United States v. Nicodemo Scarfo

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 15-2811, 15-2826, 15-2844, 15-2925, 19-1398

_____________

UNITED STATES OF AMERICA

v.

NICODEMO S. SCARFO, SALVATORE PELULLO,

WILLIAM MAXWELL, and JOHN MAXWELL,

Appellants

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Nos. 1-11-cr-0740-001 thru 004)

District Judge: Honorable Robert B. Kugler

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Argued

July 6, 2021

Before: AMBRO, JORDAN, and BIBAS, Circuit Judges

(Opinion Filed: July 15, 2022)

_______________

Michael E. Riley [ARGUED]

Law Offices of Riley and Riley

2 Eves Drive – Suite 109

Marlton, NJ 08053

Counsel for Nicodemo S. Scarfo

Troy A. Archie [ARGUED]

Afonso Archie & Foley

21 Route 130 South

Cinnaminson, NJ 08077

Counsel for Salvatore Pelullo

Michael N. Huff [ARGUED]

1333 Race Street

Philadelphia, PA 19107

Counsel for William Maxwell

Mark W. Catanzaro

21 Grant Street

Mount Holly, NJ 08060

Counsel for John Maxwell

Rachel A. Honig

Sabrina G. Comizzoli

Mark E. Coyne

Bruce P. Keller [ARGUED]

Office of United States Attorney

970 Broad Street – Room 700

Newark, NJ 07102

2

Norman Gross [ARGUED]

Office of United States Attorney

401 Market Street

Camden, NJ 08101

Counsel for Appellee

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OPINION OF THE COURT

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3

TABLE OF CONTENTS

I. Overview ..................................................................... 7

II. Background ................................................................. 8

A. The Organized Crime Origins ........................... 8

B. The FirstPlus Takeover ................................... 10

C. The FirstPlus Fraud ......................................... 14

D. The Investigation and Takedown .................... 19

E. The Damage .................................................... 20

F. Indictment and Pretrial Proceedings ............... 21

G. Trial ................................................................. 23

H. Post-Trial Proceedings and Sentencing........... 26

I. Appeals ............................................................ 26

III. Investigation Issues .................................................... 27

A. Collection of Pelullo’s Cell Site Location

Information ..................................................... 28

B. Filter Teams ................................................... 37

1. Background .......................................... 38

2. Challenges to Filter Team Procedures . 41

3. Challenges to Ex Parte Proceedings .... 44

4. Crime-Fraud Exception ........................ 47

IV. Pretrial Issues ............................................................. 48

A. Speedy Trial Act Claim .................................. 49

B. Admission of La Cosa Nostra Evidence and

Denial of the Maxwells’ Motion for Severance

......................................................................... 54

1. Admission of LCN Evidence ............... 55

2. Denial of the Maxwells’ Severance

Motion .................................................. 62

V. Trial Issues ................................................................. 65

A. Scarfo’s Joint Trial with Former Counsel

Donald Manno ................................................. 65

1. Background .......................................... 67

4

2. Sixth Amendment ................................ 68

3. Due Process .......................................... 72

B. Pelullo’s Sixth Amendment Ineffective

Assistance of Counsel Claim ......................... 74

1. Background .......................................... 74

2. Ineffective Assistance of Counsel Claim

.............................................................. 78

C. Convictions for RICO Conspiracy Under 18

U.S.C. § 1962(d) ............................................. 84

1. Constructive Amendment of Indictment

.............................................................. 85

2. Jury Instructions and Sufficiency of the

Evidence .............................................. 89

D. Firearm Conspiracy Conviction Following

Rehaif ............................................................. 90

E. Sufficiency of Evidence to Support William

Maxwell’s Convictions .................................. 95

1. Conviction for Conspiracy to Unlawfully

Transfer or Possess a Firearm .............. 95

2. Convictions for Wire Fraud and

Conspiracy to Commit Wire Fraud ...... 98

F. Juror Issues ................................................... 101

1. Background ........................................ 101

2. Disclosure of the District Court’s First

Conversation with Juror #8 ................ 110

3. Purported Coercion of the Jury by the

District Court...................................... 113

4. Purported Coercion of the Substituted

Juror by Other Jurors.......................... 117

5. District Court’s Response to Report of

Juror Misconduct................................ 122

VI. Sentencing Issues ..................................................... 124

A. Pelullo’s Sentencing Challenges .................. 125

5

1.Guidelines Sentencing Range

Calculation ......................................... 126

2. Loss Amount Enhancement ............... 129

3. Victim Number Enhancement............ 133

4. Substantive Reasonableness............... 136

B. Joint and Several Forfeiture Liability Following

Honeycutt ..................................................... 136

1. Background ........................................ 136

2. Honeycutt and Its Progeny ................. 139

3. Post-Honeycutt: John Maxwell .......... 141

4. Post-Honeycutt: Pelullo...................... 142

C. Delay in Forfeiture of Pelullo’s Property ..... 144

1. Background ........................................ 144

2. CAFRA .............................................. 148

3. Due Process ........................................ 150

VII. Brady Issues ............................................................. 155

A. Denial of Scarfo’s Request to File a Motion for

a New Trial Pursuant to Rule 33(b) ............. 156

B. Pelullo’s Motion for Remand Based on Giglio

Evidence ....................................................... 161

VIII. Conclusion ............................................................... 169

6

JORDAN, Circuit Judge.

I. OVERVIEW

Everybody calls me a racketeer. I call myself a businessman.

– Alphonse Gabriel Capone

The four appellants before us – Nicodemo Scarfo,

Salvatore Pelullo, William Maxwell, and his brother John

Maxwell – were convicted for their roles in the unlawful

takeover and looting of FirstPlus Financial Group, a publicly

traded mortgage loan company. Their scheme commenced

with the Defendants’1 and their co-conspirators’ extortion of

FirstPlus’s board of directors and its chairman to gain control

of the company. Once they forced the old leadership out, the

Defendants proceeded to drain the company of its value by

causing it to enter into expensive consulting and legal-services

agreements with themselves, causing it to acquire (at vastly

inflated prices) shell companies they personally owned, and

using bogus trusts to funnel FirstPlus’s assets into their own

accounts. The Defendants and their crew ultimately

bankrupted FirstPlus, leaving its shareholders with worthless

stock.

Each Defendant was convicted of more than twenty

counts of criminal behavior and given a substantial prison

1

We use the capitalized term “Defendants” to refer to

the four individuals who were convicted and are now

appealing, and “defendants” with a lower case “d” to refer to

everyone who was indicted and part of the proceedings before

the District Court.

7

sentence. Now, in this consolidated appeal, their combined

efforts challenge almost every aspect of their prosecutions,

including the investigation, the charges and evidence against

them, the pretrial process, the government’s compliance with

its disclosure obligations, the trial, the forfeiture proceedings,

and their sentences. Although they raise a multitude of issues,

only one entitles any of them to relief: the government has

conceded that the District Court’s assessment of John

Maxwell’s forfeiture obligations was improper under a

Supreme Court decision handed down during the pendency of

this appeal. Having jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), we will affirm all the convictions and

sentences, except for the forfeiture portion of John Maxwell’s

sentence. We will remand that for the District Court to reassess

what share of the forfeiture sum he should pay.

II. BACKGROUND2

A. The Organized Crime Origins

This case has its roots in organized crime, and, like other

mob cases, it gets its start with family – both biological and

made. Nicodemo Domenico “Little Nicky” Scarfo Sr. was the

“boss” of the Philadelphia branch, or “family,” of La Cosa

2

The following factual background is based on the

evidence adduced at trial and is cast in the light most favorable

to the prosecution. See United States v. Pungitore, 910 F.2d

1084, 1097 (3d Cir. 1990) (“We are bound, after a jury has

delivered a guilty verdict, to interpret the evidence in a light

most favorable to the government.”).

8

Nostra (“LCN”) for most of the 1980s.3 See United States v.

Pungitore, 910 F.2d 1084, 1098 (3d Cir. 1990). He oversaw

nearly a decade of murders, gambling, and extortion for the

benefit of LCN. Id. at 1097-1102; see also United States v.

Scarfo, 850 F.2d 1015, 1016 (3d Cir. 1988).

By the time the Defendants here began their FirstPlus

scheme, however, he was out of the game, serving a lengthy

federal prison sentence. Pungitore, 910 F.2d at 1152. His son,

Nicodemo Salvatore “Nicky” Scarfo (the “Scarfo” in this

opinion), wanted to fill the power vacuum, but his attempted

takeover of the Philadelphia LCN family did not go according

to plan. On Halloween in 1989, as he was having dinner at a

restaurant, masked assailants ambushed him, shooting him

several times but, no doubt to their chagrin, not killing him.

When he recovered, Scarfo sought the help of the

Lucchese LCN family, which operated in northern New Jersey.

He had an “in” with the Luccheses: their boss was incarcerated

in the same prison as his father. According to the government’s

expert on the structure and operations of LCN, eventually the

3

“La Cosa Nostra” is “an Italian phrase which literally

translates as ‘our thing’ or ‘this thing of ours.’” Pungitore, 910

F.2d at 1097 n.3. According to an FBI agent who testified at

trial, the word “mafia” – despite its ubiquity in discussions of

mobsters – refers to Italian organized crime based in Italy,

while LCN is based in the United States. (JAC at 8282.) LCN

is headed by a commission of “bosses,” who in turn direct the

illegal activities of regional organized crime “families.”

Pungitore, 910 F.2d at 1097. A family is “a highly structured

criminal enterprise with a well defined chain-of-command”

comprising multiple layers of operatives. Id. at 1098.

9

Lucchese family integrated Scarfo into their organization as a

“made member” – someone who has been “fully inducted” and

has “taken an oath of loyalty to the family.” (JAC at 8280-81.)

Being a made member meant that he had to generate money for

the Lucchese family and share with it the profits of any

criminal activities he pursued.

Scarfo’s longtime friend Salvatore Pelullo, although not

a blood relative, had a close relationship not only with Scarfo

but with Scarfo’s father too. The older Scarfo treated Pelullo

as his nephew. Pelullo became an “associate” of the Luccheses

– a criminal colleague who hadn’t been “formally initiated into

[the family’s] ranks.” Pungitore, 910 F.2d. at 1098. The

government’s expert testified that an associate like Pelullo had

to “share … the profits of any of [his] criminal activity” with

the family, and he had to answer to a made member, such as

Scarfo, who would “supervis[e] and direct[]” his actions. (JAC

at 8286-87 (trial testimony of government LCN expert).)

Before the events at issue in this case, Scarfo and

Pelullo had each earned criminal convictions. Scarfo was

convicted in 1990 of assaulting a woman in a hospital elevator,

and then in 1993 for racketeering conduct. In 2002, he was

convicted of running an illegal gambling business. Pelullo,

meanwhile, was convicted of bank fraud and making false

statements to the SEC in 1999. Three years later, he pled guilty

to wire fraud.

B. The FirstPlus Takeover

In 2007, Scarfo and Pelullo stumbled on “the golden

vein of deals” – an opportunity that seemed so lucrative, they

thought they could ride it into retirement. (JAC at 1781-82.)

10

That opportunity was FirstPlus, a Texas-based mortgage

company whose main operating subsidiary had recently exited

bankruptcy after falling on hard times. Following that

restructuring, FirstPlus began receiving periodic, multi-

million-dollar “waterfall” payments from its bankruptcy trust.4

At that point, it was essentially a dormant parent company

receiving the waterfall payments but doing no business.

After the payments started coming in, a former FirstPlus

employee, Jack Roubinek, had the idea to locate investors and

gain control of FirstPlus. In early 2007, he contacted his

attorney, William Maxwell, and asked him to research the

possibility of investing in FirstPlus. At around the same time,

Pelullo learned about FirstPlus from his business acquaintance

David Roberts, a mortgage broker from Staten Island. A group

including Pelullo, Roberts, Scarfo, Roubinek, and Gary

McCarthy (Pelullo’s attorney and an eventual codefendant)

4

As part of the subsidiary’s bankruptcy, a creditor’s

trust was set up to pay the subsidiary’s creditors, one of which

was FirstPlus, which held an unsecured claim against its

subsidiary. Income generated by the subsidiary from

outstanding mortgages and investments flowed to the trust,

which paid it out to creditors in order of priority, creating a

“waterfall” of payments. Several years later, a grantor’s trust

was established as a result of litigation with shareholders. That

second trust was interposed between the creditor’s trust and the

creditors: a portion of the money coming into the creditor’s

trust was routed to the grantor’s trust, and from there it was

disbursed to FirstPlus, other creditors of the subsidiary, and

FirstPlus shareholders.

11

gathered in Philadelphia to discuss a potential takeover of

FirstPlus.

At first, according to Roberts, their thinking was “to try

to raise money to buy [FirstPlus’s] stock[.]” (JAC at 1791.)

That plan, however, fell through: the group realized that none

of them had the money needed to buy the stock. Luckily for

them, however, FirstPlus had recently fired Jack Draper, a

high-ranking employee. Draper had griped about his firing to

Roubinek – the two having become acquainted while

employed at FirstPlus – and to William Maxwell.5 Those three

were joined by Roberts and Pelullo for a meeting in Dallas,

where Draper, bearing a grudge, told the group he was willing

to “divulge all” and accuse the FirstPlus board and CEO Daniel

Phillips of financial improprieties. (JAC at 1813-16 (trial

testimony of Roberts).)

That “completely changed the direction of the plan.”

(JAC at 1815.) Seeing an opportunity, Pelullo, who was

emerging as the leader of the takeover group, worked with

William Maxwell to send letters to Phillips and other board

members. The letters were purportedly written by Draper and

threatened that he would go to “the FBI, the IRS[,] the U.S.

Attorney’s [O]ffice[,] [FirstPlus’s] Bankruptcy’s attorney and

the SEC” with claims of financial misconduct including

bribery, money laundering, and Sarbanes-Oxley violations. 6

5

William Maxwell’s brother, John, is another of the

Defendants here. We thus refer to each Maxwell brother using

either his full name or just his first name.

6

The Sarbanes-Oxley Act of 2002 was enacted “[t]o

12

(JAC at 1822.) They also threatened to tell Phillips’s wife –

who was then divorcing him – that Phillips had raped an

assistant and used the company’s moneys to pay off the victim

when she got pregnant. According to Phillips, all those claims

were false, but he was nonetheless concerned that their

dissemination would cause grave damage to his and the

company’s reputations.

The letters had their intended effect. Phillips met with

William Maxwell and Pelullo, who indicated the allegations

would be dropped if Phillips and the FirstPlus board handed

the business over to them. Evidently, it was an offer he

couldn’t refuse.

Phillips swiftly persuaded the entire board to give up

their positions rather than try to engage in what would be a

messy and expensive fight with Pelullo’s group. Pelullo then

selected a new board of directors for FirstPlus: William

Handley (a friend of Pelullo’s who took over as Chief Financial

Officer), John Maxwell (William Maxwell’s brother and the

titular Chief Executive Officer), Roberts (who became

secretary of the company), Harold Garber (Scarfo’s father’s

attorney, who became the new board chairman), and Robert

O’Neal (one of William’s clients, who later succeeded Garber

safeguard investors in public companies and restore trust in the

financial markets[,]” Lawson v. FMR LLC, 571 U.S. 429, 432

(2014), by mandating that public companies take particular

steps to assure the integrity of their audits and financial reports.

13

as chairman). 7 The necessary corporate formalities were

followed and, on June 7, just four days after sending the

threatening letters, Pelullo and his cronies had total control of

the company.

C. The FirstPlus Fraud

With FirstPlus in their power, the new officers and

directors went to work – making the company work for them.

Pelullo, along with William Maxwell, controlled the show.

They even obtained stamps of the directors’ signatures so they

could run the looting scheme without interference.

The board entered into a “legal services agreement”

with William, who became FirstPlus’s “special counsel.”

(JAC at 5315-16; JAD at 1653, 1673-75.) The contract

formally granted him significant power within the organization.

It purported to give him “[a]ll legal authority for any matter

involving” FirstPlus; the power to select and retain legal

counsel, accountants, and, “in [his] sole discretion,” “any and

all consulting firms”; and the right to “spend funds, incur legal

expenses, and to expend fees in excess of [his] retainer and to

seek reimbursement[.]” (JAD at 1673-75.) He could also

“restrict disclosure of information … to any person[,]”

including the members of the board. (JAD at 1674-75.) For

his supposed labors, William made $100,000 a month, plus

expenses of up to $30,000.

7

William Handley and John Maxwell became

codefendants in this case.

14

With that authority, William hired Pelullo as a

consultant to FirstPlus, a role that shielded him from public

scrutiny. In practice, though, Pelullo was the “de facto

president” of the company, according to FirstPlus’s public

auditor, Anthony Buczek. (JAC at 7069.) John Maxwell was

named as CEO, but he largely functioned under Pelullo’s

control.

