MERLINO SENTENCING REPORT IS IN, AND IT"S A FUCKIN JOKE

Alleged Philadelphia Mob Boss Joey Merlino is due to be sentenced in Federal Court in Manhattan on October 17th, and in preparation for his sentencing the Government submits it case for sentencing, and likewise Joey is able to submit his case for a light sentence. 

In viewing the massive files, it struck me as condescending and filled with what I call suspect submissive evidence.  I say that because what one person is accused of, and not what they are found guilty of should be prejudicial at best.  It's my opinion at best.  Hang on, this is gonna be a long one folks.

THE GOVT
Defendant Joey Merlino was accused of the following: Participating in a racketeering conspiracy, participating in a conspiracy to commit health care fraud, and conspiring to conduct an illegal gambling business, in addition to the charge of transmitting wagering information to which he plead guilty.




For the record, the one charge Merlino was guilty of by his own admission was "the unlawful transmission of wagering information in Interstate Commerce, in violation of Title 18, US Code, section 1804."  In other words gambling.  Joey admitted to accepting $2,500.

"The Government respectfully submits this letter in advance of Merlino’s sentencing and in  response to the sentencing submission that his counsel has filed, dated October 1, 2018 (the “Defense Submission” or “Def. Mem.”).  Both the parties and the Probation Department calculate a Guidelines range of 10 to 16 months’ imprisonment, and the statutory maximum sentence is 24 months’ imprisonment.  The defense asks for a sentence of time served, and Probation recommends a sentence of 10 months.  The Government respectfully disagrees, and submits that a sentence of 24 months is appropriate in this case. "

What the Government can also do in this case, at least from a sentencing perspective, is totally bring up his past.  Like all sentencing in any given court case, the Government and the state can also use to their advantage any past criminal associations and convictions, which I think is bullshit, but it's how our "justice system" operates.

What's offensive about this report, is that they use wiretap dialogue, which didn't prove Merlino's guilt, because those charges of health care fraud were NOT proven in court.  I fail to understand why the Government can use that information against him, when he wasn't convicted of those crimes. But for the sake of showing you exactly what I mean, here is what they said verbatim.

"Merlino did not plead guilty in the first instance, and proceeded to trial on charges of racketeering conspiracy, healthcare fraud conspiracy, conspiracy to conduct an illegal gambling business, and interstate transmission of wagering information.  The majority of the evidence that the Government presented at trial focused on the healthcare fraud conspiracy.  With respect to that conspiracy, the evidence established that Merlino and others agreed to bribe doctors to write unnecessary prescriptions for a pain cream, in order to earn a percentage of the resulting exorbitant insurance payouts.  The evidence at trial also established that Merlino was involved in the operation of an illegal gambling business, including on the bookmaking side.  Finally, the evidence at trial established that Merlino acted as a member of the East Coast LCN. "

I highlighted that part, because it's fucking pathetic on every level.  For starters Joey was NOT convicted of health care fraud.   How in the hell the Government can say "the evidence established that Merlino and others..."  How can you claim evidence established, when in fact, it wasn't.  "The evidence established Merlino acted as a member of the East Coast La Cosa Nostra."   I was at trial and when was that proven?  It never was.  It's assertions and gossip.  Never once was he on trial for being involved in organized crime.  He was never ever convicted or accused of being a member of organized crime.  This is simply a tactic by the Government to backload trumped up evidence.

From the Defense Submission(on behalf of Joey) he refutes this.




 In the Defense Submission, Merlino contends that the evidence at trial did not prove by a preponderance of the evidence that Merlino was involved in the healthcare fraud scheme.  (Def. Mem. at 9.)  In making this contention, Merlino asserts that he never actually received a cut of the proceeds of the healthcare fraud; that he urged John Rubeo to “leave” one of the masterminds of the healthcare fraud, Brad Sirkin; and that Rubeo did not characterize Merlino and Sirkin as
“partners.”

What's important about this argument is easy.  Merlino never ever accepted any checks, money orders or payoffs from either Kreisberg, Sirkin, or Rubeo.  In fact under direct questioning he couldn't answer that question.  Rubeo alleged that Sirkin and Merlino were partners yet, Kreisberg testified that he never saw Joey with Sirkin, and in fact he met Sirkin through Rubeo.  At NO time did Merlino get caught on a wiretaps or footage, that could corroborate the lies Rubeo was attempting to sell.

