U.S. v. Merlino

• Decision Date: 17 September 1997
• Docket Number: No. Civ. 97-2832.,Crim. No. 88-00003-03.,Civ. 97-2832.
• Citation: 2 F.Supp.2d 647
• Parties: UNITED STATES of America v. Salvatore MERLINO.
• Court: U.S. District Court — Eastern District of Pennsylvania

2 F.Supp.2d 647

UNITED STATES of America v. Salvatore MERLINO.

No. Civ. 97-2832.

Crim. No. 88-00003-03.

United States District Court, E.D. Pennsylvania.

September 17, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David E. Fritchey, Asst. U.S. Atty., Philadelphia, PA, for U.S.

Joseph M. Marrone, Jr., Philadelphia, PA, for Merlino.

MEMORANDUM AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

On November 19, 1988, Salvatore Merlino was convicted by a jury in a major mafia trial of RICO and RICO Conspiracy in violation of 18 U.S.C. §§ 1962(c) & (d), Illegal Gambling Business, in violation of 18 U.S.C. § 1955, and two counts of Distribution of Methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). The jury specifically found him guilty of 27 RICO predicate acts. These acts included four murders, three attempted murders, six murder conspiracies, one gambling offense, two illegal debt schemes, two distributions of methamphetamine and 14 extortions.¹ Post verdict motions were denied, United States v. Scarfo, 711 F.Supp. 1315 (E.D.Pa.1989), and this court sentenced Mr. Merlino to 45 years imprisonment on May 10, 1989.

Petitioner's sentence consisted of a 20 year term for RICO, a 20 year term for RICO Conspiracy, and a 5 year term for the Illegal Gambling Business. These sentences were all consecutive to each other. We also sentenced Mr. Merlino to five years imprisonment for each methamphetamine offense. The first methamphetamine sentence was consecutive to Count One and concurrent with Count Two. The second methamphetamine sentence was consecutive to the first and concurrent with Count Two. All of these federal sentences were consecutive to a life sentence imposed by the Philadelphia County Court of Common Pleas for the first-degree murder of Frankie "Flowers" D'Alfonso.

The Court of Appeals affirmed Mr. Merlino's federal convictions and the Supreme Court denied certiorari. United States v. Pungitore, 910 F.2d 1084 (3d Cir.1990), cert. denied, 500 U.S. 916, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). The state murder conviction, however, was subsequently reversed by the Pennsylvania Superior Court, Commonwealth v. Scarfo, 416 Pa.Super. 329, 611 A.2d 242 (1992). Mr. Merlino was retried on this charge in early 1997 and was acquitted.

On April 23, 1997, one day before the new statute of limitations period expired pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, Mr. Merlino filed the instant motion for relief under 28 U.S.C. § 2255. Petitioner makes six claims: (1) that his pre-sentence report must be amended to reflect Petitioner's subsequent acquittal of the murder of Frankie D'Alfonso; (2) that his sentence was based upon his conviction in the D'Alfonso state murder case in which he was later given a new trial and acquitted; (3) that his consecutive sentences for RICO and RICO Conspiracy violate the Fifth Amendment's prohibition against double jeopardy; (4) that he was denied due process by the size of his trial and the large number of co-defendants; (5) that his attorney, Mr. Edwin Jacobs, provided ineffective assistance of counsel; and (6) that his conviction should be vacated because Mr. Scarfo's attorney, Mr. Simone, had been engaged in illegal activities that the government never disclosed to Mr. Merlino.² The Petitioner also asks that we allow him to join any § 2255 motions filed by his co-defendants. As the facts of this case have been much discussed by this court previously, see Scarfo, 711 F.Supp. 1315, we will not repeat ourselves.³

II. DISCUSSION

A. Amendment of Pre-Sentence Report

Petitioner asks this court to amend his pre-sentence report to reflect the fact that he has been acquitted in state court of the murder of Francis D'Alfonso. The government has not objected to this request from Mr. Merlino's co-defendants. See Government's Response to Phillip Narducci's 28 U.S.C. § 2255 Motion at 13-14. Accordingly, we will issue an order amending the pre-sentence report to remove the state murder conviction and ordering that Mr. Merlino be furnished with a copy of the report.

B. Sentencing

Mr. Merlino next argues that he is entitled to resentencing because "[i]t is ... clear that this Court considered petitioner's conviction for the murder of Francis D'Alfonso when it imposed sentence," a murder for which he was later acquitted. Motion at 8. Mr. Merlino apparently believes that, because his federal sentence was given consecutive to his state sentence in the D'Alfonso case, we were influenced in sentencing by that state conviction. Now that Mr. Merlino has been given a new trial and has been acquitted in the D'Alfonso case, he argues that we must resentence him without reference to the state matter. We do not agree.

