United States District Court, Eastern District of Pennsylvania
April 26, 2001
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Robert F. Kelly, J.
Presently before the Court is Leonard A. Pelullo's ("Pelullo")
Petition under 28 U.S.C. § 2255 challenging his 1995 convictions.
In February 1991, the Grand Jury returned a multi count indictment
against Pelullo charging him with wire fraud and racketeering. The
Indictment averred that Pelullo had conducted several fraudulent schemes
to divert corporate funds to his personal use. The fraudulent diversions
included a February 25, 1986 wire transfer of $114,000 from a corporate
bank account to the Palm Beach Heights Development Corporation ("PBH") to
a bank account in Philadelphia controlled by Pelullo. The fraudulent wire
transfer was charged as a wire fraud violation (Count 54) and a
racketeering act ("RA 60") in the racketeering count (Count 55).
At trial, in June of 1991, the Government's evidence established that
Pelullo had diverted the $114,000 from the PBH account to repay a
personal debt he owed to Anthony DiSalvo, a loan shark associated with the
Philadelphia Mafia. The Government's evidence showed that Pelullo had met
with Nicodemo Scarfo and Phillip Leonetti, members of the Philadelphia
Mafia at Scarfo's residence in Florida to discuss repayment of the debt
Pelullo owed to the loan shark. According to Leonetti, who testified for
the Government, this meeting occurred after Christmas Day of 1985, but
before a date in the early part of January 1986 when Scarfo and Leonetti
returned to Philadelphia. The Jury convicted Pelullo of Count 54 and
Count 55, finding that RA 60 had been established. On appeal, the United
States Court of Appeals affirmed the conviction on Count 54, but vacated
the conviction on Count 55 and ordered a new trial. See United States v.
Pelullo, 964 F.2d 193 (3d Cir. 1992).
In October 1994, the Government produced to Pelullo copies of
surveillance logs of physical surveillance conducted at Scarfo's Florida
residence for the period January 1 through January 31, 1986. (Defense
Exhibit No. 1). The Government also disclosed that surveillance had been
conducted at Scarfo's residence on December 27, 28 and 29, 1985. (Defense
Exhibit No. 2). Following a retrial in January 1995, a jury convicted
Pelullo of Count 55, finding that RA 60 had been established, and
multiple wire fraud counts. The Third Circuit Court of Appeals affirmed
these convictions. See United States v. Pelullo, 173 F.3d 131 (1999).
Pelullo filed a prior petition under 28 U.S.C. § 2255 alleging that
Count 54 should be vacated because the Government had failed to produce
three pieces of evidence, including the surveillance logs, which the
Government turned over to him in October 1994, which constituted
exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) that
should have been turned over to him before the 1991 trial. The Third
Circuit vacated the conviction on Count 54. See United States v.
Pelullo, 105 F.3d 117 (1997).
PELULLO'S JANUARY 21, 1998 § 2255 PETITION
This present petition challenges the 1995 convictions. The hearing on
this petition was delayed because Pelullo was in federal custody in the
state of Florida awaiting trial on a separate federal criminal
indictment. Pelullo, and his counsel, requested that the hearing be
continued until such time as he could be present. Because this Court is
aware that Mr. Pelullo has always taken an active part in his various
court proceedings, I agreed. When Pelullo finally became available, this
Court, after consultation with the attorneys, scheduled a hearing for
August 24, 2000.
On August 11, 2000, Pelullo filed a motion seeking court-authorized
discovery in connection with his § 2255 Petition, which at that point
had been pending for thirty-two (32) months. He also requested an
indefinite continuance of the hearing scheduled for August 24, 2000 so
that he could search for additional surveillance material. On August 22,
2000, this Court denied Pelullo's motion for discovery and a
continuance. At the August 24, 2000 hearing, counsel for Pelullo called
Stephen Bertucelli to testify regarding the issue of surveillance of
Scarfo's residence and produced exhibits relating to that issue. Although
Pelullo was present at the hearing, he did not testify.
The Petition alleged that the Government failed to produce the
following items: (a) surveillance records of Scarfo's residence; (b) an
FBI Form 302 Report by Special Agent Gary Scalf ("the Scalf Report"); (c)
information about Government payments to Leonetti; and (d) 37 additional
pieces of evidence. Pelullo alleged that each of these items constituted
Brady material. See Petition at 5-7.
