Opinion
5 JD 2020
10-07-2020
IN RE: Michael J. Cabry, III Magisterial District Judge Magisterial District Court 15-3-06 Chester County
RICHARD W. LONG Chief Counsel James P. Kleman, Jr. Deputy Counsel Pa. Supreme Court ID No. 87637 Judicial Conduct Board Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 3500 P.O. Box 62525 Harrisburg, PA 17106 (717) 234-7911
PETITION FOR RELIEF FOR INTERIM SUSPENSION WITHOUT PAY
AND NOW, this 7th day of October, 2020, comes the Judicial Conduct Board of the Commonwealth of Pennsylvania (Board), by and through undersigned counsel, and files this Petition For Relief For Interim Suspension Without Pay pursuant to Rule 701 of the Court of Judicial Discipline Rules of Procedure, and in support thereof, avers the following: 1. The Pennsylvania Constitution provides this Court with the authority to impose interim suspension as follows:
Prior to a hearing, the court may issue an interim order directing suspension, with or without pay, of any justice, judge or justice of the peace against whom formal charges have been filed with the court by the board or against whom has been filed an indictment or information charging a felony. An interim order under this paragraph shall not be considered a final order from which an appeal may be taken.
Pa. Const, Art. V, § 18(d)(2). 2. From approximately March 22, 2000, until the present, Judge Michael J. Cabry, III, served continuously as the duly elected Magisterial District Judge of Magisterial District Court 15-3-06, Chester County. 3. By criminal complaint filed October 6, 2020, at Commonwealth v. Michael J. Cabry , III , MJ-15203-CR-181-2020, the Pennsylvania Office of Attorney General (OAG) filed criminal charges against Judge Cabry stemming from Presentment No. 13 of the 45th Statewide Investigating Grand Jury. A true and correct copy of the criminal complaint and Grand Jury Presentment are attached hereto as Attachment A, made a part hereof, and incorporated herein by reference as though set forth in full. 4. The OAG charged Judge Cabry with the following offenses: (1) theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), a felony of the third degree; (2) perjury, 25 P.S. § 3249(b), a misdemeanor of the first degree; (3) reporting by candidate and political committee, 25 P.S. § 3246(a), an ungraded misdemeanor; (4) reporting by candidate and political committee, 25 P.S. § 3246(b)(2), an ungraded misdemeanor; (5) reporting by candidate and political committee, 25 P.S. § 3246(b)(4), an ungraded misdemeanor; and (6) lawful election expenditures, 25 P.S. § 3254.1(a)(3), an ungraded misdemeanor. 5. The allegations supporting the felony charge and the misdemeanor charges pending against Judge Cabry undermine both public confidence in the judiciary and its reputation. If Judge Cabry is permitted to continue participating in cases before Magisterial District Court 15-3-06 during the pendency of these charges, the public's confidence in the judiciary will continue to erode. 6. Samuel C. Stretton, counsel for Judge Cabry, asked Board counsel to inform the Court that he will not contest the Board's petition.
WHEREFORE, it is respectfully requested that this Honorable Court immediately enter an interim order suspending Judge Cabry without pay based on the felony and misdemeanor charges filed against him and to grant such other relief as may be deemed appropriate.
Respectfully submitted,
RICHARD W. LONG
Chief Counsel DATE: October 7, 2020
BY: /s/_________
James P. Kleman, Jr.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 VERIFICATION
I, James P. Kleman, Jr., Deputy Counsel to the Judicial Conduct Board, verify that the facts set forth in the foregoing petition are true and correct to the best of my knowledge, information, and belief. I understand that the statements made in this petition are subject to the penalties of 18 Pa.C.S.A. § 4904, regarding unsworn falsification to authorities. October 7, 2020
By: /s/_________
James P. Kleman, Jr.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 PROOF OF SERVICE
In compliance with Rule 122 of the Court of Judicial Discipline Rules of Procedure, on October 7, 2020, a copy of the Board's foregoing Petition was sent by UPS Overnight to Judge Cabry's counsel, Samuel C. Stretton, Esquire, who agreed to accept service, at the following address:
Samuel C. Stretton, Esquire
103 South High Street
P.O. Box 3231
West Chester, PA 19381-3231
Respectfully submitted, DATE: October 7, 2020
/s/_________
James P. Kleman, Jr.
