Cir. 1985) (recognizing that a court determines whether a 

defendant‟s due process rights have been violated by the 

sentence court relying on “misinformation of a constitutional 

magnitude”). 

Finally, Ciavarella argues that his sentence was 

substantively unreasonable. Ciavarella‟s advisory Guideline 

range was life imprisonment. The District Court considered 

the arguments of both parties, including the defense‟s 

arguments for a sentence less than life imprisonment. It 

ultimately imposed a below-Guideline sentence of 336-

months‟ imprisonment having “taken into account . . . the 

factors [it was] obliged to consider under Section 3553(a).” 

App. 1504. When a sentence is outside of the Guidelines 

range, we “give due deference to the district court‟s decision 

that the § 3553(a) factors, on a whole, justify the extent of the 

variance.” Gall, 552 U.S. at 51. Here, the 336-month belowGuidelines sentence, while significant, is permissible. We are 

assured that the District Court properly evaluated the § 

3553(a) factors. United States v. Lychock, 578 F.3d 214, 219 
56

(3d Cir. 2009) (“A sentencing court need not discuss and 

make findings as to each of the § 3553(a) factors . . . .”). We 

hold that the sentence is substantively reasonable.

III. CONCLUSION

For the foregoing reasons, we will vacate Ciavarella‟s 

conviction on Count 7, vacate the special assessment as to 

Count 7, and affirm the District Court‟s judgments of 

conviction and sentence as to the remaining counts. We will 

remand to the District Court to modify the judgment with 

respect to the special assessment consistent with this opinion.