Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA CRIMINAL ACTION v. No. 3:10-cr-338 (Judge A. Richard Caputo) RAPHAEL J. MUSTO Defendant. REPLY BRIEF IN SUPPORT OF DEFENDANT, RAPHAEL J. MUSTO S, RENEWED AND AMENDED MOTION TO CONTINUE THE TRIAL INDEFINITELY Raphael J. Musto ( Musto ), by and through his undersigned counsel, and pursuant to the Fifth Amendment s Due Process Clause and the Sixth Amendment s guarantee of a fair trial, respectfully submits this reply brief in support of his Renewed and Amended Motion to Continue the Trial Indefinitely ( Renewed and Amended Motion to Continue ). As set forth at length in the memorandum of law in support of the Renewed and Amended Motion to Continue, Musto is not physically competent to stand trial. Musto s grave health issues, including non-alcoholic cirrhosis of the liver, an inoperable thoracic aneurysm, presenting and decreased cognitive abilities prevent him from a full defense, from being present at all critical stages of an expected multi-week trial, from avoiding the imminent risk of serious bodily injury and death which would necessarily
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 2 of 8 come with trial preparation and trial itself, and from assisting his counsel in preparing for trial and during trial itself. Accordingly, the Fifth Amendment s Due Process Clause and the Sixth Amendment s guarantee of a fair trial require continuance of the trial indefinitely. In its response to Musto s Renewed and Amended Motion to Continue, the government addresses the Doran Factors in discussing Musto s competence to stand trial. However, the government does not contend that Musto is physically competent to stand trial. Rather, the government concurs with Musto that this Court should hold a hearing to determine whether Musto is competent to withstand trial and states that Musto bears the burden of proving that he is not physically competent. Govt. Opposition at 11. In connection with the Doran factors, the government argues that a hearing is necessary to assess the first (Musto s medical condition) and second (Musto s activities outside the courthouse) Doran factors. In connection with the third factor (measures to minimize the risks to Musto s health) the government suggests that the Court can explore some measures to alleviate Musto s fatigue. The government argues that the fourth (the temporary or permanent character of the physical problem) and fifth (the magnitude and seriousness of the case) Doran factors weigh in favor of denial of the motion to dismiss. Govt. Opposition at 10-11. The 2
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 3 of 8 government s position regarding the Doran factors will be discussed below. The government contends that the expert opinions presented regarding Musto s physical condition differ substantially from the expert opinion offered by the court s expert and therefore, the Court should hold a hearing. Govt. Opposition at 6. Other than Dr. Reddy, all of the experts, including the government s expert, agree that Musto is not competent to withstand the rigors of trial preparation and/or trial. Only on cross-examination of Dr. Reddy at a hearing will the defense be able to explore the possible reasons for the disparity between his conclusion and the conclusion of all of the other experts as to Musto s ability to assist his counsel in preparing for trial and withstanding the rigors of trial. At this point, Dr. Reddy s report cannot serve as a basis to conclude that Musto is physically competent to stand trial. Dr. Reddy issued his report approximately 18 months ago, without examining or even meeting with Musto. Dr. Reddy merely concluded, apparently based on an examination of some of the relevant documents, that he did not see a functional disability that would preclude Musto from attending a trial. As will be demonstrated at the anticipated hearing, Dr. Reddy s conclusions are contradicted not only by all of the other experts, but also by Musto s medical records. 3
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 4 of 8 Subsequent to Dr. Reddy s report, Musto has (1) been hospitalized on two different occasions; (2) been diagnosed with an inoperable thoracic aneurysm; (3) experienced further physical manifestations of the cirrhotic condition including substantial decrease in blood platelet level to critically low levels, significant weight loss, and an increase in INR to above-average level; (4) experienced slurred speech, confusion and dizziness; and (5) experienced worsening cognitive impairment. The government argues that Dr. Schreibman, the government s witness, did not specifically render an opinion regarding the likelihood of life-threatening complications that could result from trial preparation and trial itself. Govt. Opposition at 7. However, there is no reasonable way to read Dr. Schreibman s conclusions that Musto s clinical status remains very tenuous and that Musto is not capable of withstanding the rigors of trial, except that these conclusions are consistent with Dr. Doria s conclusions as to the potential life threatening complications. Moreover, it should also be emphasized that the potential life-threatening complications is just one aspect of the basis for the continuance of trial. Dr. Schreibman concluded that Musto s clinical status remains very tenuous and Musto would not be able to withstand trial. Moreover, Dr. Doria s conclusions regarding the life-threatening complications, if Musto were 4