Using his controlling position at FirstPlus, and with

William’s help, Pelullo set up several channels through which

money flowed out of FirstPlus’s accounts and into his and

Scarfo’s coffers. For one, Pelullo set up a bogus trust that

ostensibly had his children as its beneficiaries. In practice,

however, according to codefendant Cory Leshner, the trust was

“created for the purposes of owning” Seven Hills Management,

LLC, a company with Pelullo’s brother-in-law, Alexander

Lyubarskiy, listed as its head.8 (JAC at 3661.) Lyubarskiy’s

supposed management of Seven Hills was strictly for show;

“[e]verything he did was at the direction of Mr. Pelullo.” (JAC

at 3665.)

William Maxwell, on FirstPlus’s behalf, retained Seven

Hills to provide FirstPlus with “consulting services.” (JAD at

675.) The agreement entrusted Seven Hills (and, through it,

Pelullo) with “a litany of duties” that Leshner summarized as

“helping run the entire operation” of FirstPlus. (JAC at 3755.)

Seven Hills was compensated $100,000 each month, plus

$15,000 in expenses.

8

Leshner served as Pelullo’s personal assistant and a

vice president of Seven Hills.

15

Scarfo, meanwhile, profited from FirstPlus as well.

Like Pelullo, he set up a trust that was nominally intended to

“benefit[] [his] daughter” but in actuality served as a vehicle

for his own gain. (JAC at 3673, 4026 (trial testimony of

Leshner).) That trust, in turn, owned Learned Associates of

North America, LLC (“LANA”); both entities were run “[o]n

paper” by Scarfo’s cousin and codefendant John Parisi. (JAC

at 3675.) That was a ruse to keep Scarfo’s name off the books;

“[i]n reality,” it was Scarfo, not Parisi, who controlled the trust

and LANA. (JAC at 3673-75.) LANA enabled Scarfo to get

in on the take through a secondary consulting agreement

between LANA and Seven Hills. The agreement obliged

LANA to perform for FirstPlus “exactly the same” tasks that

Seven Hills was already being paid to do, according to an FBI

investigator. (JAC at 579.) In practice, LANA performed no

work, but the deal entitled LANA (and, through it, Scarfo) to a

roughly one-third cut of what Seven Hills was getting from

FirstPlus. As the government puts it, those payments were

“effectively ‘tribute’” to Scarfo. (Answering Br. at 18.)

Those arrangements were all facilitated by William

Maxwell, to whose attorney trust account the consulting fees

and expenses were wired. William generally passed those on

to Seven Hills, which in turn sent $33,000 a month, plus so-

called expenses, to LANA. Pelullo was “completely involved

with” and oversaw the flow of money from FirstPlus to

Maxwell and on to the consulting firms. (JAC at 3933 (trial

testimony of Leshner).)

Pelullo and Scarfo also profited from FirstPlus by

having it acquire three shell companies they owned. First up

was Rutgers Investment Group, LLC, an unsuccessful

mortgage loan provider majority owned by LANA and Seven

16

Hills. Rutgers’s single source of revenue was receivables it

supposedly got from Shore Escapes, a defunct vacation sales

company also owned by Seven Hills and LANA. It was make-

believe money, but on June 7, the new team’s first day in office,

Pelullo got approval for the acquisition from the FirstPlus

board, and the following month FirstPlus bought Rutgers for

approximately $1.8 million and 500,000 FirstPlus shares.

Two more acquisitions of companies owned by Seven

Hills and LANA followed soon after. FirstPlus bought

Globalnet Enterprises, LLC, a financially struggling cleaning

company, for around $4.5 million and more than one million

shares of FirstPlus stock. It then paid $725,000 – including

$100,000 directly to each of Seven Hills and LANA – to buy

The Premier Group, LLC, a company that Pelullo set up in May

2007 to hold the assets of a company at least nominally in the

business of representing the interests of insurance

policyholders.

Pelullo made sure that FirstPlus bought his and Scarfo’s

companies on preposterously favorable terms. To conduct

valuations of the target businesses, he brought in Kenneth Stein,

the head of a business brokerage firm. Stein told Pelullo that

he (Stein) was unqualified to perform the valuations, but

Pelullo said to “[j]ust go get it done[.]” (JAC at 4743-44.)

Though Stein believed that the companies’ financials were

“horrific” and “atrocious” (JAC at 4841), Pelullo pressured

him into preparing nominally “independent” valuation reports

that overvalued the businesses. William Maxwell covered up

Pelullo’s involvement by listing his own name on the

engagement letters and handling Stein’s payments.

17

Also helping grease the skids were two of Pelullo’s

attorneys – David Adler and Gary McCarthy. Although

FirstPlus’s public filings said that the acquisitions were

“completed on an arms-length basis” (JAD at 2337), that was

not even remotely true. Pelullo had his lawyers on both sides

of the negotiating table, with Adler representing FirstPlus and

McCarthy representing the shell companies.

In the meantime, Scarfo, Pelullo, and William Maxwell

began to take advantage of their ill-gotten gains. Scarfo bought

a house and expensive jewelry for his wife; Pelullo purchased

a Bentley automobile; Scarfo and Pelullo together bought a

yacht; and William and Pelullo had FirstPlus acquire a plane

for their personal use. The scheme was working as planned.

Still, the fact that FirstPlus was a public company, with

disclosure requirements under federal securities laws, added

complications to the looting. To get around those requirements,

Pelullo hired Anthony Buczek as FirstPlus’s auditor, based on

a referral by Howard Drossner, who later became a

codefendant. Pelullo pressured Buczek into hiding or

obscuring material information about the company – such as

the Rutgers and Globalnet acquisitions, the consulting

agreements, and Pelullo’s prior federal fraud convictions 9 –

even though FirstPlus was required to disclose that information

in its SEC filings.

9

Pelullo knew that his prior felony convictions posed a

problem: he told Leshner that he “didn’t want to be on the

[FirstPlus] board of directors because of his previous

convictions.” (JAC at 3650-51.)

18

D. The Investigation and Takedown

The party had to come to an end, and eventually the

actions of the FirstPlus thieves caught up with them. While

investigating a tip that Scarfo was again trying to gain control

of the Philadelphia LCN, the Federal Bureau of Investigation

became aware of the mob ties and suspicious circumstances

surrounding the resignation and replacement of FirstPlus’s

former board. As FBI agents dug deeper, they came to believe

– rightly – that Pelullo and Scarfo were behind the FirstPlus

takeover and would systematically steal from it. They obtained

court permission to track the defendants’ locations through

their cellphones and wiretap their calls over the course of

several months. Among the calls that agents picked up were

communications between Pelullo and his lawyers (Maxwell,

McCarthy, and Donald Manno). To weed out any discussions

protected by Pelullo’s attorney-client privilege, the

government asked the District Court to review in camera the

records of wiretaps assembled by a special “filter team” before

they were transmitted to prosecutors 10 – all, of course,

unbeknownst to Pelullo.

The conspirators eventually came to suspect that they

were under investigation. For example, while on a long drive

from Dallas to deliver a gun to Scarfo’s house in New Jersey,

10

The filter team, which comprised both prosecutors

and investigators, reviewed the contents of the intercepted calls

between Pelullo and his lawyers to protect the attorney-client

privilege. See infra Section III.B.1. The filter team sought

court permission to transmit non-privileged communications to

the prosecution team. Id.

19

John Maxwell suspected that the government had agents

following him in a car and in a helicopter.

The government’s investigation escalated on May 8,

2008. That day, the FBI executed search warrants at thirteen

locations across the country, including FirstPlus’s offices in

Texas and the defendants’ homes, offices, and law firms in

Pennsylvania and New Jersey. They also seized the plane, the

Bentley, and the yacht, along with guns they found on board

the yacht and more guns and ammunition found at Scarfo’s and

Pelullo’s homes and Pelullo’s office. It took another three

years for the government to obtain an indictment from a grand

jury, but that day did arrive. In unpacking the evidence and

building their case, prosecutors set up additional filter teams to

review the evidence recovered from McCarthy’s and Manno’s

law offices and to set aside anything that was privileged before

turning the rest over to the team handling the prosecution of

the defendants.

E. The Damage

When Scarfo, Pelullo, and their co-conspirators took

over the company in early June 2007, FirstPlus had almost $10

million in its accounts, and it received a $4.4 million waterfall

payment later that year. By the following May, when the FBI

seized the accounts, there was less than $2,000 left. Between

the fraudulent consulting and legal-services agreements

channeled through bogus trusts and the acquisitions of virtually

worthless companies, the conspirators had bled FirstPlus dry.

It soon fell into bankruptcy, leaving its more than 1,200 public

stockholders with the company’s husk.

20

F. Indictment and Pretrial Proceedings

In October 2011, a federal grand jury in New Jersey

handed down a twenty-five-count indictment against thirteen

defendants, based on the FirstPlus scheme. All four

Defendants before us – Scarfo, Pelullo, and the Maxwell

brothers – were charged with conspiring to participate in the

affairs of an enterprise through a pattern of racketeering

activity, in violation of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962(d); conspiracy

to commit securities fraud, in violation of 18 U.S.C. § 371;

conspiracy to commit wire fraud, in violation of 18 U.S.C.

§ 1349; sixteen substantive counts of wire fraud, in violation

of 18 U.S.C. § 1343; conspiracy to commit money laundering,

in violation of 18 U.S.C. § 1956(h); conspiracy to commit bank

fraud, in violation of 18 U.S.C. § 1349; conspiracy to make

false statements in connection with a loan application, in

violation of 18 U.S.C. §§ 371 and 1014; and conspiracy to

transfer a firearm to prohibited persons, or to possess a firearm

by a convicted felon, in violation of 18 U.S.C. §§ 371 and 922.

In the RICO conspiracy count, prosecutors charged all four

Defendants with engaging in a pattern of racketeering activity

comprising various predicate acts: mail fraud, wire fraud, bank

fraud, obstruction of justice, extortion under the federal Hobbs

Act, interstate travel in aid of racketeering, money laundering,

and fraud in the sale of securities.

In addition, Scarfo, Pelullo, and William Maxwell were

charged with conspiracy to obstruct justice, in violation of 18

U.S.C. § 1512(k). Scarfo, alone, was also charged with being

a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). And finally, the indictment sought criminal

forfeiture of assets acquired from the proceeds of the

21

defendants’ criminal misdeeds, including the vehicles, jewelry,

and other assets that had been seized pursuant to the search

warrants in 2008.

The other nine defendants, who were less involved in

the scheme, were charged with various combinations of those

counts, though none faced as many charges as did the four

primary Defendants. Five of the lesser players – Leshner,

Parisi, Drossner, Lisa Murray-Scarfo, 11 and Todd Stark 12 –

took plea deals before the case went to trial. Due to William

Handley’s poor health, the charges against him were severed

and eventually dismissed. That left three other defendants –

McCarthy, Adler, and Manno, all of whom were lawyers –

alongside the main four heading to trial.

Extensive motions practice, discovery, and pretrial

proceedings ensued, lasting more than two years. Given the

breadth of evidence and the amount of time it was going to take

all parties to get ready for trial, the District Court designated

the matter a “complex case” and so tolled the deadlines of the

Speedy Trial Act.

The parties also engaged in comprehensive briefing and

argument on numerous issues, some of which are relevant here.

11

Lisa Murray-Scarfo is Scarfo’s wife, who, along with

the four primary Defendants, was indicted for conspiracy to

commit bank fraud and conspiracy to make false statements in

connection with a loan application.

12

Stark worked for Seven Hills as Pelullo’s driver and

was indicted for conspiring to get Pelullo a firearm.

22

Multiple defendants, including both Maxwells, sought to sever

their trials, particularly from Scarfo’s and Pelullo’s. The

District Court denied those motions. In early 2013, Pelullo

unsuccessfully tried to have the charges against him dismissed

on the basis of the Speedy Trial Act, complaining that the

government and the Court were taking too long to bring the

case to trial. Later that year, Pelullo asked the Court to order

that the yacht and the Bentley, among other assets, be returned

to him, which the Court refused to do.

G. Trial

Trial for the seven remaining defendants kicked off on

January 8, 2014. Because the case involved organized crime,

the District Court empaneled an anonymous jury. All

defendants were represented by counsel, except for Manno,

who proceeded pro se. To simplify the proceedings, the

District Court allowed any motion by one defendant to count

as having been made on behalf of all the defendants.

Still, conducting a joint trial for seven defendants facing

twenty-five counts in a complex case proved challenging, and

trial stretched through eighty-four days in court over the course

of six months. Several participants in the conspiracy, including

Roberts, O’Neal, and Leshner, turned on their associates and

testified for the prosecution. The defendants did not testify but

instead relied on cross-examination, character witnesses, and

expert testimony to present the case for the defense.

Scarfo’s, Pelullo’s, and William Maxwell’s defenses

hinged on the proposition that they had simply been engaged

in standard, run-of-the-mill business practices. John Maxwell,

for his part, claimed he had been in the dark as to the others’

23

malfeasance. The three attorney defendants – McCarthy,

Adler, and Manno – blamed their clients and said they had been

unaware of the criminal conduct.

The government sought to rebut those narratives, telling

jurors: “Is this how legitimate businessmen conduct

themselves? The answer to that is overwhelmingly no.

Legitimate businessmen don’t lie, they don’t cheat, they don’t

steal.” (JAC at 12687; accord JAC at 12504.) The government

also pointed to the mob connections behind the entire

operation, explaining to the jury how organized crime works

and connecting LCN, and Scarfo’s and Pelullo’s roles within

it, to the FirstPlus scheme. The District Court repeatedly made

clear to the jurors, however, that they could consider that

evidence only as it may show that Scarfo and Pelullo (and not

any of the other defendants) were linked to organized crime,

and only for the purpose of determining their motives and the

modus operandi of the scheme.

In mid-June 2014, the jury began to deliberate. The

Court delivered extensive instructions after hearing objections

from the parties. The verdict form asked the jury to reach a

unanimous finding of guilty or not guilty beyond a reasonable

doubt on each of the charges, as well as to make specific

findings as to whether the government had proven each of the

RICO predicate acts as to each of the defendants.

Given the length of the trial, perhaps it was inevitable

that some juror issues would arise. Even before deliberations

started, the Court excused a juror who expressed fears that her

and her family’s identities would be revealed to the defendants.

An alternate was seated in her stead. And after the jury had

been deliberating for a week, another juror was excused

24

because she had prepaid vacation plans. Rather than

proceeding with an eleven-member jury, the parties agreed to

have the Court substitute an alternate juror and instruct the

jurors to start their deliberations anew.

The Court also fielded a complaint from a juror, who

said that other members of the jury were being intransigent in

discussions, and another complaint from an alternate, who told

the Court that he had witnessed jurors discussing the case

outside of the jury room, in violation of the Court’s

instructions. In each case, the Court inquired into the concerns,

informed the parties, and gave them an opportunity to suggest

how to proceed. Both times, the Court ultimately chose to

allow the jurors to continue their deliberations.

The jury reached its verdict on July 3. It convicted

Scarfo, Pelullo, and the Maxwell brothers on virtually all

charges – though the Maxwells were acquitted of the bank

fraud and false statements conspiracies13 – and found that the

government had proven each of the charged racketeering

predicate acts that the Court had sent to the jury (which, for

some of the defendants, was fewer than the eight predicates

listed in the indictment). McCarthy, Adler, and Manno,

however, were acquitted. The District Court then held separate

forfeiture proceedings, at the end of which the jury found that

the proceeds from the fraudulent scheme, including the specific

property the government had sought – the airplane, yacht,

13

While the jury verdict form did not list either John or

William as defendants under those counts, they were indicted

for those offenses and are listed on the District Court docket as

“acquitted” of those charges.

25

Bentley, and jewelry, along with FirstPlus stock certificates,

the contents of bank accounts, and several thousand dollars in

cash – were all forfeit.

H. Post-Trial Proceedings and Sentencing

A blizzard of post-trial motions followed, including

several attempts to secure new trials, all of which were rejected.

Eventually, the District Court told the Defendants to stop filing

motions, and it moved on to the sentencing phase.

It sentenced both Scarfo and Pelullo to 360 months’

imprisonment, William Maxwell to 240 months, and John to

120 months. As relevant here, the Court calculated the

sentencing ranges after finding that the Defendants had caused

a loss of more than $14 million – the value FirstPlus lost over

the course of the scheme – and had harmed more than 1,000

victims – reflecting the number of shareholders whose

investments had been rendered worthless.

The District Court also ordered the Defendants to pay

more than $14 million in restitution and held them jointly and

severally liable for a $12 million forfeiture order for the

proceeds of their criminal activities. The forfeiture ruling also

transferred to the United States title to all the items the

Defendants had purchased with ill-gotten payments the jury

found were forfeitable.

