SCRANTON – Attorneys for former state Sen. Raphael Musto on Friday acknowledged the appeal they filed before the Third Circuit Court of Appeals that sought to delay Musto's corruption trial likely will be dismissed.
In a court motion, attorneys John Riley and William Murray said they believe the Third Circuit Court's opinion that the appeal is not properly before the court has merit and will ultimately be granted.
The Third Circuit Court last week directed the defense and prosecution to file legal briefs explaining why they believed the court had jurisdiction to hear Musto's appeal of U.S. District Judge A. Richard Caputo's ruling that denied Musto's request to postpone his trial, which was set for Nov. 26.
In its directive, the court said it did not believe Caputo's order was appealable at this juncture in the case because it is not a final order.
Typically a judge's ruling is not appealable unless it is considered a final order that in some way disposes of the case. Musto is seeking to overturn a pre-trial ruling, which the Third Circuit Court said is a matter that is not final or otherwise appealable at this time.
Based on the belief the appeal will be dismissed, Riley and Murray filed a motion Friday seeking to separate Musto's trial on new counts that were added in a second indictment filed in October.
Musto was originally indicted in November 2010 on charges that he abused his position as a senator by accepting money and gifts from a local real estate developer. The new indictment alleges he also accepted $2,000 from a municipal official as a reward for helping a municipality obtain a state loan.
In seeking to separate the new charges for trial, Riley and Murray say prosecutors recently advised them there were approximately 75,000 pages of documents relating to the new charges that had yet to be turned over to the defense for inspection.
The attorneys said they anticipate that, should the Third Circuit dismiss their appeal, Caputo will promptly set a new trial date. They say it will be impossible for them to review the new documents in time to adequately prepare a defense to the new counts.
Caputo will review the motion and issue a ruling at a later date.