On March 26, 1998, the Government filed its response to Pelullo's
Petition opposing his contention that the Government had failed to
produce Brady material. At the conclusion of the August 24, 2000 hearing,
Pelullo withdrew his contention that the Government had failed to produce
37 additional items of alleged Brady material. (Tr. at 96). Pelullo also
acknowledged that he was not pursuing the claims that the Government had
failed to produce the Scalf report and the information regarding payments
to Leonetti. Id. Pelullo's counsel also acknowledged that his Brady claim
was limited to specific items: an FBI Form 302 Report prepared by Special
Agent Richard McKeen and a surveillance report prepared by Pennsylvania
State Trooper Joseph P. Moran. Pelullo also asserted that any
surveillance records revealed by these reports, which had not been
produced, would also constitute Brady evidence.
PELULLO HAS FAILED TO ESTABLISH THAT HE DID NOT POSSESS THE McKEEN
AND MORAN REPORTS PRIOR TO OR DURING THE 1995 TRIAL.
At the evidentiary hearing, Pelullo failed to offer any evidence
as to when he received those reports. At that hearing, the Court
asked the following question:
THE COURT: When did you get Moran's report? Do you know the date?
MR. WERBEL: I do not have the date, Your Honor. My understanding is
that it was at some point this year, earlier this year we received Agent
Moran's report from another attorney that had been given it from the
U.S. Attorney in their case.
THE COURT: Okay. And the other, McKeen?
MR. WERBEL: The McKeen report was part of our original Section 2255
that was filed, and we've had that, and that was also Your Honor from
another attorney that received it from a different U.S. Attorney in a
The only other references to this issue were the following:
Pelullo's counsel represented at the hearing that the Moran report was
received on January 28, 2000, from a defense attorney in another matter.
(Tr. at 81-82);
Pelullo's counsel represented in his Proposed Findings of Fact that
Pelullo received the Moran report from another defense attorney in
January of 2000;
Pelullo's counsel represented in his Proposed Findings of Fact that
Pelullo received the McKeen report from Robert Simone but does not state
when he received it.
This is a uniquely important issue in this case because we know that
counsel for Pelullo has represented that Pelullo obtained the McKeen
report from Robert Simone. This is the same source from whom Pelullo
obtained the Kurtz memorandum, a document that was part of the basis for
Pelullo's first Section 2255 Petition. On March 8, 1993, Pelullo filed a
Motion for a New Trial based on newly discovered evidence, in which
Pelullo's counsel stated: "he obtained the [Kurtz] memorandum from the
defense in the case of United States v. Simone and DiSalvo sometime
during the second [Pelullo] trial." Motion at 4. Since Pelullo obtained
discovery material relating to the government's proof of the DiSalvo
transaction from Simone in January of 1993, and since Pelullo has
represented that he obtained the McKeen report from the same source but
without specifying when he received it, the reasonable inference is that
Pelullo could have obtained the McKeen report from Simone as early as
January 1993. It is crucial to Pelullo's claim that he establish that he
did not possess this material prior to or during the 1995 trial, and he
has failed to do so. In the reply to the Government's position on this
point, Pelullo's counsel attempted to remedy this failure by introducing
arguments of counsel about the circumstances of how and when Pelullo
obtained these materials. See Reply at 12-13. I find that arguments of
counsel in a legal memorandum do not constitute competent legal
The Moran report was prepared by a Pennsylvania State Trooper from his
own observations and from reports in the custody of the Metropolitan
Organized Crime Intelligence Unit ("MOCIU"). I have reviewed the Moran
report (Defense Exhibit 3) and compared it to the surveillance logs and
disclosures made to Pelullo during the 1995 trial (Defense Exhibit 1,
2). I find that the Moran report is a partial summary of the much more
detailed information contained in the disclosures made to Pelullo before
the 1995 trial. The Moran report does not identify any surveillances or
results of surveillances that were not disclosed to Pelullo before the
I find that Pelullo has failed to establish that the McKeen report and
the Moran report were suppressed within the meaning of Brady v.
Maryland, and has, therefore, failed to establish a Brady violation. I
find also that Pelullo has failed to establish that the Moran report was
a document within the possession or control of the Government, subject to
disclosure under Brady. Trooper Moran was a Pennsylvania State Trooper.