I. Appeals

The Defendants each timely appealed, and we

26

consolidated their appeals. 14 In August 2017, however, we

granted Pelullo’s request to remand his case for the District

Court to address his motion for a new trial based on his claim

that one of his attorneys labored under an undisclosed conflict

of interest. Following briefing and an evidentiary hearing, the

District Court denied Pelullo’s motion in February 2019. He

appealed that ruling, and we consolidated that appeal with the

others.

Before us, the parties completed a supplemental round

of briefing on Pelullo’s claim regarding a federal investigation

and indictment of O’Neal for separate and unrelated

wrongdoing. They also submitted letters and briefing

addressing the effect of certain Supreme Court decisions that

issued while these appeals were pending.

The Defendants’ appeals raise some two dozen issues,

depending on how you count them, across five phases of the

prosecution: (1) the government’s investigation, (2) pretrial

proceedings, (3) trial, (4) sentencing, and (5) post-trial issues

concerning the government’s compliance with its disclosure

obligations.

III. INVESTIGATION ISSUES

Pelullo makes two claims of error arising out of the

government’s investigation. First, he says that the government

14

All record citations, except where otherwise

indicated, are to the combined District Court docket in No. 1-

11-cr-0740. All citations to the docket in this appeal are to the

docket in No. 15-2826.

27

violated his Fourth Amendment rights by tracking cell site

location information from his cellphones without obtaining a

warrant. Second, he criticizes the government’s procedures for

processing communications intercepted from wiretapped

phones and for reviewing potentially privileged documents

seized from his attorneys’ offices. Neither claim entitles him

to relief.

A. Collection of Pelullo’s Cell Site Location

Information15

The Stored Communications Act (“SCA”) allows

government investigators to collect suspects’ cell site location

information (“CSLI”).16 18 U.S.C. § 2703(c). Investigators

can obtain a court order to that end by submitting “specific and

articulable facts showing that there are reasonable grounds to

believe that the [data] are relevant and material to an ongoing

criminal investigation.” Id. § 2703(d). In 2007 and 2008,

prosecutors in this case repeatedly sought authorization to gain

15

We review a “denial of a motion to suppress for clear

error as to the underlying factual findings and exercise plenary

review over its application of the law to those facts.” United

States v. Burnett, 773 F.3d 122, 130 (3d Cir. 2014).

16

“CSLI is a type of metadata that is generated every

time a user’s cell phone connects to the nearest antenna. The

user’s cell phone service provider retains a time-stamped

record identifying the particular antenna to which the phone

connected.” United States v. Goldstein, 914 F.3d 200, 202 (3d

Cir. 2019). “Because most people constantly carry and

frequently use their cell phones, CSLI can provide a detailed

log of an individual’s movements over a period of time.” Id.

28

access to CSLI for Pelullo’s and Scarfo’s phones. 17 The

District Court approved the requests, authorizing the collection

from Pelullo’s cellphone provider of nine months of historical

cell site data, going as far back as September 2006, and eleven

months of prospective data, through May 2008.18

As trial approached, Pelullo moved to suppress that

evidence based on the duration of the tracking and the

government’s failure to show probable cause for obtaining the

information. The District Court denied the motion, holding (in

reliance on our precedent at the time) that probable cause was

not required to obtain the CSLI and that, even if it was, the

17

The investigators also obtained authorization to use

two other surveillance methods: pen registers to record

outgoing phone numbers dialed on the phones, 18 U.S.C. §

3127(3), and trap-and-trace devices to record incoming phone

numbers, id. § 3127(4).

18

“Prospective” CSLI means data collected after the

government obtains court permission to acquire it, while

“historical” CSLI describes data already in existence at the

time of the court order. In re Application of U.S. for an Order

Authorizing Installation & Use of a Pen Register & a Caller

Identification Sys., 402 F. Supp. 2d 597, 599 (D. Md. 2005).

The District Court similarly approved the collection of

prospective and historical CSLI from Scarfo’s phone, and

Scarfo moved alongside Pelullo in the District Court to

suppress that data. But he does not, on appeal, challenge the

Court’s denial of his suppression motion, so we are only

concerned with Pelullo’s attack on the government’s gathering

of CSLI from his phones.

29

evidence was nonetheless admissible by virtue of the good-

faith exception.

Pelullo characterizes the government’s applications as

“the most egregious and intrusive surveillance request ever

filed by a United States Attorney.” (SP Opening Br. at 184.)

He argues that the District Court erred in refusing to suppress

the CSLI evidence obtained during the tracking. 19 His

19

Invoking Federal Rule of Appellate Procedure 28(i),

each Defendant purports to adopt all arguments of his “co-

appellants which are applicable to himself.” (SP Opening Br.

at 223; NS Opening Br. at 183; WM Opening Br. at 36; JM

Opening Br. at 49.) Each Defendant then identifies specific

arguments advanced by codefendants that he intends to adopt.

We will recognize their specific adoptions but not the “blanket

request[s]” to adopt, which “fail[] to specify which of the many

issues of [their] codefendants [they] believe[] worthy of our

consideration.” United States v. Fattah, 914 F.3d 112, 146 n.9

(3d Cir. 2019) (citing Fed. R. App. P. 28(a)(5)). “[W]e will

[not] scour the record and make that determination for [them].”

Id.; accord Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.

1993). Each Defendant has thus abandoned and forfeited any

argument raised by his codefendants that he did not specifically

adopt.

As already noted, Scarfo did not adopt Pelullo’s CSLI

argument. Supra note 18. Both Maxwells, however, did

specifically adopt the argument. Their problem is they lack

standing to pursue that Fourth Amendment claim, as no CSLI

pertaining to them was collected by the government. See

United States v. Cortez-Dutrieville, 743 F.3d 881, 883 (3d Cir.

2014) (defendant seeking “to invoke the Fourth Amendment’s

30

reasoning centers on Carpenter v. United States, in which the

Supreme Court held that the collection of historical CSLI is a

“search” under the Fourth Amendment and that the SCA’s

“reasonable grounds” standard for obtaining a court order

“falls well short” of the probable cause standard the Fourth

Amendment imposes. 138 S. Ct. 2206, 2219-21 (2018).

Nobody disputes that, under Carpenter, acquiring a

defendant’s CSLI without a warrant is an unconstitutional

search. United States v. Goldstein, 914 F.3d 200, 203 (3d Cir.

2019). The question is whether Pelullo was entitled to a

remedy for that violation of his Fourth Amendment rights –

specifically, to have the illegally obtained CSLI suppressed at

trial.

The exclusionary rule is a “judicially created remedy”

by which evidence is suppressed in order to “deter future

Fourth Amendment violations.” Davis v. United States, 564

U.S. 229, 236-38 (2011). We do not reflexively apply it

whenever an unconstitutional search takes place. Goldstein,

914 F.3d at 203. Instead, it is reserved for those cases where

its expected deterrent effect justifies its use. Id. at 203-04.

One set of circumstances in which suppression is not

justified is when the government has an “objectively

reasonable good faith belief in the legality of [its] conduct” at

the time of the search. Id. at 204 (alteration in original). That

good-faith exception to the exclusionary rule is satisfied when

exclusionary rule” must have standing, which is the case when

he has a “legitimate expectation of privacy in the invaded

place” (citation omitted)).

31

the search in question was undertaken in “reli[ance] on a

properly-obtained valid judicial order, a then-valid statute, and

then-binding appellate authority[.]” Id. Here, prosecutors

obtained CSLI pursuant to a court order following the SCA’s

procedures, and, in 2007 and 2008, no binding precedent

required them to do more. On the contrary, that was standard

procedure at the time. See id.; United States v. Curtis, 901 F.3d

846, 849 (7th Cir. 2018); United States v. Joyner, 899 F.3d

1199, 1205 (11th Cir. 2018). Because we do not expect the

government to have anticipated the “new rule” announced a

decade later in Carpenter, its reliance on the SCA was

reasonable, and so the good-faith exception applies to its

acquisition of CSLI data without a warrant. Goldstein, 914

F.3d at 201, 204-05.

Pelullo argues against that conclusion, saying that the

government lacked a good- faith basis for seeking prospective

CSLI – particularly over a lengthy time period – without a

warrant. He seeks to cabin Carpenter and Goldstein as

announcing a “new rule” only as to historical CSLI. 20

Tracking his movements in real time, Pelullo says, involved an

“even greater intrusion into [his] privacy, for a far longer

period of time[,]” and so the government should have known

that it needed a warrant even prior to Carpenter. (SP Opening

Br. at 189.)

Yet Pelullo cites no pre-Carpenter authority from

appellate courts that would have put the government on notice

that seeking prospective CSLI required doing more than

20

For the distinction between prospective and historical

CSLI, see supra note 18.

32

satisfying the SCA’s requirements.21 He cannot even show a

consensus among district courts: at the time the orders at issue

here were signed, courts had reached differing conclusions on

whether officers seeking CSLI needed to show probable cause

and get a warrant, and they were still grappling with the Fourth

Amendment’s application to both historical and prospective

CSLI. See, e.g., In re Applications of U.S. for Orders Pursuant

to Title 18, U.S. Code Section 2703(d), 509 F. Supp. 2d 76, 78-

79, 78 n.4 (D. Mass. 2007) (noting a “disagreement among

courts” and collecting cases that granted applications under the

SCA standard and those that instead required a showing of

probable cause). 22 Neither we nor the Supreme Court had

addressed the issue. We did weigh in a few years after the

searches here took place, in In re Application of the U.S. for an

Order Directing a Provider of Electronic Communication

21

After argument, Pelullo brought to our attention

Leaders of a Beautiful Struggle v. Baltimore Police

Department, 2 F.4th 330 (4th Cir. 2021) (en banc), in which

the Fourth Circuit extended Carpenter to new aerial

surveillance technology and enjoined the City of Baltimore’s

use of it. Setting aside that the case does not deal with CSLI,

it does not affect our analysis of the state of the law before the

Supreme Court held in Carpenter that collecting historical

CSLI constituted a search.

22

Some of those cases held that prospective CSLI was

not authorized by the SCA. But even if the data collection here

violated the SCA, “suppression is not a remedy for a violation

of the [SCA]” and is only appropriate if “cell site location data

was obtained … in violation of the Fourth Amendment.”

United States v. Guerrero, 768 F.3d 351, 358 (5th Cir. 2014).

33

Service to Disclose Records to the Government, 620 F.3d 304,

312-13 (3d Cir. 2010), but that was only to decide that, for

Fourth Amendment purposes, acquiring historical CSLI was

not a search, a holding later abrogated by Carpenter. In sum,

then, the officers lacked clear guidance from any caselaw,

much less binding precedent, that would have put them on

notice that obtaining prospective CSLI would require

compliance with the Fourth Amendment.

Undeterred, Pelullo highlights language in In re

Application noting that CSLI could “be used to allow the

inference of present, or even future, location” and thus

resembles a tracking device. Id. He also points out that the

D.C. Circuit held, prior to Carpenter, that GPS tracking

requires a warrant. United States v. Maynard, 615 F.3d 544,

563-64 (D.C. Cir. 2010). Based on those and other decisions,

he says that, even before Carpenter, the heightened threat to

privacy posed by prospective CSLI should have been evident

to the officers.

Setting aside that the GPS data considered by the D.C.

Circuit reveals a person’s movements more precisely than does

CSLI, which logs the suspect’s general area, “only binding

appellate precedent” “at the time of the search” is relevant to

the good-faith exception. Goldstein, 914 F.3d at 205. While

conducting this investigation, prosecutors dealt with an

unsettled area of law but relied in good faith on what was

available to them – the plain text of the SCA and the court

order they obtained in compliance with that Act. Given those

circumstances, excluding the CSLI would not have “serve[d]

any deterrent purpose[,]” id. at 204, and the District Court did

not err in refusing to suppress the evidence.

34

Pelullo nonetheless insists that, even under the law as it

then existed, the CSLI should have been suppressed because

the government, in its applications for the court orders,

misrepresented the technological capabilities of the equipment

used to collect information from Pelullo’s phone and falsely

claimed that the phone had a connection to New Jersey.23 He

cites the principle that evidence must be suppressed “if the

magistrate or judge in issuing a warrant was misled by

information in an affidavit that the affiant knew was false or

would have known was false except for his reckless disregard

of the truth.” United States v. Leon, 468 U.S. 897, 923 (1984).

His claim that the government made misrepresentations

in those applications fails, however, because he did not first

raise it before the District Court. Federal Rule of Criminal

Procedure 12 requires that a request to suppress evidence “be

raised by pretrial motion[.]” Fed. R. Crim. P. 12(b)(3)(C). As

a result, a suppression argument raised for the first time on

appeal is forfeited, and we do not consider it even under Rule

52(b)’s plain-error standard. United States v. Rose, 538 F.3d

175, 182-84 (3d Cir. 2008). Pelullo offers no explanation for

why he did not object in the District Court to the alleged

23

Specifically, Pelullo argues that the government

misrepresented both that it lacked the capability to collect

outgoing phone numbers dialed on his cellphones using a pen

register without also collecting dialed “content” information,

such as bank account numbers and Social Security numbers,

and that it was unable to obtain precise “pin-point” location

information for his phones using CSLI and could only ascertain

the larger “sector” in which the phones were located. (SP

Opening Br. at 195-98.)

35

misrepresentations, so there is no “good cause” to excuse his

failure to do so. 24 Id. at 184-85.

Even if Pelullo had not forfeited that suppression

argument, his challenge to the evidence would prove fruitless.

The government only introduced a small quantity of CSLI at

trial. And what it did rely on merely served to corroborate

other evidence of Pelullo’s whereabouts. For example,

multiple witnesses testified that Pelullo was in Dallas during

the takeover of FirstPlus, and, as a further example, visitor logs

and security footage showed that Pelullo repeatedly visited

Scarfo’s father in prison in Atlanta. Any alleged error in the

admission of the CSLI was “rendered harmless” “in light of all

of the other evidence” at trial.25 United States v. Perez, 280

F.3d 318, 338 (3d Cir. 2002).

24

It is true that Pelullo joined Scarfo’s challenge

regarding the duration of the tracking and the lack of probable

cause. But neither defendant raised the misrepresentation issue

noted here, and accordingly it is forfeited. See United States v.

Joseph, 730 F.3d 336, 342 (3d Cir. 2013) (holding that a

suppression argument in the district court must match the

argument in the court of appeals to be preserved).

25

Pelullo also argues that improprieties in the collection

of the CSLI led to his conviction because they served as one of

the bases for the government’s requests to conduct wiretaps.

That, too, is not a basis for relief, since Pelullo makes no effort

to show that the wiretap applications would have been devoid

of probable cause without the CSLI. See Franks v. Delaware,

438 U.S. 154, 155-56 (1978) (holding that, when a defendant

establishes the falsity of a statement in an affidavit used to

36

B. Filter Teams26

Because federal agents intercepted and seized materials

covered by attorney-client privilege, the government

established filter teams to keep that information out of

procure a warrant and when “the affidavit’s remaining content

is insufficient to establish probable cause, the search warrant

must be voided and the fruits of the search excluded”).

26

We exercise de novo review over specific legal issues

underlying the claim of attorney-client privilege and review

factual determinations for clear error. In re Impounded, 241

F.3d 308, 312 (3d Cir. 2001). We review for abuse of

discretion a district court’s judgment that the crime-fraud

exception applies. Id. at 318. We review pre-indictment

procedures used by the District Court for abuse of discretion.

See In re Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir.

2000) (finding no abuse of discretion in district court “denying

Appellant and/or his attorney access to this information to

protect grand jury secrecy”).

Preserved Fifth Amendment claims are typically

reviewed for harmless error, United States v. Toliver, 330 F.3d

607, 613 (3d Cir. 2003), while infringements on the Sixth

Amendment right to counsel are generally structural errors that

require automatic reversal, United States v. Gonzalez-Lopez,

548 U.S. 140, 150 (2006). With regard to Pelullo’s challenges

to ex parte proceedings, however, we need not grapple with the

varying standards of review because those claims fail under

any standard, as he identifies no error. We analyze his

separation-of-powers claim under the harmless-error standard,

as discussed in greater detail herein.

37

prosecutors’ hands. Pelullo challenges the procedures

employed by the filter teams and the District Court’s attorney-

client privilege rulings as deprivations of his Fifth Amendment

right to due process and his Sixth Amendment right to counsel,

and as violative of the separation of powers.27 As a remedy for

those alleged errors, he claims he is entitled to a new trial. His

arguments fail.

1. Background

In August 2007, approximately four years before

Pelullo was indicted, the District Court entered an order

permitting the government to intercept his cellphone

communications, having found probable cause that he and

others were committing criminal offenses and using

communications with counsel to further those offenses. While

wiretapping Pelullo’s phone, federal agents intercepted calls

between Pelullo and his attorneys.

