In re Lowry

IN RE: MICHAEL LOWRY FORMER JUDGE PHILADELPHIA TRAFFIC COURT PHILADELPHIA COUNTY

No. 6 JD 15

COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE

RECEIVED AND FILED: January 30, 2020

January 29, 2020

RESPONDENT'S MOTION FOR DEFER HEARING

Respondent Michael Lowry, by and through his counsel, Meredith A. Lowry, respectfully requests this Honorable Court to defer discipline and sanction hearings in this matter for the following reasons:

1. On January 29, 2013, Former Traffic Court Judge Michael Lowry and several traffic court judges, a magisterial district court judge, and others were charged with several counts of federal mail and wire fraud. Mr. Lowry was also charged with making a false declaration before the grand jury under 18 U.S.C. 1623 (hereinafter "perjury") in connection with allegations of ticket fixing.

2. The Pennsylvania Supreme Court initially suspended Lowry without pay on February 1, 2013.

3. This Court ordered Mr. Lowry to be suspended with pay on October 25, 2013 based on the "serious uncertainty" that Mr. Lowry would be convicted of the charges. See In re Lowry, 78 A.3d 1276, 1287 (Ct. Jud. Disc. 2013). The opinion analyzes the merits of the defendants' argument in a pretrial motion that the indictment failed to allege a cognizable fraud theory. The defendants argued, and this Court agreed, that the city and state have no property interest in unadjudicated traffic tickets based on United States Supreme Court precedent. See id. at 1285.

4. After a 28-day criminal trial, Mr. Lowry was acquitted of the wire fraud and mail fraud charges, but he was convicted of perjury.

5. Mr. Lowry and his co-appellants appealed their judgments to the Third Circuit Court of Appeals. Their convictions were affirmed on January 18, 2019. See United States v. Hird, 913 F.3d 332 (3d Cir. 2019).

6. Mr. Lowry, along with his co-Petitioners, filed a Petition for Writ of Certiorari relating specifically to their perjury convictions. See Exhibit A, Lowry v. United States, No. 18-1581.

7. Simultaneously, Henry Alfano and William Hird¹ also filed a Petition for Writ of Certiorari, arguing that the defendants were not properly charged with fraud because unadjudicated traffic tickets are not property under the mail and wire fraud statutes. See Exhibit B, Alfano et al. v. United States, No. 18-1552.² Alfano's petition sets forth the same argument that this Court found meritorious in its opinion in In re Lowry, 78 A.3d 1276, 1287 (Ct. Jud. Disc. 2013).

8. Mr. Lowry and his co-petitioners filed a brief in support of Alfano's Petition on July 19, 2019. See Exhibit C. Although Mr. Lowry was acquitted of the fraud counts, his co-petitioners and he have consistently argued that the predominance of the fraud charges in the trial that lasted more than a month, prejudiced the jury's ability to apply the rules of law to the perjury counts. The Third Circuit Court of Appeals did not reach this "prejudicial spillover" argument, because it rejected on the merits appellants' fraud arguments.

9. The United States Supreme Court denied both certiorari petitions described above on December 9, 2019.

10. However, on June 29, 2018, the United States Supreme Court granted the Petition for Writ of Certiorari in Kelly v. United States, No. 18-1059 ("Bridgegate"), which was filed from the Third Circuit Court of Appeals. The Court heard oral argument on the merits on January 14, 2020. Petitioner's Brief is attached as "Exhibit D."

11. The issue before the Supreme Court in Kelly is whether the government properly alleged a property right. For example, Ms. Kelly argues that the Port Authority's "right to control" the traffic lanes used to conduct the purported traffic study is a regulatory scheme, not a property right. Likewise, Mr. Lowry and his co-petitioners have consistently argued that the city and state's right to regulate drivers in Pennsylvania is not a property right under the wire and mail fraud statutes.

12. If the Court rules in favor of Ms. Kelly, Mr. Lowry will seek to vacate his perjury conviction in the district court.³

13. Accordingly, Mr. Lowry requests this Court to defer litigation in this case until the Supreme Court issues a decision in Kelly v. United States, No. 18-1059.

14. While there is a presumption that a "prompt disposition" of the case "is in the best interests of the judicial system", circumstances exist here that overcome this presumption.

15. Mr. Lowry is no longer a judge, the Philadelphia Traffic Court has been abolished, and he will not seek judicial or public office again. Therefore, neither the Judicial Conduct Board nor the public will be prejudiced by a further deferral.

16. Given Mr. Lowry's potential ability to have his conviction vacated in the near future, he will be substantially prejudiced if his discipline and sanction impacts his pension prior to the United States Supreme Court issuing a decision in Kelly v. United States.

