Merlino Wins On A TKO

By George Anastasia
For Bigtrial.net

Joseph "Skinny Joey" Merlino was sprung from jail last month after a appellate court panel vacated a U.S. District Court order sentencing him to four months in prison for violating the terms of his supervised release.

This morning the panel issued a detailed report explaining its findings. Merlino's release, on April 24, came with only 10 days remaining on his four-month sentence.

"They owe me four months," Merlino quipped during a phone interview this afternoon, adding, "I hope they just leave me alone. I'm not doing anything wrong."

Last month, when the appellate court announced it was vacating the lower court order that sent Merlino back to jail, his lawyer, Edwin Jacobs Jr. declared that "my client has served a four-month sentence for doing absolutely nothing wrong."

But that's not exactly the legal takeaway from the split decision of the appellate court that was made public today.

Merlino, who is back in Boca Raton where he is the front man for a posh Italian restaurant named -- what else? - MERLINO'S, won on a technicality.

The appellate court never took up the broader defense argument that there was not sufficient evidence to support the allegation that Merlino had knowingly consorted with fellow South Philadelphia mobster John Ciancaglini in a Boca Raton cigar bar while on supervised release.

Instead, in a split 2-to-1 decision, the appellate judges found that Merlino had not been served a summons prior to the expiration of his three-year probation period and as a result, the U.S. District Court in Philadelphia no longer had jurisdiction.

Timing is everything. And in this case, the feds dropped the ball.

The irony is that they had plenty of time to meet the deadline, but opted instead to wait until the last minute to cite Merlino, a strategy that has been employed in other cases in the past and one that defense attorneys and defendants deem petty and personal.

"They wanted to stick it up my ass," Merlino said of the decision to file a probation violation charge literally at the 11th hour.

The background:

Merlino was convicted of racketeering in U.S. District Court in Philadelphia in July 2001 and subsequently sentenced to 14 years in jail. The conviction was built on gambling and extortion charges and also the receipt of stolen property. Among other things, Merlino was convicted of dealing in tractor-trailer loads of goods taken from terminals along the Delaware River.

He and his co-defendants beat several murder and attempted murder charges at that trial. Merlino was also found not guilty of drug dealing. Still, 14 years was a steep price to pay for what Jacobs called a major victory over the feds at the time.

Merlino was also found not guilty of another federal murder charge in a trial in Newark after the Philadelphia case. There are those in the underworld and in the defense bar who believe the feds are still bristling over the fact that Merlino, in their minds at least, has gotten away with murder.

That might explain the timing of the parole violation charge that subsequently blew up in their faces.

Merlino, 52, relocated to Florida after he was released from prison and started his three-year supervised release sentence on Sept. 7, 2011. He has told anyone and everyone that he has no intention of returning to South Philadelphia and that his past life in the underworld is, just that, in the past.

In June, according to court documents, Merlino was spotted at a restaurant and a cigar bar in Boca Raton in the presence of convicted felons, a violation of the terms of his supervised released. But it wasn't until August 26 that an order was presented in U.S. District Court by his parole officer asking that his probation be revoked.

At that point, Merlino had just 11 days remaining on his parole period. It was, figuratively,  a move to slam the jail door shut just as he was about to leave. On Sept. 2, his lawyer, Jacobs, was notified by phone that the revocation petition had been filed. The notification was made by the judge's clerk. 

But an official notice and summons was not issued until Sept. 16, ten days AFTER Merlino's three-year probationary period had ended. Because the feds waited until the last minute, the gate was already closed. That was the essence of the appellate court ruling made public this week.

Third Circuit Appellate Court Justices Thomas L. Ambro and Thomas I. Vanaskie, in the majority opinion, ruled that the Sept. 2 notice was not the same as the issuance of a summons. In legal terms, to "issue," the judges said, means "to put forth officially."

The summons on Sept. 16 was too late, they ruled.

Justice Patty Shwartz, in a dissent, agreed with the prosecution argument that the telephonic notice and Jacobs subsequent request for a delay in a hearing for scheduling reasons was "functionally equivalent to and served the purpose of a summons."

Merlino said again today that he met Ciancaglini by chance that night in Havana Nights, a popular  cigar bar, and that all he did was say hello. He said had he thought it would have jeopardized his release from probation, he would have reported the encounter.

"I was in a cigar bar, yeah," he said. "I saw Johnny. I said, 'How ya doin'?' Then I walked away. Come on. What the fuck? That's associating?"

Merlino is now back in Florida, although he may be heading north to spend some time at the Jersey Shore this summer.

"Sure, I'll visit," he said of possible returns to the Philadelphia area. "Hello. Goodbye."

But there is no way, he said, that he would consider coming back permanently. He is happy to have all of this behind him and is no longer on supervised release, meaning he can go wherever he wants and can associate with whomever he likes.  Most of that he intends to do in the Sunshine state.

Jacobs said in a statement released last month that enough is enough.

"Maybe now federal law enforcement will stop following him to cigar bars and restaurants and spend that same time investigating terrorist organizations," the lawyer said.

George Anastasia can be reached at George@bigtrial.net.