Knowing that some of those communications could be

privileged, the government deployed a “Wiretap Filter Team”

between federal investigators and the prosecution team, to

examine the communications and sort them into three

categories before turning them over to the prosecutors: (1)

communications protected by the attorney-client privilege; (2)

communications that would be privileged but for the crime-

fraud exception, which excludes from the scope of the

27

John and William Maxwell say they adopt Pelullo’s

arguments on these issues. That adoption, however, is

ineffective, because Pelullo’s briefing focuses specifically on

alleged intrusions into his own attorney-client privilege, an

issue that has no relevance to the Maxwells.

38

attorney-client privilege any communications made “in

furtherance of a future crime or fraud”; and (3) unprivileged

communications. United States v. Zolin, 491 U.S. 554, 563

(1989). Once the Wiretap Filter Team sorted the information,

it sought court approval to share with the prosecution team

unprivileged communications and communications falling

under the crime-fraud exception.

The Wiretap Filter Team was headed by Assistant U.S.

Attorney (“AUSA”) Melissa Jampol. She and her team

reviewed wire and text communications between Pelullo and

his attorneys, including, among others, David Adler, Gary

McCarthy, and Donald Manno. Federal agent Kevin Moyer,

who engaged as well in the surveillance of Scarfo and others

for a brief period, was also assigned to the Wiretap Filter Team.

In connection with his surveillance responsibilities, Moyer

interacted with members of the prosecution team.

During the duration of the wiretap, which was from

August 2007 through January 2008, Jampol submitted five

sealed ex parte motions to the District Court seeking to disclose

communications to the prosecution team. The District Court

granted each of those motions, authorizing disclosure of

selected intercepted communications to the prosecution team.

The Wiretap Filter Team’s memoranda of law, including

supporting affidavits and related papers, remained under seal

until after Pelullo’s indictment was unsealed. Following the

indictment’s unsealing, all the intercepted communications,

including those not yet disclosed to the prosecution team, were

provided to Pelullo’s counsel, giving him an opportunity to

challenge any of the communications as privileged, prior to

their potential use at trial. Pelullo’s counsel moved to exclude

the intercepted communications en masse, without identifying

39

any particular communication claimed to be privileged. The

District Court denied that motion.

Roughly nine months after the entry of the order, law

enforcement officials executed search warrants at the offices

of both Manno’s solo law practice and McCarthy’s law firm.

Two more filter teams were established to review and sort out

privileged materials seized from those offices: the “Manno

Filter Team” and the “McCarthy Filter Team.”

AUSA Matthew Smith and federal agent Michael

O’Brien formed the Manno Filter Team. O’Brien performed

an initial review of materials seized from Manno’s law office,

trying to make sure those items fell within the scope of the

search warrant, and Smith then made the privilege

determinations. Manno v. Christie, 2008 WL 4058016, at *5

(D.N.J. Aug. 22, 2008). If Smith determined that items were

not privileged, he turned them over to the prosecution team,

without going through the District Court first. Id. In contrast,

if he thought that certain items might be privileged, he then

determined whether an exception to the privilege, such as the

crime-fraud exception, applied. Id. When such an exception

did apply, Smith would “‘meet and confer’ with Manno or any

… individual who may have a claim of privilege in an attempt

to work out a resolution.” Id. Then, if that was unsuccessful

in resolving any concerns, Smith applied to the District Court

for a privilege determination before disclosing anything to the

prosecution team. Id.

The McCarthy Filter Team, led by Department of

Justice attorney Cynthia Torg, followed similar procedures. It

cataloged the materials seized from McCarthy’s law office and

substantively evaluated them. Because the materials included

40

multiple parties and transactions, the team worked with

McCarthy’s counsel to identify items covered by the attorney-

client privilege and the names of any of McCarthy’s clients

who may have held the corresponding privilege as to those

items. Any items identified as “potentially privileged” were

segregated, and in February 2013, nearly one and a half years

after Pelullo’s indictment, his counsel in this case was provided

copies of those items to confirm if either Pelullo or Seven Hills

claimed that privilege. The McCarthy Filter Team then sought

to work with Pelullo’s counsel to resolve privilege disputes and

reduce the volume of contested documents that the District

Court needed to review.

2. Challenges to Filter Team Procedures

Pelullo first challenges the propriety of the procedures

employed by the Wiretap Filter Team and Manno Filter Team,

saying they violated his Fifth and Sixth Amendment rights. He

asserts it was improper for Agent Moyer to be on both the

Wiretap Filter Team and an investigative team that had regular

contact with the prosecution. He claims that error necessarily

led to privileged information making its way from the Wiretap

Filter Team to the prosecution. Additionally, Pelullo contends

the Manno Filter Team’s attorney-client privilege

determinations were improperly made by Agent O’Brien, a

non-attorney.

While rare, governmental intrusion into an attorney-

client relationship has occasionally risen to the level of

“outrageous government conduct” violative of the Fifth

41

Amendment’s Due Process Clause.28 United States v. Voigt,

89 F.3d 1050, 1066 (3d Cir. 1996). We have exercised

“scrupulous restraint” before declaring government action so

“outrageous” as to “shock[] … the universal sense of justice[.]”

Id. at 1065 (citation omitted). We thus require defendants to

show the government knew of and deliberately intruded into

the attorney-client relationship, resulting in “actual and

substantial prejudice.” Id. at 1066-67. But nowhere does

Pelullo claim the government’s conduct “amount[ed] to an

abuse of official power that ‘shocks the conscience’” or

otherwise explain how his due process rights were violated.

Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994)

(citing Collins v. City of Harker Heights, 503 U.S. 115, 126

(1992)). He directs us to “no document, no telephone call,

nothing that was turned over to the prosecution team that in any

way has been used against [him] improperly[.]” (JAB at 2225.)

Although Agent Moyer’s presence on both a surveillance team

28

Common-law attorney-client privilege, which Pelullo

asserts, has been described as overlapping with the Fifth

Amendment protection against self-incrimination. See Fisher

v. United States, 425 U.S. 391, 405 (1976) (noting the overlap

between the right against self-incrimination and the attorney

client privilege); In re Foster, 188 F.3d 1259, 1271 (10th Cir.

1999) (“Under Fisher, [the attorney-client] privilege

effectively incorporates a client’s Fifth Amendment right; it

prevents the court from forcing [the attorney] to produce

documents given it by [the client] in seeking legal advice if the

Amendment would bar the court from forcing [the client]

himself to produce those documents.”). Pelullo, however, only

argues a Fifth Amendment due process violation, and he does

not invoke his right against self-incrimination.

42

and a filter team may have run afoul of Department of Justice

procedures, 29 that alone is not enough to establish a

constitutional violation.

With respect to the Manno Filter Team, Pelullo is not

quite accurate when he says that Agent O’Brien, a non-

attorney, performed the initial privilege determinations.

O’Brien did screen the materials in the first instance to decide

what fell within the scope of the warrant. Manno, 2008 WL

4058016, at *5. The initial privilege review, however, was

performed by AUSA Smith. Id. And even if that were not the

case, Pelullo does not present an argument that O’Brien being

an initial screener would “shock the conscience.”

Finally, in a conclusory fashion, Pelullo also asserts that

the errors he alleges are also all in violation of the Sixth

Amendment. But the Sixth Amendment does not attach before

the indictment. See McNeil v. Wisconsin, 501 U.S. 171, 175

(1991); United States v. Kennedy, 225 F.3d 1187, 1194 (10th

Cir. 2000) (“Government intrusions into pre-indictment

attorney-client relationships do not implicate the Sixth

Amendment.”).

Pelullo fails to identify any constitutional deficiencies

in the procedures of the filter teams, and we discern no error.

29

A Department of Justice manual provides that

“‘privilege team[s]’ should … consist[] of agents and lawyers

not involved in the underlying investigation.” U.S. Dep’t of

Justice, Justice Manual § 9-13.420 (2021).

43

3. Challenges to Ex Parte Proceedings

Next, Pelullo challenges the ex parte proceedings held

in conjunction with the filter teams, saying they violated his

Fifth Amendment due process rights, his Sixth Amendment

right to counsel, and separation of powers principles. Again,

he comes up short. The use of filter teams is an acceptable

method of protecting constitutional privileges. Moreover,

Pelullo has not identified any privileged materials that were

improperly shared with the prosecution, nor has he otherwise

attempted to demonstrate prejudice.

The use of filter teams in conjunction with ex parte

proceedings is widely accepted. See, e.g., In re Search of Elec.

Commc’ns, 802 F.3d 516, 530 (3d Cir. 2015) (“[T]he use of a

‘taint team’ to review for privileged documents [is] a common

tool employed by the Government.”); In re Grand Jury

Subpoenas, 454 F.3d 511, 522 (6th Cir. 2006) (explaining that

when “potentially-privileged documents are already in the

government's possession, … the use of the taint team to sift the

wheat from the chaff constitutes an action respectful of, rather

than injurious to, the protection of privilege”); United States v.

Avenatti, 559 F. Supp. 3d 274, 282 (S.D.N.Y. 2021) (“[T]he

use of a filter team is a common procedure in this District and

has been deemed adequate in numerous cases to protect

attorney-client communications.” (citation and internal

quotation marks omitted)). Contrary to Pelullo’s suggestion,

he had no pre-indictment Sixth Amendment rights, nor did he

have a Fifth Amendment due process right to notice of the ex

parte proceedings. Indeed, his surveillance was consistent with

the Wiretap Act, which requires courts to seal all government

applications for wiretaps and any resulting orders. 18 U.S.C.

§ 2518(8)(a)-(b). That sealing provision was established “to

44

protect the confidentiality of the government’s

investigation[,]” United States v. Florea, 541 F.2d 568, 575

(6th Cir. 1976), which the sealing did here until the appropriate

time. Although the Act entitles the subject of the wiretap to

notice and an inventory of the intercepted communications

within a reasonable time, such notice may be postponed

pursuant to an ex parte showing of good cause. 18 U.S.C.

§ 2518(8)(d).

Good cause is not a high bar, and an ongoing criminal

investigation will typically justify delayed notice of the

wiretap. E.g., United States v. John, 508 F.2d 1134, 1139 (8th

Cir. 1975); United States v. Manfredi, 488 F.2d 588, 602 (2d

Cir. 1973). It did so in this case. The undercover investigation

here continued until the intercepted communications gave the

government probable cause in May 2008 to search the law

offices of Manno and McCarthy. By executing those searches

pursuant to warrants, the government’s investigation could no

longer continue undercover. Pelullo was thus notified about

the existence of the wiretap shortly thereafter.

Pelullo next challenges the procedures employed by the

Manno and McCarthy Filter Teams, arguing they violated

separation-of-powers principles. The Manno and McCarthy

Filter Teams, as detailed above, instituted procedures to ensure

the protection of privileged materials. In challenging those

procedures, Pelullo relies predominantly on a Fourth Circuit

case, In re Search Warrant, 942 F.3d 159 (4th Cir. 2019),

which held comparable conduct unconstitutional. That case,

however, arose in the context of a motion for a temporary

restraining order brought by a law firm to enjoin the use,

without adequate process, of materials that had been seized as

part of a criminal investigation into one of its clients. Id. at

45

164. The Fourth Circuit reversed the district court’s denial of

the motion, ordering that the challenged filter team procedures

be enjoined. Id. at 170.

Pelullo’s argument arises in an entirely different

procedural posture: on post-conviction appeal. The full

applicability of the Fourth Circuit’s precedent is thus open to

question. More importantly, however, Pelullo has not

identified any way in which the process used to screen for

attorney-client privileged material caused him harm. We do

not believe, nor has Pelullo suggested, that the alleged error –

allowing an executive branch employee to make an initial

privilege determination – is structural. See United States v.

Colon-Munoz, 192 F.3d 210, 217 n.9 (1st Cir. 1999) (finding

alleged separation-of-powers violation not structural because it

“involve[d] the structure of the federal government rather than

the structure of the criminal trial process as a reliable means of

determining guilt or innocence”); see also Neder v. United

States, 527 U.S. 1, 8-9 (1999) (structural error is that which

would “deprive defendants of ‘basic protections’ without

which ‘a criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence ... and no

criminal punishment may be regarded as fundamentally fair’”

(citation omitted)).

Thus, we employ harmless-error review, and the answer

to whether there was any error here that caused Pelullo harm is

simple. There was not. Despite having had a full and fair

opportunity to do so, before both the District Court and us,

Pelullo has not pointed to any piece of evidence that was

privileged but improperly provided to the prosecution.

Without reaching the question of whether a constitutional

violation occurred (and without commenting on the

46

advisability of the particular screening methods employed by

the government), it is clear that, even if there were error, there

was no prejudice as a consequence. See United States v.

Schneider, 801 F.3d 186, 200 (3d Cir. 2015) (“An error is

harmless when it is highly probable that it did not prejudice the

outcome.” (citation and internal quotation marks omitted)).

Because Pelullo has not shown that injury resulted from the

filter teams’ review, any error was harmless, and his Fifth and

Sixth Amendment claims fail.

4. Crime-Fraud Exception

Pelullo’s final complaint about the handling of his

attorney-client privilege assertions in the District Court is that

the Court applied the incorrect standard when determining

whether the crime-fraud exception applied to certain

intercepted communications. But it is Pelullo who

misconstrues that exception.

The crime-fraud exception to the attorney-client

privilege limits “the right of a client to assert the privilege …

with respect to pertinent [communications] seized by the

government, when the client is charged with continuing or

planned criminal activity.” In re Impounded Case, 879 F.2d

1211, 1213 (3d Cir. 1989). To invoke the exception, the party

seeking to overcome the privilege must first demonstrate “a

factual basis … to support a good faith belief by a reasonable

person that the [seized] materials may reveal evidence of a

crime or fraud.” Haines v. Liggett Grp. Inc., 975 F.2d 81, 96

(3d Cir. 1992). If that threshold is crossed, the district court

will conduct an in camera review to determine whether the

party advocating the exception has made “a prima facie

showing that (1) the client was committing or intending to

47

commit a fraud or crime, … and (2) the attorney-client

communications were in furtherance of that alleged crime or

fraud[.]” In re Grand Jury Subpoena, 223 F.3d 213, 217 (3d

Cir. 2000) (citations omitted).

Contrary to the just-quoted precedent, Pelullo says that

the crime-fraud exception requires something beyond a prima

facie showing, that some heightened standard governs whether

disclosure to the prosecution is permitted. He is wrong. As

our precedent makes clear, there is no heightened standard

beyond the requisite prima facie showing. Here, the District

Court performed the correct analysis when it determined, based

on the government’s prima facie showing, that Pelullo was

committing crimes and that the communications at issue

included discussion furthering those crimes. The Court’s

conclusion was supported by the filter teams’ evidence of

Pelullo’s criminal activities, the connection between his

attorneys and the purported fraud, and analysis of how

Pelullo’s conversations with attorneys furthered that fraud.

In sum, the showing required to apply the crime-fraud

exception was met by the evidence provided by the filter teams,

and the District Court relied on the appropriate legal standard

in making its determinations. Pelullo has not established any

error based on the government’s use of filter teams.

IV. PRETRIAL ISSUES

The Defendants claim to have identified multiple errors

arising from what happened – and didn’t happen – prior to trial.

First, Pelullo asserts that the District Court failed to promptly

set a trial date and so deprived him of a speedy trial. Next,

Pelullo and both Maxwells complain about the District Court’s

48

grant of the government’s request to introduce evidence of

Scarfo’s and Pelullo’s ties to organized crime, and the

Maxwells insist that the Court should have severed their trial

from that of their codefendants. None of those arguments is

persuasive.

A. Speedy Trial Act Claim30

Although Pelullo was arrested in November 2011, his

trial did not occur until more than two years later. He objects

to the length of that delay, blaming the government for causing

the holdup and faulting the District Court for waiting too long

to set a trial date. He asks us to reverse his conviction and order

dismissal of the charges with prejudice. But because the

District Court properly ordered a continuance in response to

the complex nature of the case, and because it scheduled trial

once it made sense to do so, Pelullo’s arguments fail.

To “assure a speedy trial” for all defendants, the Speedy

Trial Act sets timing deadlines for the stages of a criminal

prosecution. 18 U.S.C. § 3161(a). A defendant must be

indicted within thirty days of his arrest, and he must be tried

within seventy days of the later of his indictment or initial

appearance. Id. § 3161(b), (c)(1). The Speedy Trial Act

generally insists on strict conformity with its deadlines:

30

We exercise plenary review of a district court’s

interpretation of the Speedy Trial Act and review factual

conclusions for clear error. United States v. Lattany, 982 F.2d

866, 870 (3d Cir. 1992). We review for abuse of discretion a

district court’s grant of a continuance after a proper application

of the Act to established facts. Id.