GOVERNEMENT AGAIN

 (Id. at 10.)  Merlino also refers the Court to a number of recorded phone calls that he claims support his denial of involvement in the healthcare fraud.  In attempting to dissociate himself from the healthcare fraud conspiracy, Merlino essentially repeats arguments that he made to the jury at trial. 

The Government respectfully submits that the preponderance of the evidence at trial plainly showed that Merlino was involved in the conspiracy to commit healthcare fraud.  Notably, Merlino did not need to receive actual proceeds from the healthcare fraud for this to be so, nor did he need to be “partners” in any formal or official sense with Brad Sirkin.

This is laughable at best.  If Joey doesn't have to receive any sort of kickback or financial gain from a scheme, then honestly what the fuck is the point of being involved.  What the Government is not stating here is 1. How Merlino met Rubeo to begin with, and 2. The relation between Merlino and Rubeo which was fantasy at best.   I'd love to know what preponderance these jerks offs are talking about.  He wasn't convicted.

The Government continues it's diatribe making long winded assertions just like they did in trial about Rubeo and bookmaking.  I'm not going to argue that, considering Joey plead out to gambling, but the fact is Ruebo was a junkie, a wife beater, was unsupervised 90 of 100 and so days, and omitted, deleted and in some cases erased conversations.  Rubeo ripped of CRIS, which was an offshore gambling site, in which his main roll was to funnel money to winners and collect from losers.  Instead Rubeo robbed the guys from CRIS, and bought fucking luxury cars. 

 When the guys from CRIS wanted to go after him, he ran to Merlino for dear life.  Joey simply extended advice and told Rubeo to "pay them something, work something out."  At best, it's Rubeo whose the real fucking criminal in this instance.  It's also worth noting that Rubeo got caught trafficking drugs and was under the protection of Pasquale Parello, who told him to stay away from drugs and Joey Merlino.  Once Rubeo got caught, the FBI asked him to try and get Merlino, in return for a light sentence.  That's how this nonsense all began.  Rubeo is a scumbag, junkie, rat.  Not believable on any fucking level.

So here is the GOVERNMENTS STANCE on Sentencing Guidelines:

The statutory maximum sentence that can be imposed on Merlino is 24 months’ imprisonment, and in this case that is the appropriate sentence.  Merlino argues that his involvement in the healthcare fraud conspiracy should not be considered for purposes of sentencing because it has “absolutely nothing to do with the gambling count to which Merlino pled,” citing Section 1B1.3 of the Sentencing Guidelines.  (Def. Mem. at 9.)

Merlino is right in this instance.  If you plead guilty to one charge how in the fuck can the Government gremlins use something you didn't do, weren't found guilty of, against you?

Then they make the most ridiculous statement I have ever seen.  Ready for it?

" This argument is inapposite, as the Government is not advocating for a higher Sentencing Guidelines range based on relevant conduct as defined in Section 1B1.3.  Indeed, the Guidelines range here is stipulated to in a plea agreement, and is based solely on the count of conviction and Merlino’s criminal history.  However, Merlino’s participation in a healthcare fraud conspiracy is plainly appropriate for the Court to consider in fashioning a sentence for Merlino that is sufficient but not greater than necessary to accomplish the purposes set forth in Title 18, United States Code, Section 3553(a)(2)."

Okay so, you cannot and won't ask for a higher sentence due to keep restraint to the actual charges, then you turn around and ask the Judge to consider a higher amount of time because of "participation in health care fraud, which wasn't fucking proven."  You cannot make this shit up.   Then they double down. 

" Merlino’s involvement in multiple types of criminal activity at the same time also speaks to the length of sentence that is necessary in order to promote respect for the law.  See § 3553(a)(2)(A).  The healthcare fraud conduct that was proven at trial should be considered in fashioning the appropriate sentence for Merlino. "

Respect for the law? Kind of like allowing Rubeo to beat women, delete evidence, to go unchecked for 90 out of 120 days?   Allowing Rubeo to break laws under FBI protection and fabricating evidence which couldn't and wouldn't be substantiated?

 

"The factors set forth in Section 3553(a) militate in favor of a sentence of 24 months’ imprisonment here, as opposed to the sentence of 10 months recommended by Probation or the sentence of time-served requested by Merlino.  First, the circumstances of the offense are such that a sentence tailored to the count of conviction taken in isolation would be too low.  Merlino did not engage in the transmission of wagering information as a deviation from an otherwise lawful lifestyle; rather, it was one of several means he was using, in addition to the healthcare fraud conspiracy and bookmaking conduct, to make money through illegitimate activity.  A full picture of the offense includes the fact that it was part of a larger fabric of illegal activity that Merlino was engaging in at the same time. "

Once again, they are using the healthcare fraud bullshit again, which he WAS NOT convicted of. It's not enough to just give him time for gambling they want Judge Sullivan to hammer him for crimes he was NOT found guilty of.