Deputy Counsel
Pa. Supreme Court ID No. 87637
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System that require filing confidential information and documents differently than non-confidential information and documents.
Submitted by: Judicial Conduct Board of Pennsylvania
Signature: __________
Name: James P. Kleman, Jr.
Deputy Counsel
Attorney No: 87637
Attachment A
Image materials not available for display. IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA
IN RE: THE FORTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY
SUPREME COURT OF PENNSYLVANIA 13 M.D. MISC. DKT. 2019
DAUPHIN COUNTY COMMON PLEAS CP-22-MD-607-2019
NOTICE NO. 48
ORDER ACCEPTING PRESENTMENT NO. 13
1. The Court finds Presentment No. 13 of the Forty-Fifth Statewide Investigating Grand Jury is within the authority of said Grand Jury and is in accordance with the provisions of the Investigating Grand Jury Act, 42 Pa.C.S. §§ 4541 et seq. Accordingly, this Presentment is accepted by the Court.
2. The County for conducting the trial of all charges pursuant to this Presentment shall be Chester County.
3. It is hereby recommended that the Attorney General of the Commonwealth of Pennsylvania, or his designee, institute appropriate criminal proceedings in the aforesaid county.
SO ORDERED this 29th day of September, 2020.
BY THE COURT:
/s/_________
The Honorable Richard A. Lewis
Supervising Judge
The Forty-Fifth Statewide Investigating Grand Jury IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA
IN RE: THE FORTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY
SUPREME COURT OF PENNSYLVANIA 13 M.D. MISC. DKT. 2019
DAUPHIN COUNTY COMMON PLEAS CP-22-MD-607-2019
NOTICE NO. 48
TO THE HONORABLE RICHARD A. LEWIS, SUPERVISING JUDGE: PRESENTMENT NO. 13
We, the Forty-Fifth Statewide Investigating Grand Jury, duly charged to inquire into offenses against the criminal laws of the Commonwealth, have obtained knowledge of such matters from witnesses sworn by the Court and testifying before us. We find reasonable grounds to believe that various violations of the criminal laws have occurred. So finding with no fewer than twelve concurring, we do hereby make this Presentment to the Court.
[Redacted]
Foreperson
The Forty-Fifth Statewide Investigating Grand Jury DATED: September 25, 2020
INTRODUCTION
We, the members of the Forty-Fifth Statewide Investigating Grand Jury, having received and reviewed evidence regarding violations of the Pennsylvania Election Code and Crimes Code occurring in Chester County, Pennsylvania pursuant to Notice of Submission of Investigation No. 48, do hereby make the following findings of fact and recommendation of charges.
FINDINGS OF FACT
The Grand Jury conducted an investigation into violations of the Election Code and the Crimes Code committed by Michael J. Cabry III ("Cabry"), a sitting Magisterial District Judge ("MDJ") serving Chester County. The investigation revealed that Cabry failed to file campaign finance reports for several of the required time periods encompassing his 2017 re-election campaign and failed to report all campaign expenditures. He also unlawfully spent approximately $4,000.00 in donor contributions to pay for personal expenses that had no connection to his campaign or political activity. Many of these illegal campaign fund withdrawals occurred at casinos throughout the area - from Harrisburg to Atlantic City to Delaware - to support a six-figure gambling habit.
Cabry has served as a MDJ since 2000 and his most recent election year was 2017. Running unopposed, he was re-elected to another six-year term. The Grand Jury learned that Cabry had a political committee, "Citizens for Cabry," that was created to receive contributions and make expenditures in support of his candidacy. Citizens for Cabry was officially registered on November 14, 2016 and was to operate solely for the purpose of the 2017 election campaign. Cabry's niece, Kristin Wiggins ("Wiggins"), served as the treasurer of the committee.
The Grand Jury learned that Wiggins opened a business account with PNC Bank in January 2017 under the committee name in order to deposit campaign donations and make withdrawals for the various expenditures of the campaign. The records for the Citizens for Cabry account revealed that two debit cards were issued to Wiggins and Cabry, respectively, when the account was opened. Although two cards were issued, Wiggins' card was never activated nor used to make any withdrawals from the account. The card issued to Cabry, however, was used to make withdrawals from the account on a consistent basis throughout the duration of the campaign.
