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United States of America v. Raphael Musto

November 21, 2012

UNITED STATES OF AMERICA
v.
RAPHAEL MUSTO, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are Defendant Raphael J. Musto's Motion to Dismiss Count 5 of the Superseding Indictment Based on a Violation of the Statute of Limitations (Doc. 103) and Motion to Dismiss Counts Three through Six of the Superseding Indictment (Doc. 108.). Because the conduct alleged in Count 5 of the Superseding Indictment falls outside of the statute of limitations, Defendant's motion to dismiss Count 5 of the Superseding Indictment will be granted. Because § 666 is constitutional, applies to Defendant, and does not require a quid pro quo, Defendant's motion to dismiss Counts Three through Six of the Superseding Indictment will be denied.

I. Background

On November 23, 2010, a grand jury returned a six-count indictment charging Defendant Raphael J. Musto with: one count of honest services wire fraud in violation of 18 U.S.C. §§ 1343, 1346; one count of honest services mail fraud in violation of 18 U.S.C. §§ 1341, 1346; two counts of illegal receipt of gratuities and bribes concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B); and two counts of false statements to government agents in violation of 18 U.S.C. § 1001. (Doc. 1.) Defendant appeared before Magistrate Judge Thomas M. Blewitt on December 15, 2010 and pleaded not guilty to all six counts. (Doc. 11.)

From October 20, 2011 to August 1, 2012, the government and Defendant entered into several tolling agreements through which Defendant agreed to "toll any applicable statute of limitations and waive any defenses to the filing of additional federal charges by the United States in this matter based upon laches, the assertion of the speedy trial rights, any applicable statute of limitations or any other grounds." (Doc. 104 at 1--2; Doc. 113 at 10.)

On October 17, 2012, a grand jury returned an eight-count Superseding Indictment against Defendant, charging him with two additional counts of illegal receipt of gratuities and bribes concerning programs receiving federal funds as well as the six counts charged in the original indictment.*fn1 (Doc. 81.) Defendant appeared before Magistrate Judge Malachy E. Mannion on October 24, 2012 and pleaded not guilty to all counts. (Doc. 88.)

On November 2, 2012, Defendant filed two motions seeking to dismiss the counts of the Superseding Indictment that charge violations of 18 U.S.C. § 666(a)(1)(B). Defendant moves to dismiss Count 5 of the Superseding Indictment on the grounds that it is barred by the statute of limitations. (Doc. 103.) Defendant moves to dismiss Counts 3 through 6 of the Superseding Indictment on the grounds that § 666 is unconstitutional, the Superseding Indictment fails to allege official acts by Defendant or the requisite quid pro quo necessary to establish a violation of § 666, and that the government seeks to improperly expand § 666 to cover all state employees. (Doc. 108, Doc. 109 at 2.) These motions have now been fully briefed and are ripe for disposition.

II. Discussion

A. Legal Standard

Federal Rule of Criminal Procedure 7(c)(1) provides that the indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." FED. R. CRIM. P. 7(c)(1). Federal Rule of Criminal Procedure Rule 12(b)(3)(B) permits a defendant to seek dismissal for any "defect in the indictment" prior to trial. FED. R. CRIM. P. 12(b)(3)(B). The United States Court of Appeals for the Third Circuit has summarized the standard for evaluating the sufficiency of an indictment as follows:

We deem an indictment sufficient so long as it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution. Moreover, no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.

United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007) (citations and internal quotation omitted). In addressing a Rule 12(b) motion to dismiss an indictment, "the Court must assume that the pertinent allegations of the Indictment are true." United States v. Conley, 859 F. Supp. 909, 931 (W.D. Pa. 1994) (citing Serfass v. United States, 420 U.S. 377, 391--92 (1975)).

B. Count 5 of the Superseding Indictment

Defendant moves to dismiss Count 5 of the Superseding Indictment on the grounds that it was filed beyond the five (5) year statute of limitations. Count 5*fn2 charges Defendant with ...


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