"Second, Merlino’s history and characteristics, as well as the need to deter Merlino from future criminal conduct,"...




Are they fucking psychic?  So now we are going to say or take a leap that Joey Merlino is going to go out and commit more crimes?  Seriously?

"Counsel in favor of a sentence of 24 months.  Moreover, Merlino has faced indictment and trial on even more serious charges of which he has been acquitted, but the experience of standing trial twice for murder did not sufficiently discourage him from engaging in illegal activity.  In discussing Merlino’s history and characteristics, the Government readily acknowledges that the seriousness of his criminal conduct has diminished over time.  Merlino’s offense conduct here, and his participation in the healthcare fraud conspiracy and bookmaking activity, was not violent.  But the deterrent effect of Merlino’s prior and significant brushes with the criminal justice system has only been partial.  The sentences of time served or 10 months recommended by Merlino and Probation, respectively, would not meaningfully deter Merlino from participating in exactly the kind of criminal conduct that he engaged in here.  In the Government’s view, a sentence of less than 24 months would lead Merlino to believe that his continued participation in non-violent criminal activity will not have meaningful consequences for him, and that it is enough that he has ratcheted down the nature of his illegal conduct. "

How can this shit be legal?  "Facing indictments and trials on every more serious charges of which he has been acquitted"   Are you all seeing it for what it is now?  Now the government wants to bring in allegations as facts now, and crimes he was acquitted of, are being brought up as evidence.  Double jeopardy anyone? GTFOH.

The final sort paragraph is the Government asking for 24 months in prison.  As you can see for yourself the entire argument the Government makes is total bullshit and a joke on every level.  When you look at other co-defendants in this case, most convicted of the gambling charge received home confinement. So let's get to Joey's rebuttal.

JOSEPH MERLINO REBUTTAL

Right off the bat, he opens with a hammer.  It confirms what I said up above.  "86% of the co-defendants in this matter received either NO TIME, or TIME SERVED, OR A PERIOD OF HOME CONFINEMENT."

The second argument is that if the "court deems incarceration, Merlino should be given a credit on 4 months, reflecting unnecessary incarceration, he has already served following a revocation of his supervised release entered by a District Judge for the Third Circuit on October 20, 2014 and that he be permitted to serve one-half of any sentence on home confinement."

They make an argument in subsequent pages about the sentencing guidelines which explain that asking for two years is beyond the scope of the range.They go on to argue about FBI misconduct, which was prevalent in this case


THE BIG EVIDENCE, RECORDINGS!!

The following is instances of times and recordings, that directly refute Rubeo.  The topics of these next few portions are related directly as to  pain cream, fraudulent prescription schemes. Keep in mind these are excerpts from the taped conversations. JR is JR RUBEO.

1/6/2014- JR tells Merlino that Augie Camacho has 10K coming to him--Merlino responds "he knows zero about the business.(referring to the fraudulent prescriptions)


3/145/14- JR says that Sirkin told him that Merlino gets a percentage of what Camacho gets--Merlino responds "I never got a cent."


3/14/14- JR to Patty Falcetti and Thomas Cafaro-" Merlino told him he never got a penny from Sirkin; Merlino told him(JR) to leave Sirkin; Sirkin is a BS artist."

3/14/14- Same conversation. JR tells Falcetti and Cafaro, that "Merlino and Sirkin are not partners"

3/14/14-. JR tells Special Agent Inzerillo--"JR states that Merlino never got a dime from commissions; Agent cuts him off and hangs up."


4/1/14- JR speaking with Nick(last name unknown)- JR says "Merlino and Sirkin are not, zilch,; Merlino will NOT do anything illegal."

9/30/14- Merlins warns JR he should be careful with Sirkin and his business-Merlino wants nothing to do with that.

As we can see right here, from the wiretaps.  Joey admits nothing, and goes out of his way to steer clear of any criminal acts.  Keep in mind, these portions are not redacted, meaning your lips to god's ears this is what was recoded.  If we acknowledge that as the truth, which it is, this is the same stuff I was speaking about months ago when I attended trial.

