1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-9-1997

United States v. Pelullo

Precedential or Non-Precedential:

Docket 95-1829,95-1856

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Pelullo" (1997). 1997 Decisions. Paper 8.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/8
1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 95-1829 and 95-1856 

 ___________ 

UNITED STATES OF AMERICA 

 vs. 

LEONARD A. PELULLO, 

 Appellant. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 (D.C. Criminal No. 91-cr-00060) 

 ___________ 

 ARGUED APRIL 24, 1996 

 BEFORE: BECKER, NYGAARD and LEWIS, Circuit Judges. 

 (Filed January 9, 1997) 

 ___________ 

W. Neil Eggleston (ARGUED) 

Howrey & Simon 

1299 Pennsylvania Avenue, N.W. 

Washington, DC 20004-2402 

 Attorney for Appellant
2

William B. Carr, Jr. (ARGUED) 

Frank A. Labor, III (ARGUED) 

Ronald G. Cole 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 Attorneys for Appellee

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

I. 

 This appeal represents the third time this case has 

come before our court. On both previous occasions we reversed 

Pelullo's convictions. See United States v. Pelullo, 964 F.2d 

193 (3d Cir. 1992) ("Pelullo I") (reversing all but one of 

Pelullo's fraud convictions due to the erroneous admission of 

unauthenticated bank records); United States v. Pelullo, 14 F.3d 

881 (3d Cir. 1994) ("Pelullo II") (reversing all of Pelullo's 

convictions on the ground that it was error to invoke the 

doctrine of collateral estoppel with regard to the single wire 

fraud conviction upheld in Pelullo I). 

 The procedural history of this case, particularly as it 

involves Pelullo's first trial, helps place in context the issues 

raised in this appeal, and we begin with a discussion of that 

trial. 

A. 

 When Pelullo was first indicted, he was the Chief 

Executive Officer of The Royale Group, Limited ("Royale"), a 
3

publicly held corporation. The indictment alleged that as its 

CEO, Pelullo had engaged in a series of illegal schemes to 

defraud Royale. Paramount among these for our purposes was Count 

54 of the indictment, which charged Pelullo with wire fraud. 

Specifically, Count 54 alleged that in early 1986, Pelullo 

diverted $114,000 from a Royale subsidiary to pay-off part of a 

$250,000 personal loan owed to Anthony DiSalvo, a loanshark 

purported to have ties to the Philadelphia mafia. The indictment 

also alleged that Count 54 constituted a predicate act, 

Racketeering Act 60, for a separate RICO count. 

 The government's case against Pelullo on Count 54 was 

based primarily upon the testimony of two government agents, FBI 

Agent Randal Wolverton and IRS Agent James Kurtz; and an admitted 

mafia underboss, Philip Leonetti. In particular, Wolverton 

testified that Pelullo had admitted in an interview with FBI 

agents to using the $114,000 to pay-off DiSalvo. In addition, 

there was testimony establishing that after Pelullo initially 

failed to repay the $250,000 loan, DiSalvo sought the assistance 

of Leonetti in an attempt to collect the outstanding debt. In 

fact, Leonetti testified that he met with Pelullo in January 1986 

at the Florida home of Nicodemo Scarfo, the reputed boss of the 

Philadelphia Mafia, to inform Pelullo that he had to repay 

DiSalvo. In late February of 1986, Pelullo wired $114,000 from a 

business bank account to a family corporation in Philadelphia. 

The transferred money was allegedly converted to cash by Arthur 

Pelullo, Leonard Pelullo's brother, and given to Peter Pelullo, 
4

Leonard Pelullo's other brother, to drop-off at DiSalvo's home in 

Philadelphia. 

 In response to the government's case, Pelullo took the 

stand in his own defense and, among other things, contradicted 

Wolverton's claim that he had admitted to using Royale funds to 

repay his personal debt to DiSalvo. Instead, he testified that 

the loan had not been paid-off until the Summer of 1986 and that 

the $114,000 in question had been used to repay an intercompany 

debt earlier that same year. See Appellant's Br. at 10. The 

jury, apparently unpersuaded by Pelullo's testimony on this and 

other matters, returned a guilty verdict on all counts of the 

indictment. As noted earlier, however, on appeal we reversed all 

of Pelullo's convictions from his first trial, except for his 

conviction of wire fraud on Count 54. 