49

charges “shall be dismissed” if a defendant is not afforded a

trial on time. Id. § 3162(a)(2). Nonetheless, those deadlines

can be tolled for good cause. Id. § 3161(h); accord United

States v. Adams, 36 F.4th 137, 144-45 (3d Cir. 2022). Delay is

allowed for the duration of a continuance granted by the district

court “on the basis … that the ends of justice [are better] served

by taking such action [and that doing so] outweigh[s] the best

interest of the public and the defendant in a speedy trial.” 18

U.S.C. § 3161(h)(7)(A). If a continuance is improper or the

court does not justify its findings on the record, however, the

clock continues to run. Id.; Zedner v. United States, 547 U.S.

489, 508 (2006).

Case complexity is an acceptable reason for tolling

Speedy Trial Act deadlines, 18 U.S.C. § 3161(h)(7)(B)(ii), and

this case was certainly complex. It involved thirteen

codefendants, dozens of charges, “approximately 1,000,000

pages of information[,]” and “voluminous” amounts of

discoverable material, including seven months of wire taps,

hundreds of phone call recordings, items seized from seventeen

locations, and data from sixty computers. (Government’s

Supplemental Appendix (“GSA”) at 407D.) In light of all that,

the parties wisely acceded to a Complex Case Order (“CCO”),

which the District Court entered in December 2011, just over

a month after the defendants were indicted and well before the

seventy-day deadline. The District Court found that the

defendants would need “considerable time” to look over the

documents and craft their defenses and pretrial motions. (GSA

at 407E.) Specifically citing “the nature of the prosecution, its

complexity[,] and the number of defendants,” the Court

designated the case as complex, determined that it would be

“unreasonable to expect adequate preparation” within the

seventy-day window, and found that “the ends of justice served

50

by granting the continuance outweigh[ed] the best interests of

the public and the defendants in a speedy trial.” 31 (GSA at

407F (citing 18 U.S.C. § 3161(h)(7)(A), (B)(ii)).) It entered an

indefinite continuance without a set end date, with trial to take

place on a date “to be determined[.]” (GSA at 407F.)

Like all the other parties, Pelullo stipulated to entry of

the CCO, and he never advanced a speedy-trial argument or

asked the District Court to set a trial date prior to seeking

dismissal of the charges on Speedy Trial Act grounds in March

2013 – roughly sixteen months after the CCO was entered. Yet

he now takes issue with the open-ended nature of the

continuance, saying it failed to incentivize the parties to move

quickly toward trial and enabled the government to delay

providing discovery.

In United States v. Lattany, 982 F.2d 866, 877, 881 (3d

Cir. 1992), we authorized district courts to enter open-ended

continuances to serve the ends of justice as long as they are

“not permitted to continue for an unreasonably long period of

time” and are supported by on-the-record factual findings.

31

The District Court also held that the defendants had

waived their “rights under the Speedy Trial Act[.]” (GSA at

407F.) That was not correct: while a defendant whose rights

have already been violated but who fails to raise the issue prior

to pleading guilty or going to trial loses his “right to

dismissal[,]” 18 U.S.C. § 3162(a)(2), “a defendant may not

prospectively waive the application of the Act.” Zedner v.

United States, 547 U.S. 489, 503 (2006). Because the District

Court’s decision to grant a continuance was otherwise proper,

however, that error does not alter our analysis.

51

While a continuance must be reasonable in length, defendants

are not “free to abuse the system by requesting [ends-of-

justice] continuances and then argu[ing] that their convictions

should be vacated because the continuances they acquiesced in

were granted.” Id. at 883; accord United States v. Fields, 39

F.3d 439, 443 (3d Cir. 1994) (Alito, J.) (“The defendant’s

arguments are disturbing because he would have us order the

dismissal of his indictment based on continuances that his own

attorney sought.”).

The continuance here was appropriate. Pelullo

explicitly conceded in the District Court “that the complex

designation [was] factually supported” (JAB at 1933), and he

does not identify any clear error in the District Court’s findings.

As the extensive motions practice in which the parties engaged

and the duration of the trial both confirm, the number of

defendants, factual complexities of the case, and sheer volume

of discovery all required difficult and time-consuming pretrial

preparation by the parties.32 Indeed, Pelullo himself joined in

a request to delay for six weeks the start of trial following jury

selection, even though the District Court proposed beginning

trial immediately, and even though Pelullo had recently begun

arguing that his rights under the Speedy Trial Act were being

violated. Cf. United States v. Jernigan, 20 F.3d 621, 622 n.5

32

Any blame for delay in affording the defendants

discovery, meanwhile, appears to be attributable to third-party

vendors who were overwhelmed by the scale of the discovery

demands. For its part, the District Court provided Pelullo and

Scarfo access to computer systems inside their detention

facility so they could review the discovery and discuss it with

their attorneys.

52

(5th Cir. 1994) (defendant’s speedy trial claim “is stripped of

all force by the fact that he sought … additional continuances

after the complained-of delay” (emphasis omitted)).

The District Court certainly did not abuse its discretion

in authorizing the continuance it did. As in Lattany, the

continuance was granted before the end of the Speedy Trial

Act’s seventy-day window; the District Court

“contemporaneously and specifically justified the continuance

by a finding that it was necessary for [the defendants] to

adequately prepare [their] defense,” and further justified it by

reference to the “numerous charges” in the case; the Court

“continually attempt[ed] to accommodate [Pelullo] throughout

the pretrial stage”; Pelullo “acquiesced in the motion[] for [a]

continuance[]”; and, beyond all dispute, the case was complex.

Lattany, 982 F.2d at 878, 883; see also Fields, 39 F.3d at 444

(“[A]n ‘ends of justice’ continuance may be granted for the

purpose of giving counsel additional time to prepare motions

in ‘unusual’ or ‘complex’ cases.”). Allowing discovery and

pretrial motions to play out and then turning to trial, as the

District Court did, was a reasonable approach that conformed

with the requirements of the Speedy Trial Act.

Pelullo nevertheless notes that the Act requires a court

to schedule a date for trial “at the earliest practicable time[,]”

18 U.S.C. § 3161(a), and objects that the District Court did not

set a trial date until a year and a half after the indictment. But

the scheduling of a trial date is a means to an end: the court

“shall” set a trial date “so as to assure a speedy trial.” Id.

(emphasis added). All the District Court needed to do was set

a date as soon as doing so was “practicable.” Id. It ably met

those obligations here. Once the end was reasonably within

sight in 2013, the Court scheduled a date for trial. Given the

53

reasonableness of the continuance, the District Court did not

err in waiting to schedule the trial, and Pelullo has failed to

demonstrate a violation of the Speedy Trial Act.33

B. Admission of La Cosa Nostra Evidence and

Denial of the Maxwells’ Motion for Severance

The Defendants contend that the District Court erred in

admitting evidence of Scarfo’s and Pelullo’s ties to La Cosa

Nostra pursuant to Federal Rules of Evidence 403 and 404(b)

and that, accordingly, they are entitled to new trials. 34 The

Maxwells further contend that the District Court abused its

33

Because the District Court complied with § 3161(a),

we need not address whether a violation of that provision

automatically requires dismissal or whether a defendant who

was not given a trial date “at the earliest practicable time” must

establish that he was prejudiced by that delay.

34

Pelullo and John Maxwell primarily briefed the

admission of organized crime evidence, and both specifically

adopt each other’s arguments. William Maxwell did not

separately brief the admission of organized crime evidence, but

he specifically adopted the arguments of Pelullo and John, so

the issue belongs to all three of those Defendants. While

Scarfo did not specifically adopt the other Defendants’

arguments and thus forfeited them, see supra note 19, we

nonetheless refer to the arguments in this section as belonging

to “the Defendants” for the sake of simplicity.

William provided only limited briefing on severance,

but, again, he specifically joined John’s arguments with respect

to that issue. Accordingly, we attribute any arguments made

by John on severance to William as well.

54

discretion by denying their motion to sever their trial from that

of Scarfo and Pelullo since the evidence of mob ties, even if

properly admitted, prejudiced their defenses. We reject each

of those contentions.

1. Admission of LCN Evidence35

Prior to trial, the government moved for permission to

introduce evidence of Scarfo’s and Pelullo’s association with

organized crime, including an explanation of the hierarchy of

LCN and the custom of paying superiors within the

organization. The government presented two alternative

arguments in support of its request: first, the evidence was

intrinsic to the charged offenses; and second, even if not

intrinsic, the evidence was admissible as evidence of prior bad

acts pursuant to Federal Rule of Evidence 404(b). Over the

Defendants’ objections, the District Court permitted

introduction of the LCN evidence as “classic 404(b)

evidence.”36 (JAB at 2343.) It reasoned that the evidence was

35

We review decisions to admit evidence for abuse of

discretion, and such discretion is construed especially broadly

in the context of Rule 403. United States v. Moreno, 727 F.3d

255, 262 (3d Cir. 2013) (“In order to justify reversal, a district

court’s analysis and resulting conclusion must be arbitrary or

irrational.” (citation omitted)). “However, to the extent the

District Court’s admission of evidence was based on an

interpretation of the Federal Rules of Evidence, the standard of

review is plenary.” United States v. Bobb, 471 F.3d 491, 497

(3d Cir. 2006).

36

The District Court disagreed with the government’s

55

“relevant because it explain[ed] how and why the takeover

occurred” and was “offered … to show motive and control[.]”

(JAB at 2343.) The Court also decided the evidence was

“sufficiently probative under [Rule] 403 because it …

provide[d] an explanation as to why people would do what they

[allegedly] did in this case,” and that, although the evidence of

mob ties may have been prejudicial, that prejudice did not

“significantly outweigh[] the relevance of the testimony about

the membership in La Cosa Nostra.” (JAB at 2343.)

Consistent with that ruling, Agent Kenneth Terracciano

testified at trial about the hierarchy of LCN, Scarfo’s father’s

involvement in LCN, the attempted murder of Scarfo in 1989,

and Scarfo’s subsequent status with the Lucchese family.

Terracciano did not testify that Scarfo had committed any

crimes on behalf of the Lucchese family and did not even

mention Pelullo. The government instead sought to establish

Pelullo’s allegiance to LCN by introducing evidence of, among

other things, his close relationship with Scarfo and Scarfo’s

father, including during the takeover of FirstPlus, and his

efforts to get Scarfo’s father released from prison.

Throughout the trial, the District Court repeatedly

provided limiting instructions to the jury. Namely, each time

LCN or organized crime was mentioned, the Court informed

the jury that “[t]here [was] no evidence and the government

[did] not allege that any defendants, other than Scarfo and

Pelullo, were associates in any organized crime organization.”

alternative argument that the evidence of LCN ties was

intrinsic to the indicted crimes and hence not subject to Rule

404(b).

56

(JAC at 1750-51; see also JAC at 711-13, 5434-35.) The Court

made clear it was up to the jurors to decide whether Scarfo or

Pelullo “were so associated or whether they made use of,

sought the benefit of or benefited from their association with

La Cosa Nostra, and whether either of them used those

associations to further the unlawful goals of the RICO

enterprise alleged in this case.” (JAC at 1750-51; see also JAC

at 711-13.) The jury was also instructed that none of those

associations could be considered “as proof that … Scarfo and

Pelullo had a bad character or any propensity to commit

crime.” (JAC at 1751; see also JAC at 712-13, 1473.)

Under Federal Rule of Evidence 404(b), evidence of a

defendant’s prior crimes, wrongs, or other acts “is not

admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with

the character” – in other words, it may not be used to show that

a person had a propensity for crime. Fed. R. Evid. 404(b)(1).

Such evidence is admissible, however, “for another purpose,

such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2). We have explained that 404(b)(2)

evidence is admissible “if it is: (1) offered for a non-propensity

purpose; (2) relevant to that identified purpose; (3) sufficiently

probative under Rule 403 so its probative value is not

[substantially] outweighed by any inherent danger of unfair

prejudice; and (4) accompanied by a limiting instruction, if

requested.” United States v. Garner, 961 F.3d 264, 273 (3d

Cir. 2020) (citation and internal quotation marks omitted). “In

a conspiracy case, evidence of other bad acts, subject always

to the requirements of Rule 403, can be admitted to explain the

background, formation, and development of the illegal

relationship.” United States v. Escobarde Jesus, 187 F.3d 148,

57

169 (1st Cir. 1999); accord United States v. Reifler, 446 F.3d

65, 91-92 (2d Cir. 2006) (“Evidence that a defendant had ties

to organized crime may be admissible in a variety of

circumstances[,]” including to explain “how the illegal

relationship between [co-conspirators] developed[.]” (citation

omitted)).

The Defendants contend that the District Court abused

its discretion by admitting the organized crime evidence. More

specifically, they allege that the evidence was not relevant, was

not offered for a non-propensity purpose, and was unduly

prejudicial. All three arguments lack merit.

First, the District Court correctly deemed the LCN

evidence relevant. Federal Rule of Evidence 402 states

“[i]rrelevant evidence is not admissible.” As the Court noted,

the LCN evidence explained “how and why the takeover [of

FirstPlus] occurred.” (JAB at 2343.) So the evidence was

relevant. And proving motive is a proper purpose for evidence

under Rule 404(b). Virtually everything in this case traces

back to the conspirators’ decision to seize control of the

company, which was motivated at least in part by Pelullo’s and

Scarfo’s LCN obligations. That is most relevant to Pelullo

(and Scarfo), but it is relevant to the Maxwells too. The

Maxwells may have boarded the conspiracy for their own

reasons, but they still got on. The ties to LCN help explain

how and why the railroad was being operated.

In that vein, the evidence shed light on Scarfo’s and

Pelullo’s relationship, explaining why Pelullo was subservient

to Scarfo even though Pelullo was the operational leader of the

58

FirstPlus scheme.37 See United States v. King, 627 F.3d 641,

649 (7th Cir. 2010) (affirming admission of gang evidence that

“helped establish the relationship among [the co-conspirators

and] the rank of those men within the gang,” which “was

central to the government’s theory”). It also explained

Scarfo’s need to pay off the Lucchese crime family. And,

contrary to the Defendants’ arguments, it is immaterial whether

Scarfo and Pelullo also engaged in the conspiracy for personal

reasons – namely, a desire to line their own pockets – in

addition to doing so to meet their LCN obligations. “[T]he law

recognizes that there may be multiple motives for human

behavior[,]” and evidence of other motives does not render

irrelevant the evidence of Scarfo’s and Pelullo’s LCN ties. See

United States v. Technodyne LLC, 753 F.3d 368, 385 (2d Cir.

2014) (citing Anderson v. United States, 417 U.S. 211, 226

(1974) (“A single conspiracy may have several purposes, but

if one of them – whether primary or secondary – be the

violation of a federal law, the conspiracy is unlawful[.]”)).

So, the evidence was offered for, and relevant to, a non-

propensity purpose. Even then, it still had to survive Rule

403’s balancing test. And it did. The District Court said that

37

To only highlight a few examples indicating Pelullo’s

subservience to Scarfo, Pelullo ensured that Scarfo received

$33,000 per month plus expenses through a sham consulting

agreement under which Scarfo did nothing of value, and he

fraudulently obtained a mortgage for Scarfo’s wife. In

addition, evidence indicated that Pelullo was driven by his fear

of not being able to pay Scarfo’s father. (See JAD at 1468

(“[W]hatta we gonna do without that money they’re they’re

[sic] dead. … [M]y uncle is gonna f[***]in’ kill me.”).)

59

it was sure there was some prejudice to Pelullo and Scarfo from

the introduction of the evidence, but it found that the

prejudicial effect did not substantially outweigh the probative

value of the organized crime evidence because that evidence

helped explain why the Defendants did what they did. (JAB at

2343.)

Pelullo argues that the balancing was “insufficient and

substantively improper[,]” but he does not specify what else

the Court should have considered or why the Court’s reasoning

was deficient. (SP Reply Br. at 23-24.) Because the Court

“engage[d] in a Rule 403 balancing and articulate[d] on the

record a rational explanation,” the 403 challenge fails. 38

United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992).

The Maxwells make a related prejudice argument. They

contend that, due to the admission of LCN evidence, “Scarfo’s

38

Pelullo makes an additional Rule 403 argument on a

separate piece of evidence. He says the District Court

improperly admitted testimony from FirstPlus secretary David

Roberts that, shortly after the FirstPlus takeover, Pelullo told

him, William Maxwell, and John Maxwell “that if we ever rat,

our wives will be f[***]ed by the N word and our children will

be sold off as prostitutes.” (JAC at 1848.) The Court

determined that the threat was probative in showing that

Pelullo wanted to “drive home the point that he was threatening

harm and he obviously thought that … the listener [would have

understood he] was in grave danger.” (JAB at 2402.) The

Court concluded that any prejudicial effect from the disgusting

phrasing of the threat was outweighed by the relevance of

proving Pelullo’s state of mind. Because the Court conducted

60

proverbial blood spilled all over” them, resulting in a “taint

[that] could not be washed away or otherwise cle[a]nsed.” (JM

Opening Br. at 37.) But the District Court, in addition to

weighing the evidence under Rule 403, provided clear

instructions to the jury that only Scarfo and Pelullo, not any of

the other defendants, were associated with LCN and the

Lucchese family.

