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United States of America v. Raphael J. Musto

May 24, 2011


The opinion of the court was delivered by: Judge Caputo


Presently before the Court are a number of pretrial motions filed by defendant Musto. (Docs. 19, 21, 23, 25, 27, 29, and 31.) Each motion has been fully briefed and is ripe for review.


On March 16, 2010, a federal Grand Jury returned a six (6) count indictiment charging defendant with violations of 18 U.S.C. § § 1343, 1346, and 2 (Count I), 18 U.S.C. § § 1341, 1346, and 2 (Count II), 18 U.S.C. § 666(a)(1)(B) (Counts III and IV), and 18 U.S.C. § 1001 (Counts V and VI).

All of the charges in the indictment stem from defendant's position as a Pennsylvania state senator representing the 14th Senatorial District. The indictment alleges that, beginning in 2005, defendant received financial remuneration for helping to steer contracts to an unnamed construction company, "Company A." Defendant allegedly received gift baskets containing electronics and other items from 2005 to 2007 from "Company A" that were of such value that defendant was legally obligated to disclose them. In addition, after contracting with "Company A" to perform work on a property he owned for forty-seven thousand nine-hundred dollars ($47,900.00) in July 2006 , defendant allegedly received a payment of twenty-five thousand dollars ($25,000) in cash so that it would appear defendant paid full price for the work when in fact he received a steep discount. Then, in July 2007, "Company A" did approximately ten-thousand dollars ($10,000.00) of additional repairs to the property without billing or receiving compensation from defendant. In consideration for these financial benefits, defendant used his position as a Pennsylvania state senator to advocate for and advance projects beneficial to "Company A." This advocacy included writing to state government agencies asking them to award grants to "Company A" for a multi-million dollar construction project in Lackawanna and Luzerne counties. Defendant also allegedly attempted to conceal his financial relationship with "Company A" by filing false annual statements of his financial interests.

In February 2010, "Company A" disclosed to the federal government the payment of twenty-five thousand dollars ($25,000) cash to the defendant, the additional repair work, and the gift baskets. On February 24, 2010, a representative from "Company A", Lewis Sebia, agreed to record a conversation with defendant regarding these matters. The conversation was recorded at defendant's home. Federal investigators then used their discussions with "Company A"'s owner, Robert Mericle, and Sebia, as well as the recorded conversation, as the basis of their search warrant affidavit. On April 6, 2010, federal law enforcement officers obtained and executed a search warrant for defendant's residence.

Defendant pled not guilty to all charges at his December 15, 2010 arraignment and then filed several pretrial motions. These motions include: motion to strike surplusage and unnecessary, prejudicial portions of the indictment (Doc. 19); motion for hearing on the accuracy of transcript of recorded conversation (Doc. 21); motion for discovery and inspection of physical evidence and Brady material (Doc. 23); motion to suppress (Doc. 25); motion to produce and preserve notes, reports, and evidence (Doc. 27); motion for a Bill of Particulars (Doc. 29); and a motion for disclosure of statements pursuant to the Jencks Act and Federal Rule of Criminal Procedure 26.2 (Doc. 31).


I. Motion to Strike (Doc. 19)

Defendant's motion to strike paragraphs four through six of the indictment will be denied. Counts one and two of the indictment allege Honest Services Wire Fraud and Honest Services Mail Fraud and Mail Fraud under 18 U.S.C. § §1341, 1343, and 1346, while paragraphs four through six deal exclusively with Pennsylvania laws concerning campaign contributions and the actions of public officials. Defendant claims these paragraphs are misleading and prejudicial because defendant is not charged with violating these state laws and their inclusion in the indictment will lead the jury to believe that they can find defendant guilty if they conclude he has violated Pennsylvania law. The prosecution argues these paragraphs are necessary as they provide elements of the honest services fraud charges.

Pursuant to Fed. R. Crim. P. 7(d), "[u]pon the defendant's motion, the court may strike surplusage from the indictment or information." "The purpose of Rule 7(d) is to protect a defendant against prejudicial allegations that are neither relevant nor material to the charges made in the indictment." United States v. Alsugair, 256 F.Supp.2d 306, 317 (D.N.J. 2003). A Rule 7(d) motion is "rarely granted" as it must be ". . . clear that the allegations contained therein are not relevant to the charge made or contain inflammatory or prejudicial matter." Id.

The federal wire fraud statute provides, in relevant part: Whoever, having devised ... any scheme ... to defraud, ... transmits ... by means of wire ... in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. § 1343. Section 1346 of Title 18 elaborates on the meaning of "scheme to defraud," stating that "[f]or the purposes of this chapter, the term 'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services."

Recently, in holding that the honest services statute, 18 U.S.C. § 1346, covers only bribery and kickback schemes, the United States Supreme Court found, "[t]he 'vast majority' of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes." 130 S.Ct. 2896, 2930 (2010) (emphasis added). Here, the prosecution essentially argues that the references to the Pennsylvania statutes are necessary to explicate what the fiduciary duties defendant allegedly breached were. The Court agrees, and paragraphs four through six of the indictment will not be stricken.

II. Motion for a Hearing on Accuracy of Transcripts of Recorded Conversation (Doc. 21)

Defendant requests a hearing to determine the most accurate version of the transcript of the recorded conversation between "Company A"'s representative and defendant pursuant to United States v. Starks, 515 F.2d (3d Cir. 1975). Because this Court, as a general practice, does not allow these transcripts to be admitted into evidence, the motion will be dismissed as moot.

III. Motion for Discovery and Inspection of Physical Evidence and Brady Material (Doc. 23)

Defendant's motion for discovery and inspection of physical evidence and Brady material will be granted in part and denied in part. Defendant requests release of the following materials no later than thirty (30) days prior to the commencement of trial: (1) the pre-trial discovery pursuant to Fed. R. Crim. P. 16, along with certification from the prosecution that inquiry was made to all law enforcement authorities involved regarding the requested evidence, as well as a certification that the prosecution has complied with the requirements outlined in Deputy Attorney General David Ogden's memorandum entitled, "Guidance for Prosecutors Regarding Criminal Discovery; (2) all Brady\Giglio material in the prosecution's possession; (3) any statements made by defendant's agents pursuant to Fed. R. Crim. P. 16(a)(1)(A); and (4) the grand jury testimony of Robert Mericle and Lewis Sebia. The prosecution argues that it has complied and continues to comply with the requirements of Fed. R. Crim. P. 16, but that Fed. R. Crim. P. 16(a)(2) specifically excludes from pretrial discovery "reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case," as well as, "statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500." Further, under 18 U.S.C. § 3500(a), the government is only required to turn over Jencks material after the government witnesses' direct examination. The prosecution also argues that defendant has not pointed to any authority for the proposition that he is entitled to the requested certifications. The Court agrees with these points and will deny the requested certifications as well as the release of any evidence excluded under Rule 16(a)(2). However, the Court will order the prosecution to release any Jencks material no later than seven (7) days before the start of trial.

Regarding the Brady\Giglio material, in Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that due process requires the disclosure of "evidence favorable to an accused upon request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. The Supreme Court subsequently held that evidence which may be used to impeach the testimony of a government witness falls within the ambit of Brady when the credibility of the ...

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