Former Hamilton Mayor John Bencivengo appeals conviction on corruption charges

Bencivengo contends that he never overstepped the bounds of his office and that the judge assigned to the case tainted the outcome.

HAMILTON — Former Mayor John Bencivengo is appealing his conviction on corruption charges, contending that he never overstepped the bounds of his office and that the judge assigned to the case tainted the outcome by repeatedly interfering with the defense attorney’s case.

In a brief filed on Monday with the Third Circuit Court of Appeals, Bencivengo’s attorney argues his client never took official mayoral action in exchange for $12,400 in bribes. He says Bencivengo held only personal conversations in connection with the receipt of the money, which was payment in exchange for Bencivengo’s influence in helping an insurance broker win local school board contracts.

The brief also alleges that U.S. Judge Anne Thompson unknowingly influenced the jury to return a guilty verdict when she interrupted and commented during attorney Jerome Ballarotto’s defense during the late 2012 trial.

Ballarotto said the court likely wouldn’t hear the appeal for years, due to extended filing deadlines and scheduling difficulties.

“We wouldn’t raise superfluous issues. We think they’re all good issues but whether or not the (court) thinks they are is another issue,” Ballarotto said today.
“Unfortunately, John Bencivengo will probably be out of jail before any of those can be resolved, but that’s the way it works.”

Bencivengo is serving a 38-month prison term at a federal prison in Lewisburg, Pa., after he accepted bribes from Marliese Ljuba, a close friend who had been working as the Hamilton school district’s contracted insurance broker.

Ljuba turned to Bencivengo, who had been facing financial problems at the time, for help when she was faced with the possibility of losing her contract in a public bidding process.

Bencivengo’s former community planning director, Rob Warney, is serving an 18-month sentence at a federal correctional institute in Allenwood, Pa., on money laundering charges from the extortion scheme.

The U.S. Attorney’s Office must file its own legal brief, countering Ballarotto’s arguments, within 30 days, but Ballarotto said the office would likely request more time.

In the brief, Ballarotto argues that Bencivengo did not take any official mayoral action when he met with the school board members. Ballarotto argues that Bencivengo’s suggestion that the board renew Ljuba’s contract was not an action “any different than any ordinary citizen could have done.” There were no hirings, firings, contract awards, or any other actions that could be construed as exercises of mayoral power, Ballarotto argues.

“This was not a case where Mr. Bencivengo was asked to take some official action, or even to forego one in exchange for money,” Ballarotto wrote in the brief. “Despite its best efforts, the only issue upon which the government could rest was Ms. Ljuba’s state of mind — that she believed Mr. Bencivengo had the power of the mayoral office to save her insurance contract with the school board. Yet, Mr. Bencivengo had no power.”

In fact, Ballarotto argues that the very charge of extortion was invalid because Bencivengo did not make any sort of threat or “coercive act” in order to receive the bribe money, which Bencivengo argued during his trial was a loan, not a bribe.

“It is Ms. Ljuba who sought to convert the loan into something more,” the brief states. “Ms. Ljuba was threatened by the loss of her lucrative insurance contract by the school board and there was nothing Mr. Bencivengo could officially do to prevent it. He could speak with members of the board, which he did, but this was not part of his official duties or responsibilities as mayor.”

Ballarotto also argues that the jury was influenced when Thompson interrupted Ballarotto’s examinations of witnesses — it notes 27 separate interruptions — and criticized him for not asking clear questions or berated him for being argumentative.

“A judge is supposed to be scrupulously neutral,” Ballarotto said. “It’s not even whether a judge intends to be something other than neutral. It’s the signals a judge can send to the jury, even inadvertently. Jurors draw conclusions from things the judges say and do, even if it’s not what the judge intends.”

Ballarotto’s brief also argues that the indictment returned against Bencivengo charged him with both bribery and extortion related to the same act. Such an indictment would violate the Fifth Amendment’s Double Jeopardy clause that protects individuals from being charged or punished for the same crime twice.

Contact Mike Davis at (609) 989-5708 or mdavis@njtimes.com.

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