His report indicates that he was participating in the surveillance of the
Scarfo house in connection with a separate investigation of Joseph
Pungitore. See Defense Exhibit 3, at 1. The McKeen report identifies the
agencies participating in the surveillance, but does not identify the
Pennsylvania State Police as one of the participating agencies. See
Defense Exhibit 4, at 1. There has been no evidence produced showing that
the Moran report was in the possession and control of the Government. The
Court finds, therefore, that Pelullo has failed to establish that the
Moran report was a document within the possession and control of the
Government or any agency participating in the investigation.
PELULLO HAS FAILED TO ESTABLISH THAT THE McKEEN AND MORAN
REPORTS WERE MATERIAL TO HIS DEFENSE.
In October of 1994, the Government produced surveillance logs of
Scarfo's residence that covered the period from January 2, 1986 through
January 31, 1986. (Defense Exhibit 1). In addition, the Government
disclosed that surveillances were conducted of Scarfo's house on December
27, 28, and 29, 1985 (Defense Exhibit 2). I have reviewed the
surveillance records designated Defense Exhibit 1, and I note that of the
persons observed on the dates of January 2, 4, and 5, 1986, there are
dozens with the notation "WM", which means "white male," seen arriving or
leaving the residence. Some notations indicate that a photograph was
taken. I made a rough count of the unidentified white males arriving
during the surveillance of January 4, 1986. From that count, I would say
that there were at least 40 unidentified white males seen arriving or
talking at those premises. This figure does not include unidentified
white males who arrived in automobiles where the license numbers were
recorded, nor does it include notations of unidentified white males
leaving the premises. In reviewing this surveillance log for January 2,
1986, I note that during the relatively short period that it was
conducted, five unidentified white males arrived in vehicles where the
license numbers were not recorded, and two other vehicles arrived where
the license numbers were recorded but each vehicle contained three
unidentified white males. The license numbers of those vehicles might
lead to the identification of one of the males in each car, but not to
the other four. Therefore, in that short period of time, nine
unidentified white males arrived at the Scarfo residence.
A review of the surveillance logs for this period also reveals that
surveillances were not conducted every day, and on days when surveillance
was conducted, it was not conducted for the entire day and night. I also
note that vehicle license numbers were often not recorded and the
photographing of people entering and leaving the Scarfo residence was the
exception rather than the rule.
Pelullo contends that the surveillance records were material to his
defense because they would conclusively establish that he was not present
at Scarfo's residence at any time during the period December 26, 1985
through January 8, 1986 and, therefore, Leonetti must have lied when he
testified that Pelullo met with Scarfo at this time to discuss the
DiSalvo debt. It is plain from the above, that these records would not
help establish that proposition. Any one of the unidentified white males
could have been Pelullo. In any event, as has been stated before, the
surveillance was not continuous.
The information in the Moran report is merely a partial summary of the
more detailed information contained in the surveillance logs which were
produced to Pelullo for the 1995 trial. (Defense Exhibits 1 and 2).
Therefore, the Moran report would not constitute Brady material because
the information contained in it had been given to Pelullo for the 1995
trial. (Defense Exhibit 1).
Pelullo contends that the Moran report constitutes Brady evidence
because a statement in the report establishes that Trooper Moran received
"surveillance records for each day between December 27, 1985 and January
5, 1986." (Proposed Findings at ¶ 48). Pelullo contends that Trooper
Moran intentionally used the word "inclusive" in his report when he made
the following statement:
"Surveillance records from 27 Dec 1985 through 5 Jan 1986 inclusive
submitted by Officers of MOCIU."
Pelullo interprets Moran's use of the word "inclusive" to mean
that there were surveillances of Pelullo's house every day during
the period December 27, 1985 through January 5, 1986.
After reviewing Defense Exhibits 1 and 2, which are the surveillance
records disclosed to Pelullo before the 1995 trial, I find that the only
reasonable interpretation of Trooper Moran's use of the word "inclusive"
is that he reviewed surveillance reports for the dates December 27, 28,
and 29, 1985 and January 2, 4, and 5, 1986, and not to imply that there
were surveillances at Scarfo's residence every day during this period. If
Trooper Moran intended to give the word "inclusive" anything other than
its ordinary meaning, Pelullo could have called Trooper Moran as a
witness to testify to this fact at the hearing. He did not do so.
