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UNITED STATES v. PELULLO

June 12, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
LEONARD PELULLO, Defendant.



The opinion of the court was delivered by: DEBEVOISE

OPINION

 DEBEVOISE, Senior District Judge

 Defendant, Leonard A. Pelullo, moves (i) for an order vacating a July 14, 1997 order on the ground that the order was based upon a factually erroneous premise and (ii) for production of tapes and transcripts of defendant's telephone conversations while he was in prison. For the reasons set forth below both motions will be denied without an evidentiary hearing.

 A. Background

 In November 1996 a jury found defendant guilty on one count charging him with conspiracy to embezzle $ 4,176 million from two employee pension benefit plans and to engage in money laundering, on 11 counts of embezzlement from these employee pension benefit plans, and on 42 counts of money laundering. Thereafter defendant moved for a judgment of acquittal or a new trial. The motion was denied on April 17, 1997.

 Subsequently defendant moved for reconsideration of the denial of his motion. One of the grounds advanced in support of the new motion was that newly discovered evidence disclosed that the government violated his Fifth Amendment due process rights and his Sixth Amendment right to counsel. According to defendant:

 
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, P 4, Exh. 44. Plaza and Fassett explain the detailed strategy that they discussed with Mr. Pelullo in their conversations:
 
* * * *
 
The tapes also contain conversations between Mr. Pelullo and his attorneys from the Philadelphia criminal action. In these conversations, the issues discussed included the post-trial motions and appeal from the fourth trial in Philadelphia. Mr. Pelullo also discussed the overlap between the Newark, Philadelphia and Jacksonville cases with his attorneys in Philadelphia (Howrey & Simon), Newark (Arseneault & Krovatin), Jacksonville (Baumer, Bradford & Walters), among other attorneys.
 
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 communications concerning Mr. Pelullo's pretrial and trial strategy.

 Pelullo's Brief at pp. 2-4.

 As will be discussed in further detail below, these allegations are demonstrably wrong in a number of critical respects.

 (i) Allegation : "... [on] ... April 10, 1997 the government disclosed for the first time that it had reviewed tapes of all of Mr. Pelullo's [prison] conversations ...." Fact : The government attorneys handling the Newark prosecution never reviewed the prison tapes. Before and during the 1997 trial they advised defendant's counsel of the existence of taped recordings of certain of defendant's prison telephone conversations. They did not listen to these conversations or read the transcripts. They ...


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