Legal Blog

People in Philadelphia will recognize the name and the charges, but how the FBI handled the investigation will add a new twist to an old mafia story.

As Joseph “Skinny Joey” Merlino begins his federal racketeering and conspiracy trial in a Manhattan courtroom this week, problems with the case may shine a light on some disturbing tactics used by law enforcement. Ultimately, these may benefit the former Philly mob boss turned Florida restaurateur.

Criminal charges are not a foreign concept for Merlino. During the 1990’s, he was a frequent target of law enforcement as the reputed head of a Philadelphia – South Jersey criminal organization. Now, after numerous trials, attempts on his life, and spending a good portion of his life behind bars, Joey Merlino, at 55-years-old, claims to have put mob life behind him. Since his release from a 12-year federal prison sentence for a 2001 racketeering conviction, he has relocated to Boca Raton, Florida, where he opened an Italian restaurant, aptly named Merlino’s.

His restaurant has been closed since the summer of 2016 when the current indictment was made public, and now, Joey Merlino is on trial again. This time he is facing charges that could send him back to prison for a very long time. The current criminal case against Merlino is based on a 2016 federal indictment, alleging that he, along with dozens of other defendants, ran an illegal gambling operation and a multi-million-dollar healthcare insurance scam. The prosecution claims that Merlino acted as a “fixer” by bribing doctors and patients for pain cream prescriptions, which were reimbursed by insurers for higher amounts. Authorities claim that these activities operated between several states and included members of the Philly mob as well as the Genovese, Gambino, and Luchese mafia families out of New York City.

At first glance, this may seem like a slam dunk case for the government. After all, bribery, insurance scams, and gambling are considered business as usual for wise guys. But, things are rarely that simple. Merlino has maintained his innocence on all counts and when you consider how the FBI built its case, it could mean a rough road ahead for prosecutors.

As reported by NBC 10, in his opening statement, Merlino’s defense attorney, Edwin Jacobs stated that his client is being framed by cooperating criminals, looking to save themselves. “Joey is accused of a bunch of crimes he didn’t commit,” Jacobs said.

One telling thing is that of the other 45 people indicted, 42 have accepted plea agreements for a lesser sentence. Reportedly, Merlino has rejected several plea offers that would remove the most serious charges brought against him. So, instead of accepting a two to three-year prison sentence, Joey is rolling the dice.

The evidence against Merlino is largely based on a few cooperating witnesses, chief among them is John Rubeo. As an associate of the Genovese crime family, Rubeo began working with authorities about seven years ago after an arrest on drug charges and has worn a wire with several suspected mobsters. After being sent to Florida, Rubeo provided wire-taped conversations between him and Merlino, but according to reports many standard protocols were ignored. These reports and an internal FBI investigation are currently under seal, but the allegations revolve around Rubeo failing to keep in contact with his FBI handlers, leaking information to the media, making claims that he intended to write a book about the case, being allowed to cooperate after his bail was revoked, a subsequent arrest for domestic violence, and accusations that some of the tapes in question had been altered or erased.

As a Philadelphia criminal defense attorney with considerable federal crimes experience, Michael Fienman explains how the government uses cooperating witnesses and what this could mean in the Merlino case:

“The government’s star witnesses are career criminals who are cooperating to benefit themselves. They have already been convicted for their criminal conduct but the sentencing phase of their case has been put on hold until after Mr. Merlino’s trial (or until after the government is done using them to prosecute others). This is typical when there are co-defendants, who are cooperating and is done so the government can ensure the testimony presented at trial will be consistent with the witness’s prior representations. It is also done so that the cooperation can be evaluated in its entirety before sentencing. If the prosecutors believe the cooperators have provided “substantial assistance” in their prosecution of Mr. Merlino, they will file a 5k1.1 motion for a downward departure from the sentencing guidelines. The benefit of this motion for a defendant at sentencing cannot be overstated. At sentencing, the judge for those cooperators will consider the nature and extent of their cooperation when fashioning a sentence. What this means is that the punishment ultimately levied on those cooperating witnesses will be based on how effective their evidence gathering and testimony was in assisting the government with their case against Mr. Merlino.”

Regarding Merlino, attorney Jacobs described his client’s interactions with Rubeo in court on Tuesday, arguing that while Joey was trying to “live a normal and new life,” someone who was wearing a wire and only out for himself used his client’s gambling addiction to manipulate him.

These issues create a serious problem with essential evidence which has served as the basis for Merlino’s charges. Practically speaking, this provides ample opportunity for the defense to call the methods used by law enforcement into question. The presiding judge, Richard Sullivan, has ruled that many of these issues can be raised by the defense. Essentially, Merlino’s defense attorney can bring up the lapse in FBI protocol and, with two of the FBI agents involved already suspended for supposed misconduct, the jury may connect the dots and conclude that law enforcement played it fast and loose with the rules. Additionally, using testimony from admitted criminals has its own flaws. There is definitely a shortage of choir boys as witnesses in mafia cases, but if drug dealers and domestic abusers can offer details about someone’s criminal behavior, the defense should be allowed to do the same.

In the end, it’s just not a great case for the prosecutor. With 42 convictions made from pleas and another trial pending for the remaining target of the indictment, Genovese mobster Eugene “Rooster” Onofrio, the government might have been better served by refocusing their efforts away from the Philly connection. Alas, it is too late for that. Jury selection was completed on Monday and opening statements were made in court on Tuesday. The trial is moving forward and it is predicted that it will likely take about a month to play out.

Don’t be fooled by Joey’s past convictions. As anyone from Philadelphia can tell you, he’s no stranger to taking risks in court and coming out ahead. When you consider the issue of witness credibility, apparent FBI malfeasance that may have unfairly targeted Merlino because of his past, and possibly incomplete or doctored audio evidence, Skinny Joey may be in a better position than most believe.

As a Philadelphia criminal defense attorney, Michael H. Fienman is the sole practitioner of Fienman Defense, offering quality and experienced legal representation to clients throughout Philadelphia, Bucks County, Delaware County, Montgomery County, Lehigh County, Berks County, Chester County, and all of New Jersey. For a free and confidential consultation call (215) 839-9529 or contact attorney Fienman online.