For Bigtrial.net
Joey Merlino can still draw a crowd.
The one-time South Philadelphia celebrity mobster had a nearly packed courtroom for his probation violation hearing this morning. Friends, family members, law enforcement officials and more than a dozen members of the media showed up for a 90-minute proceeding that revolved around mundane technical issues and that offered all the drama of a first-year law school seminar.
The proceeding before U.S. District Court Judge R. Barclay Surrick ended without any resolution. But Merlino, 52, attracted a swarm of television cameramen and newspaper photographers as he exited the building at Sixth and Market Streets.
"The Mummers Parade," Merlino said cryptically as reporters shouted questions at him and a small entourage that made its way toward Seventh Street and a parking garage. Merlino was scheduled to return to Florida later today.
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| Philadelphia Inquirer/Yong Kim |
Whether he has to return to Philadelphia for another hearing will depend on how Surrick rules on what amounted to conflicting legal arguments posed by defense attorney Edwin Jacobs Jr. and Assistant U.S. Attorney David Troyer.
Jacobs said he believed Merlino was happy living in Florida and has no intention of coming back to his hometown for anything other than an occasional visit. He said Merlino is working "in sales" for an advertising company, but would offer no specifics.
Troyer, in an interview outside the courthouse after today's hearing, seemed less than convinced.
"I don't think Mr. Merlino has had a job in a very long time," said the prosecutor in response to a question about Merlino's gainful employment in the Sunshine State.
Asked if federal authorities still list "Skinny Joey" an active member of the Philadelphia branch of La Cosa Nostra, Troyer replied, "That's the way we consider him."
Jacobs on the other hand, repeated many of the arguments contained in a pre-hearing motion, insisting that his client is trying to start a new life. Both in his motion and in his comments, Jacobs indicated that federal authorities are making that difficult.
"I think enough is enough," said the Atlantic City-based criminal defense attorney. "I think there are more productive things for the government to do than to follow Joey Merlino to a cigar bar."
The probation violation petition alleges that on June 18, Broward County Sheriff's Department detectives spotted Merlino in Havana Nights, a Boca Raton cigar bar, in the company of three convicted felons, including Philadelphia mob capo John "Johnny Chang" Ciancaglini.
At the time, Merlino was completing a three-year term of supervised release (probation) and was prohibited from associating with organized crime figures and convicted felons. Merlino was convicted of racketeering conspiracy in 2001 and sentenced to 14 years in prison. He had completed his sentence and relocated to Florida to finish his probation. Ciancaglini was a co-defendant in that case.
But the issue of association was never brought up during today's hearing which instead focused on a technical issue raised by Jacobs. In a motion filed Monday, Jacobs argued that the government had failed to properly issue a summons notifying Merlino of the alleged violation and as a result the court no longer had jurisdiction in the case.
Jacobs said the law required that a summons be issued prior to Sept. 6, the day that Merlino's three-year probation was to end. Since no summons was issued, Jacobs argued, Merlino's probation legally ended on that day and the court no longer had jurisdiction over him.
Troyer called Jacobs' position "preposterous" and the ultimate example of "chutzpah." The prosecutor said a parole violation petition had been filed on Sept. 2 requesting a court hearing. He said in the Eastern District of Pennsylvania, the court then issues a notice to appear in lieu of a summons.
Troyer said Jacobs and Merlino had been notified prior to Sept. 6 of the pending action but the notice to appear was delayed out of "professional courtesy" to Jacobs who asked the court to put off setting a hearing date until he had resolved some scheduling issues.
"This court gave him a professional courtesy that he now tries to take advantage of," Troyer argued. "It's the height of unreasonableness and the height of chutzpah."
Jacobs argued that while he did cite scheduling problems, that was not a "waiver" of the requirement that a summons should have been issued prior to Sept. 6.
Merlino, dressed in a finely tailored dark business suit, blue shirt and floral tie, sat quietly through the 90-minute hearing. Nearly two dozen supports sat behind him in the courtroom, including his wife Deborah Wells-Merlino, his mother Rita and Kathy Ciancaglini, the wife of John Ciancaglini.
"Johnny Chang," whose alleged association with Merlino in Florida back on June 18 is at the heart of the probation violation issue, was not in court, but was spotted sitting on a bench on Market Street outside the federal courthouse during the hearing. When photographers began to close in on him, Ciancaglini walked across the street to a Dunkin' Donuts.
Merlino supporters have argued that the probation violation issue is another example of federal harassment, pointing out that while the alleged offense occurred on June 18 (and a related offense occurred on May 20), federal authorities did not formally notify Merlino until Sept. 2, five days before his probation was to end.
"Why'd you wait so long?" Jacobs asked one government witness during today's hearing, but the judge sustained a prosecution objection, ruling that the question was irrelevant.
The failure to issue a summons, as Jacobs argued, was another example of the government's disregard for the rules when it comes to Skinny Joey, his supporters contend.
"Can you believe this?" Rita Merlino said as she left the courthouse.
"A summons is a summons is a summons," said another Merlino supporter. "And they didn't have one."
Judge Surrick said he would rule at a later date. If the judge accepts Jacobs' argument, the probation violation issue becomes moot and Merlino walks free. If Surrick decides that there was proper notice, then another hearing will be held to argue over the alleged violations.
Merlino could face an additional six to 12 months in jail and/or be placed on extended probation, according to Troyer.
As he left the courtroom today, Jacobs was asked if chutzpah was a legal term.
"I think it means I have an uncanny ability to understand and apply abstract legal principles," he said with a smile.
George Anastasia can be reached at George@bigtrial.net.