At Mr. Merlino's sentencing, we offered both Mr. Merlino and his trial attorney, Mr. Edwin Jacobs, an opportunity to speak to the court concerning sentencing. They refused:

MR. JACOBS: Your Honor, I'll keep it very short, very simple. My client and I are aware of all the previous sentences imposed by this Court on all the circumstances. My client does not wish to exercise his right of elocution, nor do I have any further statement on his behalf. THE COURT: Thank you, sir. All right. I'll just ask you on the record, you don't care to say anything, is that correct, sir?

MR. MERLINO: Yes, sir.

Tr. 5/10/89 at 4.

We then heard from the government on sentencing. During the government's argument, they asked that the pre-sentence report be amended to include the state court conviction for the murder of Frankie D'Alfonso. Mr. Merlino's counsel did not object to this motion and we amended the pre-sentence report. Tr. 5/10/89 at 6-7. After careful consideration, we imposed our sentence:

THE COURT: All right. This Court is ... prepared to impose sentence. The defendant will rise, and his counsel. I've given individual consideration to the defendant. I've taken into account the trial evidence, the defendant's age, the presentence report, statements made today, the history, character and condition of the defendant. I believe the number of racketeering acts speaks for itself. He also had a high position of leadership in the mob; that he was a former underboss.

Accordingly, the Court feels that the following sentence is appropriate. The defendant is hereby committed to the custody of the Attorney General of the United States of America, or his authorized representative, for imprisonment for a term of 45 years, on condition that the defendant be confined in a jail-type institution. This sentence is composed of a sentence of 20 years on Count One, followed by a sentence of 20 years on Count Two, followed by a sentence of five years on Count Four. They are all consecutive to each other. The Court imposes sentences of five years each on redacted Count Six, that would be superseding Count Ten, and on redacted Count Seven, that would be superseding Count Eleven. Count Six shall be consecutive to Count One and concurrent with Count Two, and Count Seven shall be consecutive to Count Six and concurrent to Count Two.

Upon release, the defendant shall serve a special parole term of ten years. I'm required to impose a special parole term, and I do. The Court imposes no fine, but does impose a $250 special assessment required by law. The Court recommends an institutional security level of five or more. These sentences will be consecutive with the defendant's State sentence; that is, they shall be in addition to that sentence. Now, sir, this is—are there any additions or corrections to this sentence? It's a total of 45 years. All right.

Tr. 5/10/89 at 7-8.

The only manner in which the D'Alfonso case impacted our sentence is that we imposed our sentence consecutive to, and not concurrent with, the state sentence. The sentence itself was not influenced by this prior state conviction. Cf. United States v. Lyons, 706 F.2d 321, 335 n. 25 (D.C.Cir.1983) (resentencing only necessary where it cannot be ascertained whether the district court's sentence was influenced by a conviction that was later overturned).⁴ As we stated at sentencing, Mr. Merlino was convicted of RICO, RICO Conspiracy, Illegal Gambling Business, and Distribution of Methamphetamine, with 27 underlying Racketeering Acts, including four murders, three attempted murders, and six murder conspiracies. Mr. Merlino served as the underboss of the Philadelphia Mafia, second only to Scarfo. And, when Scarfo was imprisoned in a Texas federal prison between August of 1982 and January of 1984, Mr. Merlino acted as the functional boss of the Scarfo crime family. These facts alone justify the maximum penalty as set out by Congress, without any reliance on the state conviction. Yet, we did not even levy the harshest sentence that was within our power; we could have sentenced Mr. Merlino to 55 years imprisonment, but we allowed him to serve his methamphetamine sentences concurrent to his RICO sentence, thus trimming 10 years off the maximum amount of time he could have had to spend in prison. The fact that the state sentence has been vacated due to acquittal on re-trial does not impact and cause us to change the actual sentence we imposed. It only impacts when he will begin serving it. Resentencing is therefore not required. See United States v. Scarfo, 970 F.Supp. 426, 429, 430 (E.D.Pa. 1997).

C. Double Jeopardy

Mr. Merlino stated in the Summary of Argument section of his brief that the imposition of consecutive sentences for RICO and RICO Conspiracy violates the double jeopardy clause of the Fifth Amendment. He never, however, set forth a legal argument supporting his blanket assertion. This claim is therefore dismissed as not being properly raised.

This complaint, even had it been raised properly, would fail. We assume, considering the fact that the majority of Mr. Marrone's brief appears to have been copied directly from the Narducci brothers' Habeas Corpus motions which did actually argue this...