Beloved. Civic-minded. Allegedly corrupt.
Whatever observers thought of former state Sen. Raphael J. Musto, he passed beyond earthly justice Thursday, leaving a federal criminal case against him unsettled with his death. The fate of wealthy developer and alleged co-conspirator Robert Mericle, however, remains very much in human hands.
U.S. District Judge Edwin M. Kosik is scheduled to sentence Mericle today in connection with a separate corruption case. The Shavertown businessman is due to appear before Kosik at 10 a.m. in Scranton.
After years of delays, the apparent resolution of both men’s cases comes little more than a day apart.
One week before his scheduled retirement in November 2010, Musto was indicted by a federal grand jury on charges of accepting at least $35,000 and other gifts from a construction contractor who developed various properties in Luzerne and Lackawanna counties.
Musto allegedly accepted the cash and other items of value from the contractor as part of a scheme designed to secure his continued support of various construction projects, according to the U.S. Attorney’s Office. Musto’s attorneys, John E. Riley and William J. Murray, have previously identified the contractor as Mericle.
The retired lawmaker pleaded not guilty.
The indictment also alleges that Musto accepted thousands of dollars in cash from another unnamed individual affiliated with Northeast Pennsylvania municipal authorities. Musto allegedly accepted those cash payments as a reward for having helped the municipal authorities obtain loans and grants.
Musto sought an indefinite continuance of the trial, contending health issues and mental deterioration made him unable to withstand a trial or participate in his own defense. His attorneys cited an aortic aneurysm and non-alcoholic cirrhosis.
In January, U.S. District Judge A. Richard Caputo ruled Musto was physically able to go to trial but mentally incompetent. Musto was ordered to report to Federal Medical Center at Butner, 12 miles north of Durham, N.C., for evaluation.
But his health deteriorated rapidly. On March 7, Musto’s attorneys said, a doctor at FMC Butner informed Musto’s granddaughter that a bone marrow biopsy resulted in a diagnosis of Non-Hodgkin’s Lymphoma, or lymph cell cancer, and that it was his belief chemotherapy should be started as soon as possible.
On April 4, U.S. District Judge A. Richard Caputo allowed Musto to return home to Pittston Township for evaluation by family physicians.
Prosecuting and defense attorneys this week agreed to ask a federal appellate court to put Musto’s appeal of various court rulings in his corruption case on hold for two months, in light of his rapidly deteriorating health.
The U.S. Attorney’s Office filed a “motion to stay briefing schedule” Monday with the U.S. Third Circuit Court of appeals. The motion noted Musto’s attorneys consented to the request.
The 85-year-old Musto died at home Thursday morning, his niece, former Luzerne County District Attorney Jackie Musto Carroll, confirmed.
Amanda L. Endy, secretary to the U.S. Attorney in Harrisburg, said Thursday the office had no comment regarding Musto.
Defense attorney Riley did not return a reporter’s message on Thursday. He did write a letter to Caputo, however, reminding the judge that his April 4 order directed a status report on Musto be filed within 30 days of his return home from North Carolina.
“Given Mr. Musto’s passing this morning, it renders the need for a further report to the court moot,” Riley wrote.
Mericle pleaded guilty on Sept. 2, 2009, to a federal charge of withholding information on a crime. He was accused of helping ex-county judges Mark Ciavarella and Michael Conahan conceal the source of more than $2 million in “finder’s fees” paid to them by Mericle and attorney Robert Powell in connection with the construction of two child care centers built by Mericle’s company.
Paying the fees was not illegal, but at Ciavarella’s request Mericle sent them through a third party — Powell, the former co-owner of the centers. Mericle’s crime was not disclosing this action when questioned by federal authorities.
Under Mericle’s plea deal, he was expected to cooperate with federal prosecutors with other cases, including the bribery case against Musto.
There has been much back-and-forth over Mericle’s potential sentence in the years that followed, as his fate hung in the balance while Musto’s case dragged on.
In 2009, it was reported that the charge against him carries a maximum sentence of three years in prison, but that Mericle likely faced no more than four to 10 months behind bars based on federal sentencing guidelines, and that he could be eligible for probation if he continued to cooperate with prosecutors.
In January 2011, federal prosecutors amended the deal, calling instead for 12 to 18 months in prison. That followed Mericle’s implication in other corruption cases, including alleged dealings with Musto.
After the ailing Musto’s trial was put on hold, Kosik on Jan. 8 set a Feb. 26 sentencing date for Mericle. He appeared in court that date for a hearing regarding a deal reached between the government and defense, and sentencing was rescheduled until today.
Federal prosecutors in February said they would recommend a minimum sentence — essentially six to 12 months — and would not make any recommendation as to how that sentence should be served.
Defense attorneys David Zinn and William Winning, looking for a shorter sentence, pointed out that in addition to testifying against Ciavarella, Mericle provided “valuable information that has resulted in a number of additional prosecutions and guilty pleas,” including the case against Musto.
They also noted that while sentencing guidelines discourage against considering good works to lower a sentence, the courts sometimes allow it for defendants such as Mericle, who over the past 15 years donated more than $19 million — more than 20 percent of his gross income — to non-profit causes.
U.S. Attorney Peter Smith cautioned in court documents that “good works should not appear as a shield or cloak to avoid the consequences of criminal conduct.”
Whatever the prosecution and Mericle’s lawyers agreed to, Kosik made it clear at the Feb. 26 hearing that he reserves the right to rule as he sees fit.
“The court is not completely bound by the plea agreement, you understand?” the judge asked Mericle.
“Yes, your honor,” Mericle quietly replied.