Limiting instructions are an appropriate way to ensure

that a jury understands the purpose for which evidence of prior

acts may be considered, and such instructions are generally

sufficient “to cure any risk of prejudice[.]” Zafiro v. United

States, 506 U.S. 534, 539 (1993); see also United States v. Lee,

612 F.3d 170, 185 (3d Cir. 2010) (upholding a decision to

admit evidence under Rule 404(b) in part because the district

court gave a limiting instruction). There is particular reason to

think that the jury followed those instructions here because

some of the Maxwells’ codefendants – Adler, McCarthy, and

Manno – were acquitted, despite also being associated with the

FirstPlus takeover. See, e.g., United States v. Greenidge, 495

F.3d 85, 95 (3d Cir. 2007) (noting “the fact that the jury

acquitted [a codefendant] is critical proof that the jury was

‘able to separate the offenders and the offenses’” (citation

omitted)); United States v. Sandini, 888 F.2d 300, 307 (3d Cir.

1989) (finding claim of prejudice “without merit” where a

codefendant was acquitted of some charges, “a fact indicating

that the jury carefully weighed the evidence relating to each

an appropriate Rule 403 balancing analysis and reached a

rational conclusion, we discern no error in the admission of that

evidence. United States v. Sampson, 980 F.2d 883, 889 (3d

Cir. 1992).

61

defendant and each charge”); United States v. Solis, 299 F.3d

420, 441 (5th Cir. 2002) (“[T]he jury acquitted some of the

alleged co-conspirators, supporting an inference that the jury

sorted through the evidence … and considered each defendant

and each count separately[.]”). We thus see no reason to stray

from “the almost invariable assumption of the law that jurors

follow their instructions[.]” Richardson v. Marsh, 481 U.S.

200, 206 (1987).

2. Denial of the Maxwells’ Severance

Motion39

Separately, the Maxwells assert that they are entitled to

a new trial because the District Court abused its discretion in

denying their motion to sever their trials from that of Scarfo

and Pelullo. They say that the introduction of evidence of

Scarfo’s and Pelullo’s connections to organized crime created

spillover prejudice because the Maxwells were not part of the

mob but were nonetheless effectively grouped in with it. Once

more, we are unpersuaded.

In assessing the Maxwells’ request for severance, the

District Court observed that a “fundamental princip[le]” of

federal criminal law is the “preference for joint trials of

defendants who are indicted together.” (D.I. 297 at 17 (internal

quotation marks omitted) (quoting United States v. Urban, 404

F.3d 754, 775 (3d Cir. 2005)).) Noting that the preference “is

particularly strong in cases involving multiple defendants

39

“[D]enial of severance is committed to the sound

discretion of the trial judge[.]” United States v. Eufrasio, 935

F.2d 553, 568 (3d Cir. 1991).

62

charged under a single conspiracy” (D.I. 297 at 17 (citing

United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996))), the

Court held that the Maxwells did not meet the heavy burden of

demonstrating the need for severance based on a risk of

spillover prejudice.40 It also promised to instruct the jury on

“the limited admissibility of certain evidence” about Scarfo’s

and Pelullo’s ties to organized crime. (D.I. 297 at 27.)

“A defendant seeking a new trial due to the denial of a

severance motion must show that the joint trial led to ‘clear and

substantial prejudice resulting in a manifestly unfair trial[,]’” a

demanding standard that requires more than “[m]ere

allegations of prejudice[.]” United States v. John-Baptiste, 747

F.3d 186, 197 (3d Cir. 2014) (first quoting Urban, 404 F.3d at

775; and then quoting United States v. Reicherter, 647 F.2d

397, 400 (3d Cir. 1981)). The Maxwells “are ‘not entitled to

severance merely because they may have a better chance of

acquittal in separate trials.’” Id. (quoting Zafiro, 506 U.S. at

540). In making the initial determination of whether to grant

severance, the “critical issue” before a district court is “not

whether the evidence against a co-defendant is more damaging

but rather whether the jury will be able to compartmentalize

the evidence as it relates to separate defendants in view of its

40

Other defendants – Gary McCarthy, Howard

Drossner, David Adler, Donald Manno, William Handley, and

John Parisi – sought severance, many of them for the same

reasons, and the Court rejected their arguments as well.

63

volume and limited admissibility.” Id. (citation and internal

quotation marks omitted).

The Maxwells fail to show that any claimed spillover

prejudice from the organized crime evidence concerning

Scarfo and Pelullo was clear and substantial and, instead, make

“mere allegations of prejudice” that are insufficient to clear the

high bar for severance. Id. (citation omitted). In United States

v. Eufrasio, 935 F.2d 553 (3d Cir. 1991), which involved a

RICO prosecution of Scarfo’s father’s criminal enterprise, we

rejected the same sort of spillover prejudice argument. We

concluded that because “all appellants were charged with the

same conspiracy to participate in the same Scarfo enterprise,

the public interest in judicial economy favored joinder.” Id. at

568. The Maxwells’ argument based on prejudice from their

codefendants’ mob ties is even less compelling than that of the

Eufrasio defendants because, here, the District Court

repeatedly gave limiting instructions that “[t]here is no

evidence and the government does not allege that any

defendants[,] other than Scarfo and Pelullo[,] were associates

[in] any organized crime organization.” (JAC at 712, 1751.)

The Maxwells’ only response is that the jury may not have

followed these instructions. But, as discussed earlier, we

presume that the jury follows instructions, which “often will

suffice to cure any risk of prejudice.” Zafiro, 506 U.S. at 539.

There is no reason to believe otherwise in this case. Indeed,

the acquittal of other defendants indicates just the contrary.

The District Court did not abuse its discretion in concluding

that the jury could “compartmentalize the evidence” as it

related to the Maxwells, John-Baptiste, 747 F.3d at 197

64

(citation omitted), and, consequently, severance was not

warranted.

V. TRIAL ISSUES

We turn now to the purported errors at the trial. Scarfo

objects to being tried alongside his former counsel, while

Pelullo argues that his trial counsel had an undisclosed conflict

of interest by being under federal investigation during this case.

The Defendants also challenge their RICO conspiracy

convictions: Scarfo claims that the jury instructions

constructively amended the indictment as to that count, and the

other three Defendants challenge the jury instructions on and

the sufficiency of the evidence supporting one of the predicate

acts that formed the basis for their RICO conspiracy

convictions. In addition, Pelullo asserts that the instructions on

the felon-in-possession conspiracy charge were missing an

element required under Rehaif v. United States, 139 S. Ct. 2191

(2019). William Maxwell further claims there was insufficient

evidence for many of his convictions. Finally, several

Defendants advance claims of error relating to the conduct of

various jurors. None of those arguments entitle any of the

Defendants to reversal of the convictions or a new trial.

A. Scarfo’s Joint Trial with Former Counsel

Donald Manno41

Scarfo argues that he deserves a new trial because he

41

We address this issue here, as arising out of trial,

because Scarfo did not move before the trial to have his case

severed from Manno’s. Manno did seek severance, but, as

65

was tried jointly with his codefendant and former attorney,

Donald Manno, who proceeded pro se. In particular, he

contends – for the first time on appeal42 – that Manno’s self-

representation “stripped” him (Scarfo) “of a fair and unbiased

trial guaranteed by the Sixth Amendment.” (NS Opening Br.

at 43.) As the government puts it, Scarfo “claims Manno had

a conflict of interest that Scarfo refused to waive, so Manno

couldn’t represent himself without violating Scarfo’s Sixth

Amendment right to conflict-free counsel.” (Answering Br. at

49.)

discussed herein, the argument he made in the District Court

was different from the Sixth Amendment theory Scarfo now

advances.

We need not decide whether Scarfo would need to

establish plain error to succeed on his unpreserved Sixth

Amendment claim or whether any violation of his rights was a

per se reversible error, since his claim lacks merit under either

standard.

42

Although, as just noted, Scarfo did not raise this issue

before the District Court, Manno did seek to sever his trial from

Scarfo’s. But even though there was a presumption that all

defendants joined each other’s motions, Manno’s request –

which articulated a need for severance to protect his own

interests – was insufficient to preserve an objection from

Scarfo. Indeed, the District Court pointed out as much,

denying one of Manno’s severance motions partly because

“Scarfo has not objected at this point to the proposed testimony,

and he would be the one prejudiced by it.” (JAB at 842.)

66

Because Scarfo was represented by independent,

conflict-free counsel throughout his trial, he was not deprived

of a Sixth Amendment right. If anything, Scarfo’s challenge

to the fairness of his trial sounds in due process more than in

the Sixth Amendment. But Scarfo waived any due process

claim he may have had and is not entitled to relief on that basis.

1. Background

Among those indicted alongside Scarfo was Manno,

who appears to have been one of Scarfo’s go-to criminal

defense attorneys. According to Manno, he represented Scarfo

in several matters, including when Scarfo was seeking habeas

relief while imprisoned on state RICO charges related to

gambling, when he was charged with possessing a deadly

weapon in connection with an altercation at an Atlantic City

bar, and when he faced charges of illegal gambling and loan-

sharking. As his codefendant in this case, however, Manno did

not represent Scarfo. For that task, the District Court appointed

counsel.

The Court allowed Manno to represent himself but

denied his initial request for severance. Prior to trial, Manno

moved once more for severance and moved for permission to

introduce evidence of “certain legal services” he had provided

to Scarfo. (D.I. 664 at 1-2.) He said he needed the evidence to

illustrate his “professional and personal relationship” with

Scarfo and Pelullo and to emphasize his role as a criminal

defense attorney “as a partial explanation” for some of his

conduct. (D.I. 664-1 at 3.) He also argued that the evidence

was relevant to show that the approximately $20,000 in fees he

received from LANA was compensation for legal services and

“totally legitimate and unrelated to [FirstPlus].” (D.I. 664-1 at

67

4.) Because Manno’s defense would depend on addressing his

relationship with Scarfo, which centered around Scarfo’s

criminal activities, Manno said that severance was necessary.

He warned that “one of two results” would occur if he and

Scarfo were tried together: “Either Scarfo or other defendants

or all will be prejudiced by the admission of other convictions

and allegations of bad acts[,] or Manno will be denied the

ability to fully develop his relationship with Scarfo and others.”

(D.I. 664-1 at 9.)

Scarfo did not object to those requests, and the District

Court granted Manno’s motion in part, authorizing him to

introduce evidence of his attorney-client relationship, but it

refused to sever the trials. Accordingly, at trial, Manno

questioned witnesses about and introduced evidence of his

prior representations of Scarfo. Although the jury found

Scarfo guilty, Manno was ultimately acquitted of all charges.

2. Sixth Amendment

Had Manno represented Scarfo at trial, there would be

weight to Scarfo’s Sixth Amendment arguments. But Manno

did not. Instead (and to repeat), Scarfo was represented by

independent, conflict-free counsel. The absence of any issues

with Scarfo’s own representation is dispositive and means that

Scarfo has no Sixth Amendment claim. Cf. United States v.

Voigt, 89 F.3d 1050, 1078 (3d Cir. 1996) (finding Sixth

Amendment caselaw inapplicable to evaluating “the possibility

that [a potential trial witness’s] prior representation of [certain

defendants] during the grand jury investigation might affect

[their] ability to receive a fair trial”).

68

The Sixth Amendment “commands, not that a trial be

fair, but that … particular guarantee[s] of fairness be

provided[.]” United States v. Gonzalez-Lopez, 548 U.S. 140,

146 (2006). It does so by defining “the basic elements of a fair

trial[,]” “including [through] the Counsel Clause.” Strickland

v. Washington, 466 U.S. 668, 684-85 (1984). That provision

entitles a criminal defendant “to have the Assistance of

Counsel for his defence.” U.S. Const. amend. VI. Scarfo does

not argue that the District Court failed to appoint him counsel,

or that he was denied “the right to adequate representation by

an attorney of reasonable competence [or] the right to the

attorney’s undivided loyalty free of conflict of interest.”

United States v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991)

(citation omitted). Therefore, he suffered no deprivation of his

Sixth Amendment rights.

Scarfo musters an extensive array of cases in supposed

aid of his argument, but none are on point. In all those cases,

the defendant’s challenge related to the assistance provided by

his then-current defense counsel or his inability to select

counsel of his choice. See, e.g., Wheat v. United States, 486

U.S. 153, 155-57, 164 (1988) (approving district court’s

“refusal to permit the substitution of counsel” due to

defendant’s desired counsel’s conflicts of interest); Voigt, 89

F.3d at 1071-80 (summarizing caselaw governing “denials of

the right to counsel” of choice); Government of Virgin Islands

v. Zepp, 748 F.2d 125, 127 (3d Cir. 1984) (reversing conviction

“because trial counsel had an actual conflict of interest”).

None stand for the proposition that a defendant’s Sixth

Amendment right to counsel is violated if his former counsel

is involved in the proceedings in another capacity. See United

States v. Ramon-Rodriguez, 492 F.3d 930, 945 (8th Cir. 2007)

(“[Defendant] cites no authority, and we have found none, in

69

which [a Sixth Amendment conflicted-counsel issue arises in]

a situation involving a defendant’s prior attorney in the absence

of any alleged conflict involving actual trial counsel.”);

English v. United States, 620 F.2d 150, 151-52 (7th Cir. 1980)

(holding that defendant could not raise an ineffective-

assistance-of-counsel claim against former attorney who had

switched to representing codefendant).

In the absence of any conflicts between Scarfo and the

trial counsel he actually had, the effort to use the Sixth

Amendment right to conflict-free counsel to condemn Manno’s

presence in the case “entails the pounding of a square peg into

a round hole.”43 United States v. Poe, 428 F.3d 1119, 1122-24

(8th Cir. 2005) (finding no conflict of interest from fact that

codefendant’s counsel previously represented defendant in

separate state-court prosecution).

Scarfo nevertheless tries to support his claim by

pointing to a conversation the District Court had with

government counsel and Manno. In that discussion, the Court

“urge[d] [Manno] to seek independent counsel … and not

represent [him]self[,]” explaining that he could be “subject …

to [an] ethics investigation or prosecution.” (Nicodemo Scarfo

Appendix (“NSA”) at 6.) The Court explained to Manno that

43

Scarfo insists that, at a minimum, the District Court

should have conducted an inquiry into the potential conflict,

and he claims that its failure to do so was reversible error.

Again, though, he relies on caselaw focused on protecting a

defendant’s Sixth Amendment right to have his current

counsel be conflict-free. That concern was not in play here,

making those cases inapposite.

70

he was in a “very difficult position” due to the “potential risk

of revealing client confidences without the permission of [his]

client which would … potentially expose[] [him] to ethics

problems.”44 (NSA at 5.)

That conversation avails Scarfo nothing. The District

Court’s warnings to Manno confirm that the Court was aware

that Manno might be opening himself up to potential ethical

and professional conflicts by choosing to represent himself.

But any issues Manno faced would not, and did not, affect

Scarfo’s ability to receive conflict-free assistance of counsel

from his trial attorney.45

44

In passing, Scarfo also attempts to frame that

conversation as infringing on his Sixth Amendment right to be

present at all critical stages of trial. The government explains

that it asked for the chambers conference because Manno made

certain statements in his severance motion that were

inconsistent with the government’s evidence, and it wanted to

give Manno a chance to retract his false statements before they

were revealed in open court. Scarfo makes no showing that his

absence from that discussion undermined his rights or harmed

his defense at trial, so the conference does not provide a basis

for disturbing his convictions. Cf. infra Section V.F.2.

45

Similarly misplaced is Scarfo’s reliance on the New

Jersey Rules of Professional Conduct to argue that Manno

violated his ethical obligations, an issue that he forfeited in any

event by failing to raise it in his opening brief. See United

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). That

argument is simply beside the point in this Sixth Amendment

71

Ultimately, any potential legal or ethical issues arising

from Scarfo being tried alongside Manno are not cognizable as

a violation of the Sixth Amendment right to counsel.

3. Due Process

Setting aside Scarfo’s Sixth Amendment argument, the

facts he alleges do implicate interesting questions as to his

Fifth Amendment due process rights. See Strickland, 466 U.S.

at 684-85 (noting that “[t]he Constitution guarantees a fair trial

through the Due Process Clauses,” while the Sixth Amendment

only protects particular “elements of a fair trial”); cf. Voigt, 89

F.3d at 1071-77 (affirming district court’s decision to

disqualify defendant’s counsel who had conflict of interest

with codefendants, in the “interest[] of the proper and fair

administration of justice”). Scarfo asserts that, due to the

conflict of interest caused by Manno’s presence as a

codefendant, he could not take the stand – since that would

open himself up to cross-examination by Manno – and he was

prevented from asserting an advice-of-counsel defense. Those

claims raise non-frivolous issues about trial severance, but

Scarfo has expressly disclaimed any “challenge [to] the district

court’s decision to deny Manno’s motions seeking to sever his

trial from that of his clients.” (NS Opening Br. at 19.)