PROOF MERLINO REFUSED TO ENGAGE IN ILLEGAL ACTIVITIES

These are all recordings, which lend itself to the fact that Merlino never broke any laws.

4/5/14- JR to Merlino,- Benza robbed them half a point.

10/18/13- Merlino says everything we do is legit; not doing anything illegal anymore; anybody comes to him with some illegal he is spitting on them.

10/18/13-  Merlino to JR- He(Merlino) is going to tell Gallo he is not doing anything illegal; Merlino won't meet anyone.

11/22/13- JR to Gallo, Merlino does not want to do anything illegal- talks about the 4 page text re-stolen jewelry.

11/22/13- Merlino refuses JR's overtures to deal in illegal tv boxes.

3/14/14- JR to Pat Falcetti- quotes JM, "I will not do anything illegal."

3/14/14- JR to Danny Pagano, 'I'm done, wait a long time."

3/14/14- JR to Danny Pagano- 100 times people offered illegal, Merlino won't do it."

4/1/14- Merlino to JR- nothing illegal, I work.  That's it. Dead broke, trying to open a restaurant.

6/16/14- Merlino to JR- Never going back to Philly- work in restaurant.

6/16/14- Merlino to JR- guys lie and rob you; tired of hearing other peoples schemes

10/15/13- Merlino tells JR, I'm not a bookmaker, I'm a bettor.

The list continues to further refute about everything Rubeo alleged.  Further into the submission ther argument is made, and rightfully so that these conversations occurred without Merlino being present.  It further goes back to the conversation that Rubeo had with Agent Inzerillo when informed that Merlino didn't want to do anything illegal quickly hung up because he knew the case versus Merlino

 hinged on Rubeo and recorded calls and that it was seriously damaging to the case vs. Merlino.

Further into the submission it discusses Merlino's health and family, which I will NOT reproduce here whatsoever, other than to verify what has already been discussed prior.  It discusses Joey's gambling addiction which has been a life long issue for Merlino.   They make an excellent argument that because of Merlino's addiction to gambling, this is a direct correlation to the crime that he admits to committing. 

The opus in this, is the change in gambling laws.  They mention the Supreme Court striking down federal law prohibiting state sanctioned sports betting, paving the way for legalized sports betting in the state of New Jersey.  This happened two weeks after Merlino entered his guilty plea.  They make the argument that every casino now has sports booking available, as well as companies like DRAFT KINGS and FAN DUEL have been "quick to monetize this new opportunity."

They further double down on Merlino and Rubeo by stating on volumes of calls, Merlino refused to comply, engage and even refused to get involved with whatever schemes were going on around him.  Rubeo even is recorded telling numerous counterparts that Merlino won't budge and will not under any circumstance engage in criminal behavior and is simply trying to work in a restaurant and wants to be left alone.  A solid point made by Merlino also, is that many of his co-defendants couldn't even point him out if they had to.  They never met him ever. Pasquale Capolongo went so far as to say "he wouldn't know Merlino if he was standing right in front of me."  Another co-defendant Danny Pagano stated that Merlino is "not a guy we want around us." 

It obliterates every nonsensical lie Rubeo had told, and refutes all this "refutable evidence the Government alleges in their 7 page dissertation of lies and innuendo.  In the homestretch of the rebuttal they mention literally every single co-defendant in the case to utterly prove that 86% of those convicted in this case were given time served, or home confinement. 

In perhaps the best paragraph in the entirety of both sides is what Edwin Jacobs says.  "The government offered a plea because the recordings prove Merlino was not involved in bookmaking, prescription fraud, or any RICO scheme as outlined above. "Simply stated, you had no fucking case.  Jacobs asks for time served with a period of home confinement.

What Judge Sullivan does, is anyone's guess.  While I support Joey in any case, any sense, you have to just wonder what Sullivan will do.  While the gambling portions of the sentencing in this case have been light on those convicted or those who plead out, he went on the high end of other charges.  It shows that Sullivan doesn't really take gambling as the biggest sin in the world, but I also have to wonder if he will try and make Joey a scapegoat in a bigger issue, and that's that this case from beginning to end stunk.  Lies, fabricated evidence, and nonsense.  Why else would Judge Sullivan rail the prosecution for giving up on a case that they said "had overwhelming evidence?"  He admonished them verbally for it.    No matter what happens, Joey is an innocent guy, caught in shitstorm by a junkie who couldn't do time, and inflated logic and facts.

Sentecing is October 17 @ 430 pm.