Lawyers for three men serving eight-year prison terms for their roles in the Long Island Rail Road disability fraud scandal told a federal judge Friday that the sentences were a “miscarriage of justice” in light of new findings validating many disability claims.
“The judge must base findings on truthful facts and representations,” lawyer Sean Maher, representing Dr. Peter Ajemian, told Manhattan U.S. District Judge Victor Marrero. “That has not happened here, and that’s a miscarriage of justice.”
Marrero sentenced Ajemian, Dr. Peter Lesniewski and former LIRR union official Joseph Rutigliano based on claims that the LIRR fraud caused massive losses, but called the unusual hearing on whether to reconsider when a new federal review of hundreds of questioned claims found that 94 percent were valid.
After hearing arguments Marrero took the issue under advisement. He didn’t say when he will decide on whether to hold new sentencing hearings, which could dramatically reduce the sentences of the three from their current release dates of 2020 and 2021.
Ajemian, 67, and Lesniewski, 65, were accused in 2011 of giving fake diagnoses to support hundreds of phony claims, and Rutigliano was charged with submitting a fake claim himself and advising others.
Altogether, 33 defendants were charged and convicted in a conspiracy to collect on what the government said was as much as $1 billion in phony claims from the federal Railroad Retirement Board. The eight-year sentences were the highest imposed in the case.
But an independent retirement board review of disabilities approved by Ajemian and Lesniewski, completed after the sentencings, concluded that 498 of 530 passed muster under the board’s lenient standard, requiring only inability to do any job task, not total disability.
Marrero said on Friday that because federal sentencing guidelines were based in part on loss figures in fraud-related cases, the new findings could justify a lower sentence. “The circumstances might have some bearing on the amount of loss,” he said.
Prosecutor Nicole Friedlander said the new findings were unreliable, and argued that because Marrero sentenced well below the guidelines in the first place even a recalculation of the loss amount would not make eight years out of line, and not meet the high legal standard for a resentencing.
“They are still higher,” she told Marrero.
“I can’t help but imagine that had we had this evidence before you then we would have had a different result,” responded Lesniewski’s lawyer, Thomas Durkin. “This new evidence contradicts the entire theory of the government’s case.”
Marrero asked no questions and gave no signal of how he was leaning, but afterward defense lawyers said they were hopeful.
“I thought the judge was very receptive to our arguments,” said Rutigliano’s lawyer, Joseph Ryan, “and I’m optimistic.”