Scarfo’s disclaimer is an unequivocal waiver as to

severance – the only plausible step the District Court could

have taken to eliminate any potential due process issues with

challenge, which requires a showing that Scarfo’s actual trial

counsel provided ineffective assistance.

72

the joint trial. 46 In the face of that waiver, we decline to

consider an argument Scarfo has not himself articulated. See

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)

(“[O]ur [adversarial] system is designed around the premise

that parties represented by competent counsel know what is

best for them, and are responsible for advancing the facts and

argument entitling them to relief.” (internal quotation marks,

citation, and brackets omitted)). The District Court’s denial of

severance may well be entirely justifiable, but even if it were

not, Scarfo does not advance a due process theory for

severance, so we will not “sally forth … looking for wrongs to

right.” Id. (citations omitted).

46

Scarfo also offers several alternative solutions in lieu

of severance, but there is a disconnect between those proposed

remedies and Scarfo’s complaints. As mentioned above,

Scarfo’s theory of unfairness and prejudice is that Manno’s

mere presence as a codefendant at the trial prevented Scarfo

from taking the stand and raising an advice-of-counsel defense.

He now suggests that the District Court should have

disqualified Manno from representing himself or, at a

minimum, appointed standby counsel for Manno. Scarfo does

not explain how those strategies – which would have entailed

abridging Manno’s Sixth Amendment right to self-

representation – would have prevented the harm he says he

suffered.

Scarfo also assigns error to the District Court’s failure

to obtain a conflict waiver from him. But he undercuts that by

saying that even if the Court had done so, “such a waiver would

be invalidated” – thus taking his own proposed remedy off the

table. (NS Opening Br. at 99 n.27.)

73

B. Pelullo’s Sixth Amendment Ineffective

Assistance of Counsel Claim47

Pelullo’s longtime attorneys – William Maxwell,

Donald Manno, and Gary McCarthy – were all indicted

alongside Pelullo, leaving him without counsel. Therefore, the

District Court appointed Troy Archie to represent him under

18 U.S.C. § 3006A. Given the case’s complexity and

discovery demands, the Court shortly thereafter appointed J.

Michael Farrell as co-counsel. Pelullo now seeks a new trial

or an evidentiary hearing for further factfinding because, he

argues, Farrell’s performance was rendered deficient by a

previously undisclosed conflict of interest. We are not

persuaded and hold that Pelullo did not suffer ineffective

assistance of counsel.

1. Background

Pelullo and Farrell had their fair share of disagreements

at the outset of Farrell’s engagement. The two apparently did

not see eye-to-eye on trial strategy, and Pelullo did not

appreciate Farrell’s lack of engagement. Those disputes are

unrelated to the conflict-of-interest issue before us, but, within

47

Whether a trial counsel’s representation of a

defendant was constitutionally inadequate is a mixed question

of law and fact. When reviewing mixed questions, we apply

de novo review to applications of law, but review for clear error

“case-specific factual issues” like the “weigh[ing of] evidence”

and “credibility judgments[.]” U.S. Bank Nat’l Ass’n ex rel.

CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 138 S.

Ct. 960, 967-69 (2018).

74

a few months of Farrell’s appointment, they led to Pelullo’s

request that Farrell be replaced. Although the Court granted

that request, Pelullo soon regretted losing Farrell, and he asked

to have him reappointed. Pelullo explained that he had

“irreconcilable differences” with the lawyer who had been

appointed in Farrell’s stead and that replacing Farrell was “an

error in … judgment” that arose from his “not clearly

understanding [the] situation and how fortunate [he] was to

have Mr. F[a]rrell.” (D.I. 486.) Pelullo praised Farrell, stating

he was “up to speed” and “more than comp[etent] and more

than effective[.]” (D.I. 486.) The Court acquiesced to

Pelullo’s wishes and reappointed Farrell in July 2013.

Farrell represented Pelullo through trial (alongside

Archie), employing aggressive litigation tactics. The District

Court repeatedly reprimanded Farrell for, among other things,

repeated interruptions and argumentativeness. At several

points, the Court warned him that, “if [he thought his] goal here

[was] to set up an ineffective assistance of a counsel defense[,]”

he would be “take[n] … off th[e] case[.]” (E.g., JAC at 318.)

After trial, the Court determined that Pelullo required only one

attorney at sentencing and terminated Farrell’s appointment in

November 2014, after which Pelullo requested Farrell’s

reassignment. He told the Court that, despite their early

differences, he and Farrell had formed “a bond” and that

“Farrell [was] agreeable to [his] defense strategy[.]” (D.I.

1231; JAE at 463-64.) Pelullo noted that he “d[id] not seek

counsel of choice, [but] rather effective counsel.” (D.I. 1231.)

The Court denied that request in April 2015.

Meanwhile, unbeknownst to Pelullo, Farrell had been

dealing with his own legal troubles. In March 2014, about

halfway through Pelullo’s trial, a subpoena was issued for

75

Farrell’s office manager to testify about Farrell before a grand

jury in the United States District Court for the District of

Maryland. Farrell, in response, retained Joseph Fioravanti, a

former federal prosecutor. Fioravanti tried to discover whether

Farrell was either a subject or target of the investigation. Those

efforts proved unsuccessful, so Fioravanti advised Farrell not

to inform his clients, including Pelullo, because he was not yet

known to be a subject or target. Farrell heeded that advice and

kept from Pelullo, Archie, and the District Court that some

kind of investigation in Maryland was underway. The U.S.

Attorney’s Office for the District of New Jersey, which was

prosecuting the Defendants here, remained similarly unaware

of the grand jury investigation in the District of Maryland.

It was not until August 2014, the month after the trial in

this case ended, that Fioravanti received a “target letter”

informing him that the U.S. Attorney’s Office for the District

of Maryland was considering filing criminal charges against

Farrell. (JAE at 927, 1093, 1102.) In January 2016, more than

eighteen months after the guilty verdicts here, an indictment

charging Farrell with crimes relating to a large marijuana

trafficking ring was unsealed. That charge bore no relation to

Pelullo’s crimes. United States v. Farrell, 921 F.3d 116, 123

(4th Cir. 2019). It was only after Farrell’s indictment became

public that the prosecutors on Pelullo’s case became aware of

the charges.

By the time Farrell’s indictment was unsealed, Pelullo

had already appealed his conviction. Once that indictment

came to light, however, Pelullo sought and obtained from us a

limited remand for further factfinding on what Pelullo claimed

was a conflict of interest with Farrell. On remand, Pelullo filed

a Rule 33 motion for a new trial on the ground that the evidence

76

revealed Farrell had provided ineffective assistance of counsel.

In his motion, Pelullo claimed that Farrell had labored under a

conflict of interest during the trial due to the investigation in

Maryland. Despite previously not just accepting but actively

promoting Farrell’s aggressive trial tactics, Pelullo alleged that

Farrell’s aggression was caused by the stress of being under

investigation himself and that those tactics were damaging.

The District Court held a hearing on the motion, at

which Farrell bolstered that line of argument. He confirmed

that his “aggressive nature” had been due to the pending

investigation and that it “affected [his] ability to represent

[Pelullo] in a conflict-free manner[.]” (JAE at 615-16.) He

explained that he viewed the prosecution of himself as “a direct

threat on the ability of criminal defense attorneys in Maryland

– in America to defend their clients” and that “it was

inconsistent with the principles of our Republic[.]” (JAE at

579.) It was, he claimed, his personal indignation that fueled

his overly aggressive defense of Pelullo.

The District Court denied the new-trial motion. It found

Farrell’s testimony entirely unreliable, and it determined that

the investigation in the District of Maryland did not affect

Farrell’s performance at trial. The Court explained further that

Pelullo may have “at most” had a potential conflict-of-interest

claim due to Farrell’s failure to disclose the investigation,

rather than by virtue of Farrell’s aggressive defense. (JAE at

1046.) But, given the overwhelming evidence of Pelullo’s

guilt and his evident approval of Farrell’s tactics, the Court

concluded that Pelullo “fail[ed] utterly to demonstrate any

prejudice.” (JAE at 1046.)

77

2. Ineffective Assistance of Counsel Claim

Although we typically do not entertain ineffective-

assistance-of-counsel claims on direct appeal, we may do so

“when the record is sufficient to allow determination of the

issue.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.

2003). Because we previously remanded the issue for further

factfinding and the District Court conducted an extensive

evidentiary hearing, the record is sufficient for us to consider

the issue now. There is no clear error in the finding that

Farrell’s self-deprecatory testimony was unreliable and that his

representation of Pelullo was unaffected by the Maryland

investigation. See United States v. Gambino, 864 F.2d 1064,

1071 n.3 (3d Cir. 1988) (applying clear-error standard to

district court’s factfinding with respect to “external events and

the credibility of the witnesses”). On the record developed in

the District Court, we agree that this argument for a new trial

fails.

As already discussed, supra Section V.A.2, the Sixth

Amendment protects a criminal defendant’s right to effective

assistance of counsel. U.S. Const. amend. VI; United States v.

Cronic, 466 U.S. 648, 653-57 (1984). That right is “recognized

… because of the effect it has on the ability of the accused to

receive a fair trial.” Cronic, 466 U.S. at 658. Pursuant to that

right, counsel owes a defendant certain duties, including the

“duty to perform competently” and the “duty of loyalty[.]”

Government of Virgin Islands v. Zepp, 748 F.2d 125, 131-32

(3d Cir. 1984) (citing Strickland v. Washington, 466 U.S. 668,

688 (1984)).

Nonetheless, “[a]n error by counsel … does not warrant

setting aside the judgment of a criminal proceeding if the error

78

had no effect on the judgment.” Strickland, 466 U.S. at 691.

Accordingly, a criminal defendant pursuing an ineffective

assistance claim must show not only that his counsel’s

performance was deficient, but also that the deficient

performance prejudiced his defense. Id. at 687. Although a

defendant must make both showings to succeed, in certain

circumstances prejudice may be presumed. One such

circumstance is when counsel breaches the duty of loyalty to

his client by maintaining an actual conflict of interest during

the representation. Id. at 692.

Conflicts arise when counsel’s personal interests are

“inconsistent, diverse or otherwise discordant with those of his

client and … affect[] the exercise of his professional judgment

on behalf of his client.” Zepp, 748 F.2d at 135 (citation and

internal quotation marks omitted). When there is “a[n actual]

conflict that affected counsel’s performance – as opposed to a

mere theoretical division of loyalties” – the defendant need not

make a separate showing of prejudice. Mickens v. Taylor, 535

U.S. 162, 171 (2002). A defendant alleging an actual conflict

must establish that “trial counsel’s interest and the defendant’s

interest diverge[d] with respect to a material factual or legal

issue or to a course of action.” Zepp, 748 F.2d at 136

(alteration in original) (citation and internal quotation marks

omitted).

A criminal investigation of counsel, even for crimes

unrelated to those being prosecuted in the defendant’s trial, can

generate an actual conflict when counsel seeks to curry favor

with the attorneys prosecuting his client, thus resulting in

counsel “pull[ing] … his punches.” Reyes-Vejerano v. United

States, 276 F.3d 94, 99 (1st Cir. 2002). Conversely, a lack of

evidence that counsel pulled his punches may serve as an

79

indication that he was not “intimidated by a threat of

prosecution” in defending his client. United States v. Montana,

199 F.3d 947, 949 (7th Cir. 1999). And where a defendant

“show[s] only that his lawyer was under investigation and that

the lawyer had some awareness of an investigation” during the

defendant’s trial, but fails to demonstrate that the lawyer’s

interests diverged from that of the defendant, beyond “the

general and unspecified theory that [the attorney] must have

wanted to please the government[,]” he has not demonstrated

an actual conflict. Reyes-Vejerano, 276 F.3d at 99.

That is the case here. Pelullo has presented no evidence

that prosecutors in the District of New Jersey knew of the case

against Farrell in the District of Maryland or that Farrell

thought they did. Cf. Armienti v. United States, 234 F.3d 820,

824-25 (2d Cir. 2000) (holding that the defendant presented a

“plausible claim” of an actual conflict where his attorney “was

being criminally investigated by the same United States

Attorney’s office that was prosecuting” the defendant, and,

during trial, he failed “to conduct further investigation, fail[ed]

to vigorously cross-examine the government’s witnesses, …

fail[ed] to make various objections[,]” was “ill-prepared and

distracted[,]” and “misadvised [the defendant] not to talk to the

probation department at the time of his sentencing”). There is

thus no reason to think that Farrell pulled his punches – that he

took it easy on the government to secure the prosecutors’ good

favor.

In fact, he did quite the opposite, something Pelullo

acknowledges and now tries to turn to his advantage. Pelullo

contends that Farrell’s “rage and a quixotic sense of revenge

against an unfair [g]overnment[,]” fueled by the criminal

investigation, turned him into “an aggressive madman” driven

80

“not by Pelullo’s best interests but … [instead by] his personal

outrage about his own legal problems.” (SP Opening Br. at 43-

44.) Pelullo offers examples of when Farrell’s “rage”

supposedly made his representation inadequate, such as his

repeated misspeaking on cross and direct examination,

presenting a failed Daubert challenge, and offering a

“catastrophic closing argument” that was a three-day “epic rant,

devoid of purpose or focus[.]” (SP Opening Br. at 52-54.)

Farrell’s personal interest in getting revenge against the

government, Pelullo claims, conflicted and interfered with the

duty to act in Pelullo’s best interests.

Those examples may speak to Farrell’s level of

competence, but they do not demonstrate any divergence

between his interests and those of Pelullo. Zepp, 748 F.2d at

136. Farrell’s pugnacious approach was fully approved by

Pelullo, and Farrell’s mistakes were, as the District Court

noted, unsurprising in the course of “a very long trial[.]” (JAE

at 529.) See Strickland, 466 U.S. at 689 (warning against

“second-guess[ing defense] counsel’s assistance after

conviction or adverse sentence” and too readily deeming

representation deficient in hindsight); United States v.

Williams, 631 F.2d 198, 204 (3d Cir. 1980) (holding no

ineffective assistance of counsel where defendant concurred in

his counsel’s trial strategy). In fact, Pelullo sought out

Farrell’s services precisely because of his aggressive defense

style. That he got what he wanted but it didn’t produce the

desired results does not mean he is free to call it

constitutionally deficient advocacy now.

The alleged conflict of interest affecting Farrell’s

representation is significantly different from fact patterns in

which an actual conflict has been found. In Government of

81

Virgin Islands v. Zepp, 748 F.2d 125, 136 (3d Cir. 1984), we

reasoned that defense counsel should have withdrawn because

he “could have been indicted for the same charges on which he

represented [the defendant] … and … was a witness for the

prosecution.” Farrell, by contrast, was under investigation for

activities unrelated to Pelullo’s charges and had no personal

stake in the success or failure of Pelullo’s defense. Nor does

the trial record present a scenario in which the same United

States Attorney’s Office prosecuted both the defendant and

investigated his attorney. In such a situation, there is a clear

motive for counsel to “temper[] his defense … in order to curry

favor with the prosecution, perhaps fearing that a spirited

defense … would prompt the Government to pursue the case

against [him] with greater vigor.” United States v. Levy, 25

F.3d 146, 156 (2d Cir. 1994); see, e.g., Armienti, 234 F.3d at

824-25 (ordering an evidentiary hearing on a potential conflict

of interest because defense counsel was under investigation by

the same United States Attorney’s Office prosecuting the

defendant); United States v. McLain, 823 F.2d 1457, 1463-64

(11th Cir. 1987) (holding that when counsel was under

investigation by the same United States Attorney’s Office as

his client an actual conflict of interest existed, warranting a

new trial), overruled on other grounds as recognized by United

States v. Watson, 866 F.2d 381, 385 (11th Cir. 1989).

Pelullo argues that we should assume that the

government attorneys here were aware of the grand jury

investigation in the District of Maryland. He asks that we treat

the two U.S. Attorneys’ offices as “one combined entity[,]”

and thus conclude that he was prejudiced. (SP Opening Br. at

77.) We do not accept that premise. See United States v.

Pelullo, 399 F.3d 197, 218 (3d Cir. 2005) (declining to impute

to the prosecution team constructive knowledge of information

82

held by a federal agency that was not involved in the

investigation and prosecution of the case).

Finally, the timeline belies Pelullo’s argument that

Farrell began his representation of Pelullo “motivated by his

own personal anima rather than the best interests of his client.”

