Prologue — Pelullo v. United States

O05 244 AUG 19 2005

No. 05- OFFICE OF Tric Cucrs-

IN THE

Supreme Court of the United States

Leonard A. Pelullo,

Petitioner,

Vv.

United States.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Lawrence S. Lustberg Thomas C. Goldstein

Thomas R. Va en (Counsel of Record)

GIBBONS, DEL DEO, DOLAN Amy Howe

GRIFFINGER & VECCHIONE Kevin K. Russell

One Riverfront Plaza GOLDSTEIN & Howe, P.C.

Newark, NJ 07102 4607 Asbury Place, N.W.

Washington, DC 20016

(202) 237-7543

August 19, 2005

ia ocieeeeneeeeaimaemnetanatammmemenmmntiaaammeoamtadanemememmemmtenamcmmeaemattaetameee ae atonal

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

|. Whether and in what circumstances the prosecution's

failure to disclose relevant evidence under Brady v. Marv-

land, 373 U.S. 83 (1963), is excused by the defendant's own

ability to uncover the evidence through the exercise of “due

diligence.”

2. Whether, assuming that such a “due diligence” obliga-

tion exists, a defendant fails to exercise sufficient diligence

when the government misleads him into not pursuing the evi-

dence.

TABLE OF CONTENTS

CD 6 POG 6 UI UW cqeenrecserecincsnrvernapinsunicnedintcnnsinnieni i

DOs Ce COU SU Bi ccceveniichnstniesininitimnnncinunaningiinatogens ii

CRBs Ge ATG ONE 6 BD cctceternssitrninicannenacenivininmnianien i

PETITION FOR A WRIT OF CLERTIORARL ............ccceceeees |

CP GICs CIO cccectectcenissinnusiesinttibcinntiiiatniiuitiasiattanjeiaianilinigidi I

Fag FORTE cncenserntncnniensaticigitinnpiaduinseaninieiandiinndnienion I

RELEVANT CONSTITUTIONAL PROVISION ................. I

DUPRE CE Ce CURD GPa iccscsenscenesesnemniseesesntecimvaninitnietain I

REASONS FOR GRANTING THE WRIT......0...0..ccccceeceee. 9

|. The Third Circuit’s “Due Diligence” Exception To

Bradv v. Marvland Conflicts With Decisions Of

Se Ce ncoceniencntetasitiicisipniecnininiaiiitltiisiaiadailcdditiatiaaitaiiane )

ll. The Third Circuit’s Holding That Prosecutorial

Misrepresentations About The Availability Of

Relevant Evidence Are Excused By A Defendant’s

Ability To Uncover That Evidence Himself Conflicts

With This Court's Precedents. .......:cccccccsescovessosccccesosceses 20

CIO a ee Cecarcbcicscinnionieiisicubeysitnninienmintiniieitimebeiniivdanniiaaiti 29

