Federal case likely not relevant to Mellow’s new woes

By David Singleton | Staff Writer

Buried deep in the plea agreement former Sen. Robert J. Mellow reached with the U.S. attorney’s office a year ago is a provision that nothing in the document is binding on any other law enforcement agency.

That includes the Pennsylvania attorney general’s office, which on Wednesday announced criminal charges against Mr. Mellow and seven other men in a multimillion-dollar “pay-to-play” scheme involving the Pennsylvania Turnpike.

Two local defense attorneys familiar with the workings of both systems said the federal conspiracy case that landed Mr. Mellow in a federal prison camp in South Carolina for 16 months is unlikely to have any direct impact on the new state charges or vice-versa.

“The federal case is over. He’s serving his time. They (federal prosecutors) are not going to reopen or charge him federally,” attorney Christopher T. Powell said. “This is a state case. As long as it didn’t overlap … the attorney general’s office can prosecute.”

The March 2012 agreement that resulted in Mr. Mellow’s guilty plea to conspiracy to commit mail fraud and tax evasion expressly bars the U.S. attorney’s office from charging the former lawmaker for any additional offenses “under investigation at the time of this agreement.”

That would appear to rule out the possibility federal prosecutors could piggyback on the state investigation, which began in 2009, to bring new federal charges against Mr. Mellow.

However, Mr. Powell said if the federal grand jury that investigated Mr. Mellow touched on matters that became the basis for the state charges, there may be an opening for Mr. Mellow’s counsel.

“There may have been other crimes the federal grand jury was investigating, and if they are duplicated by this new presentment in the state, that would be my argument if I were the defense attorney,” he said.

Attorney Ernie Preate, who is a former state attorney general, said Mr. Mellow probably was under no obligation to come clean with federal investigators about any other criminal activity he might have been involved in.

“You don’t necessarily have to do it unless it is part of the terms of your plea bargain,” he said.

Where the federal case could come into play is if Mr. Mellow is convicted on the state charges, which include serious felonies that potentially carry sentences far harsher than 16 months in a federal prison camp, Mr. Preate said.

“What happens now is that prior federal conviction gives him a criminal history that kicks it into a higher sentence category,” Mr. Preate said. “He doesn’t approach the bench with a clean slate.”

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