 Sometime after Pelullo's first appeal, but before his 

retrial, the defense obtained potential impeachment evidence from 

the government that the government had withheld despite Pelullo's 

repeated production requests. The withheld evidence consisted of 

an IRS memorandum, which detailed Leonetti's interview with IRS 

Agent Kurtz. The memorandum contained references to meeting 

dates between Pelullo and Leonetti that directly contradicted 

Leonetti's testimony at trial. 

 On retrial, Pelullo was again found guilty on all 

counts. Thereafter, he filed a Rule 33 motion for a new trial on 

Count 54 based on the fact that during the first trial the 

government had withheld potential impeachment evidence in 

violation of Brady v. Maryland, 373 U.S. 83 (1963), which creates 
5

a duty on the part of the government to provide the defense with 

potentially exculpatory or impeachment evidence. See also United 

States v. Bagley, 473 U.S. 667, 676 (1985) (noting that 

impeachment evidence falls within the Brady rule). The district 

court denied Pelullo's Rule 33 motion, and Pelullo appealed that 

ruling as well as his convictions from the second trial. 

 On the second appeal, we affirmed Pelullo's conviction 

on Count 54 on the grounds that the withheld IRS memorandum did 

not lead to a "reasonable probability" that the outcome of the 

first trial would have been different had the government turned 

the memorandum over prior to the first trial. See Pelullo II, 14 

F.3d at 887. We reversed Pelullo's convictions, however, on all 

other counts. Specifically, we held that the district court 

erred in according Pelullo's prior conviction on Count 54 

preclusive effect in Pelullo's second trial. Id. at 897. 

 At some point following Pelullo's second trial, but 

before the beginning of his third trial (which ended in a hung 

jury), the government turned over to the defense three more 

pieces of potential impeachment evidence, which Pelullo's counsel 

had repeatedly requested since the first trial. Pelullo contends 

that each of the three items undermined the testimony of the 

government agents and Leonetti and supported his claim that in 

early 1986, he had used the $114,000 to pay-off an intercompany 

debt. This evidence consisted of: (1) rough notes of FBI Agent 

Wolverton taken during an interview with Pelullo, which included 

the notation "repaying intercompany debt," a statement that had 

not appeared in the FBI 302 report; (2) rough notes of IRS Agent 
6

Kurtz taken during an interview with Leonetti, which referenced a 

date, "Summer 1986," which was not included in Kurtz's final 

memorandum; and (3) a series of FBI surveillance tapes of 

Nicodemo Scarfo's Florida home from January 1986, which do not 

list Pelullo as a visitor to the residence. 

 Prior to the fourth trial, Pelullo filed a motion 

pursuant to 28 U.S.C. § 2255 to reverse his conviction on Count 

54 and to dismiss the indictment due to the government's alleged 

Brady violations. The district court did not rule on that motion 

until after the conclusion of the fourth trial. In a post-trial 

ruling, the district court denied Pelullo's § 2255 motion on the 

ground that the government had not violated its Brady

obligations. See United States v. Pelullo, 895 F. Supp. 718, 738 

(E.D. Pa. 1995) ("Pelullo III"). 

 Obviously this protracted litigation, with its wide 

audience (four juries and two prior appellate panels), has given 

rise to more than we have set forth above in terms of procedural 

and factual matters. But our purpose here is to focus upon what 

we believe to be particularly relevant to what occurred in 

Pelullo's fourth and most recent trial. 

B. 

 At the fourth trial, Pelullo was convicted of 46 counts 

of wire fraud and one RICO count, Racketeering Act 60. The 

substance of the government's case against Pelullo during the 

fourth trial, including the allegations contained in the 

Racketeering Act 60 charge in particular, was largely 

indistinguishable from that of his three earlier trials. In 
7

fact, the only noteworthy difference was that at the conclusion 

of its case-in-chief in the fourth trial, the government 

introduced portions of Pelullo's testimony from his first trial. 

 With respect to Racketeering Act 60, the government admitted the 

following testimony from the first trial: 

Q:First of all, did you ever have any contact with Mr. 

Leonetti? 

A:I have knowledge of who Mr. Leonetti is. I grew up 

in South Philadelphia. I know these 

people from seeing them on the street 

and maybe running into them at a 

restaurant. Do I know them well. Do I 

associate with them? No. 

