An attorney for a former union boss convicted in the Long Island Rail Road disability scandal filed an appeal Friday claiming newly discovered evidence proves his client was denied a fair trial and wrongly convicted.
Joseph Rutigliano was sentenced in 2013 to an eight-year term and ordered to pay $82 million in restitution for his role in the scam in which federal prosecutors said LIRR retirees made as much as $1 billion in phony claims to the federal Railroad Retirement Board.
The appeal before the Second Circuit argues that the retirement board later found that 498 of the alleged 530 claims supported by diagnoses from two doctors convicted in the scam qualified under its lenient standard, which required only inability to do any job task, not total disability.
Rutigliano’s attorney, Joseph W. Ryan Jr. of Melville, said the lenient standard represented the law.
The board’s inspector general, Martin J. Dickman, also testified before a Congressional subcommittee, urging lawmakers to “eliminate the use of the one job aspect” standard the board used to approve 98 percent of claims, according to the appeal.
“The victim agency, the government agency, found that these defendants they helped were entitled to their pensions under the law contrary to the prosecution’s claim that the agency was defrauded,” Ryan said in an interview Saturday.
Ryan said the retirement board’s validations had not been completed before Rutigliano’s first appeal in 2014, which was rejected. And Dickman had not yet testified, Ryan said.
The doctors who vouched for the most claims — Dr. Peter Lesniewski and Dr. Peter Ajemian — and Rutigliano received the longest prison terms among the 33 defendants.
Prosecutors said Rutigliano, an ex-conductor and former United Transportation Union local president, charged retiring LIRR co-workers up to a $1,000 each to use his insider knowledge to help them to file the bogus disability claims,
Ryan had argued from the beginning that prosecutors were allowed to create the false impression that anyone who could walk and play golf did not have a disability, and the retirement board’s approval rate discredited that approach.
Dickman’s testimony would boost Rutigliano’s innocence “to show that playing golf in retirement is no evidence of fraud,” the appeal said.
Ryan also argues that during the trial, U.S. District Court Judge Victor Marrero precluded the defense from including independent medical examinations by retirement board doctors of the allegedly fraudulent pension claims.
But post-trial, the retirement board used separate independent medical examinations to determine that 94 percent of the 530 claims were legitimate, Ryan said.
“The jury never heard from the court the standard that the [Railroad Retirement Board] used to determine eligibility,” Ryan said.
Marrero rejected Rutigliano’s request for a new trial in March 2016, and in June refused to resentence Rutigliano, Ajemian and Lesniewski.
Marrero said the federal guidelines he used in sentences depended on the losses they intended to cause by lying — not the actual losses suffered by the retirement board. Marrero also ruled that the board’s validation of the claims post-trial didn’t affect the sentences.
Rutigliano, 69, of Holtsville, is serving his sentence in a federal prison in Pennsylvania.