(SP Opening Br. at 45.) As Farrell testified, he was not aware

of the investigation’s existence until halfway through trial, in

either March or April of 2014. Without that knowledge, Farrell

could not have begun his representation with the intention

Pelullo attributes to him. Farrell’s consistently aggressive

tactics suggest that his litigation strategy was not affected by

his being under investigation but was rather a matter of style.

We thus conclude that Farrell’s representation of Pelullo did

not present an actual conflict.

To the extent that Pelullo and Farrell had a potential

conflict of interest, Pelullo needed to show that the potential

conflict caused him prejudice. He has failed to do that.

Strickland, 466 U.S. at 687. There is no reasonable probability

he would have been acquitted in the absence of Farrell’s

services, given the overwhelming evidence of his guilt. See id.

(“This requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is

reliable.”).

In short, Pelullo was not deprived of his Sixth

Amendment right to the effective assistance of counsel and so

is not entitled to a new trial.48

48

Because the District Court fully developed the record

and did not err, Pelullo is not entitled to yet another evidentiary

83

C. Convictions for RICO Conspiracy Under 18

U.S.C. § 1962(d)

The jury convicted the Defendants of conspiring, in

violation of RICO, to “conduct or participate … in” the affairs

of an enterprise engaged in interstate commerce “through a

pattern of racketeering activity[.]” 18 U.S.C. § 1962(c); id.

§ 1962(d) (making it “unlawful for any person to conspire to

violate any of the provisions of subsection … (c)”). RICO lists

dozens of federal crimes and incorporates many state crimes

that qualify as predicate “racketeering activit[ies.]” Id.

§ 1961(1). To constitute a “pattern[,]” there must be “at least

two acts of racketeering activity[.]” Id. § 1961(5). Here, that

meant, to be guilty of the conspiracy, each Defendant had to

have agreed that he or his co-conspirators would perform two

or more of the predicate acts listed in § 1961(1). The jury

found, in response to special interrogatories, that Pelullo and

Scarfo each agreed to the commission of eight such predicate

acts, that William Maxwell agreed to the commission of seven,

and that John Maxwell agreed to the commission of six. The

Defendants raise claims of error related to the RICO

conspiracy charge, but none is persuasive.

hearing either.

84

1. Constructive Amendment of

Indictment49

Scarfo complains to us about the verdict form’s special

interrogatories. 50 According to Scarfo, the District Court

violated his Fifth Amendment rights by constructively

amending the indictment in the verdict form when it specified

49

We review for abuse of discretion a district court’s

determination of whether to submit special interrogatories to a

jury. United States v. Console, 13 F.3d 641, 663 (3d Cir.

1993). While a properly preserved claim of constructive

amendment or variance receives plenary review, we review for

plain error when it is raised for the first time on appeal. United

States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010). The test

for plain error requires the appellant to show “(1) an ‘error’;

(2) ‘that is plain’; (3) ‘that affect[ed] substantial rights’; and

(4) that failure to correct the error would ‘seriously affect[ ] the

fairness, integrity or public reputation of judicial

proceedings.’” United States v. Defreitas, 29 F.4th 135, 144

(3d Cir. 2022) (alterations in original) (quoting United States

v. Olano, 507 U.S. 725, 732 (1993)).

50

Pelullo and John Maxwell both specifically adopt

Scarfo’s argument “as to … shifting of RICO[.]” (SP Opening

Br. at 223; JM Opening Br. at 49.) To the extent they intend

to refer to Scarfo’s constructive amendment argument, their

claims fail for the same reason as does Scarfo’s – namely, that

the verdict form did not expand the potential bases for liability

under the RICO charge beyond those listed in the indictment.

William Maxwell, meanwhile, does not specifically adopt

Scarfo’s argument, so he has forfeited it.

85

a particular group of racketeering activities applicable to each

defendant. Separately, he suggests that the special

interrogatories made him seem comparatively more culpable

than the codefendants for whom fewer predicate acts were

listed, prejudicing him in the eyes of the jury and causing juror

confusion. He did not raise those issues at trial, so we review

for plain error.51 United States v. Duka, 671 F.3d 329, 352 (3d

Cir. 2011).

Eleven of the thirteen defendants were charged with

engaging in a RICO conspiracy. That count in the indictment

51

Scarfo argues that his constructive amendment claim

was preserved when his attorney raised the following concern

in the District Court:

[G]iven that it is a RICO conspiracy

charge I think it would be worth reiterating with

the jurors that all defendants are charged with the

same RICO conspiracy charge because I think it

is – I think it was a little bit unclear, given your

remarks to them about the verdict form, that they

may have concluded that some defendants are

charged with different forms of – with different

kinds of RICO conspiracy and I think that may

generate some confusion.

(JAC at 12498.) The District Court responded that the “verdict

form itself” showed that all defendants were charged with the

same RICO conspiracy and that the only difference among

them was “in the predicate qualifying acts.” (JAC at 12498.)

Scarfo at no point referenced the indictment nor mentioned

constructive amendment or prejudice, so plain-error review is

appropriate.

86

listed eight specific predicate acts, namely, mail fraud, wire

fraud, bank fraud, obstruction of justice, extortion, interstate

travel in aid of racketeering, money laundering, and securities

fraud.

The verdict form asked the jury to first indicate whether

it found Scarfo and his alleged co-conspirators guilty or not

guilty of RICO conspiracy. Below that, special interrogatories

appeared under each defendant’s name, asking if the jury

“unanimously find[s] that the government proved beyond a

reasonable doubt” that the named defendant agreed to commit

specified predicate acts. (GSA at 409-15.) The form provided

“yes” or “no” spaces for the foreman to check for each

predicate act. Some defendants were charged with different

and fewer predicate acts than others were. For example,

Scarfo’s name on the verdict form included all eight potential

predicate acts (as it did in the indictment), while some of his

co-conspirators had fewer predicate acts listed. The District

Court instructed the jury that they needed to unanimously find

an answer on the interrogatories regarding acts of racketeering

activity but that they should not “answer these interrogatories

until after [they] ha[d] reached [their] verdict.” (JAC at

12390.)

The Fifth Amendment requires that a defendant be tried

only for crimes for which he has been indicted. See U.S. Const.

amend. V; Stirone v. United States, 361 U.S. 212, 217 (1960).

Accordingly, a court cannot later amend an indictment – either

formally or constructively – to include new charges. Ex parte

Bain, 121 U.S. 1, 6-9 (1887). A constructive amendment

occurs when the court “broaden[s] the possible bases for

conviction from th[ose] which appeared in the indictment.”

United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007)

87

(citation and internal quotation marks omitted). For instance,

an indictment is constructively amended if the jury instructions

“modify essential terms of the charged offense” such that “the

jury may have convicted the defendant for an offense differing

from the offense the indictment returned by the grand jury

actually charged.” United States v. Daraio, 445 F.3d 253, 259-

60 (3d Cir. 2006).

That did not take place here. The interrogatories

required the jury to support their decision by identifying at

least two predicate acts for each defendant, after determining

whether the defendants were guilty of RICO conspiracy.

Those interrogatories did not, as Scarfo argues, turn the

predicate acts into elements of the RICO conspiracy. The

indictment alleged that each defendant agreed to commit at

least two predicate acts and listed all the predicates that later

appeared in the interrogatories. If anything, the District Court

narrowed, rather than “broaden[ed,] the possible bases for

conviction” by instructing jurors to find each predicate act

unanimously beyond a reasonable doubt and by removing

certain predicate acts for some defendants. McKee, 506 F.3d

at 229; cf. United States v. Miller, 471 U.S. 130, 136 (1985)

(“[T]he right to a grand jury is not normally violated by the fact

that the indictment alleges more crimes or other means of

committing the same crime [than are proven at trial].”). Scarfo,

in fact, had the same eight predicate acts listed under his name

on the verdict form as were charged in the indictment. For him,

then, there was no difference at all between the indictment and

the potential bases for conviction listed in the verdict form.

Scarfo also argues that listing more predicates under his

name than under his codefendants’ names was unfair and

caused prejudice and juror confusion. The District Court’s

88

instructions remedied any potential problem, however, by

clarifying to the jurors that they first needed to find each

defendant guilty or not guilty before turning to the

interrogatories as a check on their verdict. See United States v.

Console, 13 F.3d 641, 663 (3d Cir. 1993) (noting that “an

instruction to the jury to answer the [special] interrogatories

[regarding RICO predicates] only after it votes to convict”

“alleviat[es] the danger of prejudice to the defendant”).

Moreover, any disparity between Scarfo and the other

defendants was of his own making. There was evidence that

he engaged in more criminal wrongdoing than some of his

codefendants. Given his own conduct, he cannot now

complain that he may have appeared more culpable before the

jury than others did. We thus detect no error, much less plain

error, in the formulation of the special interrogatories

accompanying the RICO conspiracy charge.

2. Jury Instructions and Sufficiency of the

Evidence

Next, the Defendants challenge the jury instructions and

the sufficiency of the evidence pertaining to the RICO

conspiracy convictions, but they do so by attacking only one

predicate act: extortion under the federal Hobbs Act.52 Their

52

Pelullo and William Maxwell set forth the challenges

to the RICO conspiracy convictions that are addressed in this

section. Their arguments were specifically adopted by each

other and by John Maxwell, so the claims in this section apply

to all three of those Defendants. Though Scarfo did not

specifically adopt the other Defendants’ arguments and thus

forfeited them, see supra note 19, we nonetheless refer to the

89

challenges thus fail for a simple reason: they do not address

any of the other predicate acts that support those convictions,

and each convicted Defendant had more than two such acts to

their discredit, so the elimination of the Hobbs Act predicate

makes no difference.53 Even if we agreed with their Hobbs Act

arguments (which we do not), their convictions for RICO

conspiracy are still supported by the other predicate acts found

by the jury. See United States v. Pungitore, 910 F.2d 1084,

1107 (3d Cir. 1990) (“Thus, even if we deleted the [extortion]

act, we would affirm the convictions” for RICO conspiracy.).

Their convictions for RICO conspiracy thus stand.

D. Firearm Conspiracy Conviction Following

Rehaif54

Pelullo was charged with a conspiracy, in violation of

18 U.S.C. § 371, having two objects: first, to provide firearms

arguments in this subsection as belonging to “the Defendants”

for the sake of simplicity.

53

Scarfo and Pelullo were each found to have agreed to

all eight of the listed predicates. Supra p. 81. William

Maxwell was found to have agreed to the commission of mail

fraud, wire fraud, obstruction of justice, extortion, interstate

travel in aid of racketeering, money laundering, and fraud in

the sale of securities. John Maxwell was found to have agreed

to the commission of mail fraud, wire fraud, extortion,

interstate travel in aid of racketeering, money laundering, and

fraud in the sale of securities.

54

“[U]npreserved Rehaif claims are subject to plain-

90

to felons (namely, Scarfo and himself), contrary to 18 U.S.C.

§ 922(d)(1), and, second, to unlawfully possess firearms as a

felon, contrary to 18 U.S.C. § 922(g)(1). He objects to his

conviction on that count and asserts that the government failed

to allege in the indictment and prove at trial, under Rehaif v.

United States, 139 S. Ct. 2191 (2019), that he knew he was a

felon when he possessed the guns. Even if that claim had merit,

however, his challenge fails because he has not identified any

error in his conviction as to the first object of the conspiracy –

namely, to transfer firearms to felons in violation of

§ 922(d)(1). Because that is an independent and sufficient

basis to affirm the guilty verdict on the conspiracy count, we

need not, and do not, address whether there was error as to the

second object of the conspiracy, the possession of firearms.

In its investigation, the government seized a small

arsenal of guns and ammunition from Pelullo’s and Scarfo’s

homes, Pelullo’s office, and their yacht. It also collected

evidence showing how Pelullo and Scarfo had acquired those

weapons: for example, it uncovered Pelullo’s and the Maxwell

brothers’ coordinated efforts to have John Maxwell drive a

firearm across the country from Dallas to Scarfo’s home in

New Jersey. See infra Section V.E.1. Since Pelullo and Scarfo

had previously been convicted of felonies, neither of them was

allowed to have a gun. As noted earlier, supra p. 8, Pelullo had

convictions for bank fraud, making false statements in an SEC

filing, and wire fraud, while Scarfo’s criminal record included

a guilty plea for conducting an illegal gambling business. The

government thus alleged in the indictment that Pelullo

error review[.]” Greer v. United States, 141 S. Ct. 2090, 2099

(2021).

91

unlawfully conspired both to violate § 922(d)(1) by providing

firearms to Scarfo and himself and to violate § 922(g)(1) by

possessing firearms.

Pelullo focuses his arguments on the second object of

the conspiracy charge, the § 922(g)(1) violation, but he does

not argue that there was insufficient proof that he conspired to

transfer firearms to Scarfo in violation of § 922(d)(1). That

failure dooms his claim. In a “multiple-object conspiracy” like

this one, a guilty verdict will stand so long as there is sufficient

evidentiary support for any of the charged objects. Griffin v.

United States, 502 U.S. 46, 47, 56-57 (1991). We may thus

“affirm [Pelullo’s] conviction[] as long as we find that there

was sufficient evidence with respect to one of the [two] alleged

prongs of the conspiracy.” United States v. Gambone, 314

F.3d 163, 176 (3d Cir. 2003).

Section 922(d)(1) makes it unlawful “to sell or

otherwise dispose of any firearm … to any person” while

“knowing or having reasonable cause to believe that such

person” has been indicted for or convicted of “a crime

punishable by imprisonment for a term exceeding one year[.]”

That same mens rea (or guilty state of mind) – namely,

“knowing or having reasonable cause to believe” that the

recipient of the firearms is a convicted felon – also applies to

cases, like this one, involving a conspiracy to violate

§ 922(d)(1). That is because the government cannot secure a

conspiracy conviction without proving that the defendant had

the mens rea required for the substantive offense that was the

object of the conspiracy. See United States v. Alston, 77 F.3d

713, 718 (3d Cir. 1996). The Supreme Court’s Rehaif decision

applied the “presumption in favor of scienter” (that is, a

presumption of intent or knowledge of wrongdoing) to read

92

into § 922(g) a requirement that the defendant know his status

as a member of a class of persons prohibited from having a

firearm, but that has no bearing on § 922(d), which contains an

express mens rea element. 139 S. Ct. at 2194-96; see also id.

at 2209 (Alito, J., dissenting) (arguing that the majority read

into § 922(g) a mens rea element more stringent than the one

that Congress explicitly required for § 922(d) charges).

Perhaps it is no surprise that Pelullo does not challenge

the § 922(d)(1) object of the conspiracy conviction, since

overwhelming trial evidence shows that Pelullo knew or, at a

minimum, had powerful cause to believe, that Scarfo was a

felon when Pelullo conspired to transfer a firearm to him.

Pelullo’s counsel explained to the jury, in his opening

statement, that “[t]he reason why [Pelullo] helped Mr. Scarfo

is because they’re both prior felons.” (JAC at 100.) Counsel

leaned on Scarfo’s and Pelullo’s prior felonies as part of a

narrative of rags to riches turned sour by government

overreach, painting them as “two felons who were in business

together that had a checkered past” who had turned their lives

around to “mak[e] millions of dollars” in “legitimate” business.

(JAC at 96.) In his closing argument, Pelullo’s counsel again

emphasized to the jurors that Pelullo and Scarfo were “two

convicted felons” who had supposedly “partner[ed] in good

faith to succeed in business legitimately[.]” (JAC at 12805.)

Moreover, as more fully described in the next section, infra

Section V.E.1, the way in which Pelullo endeavored to procure

a firearm for Scarfo by secretive means – having John Maxwell

buy a gun in Texas and drive it halfway across the country to

New Jersey and instructing him to avoid law enforcement

officials along the way – demonstrates Pelullo well understood

that Scarfo, as a prior felon, was prohibited from having

firearms. Because there was sufficient evidentiary support for

93

the § 922(d)(1) object of the conspiracy count at issue, that in

itself is enough to sustain the conviction, regardless of any

potential Rehaif error associated with the § 922(g)(1) object.55

55

Pelullo also asserts that the Rehaif error entitles him

to “complete dismissal of the indictment” or, at a minimum,

vacatur of the RICO conspiracy conviction, since the

indictment and the government’s case at trial relied heavily on

the firearms. (3d Cir. D.I. 322 at 21-24.) But any Rehaif error

here would not require automatic reversal of his conviction.

Greer, 141 S. Ct. at 2100. Rather, because Pelullo did not

object to the government’s mentions of the firearms (or the

presence of the guns in the courtroom), he bears the burden, on

plain-error review, of showing a “reasonable probability” that

he would have been acquitted of the other charges but for the

gun evidence. Id. at 2096-97. His conclusory claim of

“extreme prejudice” due to a “changed … dynamic [at] trial”

caus

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