The federal judge denied a second motion for a new trial for the former congressman.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- James A. Traficant Jr. could be in prison this November and still behind bars when his former 17th District congressional seat comes up again for grabs in 2004, 2006 and 2008.
Then again, Traficant, running in November as an independent, could be out of prison sometime in 2005.
The gap in years -- between what the government and defense believes is an appropriate sentence -- will be closed today.
Or, U.S. District Judge Lesley Brooks Wells could consider Traficant's last-minute 11-page motion that contends his expulsion from the U.S. House of Representatives is punishment enough. Additional punishment amounts to double jeopardy, Traficant contends.
In an order filed today, Judge Wells denied Traficant's claim of double jeopardy saying that it lacked merit. She said he will be punished only once.
The double jeopardy clause in the Constitution states that a person may not be punished twice for the same criminal offense. Traficant acknowledges that his motion has no judicial precedent to cite.
Judge Wells scheduled the 61-year-old ex-congressman's sentencing to begin at 10 a.m. today. It had originally been set for June 27.
In April, a jury found the nine-term Democrat guilty of all 10 counts he faced -- including racketeering, bribery, obstruction of justice and tax evasion. The jury believed that he took kickbacks from high-level staffers, used other staffers as farm hands, accepted cash, gifts and services from businessmen, cheated on his taxes and tried to influence witnesses.
The House, using the trial transcript, found "clear and convincing evidence" that he broke House rules. The vote Wednesday to oust him was 420-1.
Today would be Traficant's first in-person contact with Judge Wells since the trial ended. Since then, he has appeared on nationally broadcast news programs and berated the handling of his case, saying the judge denied him a fair trial and prosecutors pressured witnesses to lie.
The judge issued an order Monday denying Traficant's second request for a new trial. She rejected his argument that new evidence had surfaced.
Seeking longest term
The prosecution team -- Craig S. Morford, Bernard A. Smith and Matthew B. Kall -- has asked the judge to sentence Traficant to 53/4 to 71/4 years in prison. Prosecutors, citing "extensive, pervasive and systematic corruption of his office," want more than 71/4 years if possible.
Should Traficant receive 71/4 years in prison and not earn "good time" while there, his release would be in late 2009.
If Traficant is a model prisoner and earns good time, he would serve roughly 85 percent of his sentence, or a little more than six years, setting his release in late 2008.
Once the federal Bureau of Prisons receives all the necessary court-generated paperwork, it attempts to make placement within two to four weeks. The BOP also tries to make accommodations if an inmate wants to be incarcerated close to his home.
Traficant's Cleveland lawyer, Richard E. Hackerd, has objected to the government's proposed penalty and believes a sentence of three to 33/4 years is appropriate. Hackerd wants the judge to consider Traficant's "lifelong dedication and exceptional public service."
The government said that Traficant failed to measure up when compared to other members of Congress for civic service.
Prosecutors attached to their motion an Akron Beacon Journal story of July 8 with the headline "Traficant at Bottom of Power Scale" that calls him one of the three least powerful congressmen on Capitol Hill.
If Judge Wells agrees with Hackerd and sentences Traficant to three years, he could be out of prison in a littel more than 21/2 years.
Whatever the sentence, Hackerd wants the judge to allow Traficant to remain out on $50,000 signature bond pending appeal.
The government has objected, saying Traficant hasn't demonstrated that he wouldn't flee or pose a danger to the community. Also, he hasn't shown that his appeal has a good chance of succeeding, the government said.
If Judge Wells refuses to stay the sentence, she has the option of remanding Traficant into the custody of U.S. marshals today or allowing him to self-report when he is told by the BOP where he'll be incarcerated.
Over the span of the past five years of Mahoning Valley corruption cases, only Boardman attorney James R. Wise was taken away in handcuffs the day he was sentenced in September 1999. The others were allowed to report to prison or already had been in pretrial custody based on their potential to flee or pose a danger to the community.
Aside from prison, the government has asked that Traficant pay a hefty fine. He already owes a $96,000, the amount of kickbacks and services the jury concluded he took over the years.
Hackerd said Monday that he doesn't anticipate calling any witnesses or filing any last-minute motions today. When asked if he expected the hearing to be cut and dried, Hackerd said "You never know."
In a motion filed late Monday, Youngstown attorney Mark S. Colucci advised the court of his intention to serve as co-counsel for sentencing and chief counsel for appeals. Traficant filed a similar motion.
The government filed a response this morning, advising the court that Colucci attempted to provide tactical advice against Traficant during the course of the case and it is possible that his appearance as counsel would represent a conflict of interest.
The government attached a two-page memo that Colucci sent to the government that contained tips such as, "a blue-collar jury will be mesmerized by him no matter what kind of case or evidence you have."
Also, Colucci told the government, "He [Traficant] will put the U.S. Department of Justice on trial."
The memo begins "some tips from a semi-old trial lawyer." The government wants Judge Wells to have Traficant waive any potential conflict of interest before she permits Colucci to appear as Traficant's co-counsel.
Traficant arrived this morning for sentencing with Colucci announcing that the whole world would see today that he was being railroaded.
Colucci intended to file a motion this morning asking that Traficant be permitted to stay out of prison while appeals are pending "or at least until the November election is concluded." If Traficant is elected, he should remain free on bond and serve until the appeal is ruled upon, Colucci said.