WHEREFORE, the Respondent, Michael Lowry, respectfully requests the Court to defer hearings on discipline and sanctions until the United States Supreme Court issues a decision in Kelly v. United States, No. 18-1059.

Respectfully submitted,

/s/_________

Meredith A. Lowry, Esquire

Klehr Harrison Harvey Branzburg LLP

1835 Market Street, Suite 1400

Philadelphia, PA 19103

Attorney for Michael Lowry

Date: January 29, 2020

CERTIFICATE OF SERVICE

I, Meredith A. Lowry, hereby certify that on January 29, 2020, I caused a true and correct copy of Respondent's Motion to Defer to be served upon the following:

Cathy Kane, Court Administrator

Court of Judicial Discipline

Pennsylvania Judicial Center

601 Commonwealth Ave., Suite 5500

P.O. Box 62595

Harrisburg, PA 17106

(via Federal Express)

Francis J. Puskas, II, Esq.

Deputy Chief Counsel

Judicial Conduct Board

Pennsylvania Judicial Center

601 Commonwealth Ave., Suite 3500

P.O. Box 62525

Harrisburg, PA 17106

(via First Class Mail and Electronic Mail)

Joseph U. Metz, Esq.

Court of Judicial Discipline

Pennsylvania Judicial Center

601 Commonwealth Ave., Suite 5500

P.O. Box 62595

Harrisburg, PA 17106

(via First Class Mail and Electronic Mail)

Respectfully submitted,

/s/_________

Meredith A. Lowry, Esquire

Klehr Harrison Harvey Branzburg LLP

1835 Market Street, Suite 1400

Philadelphia, PA 19103

Attorney for Michael Lowry

Date: January 29, 2020

EXHIBIT A

No. 18-

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL LOWRY, ROBERT MULGREW and THOMASINE TYNES, Petitioners,

v.

UNITED STATES OF AMERICA, Respondent.

Petition for Writ of Certiorari To the United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

(additional counsel on reverse side)

PETER GOLDBERGER

Counsel of Record

PAMELA A. WILK

50 Rittenhouse Place

Ardmore, PA 19003

(610) 649-8200

peter.goldberger@verizon.net

Attorneys for Petitioners

June 2019

Additional counsel for petitioners:

LISA A. MATHEWSON

Law Offices of Lisa A. Mathewson, LLC

123 So. Broad St., Ste. 810

Philadelphia, PA 19109

(215) 399-9592

lam@mathewson-law.com

Attorney for Petitioner Tynes

MEREDITH A. LOWRY

Klehr Harrison Harvey Branzburg, LLP

1835 Market St., Ste. 1400

Philadelphia, PA 19103

(215) 569-2700

mlowry@klehr.com

Attorney for Petitioner Lowry

QUESTION PRESENTED

In Bronston v. United States, 409 U.S. 352 (1973), this Court declared that "the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner - so long as the witness speaks the literal truth. The burden is on the questioner ...." The Court further emphasized that "[p]recise questioning is imperative as a predicate for the offense of perjury." In this light:

Can responses to fundamentally ambiguous questions - or literally truthful answers to unambiguous questions - constitute "false declarations" before a federal grand jury under 18 U.S.C. § 1623, on the basis that (a) forbidden imprecision in questioning is limited to "glaring instances of vagueness or doublespeak ... that ... would mislead or confuse a witness"; or that (b) the grand jury witnesses should have understood from the "thrust" of the line of questions that the prosecutors meant something other than what they actually asked?

LIST OF ALL PARTIES

The caption of the case in this Court contains the names of all parties (petitioners and respondent United States). Co-defendants Henry Alfano and William Hird are filing a separate petition, which is related to the instant petition as explained under Point 2. There were other co-defendants at trial; those individuals either were acquitted or have not joined in the petitioners' appeal.

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

LIST OF ALL PARTIES ............................................. ii

INDEX TO APPENDIX ............................................. iv

TABLE OF AUTHORITIES ..................................... iiv

PETITION

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 2

TEXT OF FEDERAL STATUTES INVOLVED ........ 2

STATEMENT OF THE CASE .................................... 3

Statement of Lower Court Jurisdiction .................. 6

REASONS FOR GRANTING THE PETITION

1. The decision of the court below disregards this Court's precedent and conflicts with the decisions of other circuits ........................................................ 7

2. This case offers an excellent vehicle for clarifying the Bronston rule governing perjury prosecutions, not only because of the petitioners' acquittals on all non-perjury charges, but more importantly because variations in the questioning of the three petitioners permit the Court to examine a number of common applications of that seminal decision ............................ 16

3. At least, this petition should be held pending disposition of the petition filed by co-defendants Alfano and Hird ............ 22

CONCLUSION ......................................................... 23

INDEX TO APPENDIX

A. Opinion of the U.S. Court of Appeals in ...