Pelullo hired Mr. Bertucelli, a private investigator, to review the
MOCIU surveillance records for December 1985 and January 1986. Bertucelli
testified that he had access to those records and reviewed them. He
testified that he did not ask for copies of the records and did not take
any notes about the records during his review. He further testified that
he was hired simply to determine whether such surveillance records
existed and that he was not instructed to obtain copies. (Tr. 59, 68-69,
73). I do not believe when considering all of the facts surrounding this
case that if material surveillance reports existed in the MOCIU records,
Pelullo would not have directed Bertucelli to obtain them so that Pelullo
could produce them at the hearing.
To the extent that Bertucelli's testimony is offered to establish
the frequency and duration of the surveillance during December of
1985 and January of 1986, that testimony is based on hearsay, and
was excluded. (Tr. 53-55).
PELULLO'S TESTIMONY IN THE 1991 TRIAL
In his petition, Pelullo contends that he has "always denied that any
meeting with Leonetti ever occurred." But he did not deny being at
Scarfo's house on two occasions:
Q. Okay. Have you ever been to his [Scarfo's] home?
Q. How did that come about?
A. What happened was I was in Miami and a man called me by the
name of Sam LaRusso. Sam had worked for my father about 30 years
ago as a laborer. And he told me he had a job in Fort Lauderdale,
would I come up and help him? I said sure, Sam, I'll be up to see
I went up to Fort Lauderdale and when I get there he tells me where I'm
at. I didn't know it was Scarfo's house. And he said Leonard, he said, I
need some help here. There's a construction job. I don't have any people
here and I need to get a permit. I said, Sam, I don't want to get
involved. Don't put me in this position.
And I wasn't threatened, but the situation with Sam was that Sam was a
prisoner, basically, until this work was done and he asked me to get him a
permit, get him some contractors to get the work done, otherwise he was
going to have a problem with these people. And I looked at the job. I
sent Keith Swenson there and I said see what you can do about getting him
a permit and get him some plans and get the job done and let's get the
hell out of here. That's what I told him.
Q. Is that the only time that you were ever at his house?
A. I might have been there twice with Sam, because he needed some
technical help on how to do something and I tried to limit my exposure
Trial July 1, 1991, p. 200. Also in his closing argument at the
first trial, then counsel for Mr. Leonetti argued:
. . They bought in a man named Phillip Leonetti, in
this case, to try to paint a picture of Leonard
Pelullo having some contact with bad people. He's not
charged with that. Mr. Leonetti talked about reaching
out and putting pressure and muscle on Leonard Pelullo
to repay a debt. He got victimized by an admitted
ruthless murderer. And then he has been victimized by
the Government by their bringing this man before you
to try to make it appear that he, Mr. Pelullo is bad
because he had some contact with these people, that he
borrowed money and had to pay it back.
Trial July 2, 1991, p. 160.
As can be seen in his testimony during the first trial, Pelullo
admitted being at Scarfo's house on two occasions. He testified that he
went to Scarfo's house for a reason that was not related to the DiSalvo
loan, but did not deny meeting Scarfo or Leonetti at the house. Neither
the timing nor the fact of the meting between Leonetti and Pelullo were
critical to convicting Pelullo on RA 60. The significance of Leonetti's
testimony was to establish that Pelullo had a motive to divert corporate
funds to his own use in order to repay the DiSalvo debt, and, in fact,
the loan was repaid a few weeks after the February 25, 1986 wire
transfer. The government established this motive by proving that Pelullo
had an over due loan shark debt to DiSalvo and that Pelullo knew that
Scarfo, the boss of the Philadelphia Mafia, and Leonetti, also a Mafia
member, wanted him to repay that DiSalvo debt. It was not essential to
the proof of the violation that Pelullo learned directly from Leonetti
and Scarfo that they were going to enforce the loan. It was admitted by
Pelullo himself that he learned this from his brother Peter. The fact
that has never been disputed was that Pelullo knew that two powerful
Mafia members were telling him to repay the loan. Pelullo's defense has
never been a denial of the fact that he owed money to DiSalvo and was
pressured by the Mafia to repay it. Therefore, contradicting the
government's evidence that Pelullo met with Scarfo and Leonetti at
Scarfo's residence in Florida in December 1985 or January 9, 1986 was not
critical to Pelullo's defense.
