Judge Questions Power To Free Ex-Pa. Mayor Over Outbreak

By Matt Fair
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Law360 (May 12, 2020, 3:37 PM EDT) -- A Pennsylvania federal judge and an attorney for the convicted ex-mayor of Allentown, Pennsylvania, sparred during a hearing Tuesday over the court's authority to grant a motion aimed at temporarily releasing the onetime elected official from prison due to his high risk of complications from a potential COVID-19 infection.

Defense attorney Jack McMahon argued that federal law gave judges broad power to modify sentencing terms, including to allow Ed Pawlowski — who is about a year and a half into a 15-year prison term he received for a massive pay-to-play scheme — to be temporarily released to home confinement with the understanding that he be reincarcerated once the risk of the virus abated.

"Modification can take any form that you wish, in my opinion," McMahon said during a teleconference.

But Chief U.S. District Judge Juan Sánchez questioned whether precedent supported McMahon's proposed approach to securing Pawlowski's temporary release.

"You don't know of any case in which that has been done?" he asked.

Citing the unprecedented nature of the coronavirus pandemic, McMahon snapped back.

"Of course not," he said. "This COVID-19 just started, judge."

Pawlowski filed an emergency motion with Judge Sánchez last week, seeking temporary release from FCI Danbury given his unique medical history, including a lung removal he underwent in his 20s following the discovery of a tumor.

He argued that contracting COVID-19 would place him at a high risk of severe complications or death.

"I just don't want to see him die," McMahon said during Tuesday's hearing. "This is a father, this is a husband. He committed a crime that he was found guilty of, but he shouldn't die for this crime."

Pawlowski was convicted for attempting to wring campaign donations out of city vendors — including law firms, engineers and an information technology provider — for an ultimately ill-fated U.S. Senate bid.

He is currently appealing his conviction to the Third Circuit, and his emergency motion with Judge Sánchez last week asked that he be allowed to remain under home confinement pending the outcome of the appeal.

In response, however, the government said that infection control measures at FCI Danbury made the prison a potentially safer environment than the Lehigh Valley region that Pawolowski would return to if released.

According to information from the U.S. Bureau of Prisons, there are 27 active COVID-19 cases among inmates at FCI Danbury and another seven cases among staff.

Meanwhile, the Pennsylvania Department of Health has reported nearly 3,200 coronavirus infections in Lehigh County.

Assistant U.S. Attorney Anthony Wzorek told the judge during Tuesday's hearing that FCI Danbury had taken strict measures to try and curb the spread of the virus, including daily temperature checks, the use of face masks among inmates and staff, more frequent cleaning of prison facilities, and staggered meal and recreation times.

"Quite frankly, your honor, the conditions in Danbury are probably better in many cases than any person is going through on the outside," Wzorek said.

But McMahon scoffed at the notion that Pawlowski would somehow be more in jeopardy in quarantine at his home than he would be remaining in his crowded 70-inmate unit at FCI Danbury.

"It's absurd to think that he's at equal danger in his home in Lehigh County than he is at Danbury prison with 70 other people where COVID-19 is running rampant," McMahon said.

For Judge Sánchez, though, the real question seemed to be his power under federal sentencing law to make such a sweeping change to Pawlowski's sentence.

Wzorek said that the law made it clear that the court could not modify a sentence except to reduce the term of imprisonment or to impose a term of probation that doesn't exceed the unserved portion of the original sentence.

And given the decade-plus left on Pawlowski's sentence, Wzorek said, such an approach would be inappropriate and without precedent.

"There is nothing that would be equivalent to what Mr. McMahon is asking the court to do," he said.

The court took the matter under advisement.

The government is represented by William McSwain, Anthony Wzorek and Michelle Morgan of the U.S. Attorney's Office for the Eastern District of Pennsylvania.

Pawlowski is represented by Jack McMahon of Law Office of Jack McMahon.

The case is U.S. v. Edwin Pawlowski et al., case number 5:17-cr-00390, in the U.S. District Court for the Eastern District of Pennsylvania.

--Editing by Gemma Horowitz.

For a reprint of this article, please contact reprints@law360.com.

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