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UNITED STATES v. PELULLO
July 14, 1997
UNITED STATES OF AMERICA,
LEONARD PELULLO, Defendant.
The opinion of the court was delivered by: DEBEVOISE
DEBEVOISE, SENIOR DISTRICT JUDGE
On April 17, 1997 there were filed an opinion and order denying defendant Leonard Pelullo's motion for a judgment of acquittal or for a new trial. Thereafter Pelullo moved for i) reconsideration of the denial of his motion, ii) for a new trial or other relief on the ground that newly discovered evidence discloses that the government violated his Fifth Amendment due process rights and his Sixth Amendment right to counsel, and iii) for a new trial on the ground that newly discovered evidence discloses that Fred Schwartz, Esq., an important government witness, moved to resign from the Florida bar for five years after admitting to embezzling more than $ 200,000 from a client in 1994 (more than two years before the trial in this case) and was the subject of federal criminal investigations.
For the reasons set forth below Pelullo's motions will be denied in their entirely.
1. Motion for Reconsideration : Pelullo devotes only four pages of his brief to his argument for reconsideration. He advances no reasons in law or in fact which were not addressed in great detail at the time of his original motion.
Under Local Civil Rule 7.1(g) there shall be served with a motion for reargument "a brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate Judge has overlooked." The brief sets forth no such matters. A motion for reargument is not to be used as a vehicle to reargue matters already considered. Where the motion raises only a party's disagreement with the Court's initial decision, that "should be dealt with in the normal appellate process, not on a motion for reargument." Florham Park Chevron, Inc. V. Chevron U.S.A., Inc. 680 F. Supp. 159, 163 (D.N.J. 1988). Since Pelullo's motion raises only disagreement with the initial decision, it will be denied.
2. Pelullo Interceptions : Pelullo moves for a new trial pursuant to Fed.R.Crim.P. 33 on the ground of newly discovered evidence. According to Pelullo:
In its response brief dated April 10, 1997 to Mr. Pelullo's post-trial motion, the government disclosed for the first time that it had reviewed tapes of all of Mr. Pelullo's conversations pursuant to grand jury subpoenas issued between June 28, 1995 and November 8, 1995. These tapes were made of conversations Mr. Pelullo had while in prison. The grand jury subpoenas were issued in Philadelphia on an unrelated matter.
The government's possession and review of tapes of these attorney client privileged communications was not disclosed before or during the trial. Ex. 43, Verification of Herbert Beigel dated May 19, 1997. The only tapes the government disclosed involved tapes of conversations between Mr. Pelullo and Andrew Heine.
Included within these attorney client tapes were hundreds of conversations Mr. Pelullo had with his attorneys in this case, and other connected cases, including the Philadelphia and Jacksonville criminal actions. As to this case, Mr. Pelullo discussed his defense strategy with Edward Plaza and David Fassett, his court appointed attorneys. See Certifications of Edward J. Plaza and David Fassett dated May 2, 1997, P4, Ex. 44. Plaza and Fassett explain the detailed strategy that they discussed with Mr. Pelullo in their conversations:
The government seized and reviewed these privileged conversations. These seizures were a knowing intrusion into Mr. Pelullo's attorney client relationship by which the government obtained confidential privileged ...
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