* * * 

Q:Do you know a man named Nicodemo Scarfo? 

A:I know who he is. I know him from South 

Philadelphia. I could have run into him 

at a restaurant. I know who he is. 

* * * 

Q: Okay. Have you ever been to his home? 

A: Yes. 

Q: How did that come about? 

A:What happened was I was in Miami and a man called me 

by the name of Sam LaRusso. Sam had 

worked for my father about 30 years ago 

as a laborer. And he told me he had a 

job in Fort Lauderdale, would I come up 

and help him? I said sure, Sam, I'll be 

up to see it. 

I went up to Fort Lauderdale and when I get there he 

tells me where I'm at. I didn't know it 

was Scarfo's house. And he said 

Leonard, he said, I need some help here. 

 There's a construction job. I don't 

have any people here and I need to get a 

permit. I said, Sam, I don't want to 

get involved. Don't put me in this 

position. 
8

And I wasn't threatened, but the situation with Sam was 

that Sam was a prisoner, basically, 

until this work was done and he asked me 

to get him a permit, get him some 

contractors to get the work done, 

otherwise he was going to have problem 

with these people. And I looked at the 

job. I sent Kent Swenson there and I 

said see what you can do about getting 

him a permit and get him some plans and 

get the job done and let's get the hell 

out of here. That's what I told him. 

Q:Is that the only time you were ever at his house? 

A:I might have been there twice with Sam, because he 

needed some technical help on how to do 

something and I tried to limit my 

exposure there, yes. 

See Government's Motion for the Admission of Leonard A. Pelullo's 

Prior Statements, Supp. App. at 1450-52. 

 This, in essence, was the nature of the government's 

case against Pelullo in his fourth trial, and with this in mind 

we will address the issues he raises in this appeal. 

II. 

 Although Pelullo raises a series of claims on appeal,1

we will focus upon the following four: 

 

1. In addition to the four issues discussed in detail in Part 

II of our opinion, Pelullo also raises the following four claims: 

 (1) that the district court committed two evidentiary errors by 

admitting alleged hearsay testimony and excluding the testimony 

of Peter Pelullo, Sr.; (2) that the prosecutor's rebuttal 

summation constituted plain error, denying Pelullo a fair trial; 

(3) that the fine imposed by the district court was plain error; 

and (4) that the district court improperly ordered the forfeiture 

of Pelullo's Montana ranch. 

 First, we do not believe that the district court abused its 

discretion in admitting certain testimony or in limiting the 

scope of Peter Pelullo, Sr.'s testimony. Second, in our view, 

the prosecutor's statements with respect to whether certain 

government witnesses would lie, although troublesome, did not 

rise to the level of plain error. Third, we believe the court 

acted in accordance with 18 U.S.C. § 1963(a), which provides that 
9

(1) that due to the government's Brady violation 

he is entitled to collateral relief on his 

Count 54 conviction from his first trial; 

(2) that he was forced to take the stand at his 

first trial because of the government's Brady

violation and, therefore, the government's 

reliance in this case upon the testimony from 

that trial requires a reversal of his 

convictions; 

(3) that his right to a fair and impartial jury 

was violated because of a juror's failure 

honestly to answer certain questions during 

voir dire; 

(4) that the district court improperly increased 

Pelullo's sentence following his conviction 

at the fourth trial. 

A. 

 Pelullo claims that the district court erred under 28 

U.S.C. § 2255 when it denied his claim for collateral relief from 

his conviction at his first trial on Count 54.2 More 

specifically, he argues that this guilty verdict should be set 

(..continued) 

"a defendant who derives profits or other proceeds from an 

offense may be fined not more that twice the gross profits or 

other proceeds," when it imposed a $3.48 million fine. See Supp. 

App. at 1365 ("We [the defense] have indicated and the Government 

agrees, that the jury convicted of a fraud involving 

$1.74 million . . . . "). Fourth, because the Montana ranch fell 

within the scope of Pelullo's property identified in the 

indictment, the district court's forfeiture ruling was consistent 

with the requirements of Rule 7(c)(2) of the Federal Rules of 

Criminal Procedure. 

