PHILADELPHIA - The defense counsel for a Lehigh Valley attorney ensnared in the FBI’s pay-to-play probe of Allentown City Hall is arguing that it will be impossible for his client to get a fair trial, if he’s tried alongside Mayor Ed Pawlowski.
Attorney William Winning asked a federal judge on Tuesday to sever Scott Allinson’s trial on bribery charges from that of Pawlowski. Judge Juan Sanchez heard arguments on the request in addition to three separate motions to dismiss the indictments against Allinson, Pawlowski and business consultant James Hickey.
Hickey’s attorney, Ron Goldman, joined Winning’s motion to also sever his client’s trial from Pawlowski. The trial is set to begin Jan. 16.
'Disparity of evidence'
Pawlowski faces a hefty 54-count indictment on allegations he was willing to trade city contracts in exchange for donations to his state and federal campaigns. By comparison, Allinson faces only two counts of bribery, while Hickey faces 13, according to Winning.
He argued that it would be prejudicial to try Allinson for his alleged involvement in one scheme to exchange donations for future legal work with the city, while he sits at the same defense table with Pawlowski who’s allegedly tied to seven such schemes.
“It should be easy for the jury to compartmentalize,” Sanchez replied.
The judge said that he often instructs jurors to consider only the evidence presented against one defendant, when a case involves multiple defendants. Sanchez noted that he’s had cases with five defendants resulting in acquittals for some, but not all, of the accused.
He told the defense that his instructions to a future jury should suffice.
But Winning said he feared the judge’s instructions won’t be enough in a case of this magnitude in which “99 percent of the allegations” have nothing to do with his client. A jury will hear an overwhelming amount of evidence regarding city contracts, multiple donations and pay-to-play allegations, he said.
“From a practical matter, I think the conflict is unavoidable,” Winning said.
“I’ll be trying the same trial twice,” Sanchez responded.
In response to a question from the judge, Winning acknowledged that much of the same evidence would be admissible at two such trials.
“Doesn’t that undermine your argument of prejudice?” Sanchez asked.
The “disparity of evidence” is too great and will taint Allinson’s trial, Winning argued.
Federal prosecutor Anthony Wzorek was brief in his opposition to the defense’s request to sever Allinson’s trial. The burden on the defense is heavy to prove a hardship and the amount of evidence against one defendant compared to another is not sufficient grounds, he said.
Attorney in conflict?
Earlier in the hearing, the prosecution argued to dismiss Goldman, a former federal prosecutor, as Hickey’s defense attorney. Goldman began representing Hickey only weeks ago.
Goldman previously represented former Reading City Councilman Francis Acosta, who pleaded guilty to a federal bribery charge. Acosta is also the husband of Rebecca Acosta, a former Reading school board member and one-time district judge candidate who is facing federal bribery and conspiracy charges in a similar pay-to-play investigation in Reading.
Investigators accused Francis Acosta of taking a bribe for his wife’s judge race. Rebecca Acosta is accused of obtaining inside information on a school district bid that was ultimately passed along to Hickey. Goldman said Francis Acosta is set to be released from prison sometime this week.
A grand jury has also indicted Hickey in the Reading case, and Wzorek argued Tuesday that the “potential serious conflicts” outweigh Hickey’s right to the attorney of his choice.
Wzorek said it was difficult to say for certain at this point whether a conflict would exist. Francis Acosta may be called to testify, so he suggested the judge disqualify Goldman before the trial is weeks old.
When Sanchez asked the prosecution how Francis Acosta’s testimony would affect the Allentown case, Wzorek said he surmised Hickey would testify that he had no intent of bribing Pawlowski. The prosecution would look to show how Hickey allegedly tried to secure a similar contract in Reading, he said.
The judge questioned whether the potential conflict could be avoided if Goldman agreed not to reveal privileged information from his former client to Hickey or his co-counsel. The question also arose whether Francis Acosta would waive his right against incrimination or spousal privilege.
Goldman argued that an attorney could not be disqualified over conflict that is purely speculative. He also asked whether prosecutors had offered Francis Acosta immunity from future prosecutions.
Goldman accused prosecutors of trying to hold a trial inside a trial by giving Francis Acosta’s testimony a “trial run” in the Allentown case. If it doesn’t work there, they won’t use it Reading, he said.
Goldman repeatedly pressed Wzorek about whether the government has offered Francis Acosta immunity, going so far as to tell the judge he wanted to call the prosecutor to testify. It’s a “fantasy-world idea” that prosecutors will put Francis Acosta on the stand, who would likely testify that he didn’t conspire with his wife.
“The prosecution will not give him immunity because he could deflate their balloon at trial, and he has immunity,” Goldman said.
Wzorek said any decision on immunity will be made later. And he expressed concern that Hickey could later argue insufficient representation because Goldman clients left him with competing interests.
Hickey later agreed that Goldman will be barred from disclosing any conversations he had with Francis Acosta. And while the Sanchez did not rule on the prosecution’s request to disqualify Goldman, he did indicate a conflict may exist.
Sanchez warned Goldman that he would not delay the trial despite Hickey’s recent decision to retain Goldman. Wzorek said the prosecution has turned over about 3 million documents and hundreds of hours of recordings to Hickey’s first attorney.
Goldman assured the judge he would be prepared for a January trial and noted that not all the discovery pertains directly to his client.
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