When the feds took down the so-called East Coast LCN Enterprise last August which led to charges against 46 defendants from multiple organized crime families it was touted at as a major strike against the mafia.
Among those charged were alleged Philadelphia mafia boss Joseph (Skinny Joey) Merlino and Genovese crime family capos Pasquale (Patsy) Parrello and Eugene O’Nofrio. But things changed quickly when reports surfaced of an internal investigation into the potential mishandling of a federal witness and the evidence he collected. In an effort to avoid trial and the potential negative effect the internal investigation may have on their case prosecutors offered all 46 defendants sweet plea deals. Many of the alleged mobsters and associates agreed to the plea offers except Joey Merlino and three others who decided to take their chances at trial.
Prosecutors offered to drop the main charge of racketeering conspiracy against Merlino if he agreed to their plea offer allowing him to spend a lot less time behind bars then he would be facing if found guilty at trial. But Merlino who has never plead guilty at any time before refused to do so again and decided to take his chances in court. There have been plenty of twists and turns in this case and yet another has developed recently. The case against Merlino is largely based on evidence collected by Genovese family associate turned rat John (JR) Rubeo. According to sources familiar with the case, Rubio had been wearing a wire for approx five years recording hundreds of hours of conversations after flipping on his mafia pals. The dealings between the FBI and Rubeo during his time as an informant continue to cause problems for prosecutors according to a Ganglandnews report. The investigation included two FBI agents one of which has been cleared with the other being suspended and a still ongoing probe into an FBI supervisor.
During a pre-trial conference last week Merlino defense attorney John Meringolo said “During the entire cooperation and consensual recordings he was on various narcotics, including OxyContin and Xanax,” in reference to Rubeo and wanted the government to let the defense know whether they were prescribed by doctors or obtained illegally. Rumors were also circulating of late that Rubeo may have had his bail revoked landing him behind bars. Meringolo asked the judge to compel prosecutors to preserve records of all phone calls and emails that Rubeo used to communicate with relatives and friends if his bail was in fact revoked due to his conduct revealed during the internal investigation. U.S. Attorney Jonathan Rebold declined to inform the judge as to Rubeo’s current status and argued that the government was not required to preserve any recordings even if Rubeo was behind bars.
The answers provided by Rebold did not sit well with Judge Sullivan and he informed him that if the witness was behind bars and recordings between now and the trial existed and they were allowed to be wiped or destroyed that he would allow the defense to inquire about that on cross-examination. He said he would certainly allow the defense to call a witness from the Bureau of Prisons to say what did and did not happen and that nothing was preserved. Sullivan stressed that “if tapes and emails of a cooperating witness existed and were not saved, the “fair thing” was to let jurors know “there was no attempt made to preserve any of the potential material” that the defense should have available during cross-examination”.
Judge Sullivan called some of this “impeachment material” that the government had an obligation to provide before a witness testified but he didn’t have the power to order them to furnish it earlier even though he preferred it so that the trial could move along smoothly. He said he would be very unhappy if he had to tell jurors to come back in a week because the defense needed time to review materials that are necessary for cross-examination. He went on to say “I can’t make you do it, but I can make you wish you had.” The feds record when it comes to Cosa Nostra cases of late is somewhat shaky and it seems like this case is nowhere near the lock it seemed to be last year. The trial is set to begin in January.