2. Section 2255 states in relevant part that: 

 [a] prisoner . . . under sentence of a court 

established by Act of Congress claiming the 

right to be released upon the ground that the 

sentence was imposed in violation of the 

Constitution or laws of the United States, 

. . . may move the court which imposed the 

sentence to vacate, set aside or correct the 

sentence. . . . 
10

aside because of the government's alleged Brady violation -- its 

failure to turn over prior to his first trial the three pieces of 

impeachment evidence discussed earlier. See United States v. 

Biberfeld, 957 F.2d 98, 103 (3d Cir. 1992) (recognizing that 

Brady violations fall within the scope of 28 U.S.C. § 2255); see

also Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1990) ("Whether an 

error reaches the magnitude of a constitutional violation is an 

issue of law, subject to plenary review."), cert. denied, 493 

U.S. 1036 (1990). Pelullo contends that the government's 

suppression of this information rendered the guilty verdict in 

his first trial on Count 54 unworthy of confidence. See Kyles v. 

Whitley, 115 S. Ct. 1555, 1566 (1995) ("The question [under 

Brady] is not whether the defendant would more likely than not 

have received a different verdict with the [suppressed] evidence, 

but whether in its absence he received a fair trial, understood 

as a trial resulting in a verdict worthy of confidence."). In 

deciding whether Pelullo is entitled to collateral relief from 

this conviction, we must consider the following two questions: 

first, did the government fail to provide the defense with 

potential impeachment evidence, specifically, the rough notes of 

Agents Wolverton and Kurtz, as well as various FBI surveillance 

tapes?; and second, if so, did the suppression of the evidence 

create a reasonable probability that a different result would 

have occurred at Pelullo's first trial on Count 54 had it been 

provided to the defense, thus rendering the violation a material 

one? See Brady, 373 U.S. at 87 ("[T]he suppression by the 

prosecution of evidence favorable to an accused . . . violates 
11

due process where the evidence is material either to guilt or to 

punishment, irrespective of the good faith or bad faith of the 

prosecution."); see also United States v. Bagley, 473 U.S. 667, 

678 (1985) (noting that "suppression of [Brady] evidence amounts 

to a constitutional violation only if it deprives the defendant 

of a fair trial"); Kyles, 115 S. Ct. at 1566 (defining a "fair 

trial" as one in which the verdict is worthy of confidence). 

1. 

 We have no hesitation in concluding that the government 

inexplicably failed to abide by its obligation under Brady to 

disclose potential impeachment evidence. See, e.g., United 

States v. Ramos, 27 F.3d 65 (3d Cir. 1994) (recognizing that 

rough notes often may constitute valuable Brady material); United 

States v. Alvarez, 86 F.3d 901 (9th Cir. 1996) (same). As noted 

earlier, Pelullo argues that the withheld evidence clearly could 

have been utilized by the defense during his first trial to 

undermine the government's case on Count 54 by way of impeaching 

the testimony of three government witness: Leonetti, Wolverton 

and Kurtz. We agree. See Bagley, 473 U.S. at 676 ("Impeachment 

evidence . . . as well as exculpatory evidence, falls within the 

Brady rule."). For example, the defense could have seized upon 

the notation "repaying an intercompany debt," which appeared in 

Wolverton's rough notes but not in his final FBI 302, to question 

the credibility of Wolverton's testimony that Pelullo admitted in 

his interview that he had used $114,000 to pay-off a debt owed to 

DiSalvo. Similarly, the reference to "Summer 1986" in Agent 

Kurtz's rough notes of his interview with Leonetti, which was not 
12

included in his report, arguably supported Pelullo's claim that 

the loan to DiSalvo was not paid-off until August or September of 

1986, instead of February 1986 as the Government contended at 

trial. Finally, in theory, the FBI's surveillance tapes, which 

do not include any mention of Pelullo, could have undermined the 

credibility of Leonetti's claim that he met with Pelullo at 

Scarfo's Florida home sometime in January 1986 to discuss 

repayment of the DiSalvo loan.3 Clearly, therefore, whether 

considered separately or collectively, these three items had 

potential impeachment value to the defense and, thus, constituted 

Brady evidence. As such, the government had an affirmative duty, 

which in this case it ignored, to provide this information to the 

defense. 

2. 