As part of the investigation, the Grand Jury obtained and reviewed the campaign finance reports filed by the committee for the required purpose of accounting for the contributions to and expenditures from the campaign account. While there were reports filed on four separate occasions, those reports failed to cover the full calendar year of the campaign. The first campaign finance report - - filed, sworn to, notarized, and signed by Cabry - - covered the period of January 1, 2017 through May 1, 2017. While the report showed multiple campaign donations and what appeared to be expenditures consistent with a political campaign, there were several expenditures that were listed only as reimbursements to Cabry himself. Accordingly, the nature of the expenditures was unclear. An examination of the bank records for the campaign account failed to provide any additional clarity as to what, if any, campaign expense was incurred to justify the reimbursements. One such expenditure, an ATM withdrawal of $205.00 at Hollywood Casino in Dauphin County, was reported by Cabry as a "reimbursement for Harrisburg." A second campaign expense for this time period, described only as "reimbursement," appeared to be an ATM withdrawal of $205.99 at Harrah's Casino in Chester.
On June 9, 2017, Cabry again filed a signed and notarized campaign finance report for the time period of May 2, 2017 through June 5, 2017. According to the bank records for the Citizens for Cabry account, Cabry used the debit card to make numerous withdrawals unrelated to his campaign throughout the approximately 30 day period. On May 9, 2017, Cabry withdrew $204.00 at Delaware Park Casino. Between May 22 and May 23, Cabry made three separate withdrawals from the campaign fund account, totaling $751.98. One withdrawal occurred at an ATM in Ventnor, New Jersey and two transactions occurred at Bally's Hotel and Casino in Atlantic City. Subsequently, there was a $204.00 withdrawal from Delaware Park Casino on May 31, followed by a $200.00 withdrawal from Dover Downs Hotel and Casino on June 5, 2017. Several of these transactions were listed as generic expenditures for "reimbursements" to Cabry on the campaign finance reports. Additionally, there was a debit of $489.00 at a Microtel Inn in Dover, Delaware - - the same day as the withdrawal at Dover Downs Casino - - which Cabry included as a campaign expenditure on his report for that period.
For the reporting period of June 6, 2017 through September 12, 2017, Cabry failed to file any campaign finance reports whatsoever. However, a review of the bank records showed numerous debits, including six separate transactions in June and July at Delaware Park Casino wherein Cabry withdrew $1,232.00 from the campaign fund. There were also purchases made at grocery stores, dry cleaners and restaurants, as well as payments for hotel stays. Furthermore, in June 2017 there were five separate cash deposits totaling $1,900.00. In similar fashion, no report was ever filed for the period of October 24, 2017 through November 27, 2017, despite the fact that there were food purchases and ATM withdrawals, including two withdrawals at Delaware Park Casino in November.
In total, Cabry withdrew $3,254.97 in 16 separate transactions from the Citizens for Cabry political committee account in 2017 at various casinos in Pennsylvania, New Jersey and Delaware. The Grand Jury reviewed records from Delaware Park Casino, confirming that Cabry frequented that location and was gambling at the casino on the dates of the ATM withdrawals. According to the records, Cabry visited Delaware Park a minimum of once per week throughout 2017, often more frequently. In total, he wagered $110,782.62 in 2017. Delaware Park Casino records confirmed that Wiggins had no active play during the time period in question. A review of a personal bank and credit account held by Cabry at Sun East Federal Credit Union revealed that at the times when Cabry was using the campaign funds to gamble, his personal accounts were severely depleted. Thus, Cabry chose to unlawfully use monies that campaign donors intended to be utilized for his political campaign to fund his personal expenses as he saw fit.
Cabry also won $101,709.11 at Delaware Park that year, for a total loss of $9,073.51, according to casino records. --------
As part of the investigation, Special Agent Paul Dormer ("SA Dormer") of the Pennsylvania Office of Attorney General interviewed several individuals associated with Cabry who made contributions to his campaign, and who were served with subpoenas in early August to testify before the Grand Jury. On August 11, 2020, SA Dormer executed a search warrant at the residence of Cabry in an attempt to obtain any additional receipts or ledgers documenting the questionable expenditures listed on the campaign finance reports as well as those evidenced in the bank records. At that time, despite the fact that the campaign had ended nearly three years ago, Cabry had copies of his finance reports, bank records, and handwritten notes on his dining room table, kitchen countertop, and in the trash can.