SUBSTANTIAL OTHER EVIDENCE
In addition to Leonetti's testimony, the government introduced
substantial other evidence to prove that Pelullo used the $114,000 to
repay the DiSalvo loan. Donald McDonald testified that Pelullo directed
him to cash a corporate check for $114,000 on February 25, 1986, which
the bank refused to do. Pelullo then directed McDonald to wire transfer
$114,000 of corporate funds to a corporate account controlled by
Pelullo's father. This testimony supported the urgency of Pelullo's
immediate need for cash. Pelullo's brother, Arthur, testified that their
father wrote several corporate checks payable to cash totaling $114,000,
and directed Arthur to cash them. Arthur cashed the checks within a day
or two of February 25, 1986. Arthus's testimony also suggested the
urgency of Pelullo's need for cash. Leonetti testified that DiSalvo gave
him $60,000, which Leonetti understood to be his share of the Pelullo
loan repayment. The government also introduced Pelullo's statement to the
F.B.I. that he admitted using the $114,000 to repay his debt to Di
Salvo. Therefore, even if Pelullo had succeeded in identifying any
surveillance records relating to Scarfo's residence, which the government
had failed to produce before the 1995 trial, these records would not have
rebutted the other substantial evidence the government introduced to
establish RA 60.
Pelullo contends that the doctrine of judicial estoppel precludes the
government from "arguing that the McKeen report does not describe
continuous surveillance." Reply at 23. Pelullo contends that the
government has taken the position with respect to the McKeen report that
is inconsistent with the position taken by the Government in a separate
criminal proceeding, United States v. Simone, No. 91-569, 1998 WL 54387
(E.D.Pa.), aff'd, 172 F.3d 42 (3d Cir. 1998). According to Pelullo, the
government took the position in Simone, that the McKeen report indicated
that the government maintained "continuous surveillance" on Scarfo's
residence during the period December 28, 1985 through February 11, 1986.
Reply at 5. Pelullo contends in this case, that the government has taken
an inconsistent position by asserting that the McKeen report does not
describe continuous surveillance of Scarfo's resident during the period
of December 28, 1985 through February 11, 1986.
Assuming that the doctrine of judicial estoppel could be applied
against the government in a criminal case, I find that it would not apply
to the facts of this case. The government's position in this case is not
inconsistent with the position taken by the government in Simone. In
Simone, the government provided the defendant with a copy of the McKeen
report in pre-trial discovery. Following his conviction, Simone contended
in a Section 2255 petition that the government had suppressed evidence
favorable to the defendant in violation of Brady because it did not
produce the surveillance logs (which the government produced to Pelullo in
this case). In response, the government asserted that some of the
surveillance information contained in the summary logs had been produced
to the defendant in the McKeen report: "[T]he government disclosed some
of the surveillance information, albeit in a different form."
Government's Response to Petitioner Robert F. Simone's Motion to Vacate,
etc., at 19. The government noted that the McKeen report described five
of 13 days of surveillance conducted at Scarfo's residence in January
1986 described in the summary logs. Id. The government further noted that
the McKeen report stated:
"[S]urveillance was conducted during the period
December 28, 1985 through February 11, 1986, thus
putting petitioner on notice that surveillance
exists. Therefore, petitioner could have obtained the
additional surveillance information himself through
the exercise of due diligence, and therefore, it was
not suppressed by the government."
Therefore, the government's position in Simone was that the McKeen
report indicated that more surveillance information was available
than the specific dates of surveillance summarized in the McKeen
In the present case, the government contends that the surveillance
logs, which were produced to Pelullo before the 1985 trial, contained
more surveillance information than is contained in the McKeen report.
Therefore, the government's position in this case is the same position
taken by the government in Simone: the summary logs contained more
surveillance information than is contained in the McKeen report. The
government has not taken inconsistent positions with respect to the
McKeen report which would be a necessary prerequisite for the application
of the judicial estoppel doctrine. See McCarren v. FDIC, 111 F.3d 1089,
1097 (3d Cir. 1997).