 The question whether the nondisclosure of potential 

impeachment evidence was "material," however, requires a very 

different and more in-depth analysis. See Bagley, 473 U.S. at 

682 ("The evidence is material only if there is a reasonable 

probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different."). The 

Supreme Court has cautioned that in making a Brady materiality 

determination, the focus should be upon an evaluation of whether 

 

3. In reality, the impeachment value of the FBI surveillance 

reports of Scarfo's home was questionable, because "no 

surveillance was conducted January 1, 3, and 5-21." Pelullo III, 

895 F. Supp. at 738. In other words, the tapes only covered 

twelve days during the month of January, 1986. As such, they 

would likely do little, if any, to undermine Leonetti's testimony 

that he met with Pelullo at Scarfo's residence during that month 

to discuss repayment of the DiSalvo loan. 
13

the suppression of the evidence, when viewed collectively, 

resulted in a verdict unworthy of confidence. See Kyles, 115 S. 

Ct. at 1567 (noting that the materiality of "suppressed evidence 

[is to be] considered collectively, not item-by-item"). 

Essentially, therefore, the question we must resolve is: when 

viewed as a whole and in light of the substance of the 

prosecution's case, did the government's failure to provide three 

pieces of Brady impeachment evidence to the defense prior to the 

first trial lead to an untrustworthy guilty verdict in that case 

on Count 54? 

3. 

 We do not question that Pelullo's defense to Count 54 

during his first trial would have been more compelling had it 

included the items of impeachment evidence at issue. Pelullo's 

defense to Count 54 was that he had used the money transferred in 

February to pay-off an intercompany debt and that he had not 

payed-off the DiSalvo loan until August or September. Pelullo's 

defense was contradicted at trial only by the testimony of three 

pivotal government witnesses: IRS Agent Kurtz, FBI Agent 

Wolverton and reputed mob underboss Leonetti. Indeed, this 

testimony was the linchpin of the government's case against 

Pelullo on that count. 

 As noted earlier, each piece of withheld evidence could 

have been used by the defense to undermine the credibility of 

Wolverton's, Kurtz's and Leonetti's testimony and formal reports. 

 Because the credibility of the government witnesses was so 

central to the government's case, the jury very well could have 
14

reached a different verdict had Pelullo been armed with this 

impeachment evidence. 

 Moreover, the result of Pelullo's third trial indicates 

that the result of his first trial may have been different had 

the evidence been turned over. At the third trial, when the 

evidence had finally been turned over to the defense, the jury 

failed to convict Pelullo on Racketeering Act 60, which charged 

the identical conduct as Count 54. Of course, we cannot know for 

certain why a jury would be unable to reach a verdict, but at the 

very least, the result of the third trial suggests that some 

members of the jury may have been swayed by the impeachment 

evidence.4 As such, we cannot say that the guilty verdict on 

Count 54 in the first trial is worthy of confidence. See Bagley, 

473 U.S. at 678 (holding that a conviction must be reversed "if 

the evidence is material in the sense that its suppression 

undermines confidence in the outcome of the trial") (citation 

omitted). Accordingly, because we find that the withheld 

evidence was both favorable to the defense and material, we 

 

4. The government contends that because Pelullo had the 

alleged Brady material before the fourth trial and was 

nevertheless convicted of Racketeering Act 60, the withheld 

evidence would not have made a difference in the first trial. As 

discussed earlier, however, the defendant does not have to prove 

that he would not have been convicted had the government complied 

with its Brady obligations. Rather, it is enough that confidence 

in the verdict is undermined. See Kyles, 115 S. Ct. at 1566. 

While we do not find the results of either the third or the 

fourth trial to be dispositive on the issue of materiality, the 

jury's failure to reach a verdict in the third trial bolsters our 

conclusion that the verdict in the first trial is untrustworthy. 

 Moreover, the conviction in the fourth trial does little to 

instill confidence in the Count 54 conviction because in that 

trial the government introduced Pelullo's testimony from the 

first trial, which it had not done in the third trial. 
15

reverse the district court's denial of Pelullo's motion for 

collateral relief under 28 U.S.C. § 2255 and remand for a new 

trial on Count 54. 

B. 