TABLE OF AUTHORITIES

Cases

Banks v. Dretke, 540 U.S. 668 (2004) ..........0....00008. 12, 21, 23

Banks v. Reynolds, 54 F.3d 1508 (CA10 1995)........ 13, 14, 22

Barnes v. Thompson, 58 F.3d 971 (CA4), cert. denied,

RE ac ea 19

Benn v. Lambert, 283 F.3d 1040 (CAL 2002) ..00..0.c cece. 12

Brady v. Maryland, 373 U.S. 83 (1963) ..........0:cceeeee passim

Freeman v. Georgia, 599 F.2d 65 (CAS 1979)... cecccceeees 17

Gantt v. Roe, 389 F.3d 908 (CA9 2004)... cece 12, 24

Giglio v. United States, 405 U.S. 150 (1972)......... 3, 5, 24, 26

Hughes v. Hopper, 629 © .2d 1036 (CAS 1980)... 18

In re Sealed Case No. 99-3096 (Brady Obligations),

Fe ets eee CIEE ciccestenesicvesccemnssiatinbeees 14, 15, 26

Kyles v. Whitley, 514 U.S. 419 (1995)... cc cccececteeeeeeeeeenees 14

Leka v. Portuondo, 257 F.3d 89 (CA2 2001) .......cccecccceeeeees 19

Levin v. Katzenbach, 363 F.2d 287 (CADC 1966)............... 15

Lugo v. Munoz, 682 F.2d 7 (CAL 1982)........:cceceeeeeeeerceeees 16

Mathis v. Dretke, 124 Fed. Appx. 865 (CAS), cert.

denied, 2005 U.S. LEXIS 4922 (2005)...........cccccceceeeeeeeee 19

McCambridge v. Hall, 303 F.3d 24 (CAI 2002)...........000 17

Pennsylvania v. Ritchie, 480 U.S. 39 (1987) .......cccccccceseeeees 26

Prewitt v. State, 819 N.E.2d 393 (Ind. App. 2004) .............. 19

Rector v. Johnson, 120 F.3d S51 (CAS 1997) .......ccccccceeecees 16

Smith v. Secretary of N.M. Dep't of Corrections, 50

Fe Ce Ct Ricsincccctitcncsidsistnitnenniiteantalonneieniitecsiniatl 14

Stockton v. Murray, 41 F.3d 920 (CA4 1994) 0000 cece 11

Strickler v. Greene, 527 U.S. 263 (1999)... Fitietes passim

Strickler v. Pruett, Nos. 97-29 & -30, 1998 U.S. App.

LEXIS 12805 (CA4 June 17, 1998) ...........ccccccececveesesereees 11

United States v. Agurs, 427 U.S. 97 (1976)......0cccccccceceeeeeeees 24

United States v. Cottage, 307 F.3d 494 (CA6 2002)............ 11

iv

United States v. Ellis, 121 F.3d 908 (CA4 1997) ..............0.. 18

United States v. Hanna, 55 F.3d 1456 (CA9 1995).............. 26

United States v. Higgins, 75 F.3d 332 (CA7 1996)......0....4. 25

United States v. Howell, 231 F.3d 615 (CA9 2000)............. 13

United States v. Kelly, 35 F.3d 929 (CA4 1994) ....0....... 19, 25

United States v. Kojayan, 8 F.3d 1315 (CA9 1993)............. 26

United States v. O'Hara, 301 F.3d 563 (CA7 2002)............ 12

United States v. Payne, 63 F.3d 1200 (CA2 1995)......... 18, 19

United States v. Quintanilla, 193 F.3d 1139 (CAI0O

7, REREAD CnupCee nok rene de RE ARENAS EBA 14

United States v. Schlei, 122 F.3d 944 (CAI1 1997)............. 12

United States v. Shaffer, 789 F.2d 682 (CA9 1986)............. 13

United States v. Starusko, 729 F.2d 256 (CA3 1984)....... 8, 11

United States v. Zackson, 6 F.3d 911 (CA2 1993) .00..0.. ee. 18

Ware v. State, 702 A.2d 699 (Md. 1997)........ccccesececeereeeeeeees 19

Statutes

Fee eee: SISSED B icoccininiedsevcidebddiiaesonehetaliipeaunisvidnaoncisenaiitelea I

Rules

Fis Wis GoM, So: SAO incsictindsntaesintiiscosacatnniabintinigesindaiiianiincsdntehiibagibain 5

PETITION FOR A WRIT OF CERTIORARI

Petitioner Leonard A. Pelullo respectfully petitions for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The Third Circuit’s opinion (Pet. App. la-44a) is pub-

lished at 399 F.3d 197. The district court’s judgment and

opinion (Pet. App. 45a-87a) are unpublished.