LAW OF THE CASE DOCTRINE
Pelullo contends that the prior decisions of the Third Circuit in this
matter establish that the McKeen and Moran reports constitute Brady
material, because the Third Circuit has previously held that surveillance
information contained in the surveillance logs constituted Brady
evidence. Pelullo also contends that the Third Circuit has rejected the
government's argument that the fact that unidentified persons were
observed at Scarfo's residence undermines any impeachment value of the
McKeen and the Moran reports.
Under the law of the case doctrine, this Court is bound by the mandate
of the Third Circuit. However, the law of the case doctrine applies only
to matters actually decided by the prior decision. See Coca-Cola Bottling
Co. of Shreveport, Inc. v. Coca-Cola Co., 988 F.2d 414, 429-30 (3d Cir.
1993). Following a remand for a new trial, the district court may address
issues that were not decided by the Court of Appeals in its decision
remanding the case. See Cooper Distributing Company v. Amana
Refrigeration, Inc., 180 F.3d 542, 548 (3d Cir. 1999) (law of the case
doctrine did not preclude district court from admitting evidence at
retrial in support of plaintiff's damage theory which the appellate court
did not address in its original opinion).
In this § 2255 petition, Pelullo contends that the McKeen report
and the Moran report constitute Brady material that the government should
have produced before the January 1995 trial. However, the Third Circuit
has never addressed or decided whether the McKeen report or the Moran
report should have been produced before the January 1995 trial. Nor has
the Third Circuit addressed whether the suppression of these documents,
assuming Pelullo could establish these documents were suppressed within
the meaning of Brady, constituted a due process violation under Brady.
In Pelullo III, the Third Circuit considered whether the surveillance
logs and two other pieces of evidence should have been produced to
Pelullo before the commencement of the 1991 trial. In the context of that
Brady analysis, none of the surveillance information had been produced to
Pelullo before the 1991 trial. Also, the Third Circuit based its Brady
analysis on the cumulative effect of the absence of the surveillance logs
and the two other pieces of evidence. See Kiley v. Whitely. 514 U.S. 419,
436 (1995). Here, Pelullo contends that the McKeen report and the Moran
report should have been produced for the January 1995 trial. The Court's
analysis of this new Brady claim must take into account the fact that
Pelullo had the surveillance logs, and the two other pieces of
impeachment evidence, available for use during the January 1995 trial. In
short, the Third Circuit's Brady analysis in Pelullo III did not address
the same Brady issue presented in this § 2255 petition. Accordingly,
Pelullo III does not preclude this Court from conducting an independent
analysis of the McKeen report and the Moran report under Brady
While the prior decisions of the Third Circuit do not preclude an
independent analysis of Pelullo's Brady claim, the Third Circuit's most
recent decision in this case does provide the Court with guidance in
addressing the merits of Pelullo's claim. As the Supreme Court has
stated, the failure of the government to produce evidence favorable to
the defense does not constitute a Brady violation. See Strickler v.
Greene, 527 U.S. 263, 281 (1999). Rather, proof of a Brady violation
requires a showing that the failure to produce the favorable evidence
caused the defendant prejudice, meaning that the evidence was material to
[T]he term "Brady violation" is sometime used to refer
to any breach of the broad obligation to disclose
exculpatory evidence — that is, to any
suppression of so-called "Brady material" —
although, strictly speaking, there is never a real
"Brady violation" unless the nondisclosure was so
serious that there is a reasonable probability that
the suppressed evidence would have produced a
Id. at 281.
In considering the prejudice element under Brady, the Court may
consider: (a) the impeachment value of the suppressed evidence, see Id.
at 291; (b) whether the defendant had other impeachment evidence
available to use at trial, see Hollman v. Wilson, 158 F.3d 177, 181-182
(3d Cir. 1998); and (c) the weight of the government's evidence
establishing the defendant's guilt. See Strickler v. Greene, 527 at 293;
Hollman v. Wilson, 158 F.3d at 182-83.
In Pelullo III, the Third Circuit affirmed this Court's conclusion that
Pelullo would have testified in his own defense at the 1991 trial even if
certain Brady evidence had been produced to him before trial. In its
review of this Court's findings, the Third Circuit noted that this Court
had "properly noted the questionable impeachment value of the
surveillance logs." United States v. Pelullo, 173 F.3d 131, 142 (3d Cir.
