There was a piece from the Boston Herald about three mobsters being framed for murder by the Feds. And another from the New York Post about drug charges being thrown out after a judge found the evidence “misleading” and “insufficient.” And a feature from USA Today about a study that found that in 2011, the FBI had allowed confidential informants—“rats” in the eyes of my correspondent—to commit 5,658 crimes.
My friend said he wanted to make me aware of these developments “in the interest of justice.” He was, of course, being sarcastic, playing off a legal term that has to do with fairness and equity. It’s a term used by judges when they dismiss charges that may be based on improper investigative techniques, for example. Federal prosecutors, on the other hand, use it as a fallback to cover some action they really don’t want to explain. A charge is dropped “in the interest of justice” when, in fact, the real reason is that someone in law enforcement messed up and the powers that be don’t want to talk about.
The text messages were interspersed with references to the case pending against Joseph “Skinny Joey” Merlino, the Florida-based wiseguy who many believe is still the boss of the Philadelphia mob.
Merlino hasn’t said much about the case, but privately he and his friends believe the charges won’t hold up, that the indictment handed up last August was a rush to judgment built around a flawed investigation conducted by overly aggressive FBI agents and an unreliable confidential informant.
“They break the rules whenever they want,” said the text messager.
There is a certain irony in mobsters who have been convicted of racketeering and who remain suspects in several murders complaining about those who don’t play by the rules. They don’t have the moral high ground in a debate about doing what’s right.
That being said, in the case pending against Merlino, they have a point.
The charges against Skinny Joey have begun to unravel. And the Feds have only themselves to blame. A hearing late last month (too late to be included in this column) may have shed more light on what appears to be a botched investigation.
It appears the FBI played fast and loose with the rules. How fast and how loose is a matter of conjecture because most of the details are contained in sealed documents filed over the past three months in U.S. District Court in Manhattan. Tapes were erased. Evidence was mishandled. There’s an ongoing internal FBI probe. Two agents and their supervisor face possible disciplinary action.
As a result, Merlino’s lawyer, top criminal defense attorney Edwin Jacobs Jr., has filed a motion seeking to have the charges against his client dismissed. But that, too, has been placed under seal. The document is 11 pages long. Only the cover page and the signature page can be read by the public. The remaining nine pages are blacked out. Only the judge has seen them.
Another defense attorney in the case, who has joined in the motion to dismiss, has made reference to “misconduct by investigating agents and a cooperating witness” and a “failure to maintain proper integrity and chain of custody of evidence.”
Prosecutors aren’t saying much, but they have acknowledged there is a problem. More important, they have offered plea deals to all 46 defendants in the case, deals that indicate things have come undone.
Forty of the defendants have agreed to take those deals which include a dismissal of the most serious charge, conspiracy to commit racketeering, in exchange for guilty pleas to lesser charges of gambling and extortion. Without the racketeering charge, sentences will be substantially less than what had been anticipated when authorities announced the indictment last August.
Back then, prosecutors flushed with the prospect of taking down several major mob figures, described the operations of an “East Coast LCN Enterprise” run by Merlino and New York Genovese crime family capos Pasquale Parrello and Eugene Onofrio.
By most accounts, the “East Coast LCN” is an organization that exists only in the fertile minds of an overly ambitious group of federal prosecutors and FBI agents. These were just a bunch of wiseguys who knew each other and occasionally did business together.
The indictment was trumpeted as “the culmination of a multi-year joint investigation” built around “thousands of hours of consensual recordings obtained by a cooperating witness and an FBI Special Agent working in an undercover capacity.” It was Donnie Brasco all over again, several sources told renowned mob reporter Jerry Capeci shortly after Merlino, Parrello, Onofrio and their co-defendants were arrested.
But if this was supposed to be a Donnie Brasco sequel, recent developments have turned it into a straight to video production.
The investigation began in New York about five years ago when a mob associate, John “JR” Rubeo, got jammed up in a drug case. Not wanting to spend the next decade in jail, Rubeo, 44, agreed to cooperate. The fast-talking gambler and wannabe wiseguy strapped on a body wire, began recording conversations with Parrello and other New York players and introduced the undercover FBI operative, posing as a former high school friend, into the game.
All of that was fairly standard. It’s a scenario that has played in the criminal underworld for the past 20 years, successfully contributing to the overall demise of the American Mafia.
“You can’t cross examine tapes,” defense attorneys will tell you as the voices of their clients bounce off courtroom walls while jurors listen intently to self-incriminating conversations.
But three years into the probe, Rubeo moved to Florida. And that’s when things started to sour. He befriended Merlino and, according to the indictment, began to work with him in a gambling operation and in a highly lucrative medical insurance fraud scam.
The Feds in New York, however, didn’t bother to inform authorities in Florida that they had a man on the streets there. Rubeo continued to report to his FBI handlers in New York and apparently had unfettered control over the tapes he was making, tapes that might incriminate Merlino and others in crimes but that now may very well be thrown out as evidence because the “chain of custody” has been tainted.
Rubeo arbitrarily erased some phone tapes, according to information that has surfaced. What he did with body wire recordings is open to question. But what is obvious is that without a local FBI handler to whom the tapes would have been surrendered on a daily basis, Rubeo had control of that evidence for much longer than what is considered proper.
The defense will argue that all of those tapes are inadmissible and should be thrown out.
The tapes made in New York by Rubeo and by the undercover FBI agent along with conversations recorded by an FBI listening defense planted in Parrello’s Arthur Avenue restaurant go a long way toward legitimizing the charges against many of the defendants.
Parrello, in fact, has agreed to take the government deal, pleading guilty to charges that will carry a prison sentence of about five years. Most of the other defendants have taken deals that will result in less than three years in jail. Some may get probation.
Merlino and Onofrio may be the only two defendants who go to trial. They have rejected plea offers. In Merlino’s case, reports are that he turned down an offer that would have carried a two-year prison sentence.
If it goes to trial, Merlino has a good shot at beating this case.
Or prosecutors could opt to drop the charges rather than put Rubeo on the stand and risk a full public disclosure of how the investigation was mishandled. That would be a face saving move… taken “in the interest of justice.”