JURISDICTION

The Third Circuit denied rehearing and rehearing en banc

on March 24, 2005. See Pet. App. 87a. Justice Souter subse-

quently extended the time to file this Petition to and including

August 19, 2005. App. 04A1041. This Court has jurisdiction

pursuant to 28 U.S.C. 1254(1).

RELEVANT CONSTITUTIONAL PROVISION

The Fifth Amendment provides in relevant part: “[{Nlor

shall any person * * * be deprived of life, liberty, or property,

without due process of law.”

STATEMENT OF THE CASE

Petitioner was convicted on charges arising from an al-

leged embezzlement scheme. The district court subsequently

concluded, based on extensive factfinding, that the govern-

ment had committed a serious violation of its duty under

Brady v. Maryland, 373 U.S. 83 (1963), to disclose relevant

evidence to the defense. Prosecutors, the district court found,

repeatedly misled petitioner and the court into believing that a

cache of documents in the government’s possession contained

no relevant exculpatory evidence. In fact, the court found,

many of those documents seriously undercut the credibility of

crucial testimony offered by government witnesses at trial.

The district court further found that absent the prosecutors’

false representations, petitioner’s counsel would have ob-

2

tained the documents from the government and, armed with

the information contained in those documents, would have

been able to respond convincingly to the trial testimony. The

district court held that a new trial was accordingly required.

On appeal, the Third Circuit did not disturb the district court’s

findings that the documents had not been disclosed to peti-

tioner and that they contained important exculpatory evi-

dence. It nonetheless denied petitioner a retrial on the re-

markable ground that petitioner had a duty to discover the

evidence in the government’s possession himself, notwith-

standing the government’s repeated misrepresentations that

the documents in its possession contained no relevant evi-

dence.

|. During the early and mid-1990s, the government en-

gaged in an investigation of petitioner Leonard Pelullo in the

Middle District of Florida. In 1991, as part of that investiga-

tion, it seized essentially all of the documents relating to ap-

proximately twenty different corporate entities controlled by

petitioner. The next year, the government returned some of

those documents (weighing some seventy-five thousand

pounds) in a disorganized fashion. However, the government

retained a very large cache — 160 boxes and thirty-six file

cabinets — of the documents. Significantly, the government

declined to provide petitioner with an index that differentiated

the documents it was retaining from those it had returned. '

2. In.1994, while still in possession of the Florida docu-

ments, the government indicted petitioner in the District of

New Jersey on charges arising from a separate investigation

of an alleged scheme by petitioner to misappropriate the pen-

sion funds of a printing company, the Compton Press.’ This

petition arises from that New Jersey prosecution, challenging

' The government eventually voluntarily dismissed the Florida

charges.

> The government charged petitioner with fifty-four counts of

conspiracy, embezzlement, and money laundering.

3

the government’ “ailure to turn over to petitioner, as required

by Brady, rele, . documents retained from the Florida sei-

zure.

During the course of the New Jersey proceedings, prose-

cutors disclosed to petitioner six specific boxes of documents

retained from the 1991 seizure. The rest, the government re-

peatedly advised petitioner and the district court, were rele-

vant only to the separate Florida investigation, and nof to the

New Jersey proceedings. See Pet. App. 59a. The government

made those representations not only prior to trial but also,

most importantly for present purposes, both on the eve of and

during the trial itself. Immediately prior to trial, petitioner’s

counsel indicated his willingness to send a representative to

review materials in the Florida documents. The AUSA

prosecuting the case in New Jersey, however, advised peti-

tioner’s counsel “that he had been assured by his agents and

the Florida prosecutor that there were no documents in Jack-

sonville pertaining to Compton Press or the charges against

Mr. Pelullo in this district and that [counsel] should not

bother to go to Jacksonville.” /d. at 1Sa (emphases added).

In response to another specific query from petitioner’s coun-

sel, the AUSA “responded that he had spoken to the prosecu-

tor in the Middle District of Florida and had been told that the

prosecutors in that district were not in possession of any

documents relevant to Compton Press or the charges against

Mr. Pelullo in this district.” /bid. (emphasis added).