1999) (quoting United States v. Pelullo, 105 F.3d at 123 n. 3). The Third
Circuit also affirmed this Court's factual finding that during the
January 1995 trial, "Pelullo had a number of ways to impeach Leonetti's
testimony. . . ." Id. at 144. Finally, the Third Circuit also affirmed
this Court's factual finding that, during the January 1995 trial:
"Pelullo had a significant amount of evidence that he could use in
mounting a defense to Count 54." Id. These factual findings, which the
Third Circuit has affirmed, provide the background for the Court's
analysis of whether the alleged suppression of the McKeen report or the
Moran report renders the jury verdicts in the 1995 trial unworthy of
Pelullo also contends that the Third Circuit's decision in Pelullo II
precludes the Court from considering whether a Brady violation with
respect to Count 55 based upon the McKeen report and the Moran report
would have tainted the other counts of conviction. In Pelullo II, the
Third Circuit considered whether the erroneous admission of Pelullo's
conviction on Count 54 had a spillover effect on the other counts of
conviction. In this petition, Pelullo contends that the failure to
produce the McKeen report and the Moran report impaired his ability to
impeach Leonetti with respect to RA 60. Again, the Third Circuit did not
address this issue in Pelullo II. Therefore, the Court can conduct an
independent analysis of whether any alleged Brady violation relating to
the McKeen report and the Moran report tainted any other count of
SURVEILLANCE INFORMATION ABOUT SCARFO AT LOCATIONS OTHER THAN
HIS FLORIDA RESIDENCE IS NOT MATERIAL UNDER BRADY .
In Pelullo's response to the government's proposed Findings of Fact, he
points to two meetings described in the McKeen report, at which
surveillance was conducted, which are not mentioned in the surveillance
logs. (Defense Exhibit 1). These meetings have absolutely no relevance to
the defense theory in this case and cannot be relevant Brady material.
One meeting was between Scarfo and David Iacovetti on January 29, 1986 at
Pumpernick's Restaurant in Hallendale, Florida; and the other meeting was
between Scarfo and several associates on January 30, 1986 at the Pier 5
Restaurant in Hallendale, Florida.
This information is not relevant because the government never contended
that Pelullo met with Scarfo at either Pumpernick's Restaurant or the
Pier 5 Restaurant.
REASONS FOR DENYING THE REQUEST FOR DISCOVERY.
Earlier in this Memorandum, it was mentioned that the Court denied
Pelullo's request for discovery filed August 11, 2000, shortly before the
hearing scheduled on August 24, 2000. I denied this request because the
hearing had already been delayed 32 months while we waited for Mr.
Pelullo to be returned from the State of Florida. If, in fact, there had
been a need for discovery, it could have been conducted during that
period, but was never requested. No reason was ever given for the delay in
making the request. There was never any credible showing that discovery
would uncover any evidence to assist Pelullo in proving the allegations
of his petition.
In addition, we have the added circumstance that Pelullo in the first
trial took the witness stand and admitted being at the Scarfo house on
the two occasions referred to in pages 9-11 of this Memorandum.
CONCLUSIONS OF LAW
Based on the foregoing, the Court makes the following Findings:
1. Pelullo has failed to establish that he did not
possess the alleged Brady material during the 1995
2. The Court finds that even if Pelullo did not
possess the alleged Brady material during the 1995
trial, Pelullo could have obtained the alleged Brady
material for use at the 1995 trial through the
exercise of due diligence.
3. The alleged Brady evidence was not material to
4. Even assuming Pelullo did not have possession of
the alleged Brady material, the absence of the McKeen
report and the Moran report did not deprive Pelullo of
a fair trial worthy of the Court's confidence.
5. Any prejudicial error with respect to Count 55
arising from the government's failure to produce the
McKeen report or the Moran report to Pelullo before
the 1995 trial did not taint the other wire fraud
counts for which Pelullo was convicted.
6. Pelullo has failed to establish any grounds for
additional discovery or for an additional continuance
of the evidentiary hearing.
7. Pelullo has failed to make a substantial showing of
a denial of a constitutional right. Accordingly, a
Certificate of Appealability shall not issue.
We, therefore, enter the following Order.
AND NOW, this day of APRIL, 2001, it is hereby ORDERED that Leonard A.
Pelullo's Motion to Set Aside Convictions is DENIED with prejudice.
Because Leonard A. Pelullo has not made a substantial showing of denial
of a constitutional right, a Certificate of Appealability is not issued.