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 5 of 8 compelled to go to trial, were not contradicted by either Dr. Reddy or Dr. Schreibman. The government also focuses on Dr. Schreibman s contention that his conclusion that Musto is not able to assist his counsel in preparing for trial and withstand the rigors of trial is independent of his liver disease. Contrary to the government s argument, Dr. Schreibman concluded that the liver condition prevented Musto from assisting his counsel in preparing for trial and withstanding the rigors of trial. In addition, Dr. Schreibman concluded that Musto s other medical conditions independent from the liver disease prevent him from assisting counsel in preparing for trial and withstanding the rigors of trial. This additional conclusion does not negate his ultimate conclusion - Musto cannot withstand trial in this matter. Moreover, as set forth at length in the memorandum of law in support of the Renewed and Amended Motion to Continue and Dr. Doria s most recent expert report, Musto s condition has continued to deteriorate as the liver disease has worsened. In connection with the second Doran Factor, Musto s activities outside the courthouse, counsel for Musto intends to submit, in addition to the information set forth in the Memorandum of Law in Support of the Renewed and Amended Motion to Continue, an affidavit to supplement the Renewed and Amended Motion to 5
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 6 of 8 Continue, which will address Musto s recent day-to-day functional ability. In connection with the third Doran factor, contrary to the government s suggestion, there are no suitable measures that can be undertaken to minimize the risk to Musto s health particularly given the potential of the rupture of the thoracic aneurysm and/or rupture of gastro-esophageal varices. Also, the extensive periods of fatigue Musto suffers and the inability to forecast those periods of extreme fatigue compel continuance of the trial indefinitely. See United States v. Gunter, Crim. No. 12-394-4, 2013 U.S. Dist. LEXIS 158555, *2, (EDPA Nov. 5, 2013)(Bartle, J.). The court concluded that the defendant was physically incompetent to stand trial and granted defendant s motion to continue trial indefinitely where Gunter underwent dialysis three days a week for four and one-half hours a day. Id. at *7. Moreover, unlike Musto, Gunter knew for certain that he would be available for trial on those days when he did not have dialysis treatment. Here there is no way of predicting day-to-day whether Musto will be capable of attending and participating in trial. In connection with the fourth Doran Factor the temporary or permanent character of the medical problems as set forth at length in the memorandum of law in support of the Renewed and Amended Motion to Continue, Musto s condition has continued to worsen and admittedly, it will not improve. However, the permanent 6
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 7 of 8 nature of Musto s condition cannot serve as a basis to deny his Motion to Continue because Musto is unable to adequately assist his counsel in preparing for trial or withstand the rigors of trial. Finally, in connection with the fifth Doran Factor, Musto does not dispute that there is a public interest in prosecuting a case that involves alleged political corruption and that this factor weighs against continuance of the trial. However, as the Court noted in Gunter, despite the seriousness of the offense in Gunter and here, this factor is not sufficient to outweigh the other Doran factors which weigh heavily in favor of continuance. WHEREFORE, for the reasons set forth herein and in the memorandum of law in support of the Renewed and Amended Motion to Continue the Trial Indefinitely, Musto respectfully requests that this Court continue trial indefinitely. Dated: December 9, 2013 Respectfully submitted, jer53 JOHN E. RILEY (jer53) Attorney ID No. 22504 WILLIAM J. MURRAY, JR. (wm409) Attorney ID No. 73917 VAIRA & RILEY, P.C. P.O. Box 1325 Paoli, PA 19301 (215) 751-2700 Counsel for Defendant, Raphael J. Musto 7
Case 3:10-cr-00338-ARC Document 137 Filed 12/09/13 Page 8 of 8 CERTIFICATE OF SERVICE I, John E. Riley, hereby certify that on December 9, 2013, a true and correct copy of Defendant Raphael J. Musto s Reply Brief in Support of his Renewed and Amended Motion to Continue the Trial Indefinitely has been served through the ECF system and by regular mail upon the following: Michael A. Consiglio, Esquire Assistant United States Attorney U.S. Attorney s Office Ronald Regan Federal Building 228 Walnut Street, Suite 220 Harrisburg, PA 17108 jer53 John E. Riley, Esquire 8