During trial, the district court expressly sought to verify

that the prosecutor was directing representatives in Florida to

undertake “an exhaustive search” of the documents for excul-

patory evidence. The prosecutor responded, “Yes, | am.”

C.A. J.A. 385. The government later advised petitioner’s

counsel that “[t]he United States is not aware of any addi-

tional * * * Brady or Giglio material.” /d. at 4040-41. In re-

sponse to further inquiries regarding disclosures of the Florida

documents, the government represented not only that “[a]

thorough search has been made” but also that “[a] thorough

search is continuing.” /d. at 2618-19. The government did

4

not disclose any other Florida documents until after the trial.

Nor, critically, did it retreat from its representations that it had

reviewed those documents and they contained no evidence

relevant to the New Jersey proceedings.

3. At trial, the prosecution's strategy was to put on wit-

ness testimony that petitioner had undertaken particular trans-

actions relating to the Compton Press pension funds without

authorization and for improper purposes. Petitioner learned

of this testimony only at the trial: his indictment did not set

forth the government's proof, but instead stated the charges in

sparing fashion. (The entire superseding indictment, setting

forth all fifty-four counts, spans only a meager eighteen

pages. C.A. J.A. 3716-33.)

As the district court luter found, petitioner would have

been able to show that much of this testimony was false if the

government had complied with its Brady obligations and

turned over exculpatory documents retained from the Florida

seizure. As discussed further infra, government witnesses

asserted that petitioner had secured financial control over an

entity rather than providing it with a “bridge loan”; that peti-

tioner had siphoned cash from an entity he had taken over

with Compton Press funds; and that petitioner had withdrawn

more funds from the Compton Press trusts than he had depos-

ited. The district court tater found that those statements,

though central to the government's case, were — unbeknownst

to the jury — utterly untrue or at the very least highly dubious.

The court further found that had petitioner's counsel reviewed

the Florida files, he would easily have obtained a substantial

amount of evidence that demonstrated the many inaccuracies

in the testimony put on by the government. Yet the prosecu-

tors’ repeated assurances to petitioner and to the court that the

documents held by the government in Florida contained no

relevant evidence led petitioner's counsel to believe — errone-

ously — that there was no need to review those files during the

trial. Pet. App. 59a.

5

Petitioner was convicted on all counts and sentenced to

seventeen-and-a-half years in prison. His conviction was af-

firmed on appeal (185 F.3d 863 (CA3 1999) (table)), and this

Court denied certiorari (528 U.S. 1081 (2000)).

4. After trial, petitioner filed a timely motion for a new

trial pursuant to Federal Rule of Criminal Procedure 33. He

aHeged that newly discovered evidence demonstrated that the

government had violated its duty under Brady to produce ex-

culpatory evidence and its related duty under Giglio v. United

States, 405 U.S. 150 (1972), to produce evidence that im-

peached its witnesses. Specifically, petitioner explained that,

after trial, a representative of his counsel had examined the

Florida documents and discovered, contrary to the govern-

ment’s repeated representations, that those files included nu-

merous exculpatory and impeaching documents.

The same district judge who had overseen petitioner's

trial (Debevoise, J.) received extensive briefing, reviewed

numerous exhibits, and conducted a lengthy hearing. See Pet.

App. 46a-87a. On the basis of this evidence, the district court

made detailed findings that numerous documents held by the

government in Florida were directly “exonerating and/or im-

peaching” of crucial testimony that the government's wit-

nesses had offered about the “critical issue” of “[petitioner]’s

intent.” /d. at 60a, 59a. Several examples from the district

court’s detailed ruling illustrate the significance of the mate-

rial withheld by the government:

* A government witness testified that, contrary to peti-

tioner’s representations that he had merely provided a “bridge

loan” to the travel agency, petitioner had actually made an

- Investment that gave him majority control of the agency in

order to misappropriate its accounts. /d. at 6la. The Florida

materials included numerous documents demonstrating that

the funds had constituted a loan. /bid.

