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LIRR conspirators don’t deserve new sentences, government says

Dr. Peter Lesniewski, left, a defendant in the

Dr. Peter Lesniewski, left, a defendant in the LIRR disability trial, leaves federal court in Manhattan, July 18, 2013. Joseph Rutigliano, a former United Transportation Union local president, exits federal court in Manhattan, July 18, 2013. Photo Credit: Craig Ruttle / Charles Eckert

Three convicted conspirators in the Long Island Rail Road disability fraud scandal who were sentenced to 8 years each in prison do not deserve to be resentenced despite new findings validating many of the disabilities, the government says in a new court filing.

U.S. District Judge Victor Marrero in Manhattan said last month he would consider new sentences for Dr. Peter Ajemian, Dr. Peter Lesniewski and Joseph Rutigliano based on a federal Railroad Retirement Board review OKing 94 percent of recipients ordered to recertify their disabilities.

But prosecutors are urging him to reconsider and cancel a scheduled April 29 hearing, arguing that questions about some of the disabilities the three were involved with do not rise to the level of a “miscarriage of justice,” the legal standard for resentencing.

“There is nothing about the RRB’s recent determinations that in any way calls into question the appropriateness of the court’s sentences . . . for three of the integral perpetrators of this massive scheme constitute a “complete miscarriage of justice,” prosecutors wrote.

Lesniewski and Ajemian, doctors who vouched for hundreds of LIRR claims, and former union leader Rutigliano were convicted in 2013 of being linchpins of a massive scheme to make phony claims. Their sentences were the highest among 33 doctors, retirees and advisers convicted.

But Marrero said the long sentences had, in part, been based on estimates of the loss the fraud caused to the government, and those estimates were called into question when many disabilities were revalidated under the standards of the retirement board.

Prosecutors, in their new filing, argued the 8 year sentences the judge imposed was well below the 10 to 14 years that sentencing guidelines called for under the original loss estimates. Even if every since-validated disability was taken out of the calculation, they said, the remaining loss would still support 8 years.

“The defendants’ intended losses would still be staggering,” prosecutors argued.

Joseph Ryan, Rutigliano’s lawyer, said prosecutors were refusing to admit that the LIRR disability cases were never the massive scandal the government made them out to be.

“We understand the reluctance of the government to avoid a hearing because it will reveal the truth about this case,” Ryan said. “The truth is that Mr. Rutigliano was wrongly convicted and wrongly sentenced.”

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