 Pelullo also claims that the district court erred by 

allowing the government to introduce his testimony from the first 

trial during its case-in-chief in the fourth trial. According to 

Pelullo, this testimony should not have been allowed because he 

was forced to take the stand at the first trial due solely to the 

government's failure to abide by its obligation under Brady. In 

other words, Pelullo argues that because he had no other way to 

impeach the government witness, he was compelled to take the 

stand himself and rebut their testimony. Thus, he contends that 

all of his convictions at his fourth trial were tainted and, 

therefore, should be reversed. 

 In support of his argument, Pelullo relies primarily 

upon Harrison v. United States, 392 U.S. 219 (1968). There, the 

Supreme Court held that a defendant's testimony, given after the 

government had introduced what was later determined to have 

constituted a series of illegally obtained confessions, could not 

be used against that same defendant in a subsequent proceeding. 

Because Pelullo cites Harrison as the chief source of support for 

his position, we will begin our discussion with an analysis of 

that case. 

 Harrison had been charged with felony murder and at 

trial took the stand in his own defense. In the wake of his 

testimony, which was at variance with three confessions that 
16

previously had been introduced by the government during its casein-chief, the jury returned a guilty verdict.5 On appeal, the 

D.C. Circuit reversed Harrison's conviction and remanded the case 

for a new trial on the ground that the three confessions had been 

illegally obtained, a clear violation of his Fifth Amendment 

right against self-incrimination, and were therefore 

inadmissible. During the second trial, however, the prosecution 

was allowed to introduce the substance of Harrison's testimony 

from his first trial. Once again, the jury returned a guilty 

verdict. 

 In reversing Harrison's conviction, the Supreme Court 

held that his testimony at his original trial was the 

"inadmissible fruit of the illegally procured confessions" and, 

thus, should not have been presented to the jury during his 

second trial. See Harrison, 392 U.S. at 223 (noting that because 

Harrison apparently took the stand "to overcome the impact of 

confessions illegally obtained and hence improperly introduced, 

then his testimony was tainted by the same illegality that 

 

5. In contrasting the substance of the three confessions and 

Harrison's own testimony, the Supreme Court stated : 

 The substance of the confessions was that the 

petitioner and two others, armed with a 

shotgun, had gone to the victim's house 

intending to rob him, and that the victim had 

been killed while resisting their entry into 

his home. In his testimony at trial the 

petitioner said that he and his companions 

had gone to the victim's home hoping to pawn 

the shotgun, and that the victim was 

accidently killed while the petitioner was 

presenting the gun to him for inspection. 

Harrison, 392 U.S. at 221. 
17

rendered the confessions themselves inadmissible"). According to 

Pelullo, his decision to take the stand at his first trial was 

impelled by the government's unlawful withholding of vital 

impeachment evidence. In other words, Pelullo claims that his 

testimony at his first trial, like Harrison's, constitutes the 

inadmissible fruit of a poisonous tree. 

 As a general rule, a defendant's testimony at a former 

trial is admissible in subsequent trials. See Harrison, 392 U.S. 

at 322. When a defendant's testimony is compelled, however, by a 

constitutional violation, that testimony must be excluded from 

subsequent proceedings.6 Thus, a court must determine: 

(1) whether there was a constitutional violation; and (2) whether 

the defendant would have testified anyway even if there had been 

no constitutional violation. The burden of proving that the 

defendant would have testified had the government not committed 

 

6. Seventeen years after Harrison, in Oregon v. Elstad, 470 

U.S. 298 (1985), the Supreme Court held that only coerced 

confessions violate the Fifth Amendment. Today, it is unclear 

whether the government's reliance upon Harrison's illegally 

obtained (but not coerced) confessions would rise to the level of 

a constitutional violation. See Yale Kamisar, On the "Fruits" of 

Miranda Violations, Coerced Confessions, and Compelled Testimony, 

93 MICH. L. REV. 929, 998 (1995) (noting that "considering the 

case's particular facts, it must be said that Harrison would 

probably be decided differently today . . . [because] the 

poisonous tree in Harrison consisted on merely McNabb-Mallory

violations, not coerced confessions, and in Elstad the Court 

indicated that nowadays the poisonous tree doctrine only applies 

to evidence stemming from constitutional violations"). 