* A government witness testified that petitioner had

looted funds from the travel agency. /d. at 61-62a. The Flor-

ida documents included proof that petitioner had actually pro-

6

vided funds to the travel agency that exceeded by hundreds of

thousands of dollars what he had been repaid. /bid.

* A government witness testified that petitioner specifi-

cally ordered the withdrawal of $200,000 in funds from the

travel agency for improper purposes. /d. at 63a. The Florida

documents demonstrated that, in fact, the transfer had been

ordered by the agency’s president. /bid.

¢ Government witnesses testified that petitioner had di-

rected the withdrawal of more funds from the Compton Press

funds than he contributed. /d. at 63a-64a. The Florida docu-

ments included proof that petitioner’s investments exceeded

any withdrawals by a large amount, evidence that the district

court found “bears significantly on the testimony” of the gov-

ernment’s witnesses, /bid.

* The government also asserted that petitioner had mis-

appropriated the proceeds of an insurance contract. One gov-

ernment witness supported that theory by testifying that he

and petitioner met and discussed those funds the day they

were deposited into Compton Press’s bank account. In fact,

withheld documents demonstrated that such a meeting could

not have occurred because petitioner was in another state at

the time. /d. at 65a-66a.

¢ The government also failed to disclose io petitioner an

important piece of evidence that was neither among the Flor-

ida documents nor created by one of his own companies. A

government witness testified at trial that his signature had

been forged on various documents. The government failed to

disclose, however, a handwriting report that the signatures

were genuine. The district court specifically recognized that

the report “was a pretty persuasive piece of evidence” (C.A.

J.A. 3936) that “would have cast doubt upon important testi-

mony of a key witness” (Pet. App. 67a) and indeed “tend[ed]

to show that [the witness] lied at trial” (id. at 66a). The gov-

ernment attorney prosecuting the case, in response to peti-

tioner’s Brady claim, acknowledged that he “was aware of”

;

the report but had nonetheless failed to disclose it. C.A. J.A.

3937.

Citing these and other examples, the district court found

“a mass of documentary and other evidence which seriously

undermines the testimony of a number of the Government

witnesses.” C.A. J.A. 3998. The court concluded that the

government had violated petitioner’s constitutional rights by

repeatedly misrepresenting to petitioner, including at trial,

that it did not hold relevant evidence in Florida. As the court

explained, even if a defendant is otherwise ordinarily required

to uncover exculpatory evidence himself, petitioner’s “as-

signed counsel and, shortly before trial, his retained counsel

were faced with the practical problem of an impending trial

and were entitled to rely on the government’s assurances that

it had reviewed the warehouse documents and that there was

no relevant material there other than that which was contained

in the six boxes” returned to petitioner. Pet. App. 60a.

The district court found that the government’s misconduct

was not excused by the government’s offer, made before it

informed petitioner of its evidence, to allow petitione ‘o pho-

tocopy the massive cache of Florida documents. Although

the documents were ostensibly available, the government's

offer was effectively negated by the government’s insistence

that petitioner pay more than $50,000 in photocopying costs

he could not afford and — more importantly — by its repeated

statements that the documents contained no relevant evidence.

Pet. App. 59a-60a; Pet. C.A. Br. 45 n.10. See also C.A. J.A.

3930 (“THE COURT: I recall time and time again, you're

[sic] assuring the defense and me that you had gotten all the

relevant documents from the Florida warehouse.”’).

On that basis, the district court found “such a serious vio-

lation of the' government’s Brady obligations that defendant’s

motion for a new trial must be granted.” Pet. App. 57a.

5. On appeal, the Third Circuit reversed. That court

viewed the case as arising “at the intersection between two

particular branches of the Brady doctrine”: the government’s