Lucchese associate asks for mistrial after being ejected from courtroom
A reputed Lucchese crime syndicate associate on Monday sought a mistrial in his prosecution for allegedly draining $12 million from a mortgage lender and forcing its bankruptcy, claiming a New Jersey federal judge infringed his rights and tainted the jury by ejecting him from court.
Salvatore Pelullo filed a motion on Monday asking the court to declare a mistrial in the prosecution of his alleged role in the extortionate takeover of FirstPlus Financial Group, a Texas mortgage lender. Pelullo has been unable to attend his own trial for a month, following an order from U.S. District Court Judge Robert B. Kugler barring Pelullo from the courtroom after he made several outbursts that may have been audible to the jury.
Pelullo said in his filing that by expelling him from the courtroom, Kugler violated his Fifth Amendment right to due process and Sixth Amendment right to be assisted by an attorney and tried by an impartial jury. The judge’s decision was unwarranted, according to the brief, because Pelullo’s “outbursts” were merely his attempts to confer with counsel and were not significantly disruptive to the proceedings.
“Although it is undisputed that Mr. Pelullo made a comment concerning government witness Ken Stein's veracity, it is equally undisputed that he made this comment in the course of conferring with counsel during the course of trial, a right guaranteed by the Sixth Amendment,” the brief said.
“In response to Ken Stein's testimony regarding the receipt of certain information, Mr. Pelullo informed his counsel that Mr. Stein was lying, which was information that counsel could only learn from Mr. Pelullo. In short, Mr. Pelullo was assisting his counsel in the precise manner that a defendant is supposed to do during the course of a trial.”
Pelullo also pushed back against federal prosecutors’ claim that his comments were audible to the jury. According to the brief, Pelullo’s remarks were not audible to Kugler or the court reporter, and are inaudible on an audio recording of the proceedings.
The brief also said jurors have seen Pelullo in his prison clothes, prejudicing them against him and precluding a fair, impartial trial.
Oral argument has been requested, but is not yet scheduled, according to court filings.
Kugler banished Pelullo from the courtroom last month after Pelullo said, “That’s a lie,” as Stein, a government witness, testified. According to court filings, Assistant U.S. Attorney Steven D’Aguanno alerted the court that he heard the comment and said he saw a juror look in Pelullo’s direction after the comment was made. Three U.S. Marshals later reported to the court having heard the same comment.
Pelullo had already been warned about his outbursts following another incident in late February, in which Pelullo laughed loudly while another witness testified. Kugler warned Pelullo that he would be booted from the courtroom if there were further incidents.
J. Michael Farrell and Troy A. Archie, Pelullo’s attorneys, quickly filed a motion asking Kugler to allow their client back in to the courtroom, arguing that removing Pelullo from court for the remainder of his trial violates his constitutional rights, and effectively punishes him for suffering from bipolar disorder, which is to blame for Pelullo’s outbursts. The attorneys also assured the court that Pelullo would curtail his behavior going forward, but Kugler denied the motion.
Pelullo’s attorneys did not immediately respond to requests for comment on Wednesday.
According to an October 2011 indictment, Pelullo worked with fellow reputed Lucchese family member Nicodemo Scarfo to seize control of Beaumont, Texas-based FirstPlus by intimidating its board of directors into approving new board members handpicked by and under the influence of Pelullo and Scarfo. Following the takeover, the board approved multimillion-dollar acquisitions of companies owned by Pelullo and Scarfo that were grossly overvalued and essentially worthless, authorities said.
FirstPlus investors meanwhile were in the dark about the company's financial situation, thanks to false and misleading U.S. Securities and Exchange Commission filings, prosecutors said. They had little indication anything was wrong until the company's announcement in June 2009 that it had initiated Chapter 11 proceedings in the Northern District of Texas.
Pelullo faces 25 charges, including racketeering conspiracy, securities fraud, wire fraud, mail fraud, bank fraud, extortion, interstate travel in aid of racketeering, money laundering and obstruction of justice.
Kugler denied a motion to dismiss the case late last month, ruling Pelullo and Scarfo failed to prove prosecutors withheld evidence that might have proved their innocence and violated the scope of warrants when they seized various electronic records during a May 2008 raid.
Pelullo is represented by J. Michael Farrell and Troy A. Archie.