 In any event, regardless of whether Elstad can be read to 

modify Harrison to apply only to evidence stemming from 

constitutional violations, we see no reason to limit the 

application of Harrison in this case. Here, the government's 

failure to abide by its Brady obligations resulted in a 

constitutional violation. 
18

the violation lies with the government. See id. at 225 ("Having 

`released the spring' by using the petitioner's unlawfully 

obtained confessions against him, the Government must show that 

its illegal action did not induce his testimony.") (citation 

omitted). 

 We have already determined that the government violated 

Pelullo's right to a fair trial on Count 54 by withholding Brady

material prior to the first trial. Thus, the first prong of the 

Harrison analysis has been satisfied. We decline to determine, 

however, whether Pelullo would have testified in the first trial 

anyway even if the government had complied with its Brady

obligations. Instead, for the reasons that follow, we will 

remand to the district court to make this determination. 

1. 

 Generally, we will review a district court's 

evidentiary rulings for abuse of discretion. See United States 

v. Himelwright, 42 F.3d 777, 1781 (3d Cir. 1994) (citing United 

States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992). When, 

however, a district court's ruling is based on an interpretation 

of law, our review is plenary. See United States v. Sokolow, 91 

F.3d 396, 402 (3d Cir. 1996).

 At the conclusion of Pelullo's fourth trial, the 

district court held an evidentiary hearing to determine whether 

Pelullo's testimony from the first trial had been improperly 

admitted. See Pelullo III, 895 F. Supp. 718 (E.D. Pa. 1995). 

The district court rejected Pelullo's contention that his 

decision to testify at the first trial was impelled by the 
19

government's Brady violation. See id. at 740. There are two 

problems with the district court's conclusion. First, the 

district court's conclusion was driven largely by its 

determination that the evidence did not constitute Brady

material. See id. Under the district court's analysis, because 

there was no Brady violation, Pelullo's testimony could not 

logically be said to have been "impelled" by that Brady

violation. Although not explicitly stated, the district court 

seems to have concluded that because the withheld evidence was 

insubstantial -- that its suppression did not affect the fairness 

of the Count 54 verdict -- by the same token, the evidence could 

not have been so fundamental to Pelullo's case that he would not 

have testified had the evidence been properly turned over. 

However, we have reversed the district court's holding on the 

Brady issue. It follows that we cannot defer to the district 

court's holding on the Harrison issue. 

 Second, the district court concluded that Pelullo would 

have taken the stand even if the withheld evidence was material 

and had been provided to the defense prior to the first trial. 

See id. In reaching this conclusion, however, the district court 

misallocated the burden under Harrison. Harrison makes clear 

that the burden of proof lies with the government to show that 

the defendant would have testified anyway absent the 

constitutional violation. See Harrison, 392 U.S. at 225. In 

rejecting Pelullo's argument for a new trial, the district court 

stated that "Defendant offers no explanation as to why he would 

not have testified had he been in possession of these materials." 
20

 Pelullo III, 895 F. Supp. at 740. By imposing the burden on 

Pelullo, the district court committed error. 

 Accordingly, because the district court's conclusion on 

the Harrison issue was based on its finding that no Brady

violation had been committed, and because the district court 

misallocated the burden of proof under Harrison, we vacate the 

district court's denial of Pelullo's Rule 33 motion for a new 

trial and remand for a new hearing on that motion consistent with 

this opinion. On remand, the government should be afforded an 

opportunity to demonstrate, consistent with its burden of proof, 

that Pelullo would have testified during his first trial even if 

the withheld material had been turned over. 

C. 

 Next, Pelullo claims that he is entitled to a new trial 

due to the misconduct of one of the jurors during his fourth 

trial. According to Pelullo, after his conviction he became 

aware that Juror #229 had not honestly answered a series of 

questions during voir dire. Pelullo alleged that this juror 

failed truthfully to respond to the following questions: 

(1) Is any juror related to or closely associated 

with anyone employed by any law enforcement 

agency, including the FBI, local police? 

(2) Has any juror ever been related to or 

associated or connected with anyone who was 

involved in the defense of a criminal case? 

Whether as a witness, party or as an attorney 

who defended the matter? 

(3) Has any juror, relative or close friend ever 

been charged with a crime in any court, 

state, local or federal? 
21

See Appellant's Br. at 30. As a result, Pelullo filed a motion 

under Fed. R. Crim. Proc. 33, seeking a new trial.7 Due to the 

vague and generally conclusive nature of the motion, the district 

court decided to hold a hearing to determine whether this alleged 

misconduct was discovered during or after the trial. 

