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Rejecting a mobster’s double jeopardy argument, the 3rd U.S. Circuit Court of Appeals has ruled that Philadelphia Mafia boss Joseph “Skinny Joey” Merlino can be tried again in New Jersey on a murder charge that a Philadelphia jury last year found “not proven” because there is no way to know whether the jury actually acquitted Merlino on the charge or was simply hung. Third Circuit Judge Jane R. Roth found that because the Philadelphia jury was given faulty instructions during its deliberations, it may have checked off the “not proven” box on the verdict form even though it had never reached a unanimous verdict on the charge that Merlino had participated in the murder of reputed Mafia captain Joseph Sodano. “Despite the notations on the special verdict sheet, Merlino cannot prove that the jury unanimously, or even by a majority, acquitted him of participation in Sodano’s murder, and thus he cannot foreclose litigation of that issue,” Roth wrote in a seven-page opinion in U.S. v. Merlino. Roth was joined by 3rd Circuit Judge Marjorie O. Rendell. But in a spirited dissent, 3rd Circuit Judge Richard L. Nygaard said he would have tossed out the New Jersey indictment on double jeopardy grounds. “Looking behind jury verdicts to reconstruct the jury’s thinking, or attempting to determine how it may have reached consensus, is pure speculation and contravenes our fundamental constitutional heritage of treating jury verdicts as unimpeachable,” Nygaard wrote. The Double Jeopardy Clause, Nygaard said, was designed to ensure that a defendant “does not have to face the burdens and hazards of trial again and again, especially when the government has obtained the benefit of a dry run.” To uphold that principle, Nygaard said, Merlino “should not be punished for a quirky, and perhaps erroneous, jury instruction.” Although Merlino and six of his cohorts were convicted on RICO charges in July 2001, their lawyers quickly hailed the verdict as a significant win because the jury cleared them on three murders and two attempted murders. But just one month later, Merlino was indicted in New Jersey on a new RICO charge — a so-called “VICAR” offense which prohibits the commission of violent crime in aid of racketeering — that again cited the Sodano murder. Sodano’s murder reportedly came after he refused to pay tribute from his enormous gambling profits to the Philadelphia mob hierarchy. Reports were that Sodano had reduced his $4,000-a-month tribute to $1,200 after former Philadelphia Mafia boss Nicodemo “Little Nicky” Scarfo was jailed and later stopped making payments altogether. Sodano also refused to attend a mob meetings when called. He was shot twice in the head in a Newark, N.J., parking lot. Merlino’s lawyer, Christopher D. Warren, moved for dismissal of the New Jersey indictment on double jeopardy grounds. Because that VICAR offense requires proof of an element that the RICO offense does not, Warren conceded that it was a different offense for the purposes of the Double Jeopardy Clause. But he argued that the Double Jeopardy Clause also embodies principles of collateral estoppel that can bar the relitigation of an issue actually decided in a defendant’s favor by a valid and final judgment. Warren argued that collateral estoppel principles required the dismissal of Merlino’s New Jersey indictment because the Pennsylvania jury had entered a valid and final judgment, effectively acquitting him of Sodano’s murder. But Senior U.S. District Judge Dickinson R. Debevoise of the District of New Jersey disagreed and held that collateral estoppel did not apply because U.S. District Judge Herbert Hutton’s instructions to the jury made it impossible to determine whether the jury unanimously acquitted Merlino of involvement in Sodano’s murder. In the Philadelphia trial, the jury was instructed that to find a defendant guilty of a RICO offense, it must agree that he had committed at least two racketeering acts or one collection of unlawful debt. In its second day of deliberations, the jury sent a question to Hutton that read: “Once we determine that the defendant has committed one unlawful collection of debt or two or more racketeering acts, do we need to decide proven or not proven on all the racketeering acts?” Hutton answered “Yes.” On the fourth day of deliberations, the jury asked: “If, on a given racketeering act that has no bearing on the count decision we cannot come to a unanimous decision, is it within the law to unanimously decide that the act is ‘not proven’?” Over the objections of the government, Hutton again answered: “Yes.” The jury ultimately found Merlino guilty of racketeering and found that the government had proven 11 racketeering acts, including extortion, bookmaking and receiving stolen property. But the remaining racketeering acts, including the Sodano murder, were checked by the jury as “Not Proven.” In his latest appeal, Merlino argued that the jury’s verdict effectively acquitted him of the Sodano murder. But prosecutors argued that Hutton’s supplemental instructions allowed the jury to mark the special verdict “Not Proven” as to Merlino’s involvement in Sodano’s murder even though it may have been undecided on that charge. Roth sided with the government, saying “we do not know if the jury had unanimously found Merlino’s participation in the Sodano murder acts to be ‘Not Proven’ prior to the supplemental instructions or if, after the supplemental instructions, despite a vote count of anywhere from 11 to 1 for acquittal to 11 to 1 for conviction, the jury decided to mark those acts ‘Not Proven.’” Merlino has the burden of establishing that collateral estoppel applies, Roth said, and he cannot meet the burden without proof that the jury was unanimous. Hutton’s faulty instructions, Roth said, “makes the jury’s vote ambiguous because we cannot tell from the face of the verdict sheet whether the vote was unanimously ‘Not Proven’ or whether the jury unanimously decided that they were unable to reach a unanimous decision as to ‘Proven’ or ‘Not Proven,’ i.e., whether they were ‘hung’ on that issue.” But Nygaard said the majority was improperly relying on speculation about the jury’s deliberations and ignoring its written verdict. “The jury decided that the predicate acts were ‘Not Proven.’ I would accept that verdict as the jury’s adjudication of the murder charges, and prohibit that issue from being raised against Merlino again,” Nygaard wrote.

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