The case is U.S. v. Scarfo et al., case number 1:11-cr-00740, in the U.S. District Court for the District of New Jersey.
Salvatore Pelullo filed a motion on Monday asking the court to declare a mistrial in the prosecution of his alleged role in the extortionate takeover of FirstPlus Financial Group, a Texas mortgage lender. Pelullo has been unable to attend his own trial for a month, following an order from U.S. District Court Judge Robert B. Kugler barring Pelullo from the courtroom after he made several outbursts that may have been audible to the jury.
Pelullo said in his filing that by expelling him from the courtroom, Kugler violated his Fifth Amendment right to due process and Sixth Amendment right to be assisted by an attorney and tried by an impartial jury. The judge’s decision was unwarranted, according to the brief, because Pelullo’s “outbursts” were merely his attempts to confer with counsel and were not significantly disruptive to the proceedings.
“Although it is undisputed that Mr. Pelullo made a comment concerning government witness Ken Stein's veracity, it is equally undisputed that he made this comment in the course of conferring with counsel during the course of trial, a right guaranteed by the Sixth Amendment,” the brief said.
“In response to Ken Stein's testimony regarding the receipt of certain information, Mr. Pelullo informed his counsel that Mr. Stein was lying, which was information that counsel could only learn from Mr. Pelullo. In short, Mr. Pelullo was assisting his counsel in the precise manner that a defendant is supposed to do during the course of a trial.”
Pelullo also pushed back against federal prosecutors’ claim that his comments were audible to the jury. According to the brief, Pelullo’s remarks were not audible to Kugler or the court reporter, and are inaudible on an audio recording of the proceedings.
The brief also said jurors have seen Pelullo in his prison clothes, prejudicing them against him and precluding a fair, impartial trial.
Oral argument has been requested, but is not yet scheduled, according to court filings.
Kugler banished Pelullo from the courtroom last month after Pelullo said, “That’s a lie,” as Stein, a government witness, testified. According to court filings, Assistant U.S. Attorney Steven D’Aguanno alerted the court that he heard the comment and said he saw a juror look in Pelullo’s direction after the comment was made. Three U.S. Marshals later reported to the court having heard the same comment.
Pelullo had already been warned about his outbursts following another incident in late February, in which Pelullo laughed loudly while another witness testified. Kugler warned Pelullo that he would be booted from the courtroom if there were further incidents.
J. Michael Farrell and Troy A. Archie, Pelullo’s attorneys, quickly filed a motion asking Kugler to allow their client back in to the courtroom, arguing that removing Pelullo from court for the remainder of his trial violates his constitutional rights, and effectively punishes him for suffering from bipolar disorder, which is to blame for Pelullo’s outbursts. The attorneys also assured the court that Pelullo would curtail his behavior going forward, but Kugler denied the motion.
Pelullo’s attorneys did not immediately respond to requests for comment on Wednesday.
According to an October 2011 indictment, Pelullo worked with fellow reputed Lucchese family member Nicodemo Scarfo to seize control of Beaumont, Texas-based FirstPlus by intimidating its board of directors into approving new board members handpicked by and under the influence of Pelullo and Scarfo. Following the takeover, the board approved multimillion-dollar acquisitions of companies owned by Pelullo and Scarfo that were grossly overvalued and essentially worthless, authorities said.
FirstPlus investors meanwhile were in the dark about the company's financial situation, thanks to false and misleading U.S. Securities and Exchange Commission filings, prosecutors said. They had little indication anything was wrong until the company's announcement in June 2009 that it had initiated Chapter 11 proceedings in the Northern District of Texas.
Pelullo faces 25 charges, including racketeering conspiracy, securities fraud, wire fraud, mail fraud, bank fraud, extortion, interstate travel in aid of racketeering, money laundering and obstruction of justice.
Kugler denied a motion to dismiss the case late last month, ruling Pelullo and Scarfo failed to prove prosecutors withheld evidence that might have proved their innocence and violated the scope of warrants when they seized various electronic records during a May 2008 raid.
Pelullo is represented by J. Michael Farrell and Troy A. Archie.
The case is U.S. v. Scarfo et al., case number 1:11-cr-00740, in the U.S. District Court for the District of New Jersey.
http://www.law360.com/articles/528851/lucchese-associate-asks-for-mistrial-due-to-court-ejection
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