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The United States asks District Court to appoint an independent medical expert to determine whether former State Senator Raphael J. Musto is healthy enough to withstand the rigors of trial.  Musto is scheduled for trial on public corruption charges on June 4, 2012

FOR IMMEDIATE RELEASE
April 23, 2012


UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA                        )                                        NO. 3:10-CR-338
                 )
          v.                                                                  )                                       J. CAPUTO
                 )
RAPHAEL J. MUSTO,                                       )                                                                     
                               Defendant.                          )                   (Filed Electronically)

GOVERNMENT'S MOTION FOR COURT APPOINTED EXPERT
TO CONDUCT MEDICAL EXAMINATION OF DEFENDANT AND
RENDER EXPERT OPINION

     AND NOW, comes the United States of America, by and through its attorneys, Peter J. Smith, United States Attorney for the Middle District of Pennsylvania, and Michael A. Consiglio, Assistant United States Attorney, who respectfully move the court pursuant Federal Rules of Evidence Rule 706, for a court appointed expert to conduct medical examination of the defendant and render an expert opinion regarding his ability to withstand trial and, in support thereof, aver as follows:

     1. On November 23, 2010, a grand jury issued a six-count indictment charging Raphael J. Musto, the defendant, with honest services fraud, corrupt receipt of bribes/rewards for official action, and false statements. (Doc. 1.)

     2. Following the submission and resolution of pretrial motions, trial was set for November 1, 2011. (Doc. 46.)

     3. On September 8, 2011, the defense filed a motion to continue the trial for three months to which the government concurred. (Doc. 49.) In the motion, the defense cited to the complexity of the trial preparations as a reason to postpone the trial, as well as the seriousness of the defendant's medical condition and multiple health related issues. (Doc. 49.) The court granted the motion and scheduled trial for February 1, 2012. (Doc. 50.)

     4. On November 18, 2012, counsel for the defendant filed a motion to continue the jury trial date, to which the government concurred. (Doc. 52.) Again, the motion referenced the defendant's continuing health issues resulting in serious impairment of his present ability to assist in his defense and participate in trial. (Doc. 52.) The court granted the motion and scheduled trial for June 4, 2012. (Doc. 54.)

     5. In support of these motions, counsel for the defense has provided the government with various medical records supporting their representations. In addition, the defense has provided the government with expert opinion reports from Cataldo Doria, MD, PhD, FACS.

     6. In conjunction with this motion, the government is filing a Motion to Seal Attachments A and B of Government's Motion for Court Appointed Expert to Conduct Medical Examination and Render Expert Opinion. Attachment A is Dr. Doria's expert report from November 2011. Attachment B is Dr. Doria's Supplemental Expert Report dated April 12, 2011.

     7. These expert opinion reports concern the medical personnel's diagnosis and treatment of an aneurismal sac and permanent and ongoing impairment of the function of an organ, namely the liver. Per the most recent expert report, the opinion of the defense's expert, based on a multitude of factors and findings, is that "Mr. Raphael Musto is too sick to withstand the rigor of trial preparation and the stress of the trial itself." Dr. Doria has opined that "based on a reasonable degree of medical certainty, any complications in Mr. Musto's fragile health condition can be fatal."

     8. In light of the defense expert's prognosis and its continuing impact upon the trial of the present charges, the government requests that the court appoint an expert pursuant to Rule 706 of the Federal Rules of Evidence to conduct an examination of the defendant and render an expert opinion of the defendant's ability to assist in his defense and to withstand the rigors of trial preparation and trial.

     9. Upon completion of the expert's report, the government requests that the court hold a hearing to determine an appropriate trial date or course of action.

     10. Counsel for the defendant does not object to the motion requesting an appointment of an expert for such examination.

     WHEREFORE, the United States of America prays that this Honorable Court grant the government's motion for appointment of expert to conduct a medical examination of the defendant and render an expert opinion as to his ability to assist in his defense and withstand the rigors of trial preparation and trial.

Respectfully submitted,

PETER J. SMITH
UNITED STATES ATTORNEY

/s/ Michael A. Consiglio
Michael A. Consiglio
Assistant U.S. Attorney
228 Walnut Street, P.O. Box 11754
Harrisburg, PA 17108
717/221-4482 (Office) 717/221-2246 (Fax)
MICHAEL.CONSIGLIO@USDOJ.GOV
Bar No. PA-76103

Dated: April 23, 2012

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