 In general, once a verdict has been reached courts are 

reluctant to recall jurors to determine whether misconduct has 

occurred. See United States v. Gilsenan, 949 F.2d 90, 97 (3d 

Cir. 1991). Thus, to prevail on a Rule 33 motion based upon 

juror misconduct, a defendant must establish as a preliminary 

matter that: "(1) the evidence is newly discovered, in other 

words, that it has been discovered since the end of the trial and 

(2) that the defendant's failure to discover this information 

during trial is not the result of a lack of diligence." United 

States v. Bolinger, 837 F.2d 436, 438-39 (11th Cir. 1989); see

also United States v. McKinney, 952 F.2d 333 (9th Cir. 1991) 

 

7. Rule 33 of the Federal Rules of Criminal Procedure provides 

that: 

 The court on motion of a defendant may grant a 

new trial to that defendant if required in 

the interest of justice. If trial was by the 

court without a jury the court on motion of a 

defendant for a new trial may vacate the 

judgment if entered, take additional 

testimony and direct entry of a new judgment. 

 A motion for a new trial based on the ground 

of newly discovered evidence may be made only 

before or within two years after final 

judgment, but if an appeal is pending the 

court may grant the motion only on remand of 

the case. A motion for a new trial based on 

any other grounds shall be made within 7 days 

after verdict or finding of guilty or within 

such further time as the court may fix during 

the 7-day period. 
22

("[A] defendant cannot learn of juror misconduct during the 

trial, gamble on a favorable verdict by remaining silent, and 

then complain in a post-verdict motion that the verdict was 

prejudicially influenced by that misconduct."). 

 During the course of the evidentiary hearing, which 

lasted three days, the trial court heard testimony from a variety 

of witnesses, including a Ms. Mitchell, the individual who 

allegedly initially learned of the misconduct of Juror #229. At 

the time of the hearings, Ms. Mitchell had been employed by 

Pelullo's father for more than a year at his wholesale food 

store, Montco Cash and Carry. In commenting upon Ms. Mitchell's 

testimony, the court observed that: 

[d]espite the new found information that the Juror had 

a sister who was the victim of a violent 

crime, smoked marijuana every day prior to 

trial and had a brother-in-law who was 

convicted of a crime, Ms. Mitchell did not 

disclose this information to Defendant's 

father. Ms. Mitchell is not sure whether she 

ever disclosed this information to 

Defendant's father. In fact, Ms. Mitchell is 

not very sure when or to whom she disclosed 

this information about the Juror. All Ms. 

Mitchell remembers is that she revealed this 

information to Neil Eggleston, one of 

Defendant's attorneys, sometime between midFebruary and mid-March. Ms Mitchell claims 

that she found Mr. Eggleston's name in the 

Rolodex at work and decided to call him 

without being instructed to do so by anyone. 

Pelullo III, 895 F. Supp. at 725 (citations omitted). The 

district court ultimately rejected as incredible the testimony of 

Ms. Mitchell, choosing instead to credit the testimony of James 

Grimes, James Donahue and John Micofsky. See id. at 727-30. 

Relying largely upon the statements of Messrs. Grimes, Donahue 
23

and Micofsky, the court concluded that there was sufficient 

evidence from which to infer that Pelullo or, perhaps, his 

counsel had knowledge of the juror's alleged misconduct prior to 

the end of the trial. See id. at 729-31. Accordingly, the court 

denied Pelullo's Rule 33 motion for a new trial. Id. at 730. 

 In our view, there was adequate factual evidence 

presented during the hearing to support the district court's 

finding.8 See Anderson v. Bessemer City, 470 U.S. 564, 575 

(noting that "when a trial judge's finding is based on his 

decision to credit the testimony of one or two witnesses, each of 

whom has told a coherent and facially plausible story that is not 

contradicted by extrinsic evidence, that finding, if not 

internally inconsistent, can virtually never be clear error"). 

As such, we will affirm the district court's denial of Pelullo's 

Rule 33 motion for a new trial based on juror misconduct. 

D. 

 Finally, Pelullo contends the district court erred by 

imposing a sentence for his conviction on Count 54 that was 

longer than the sentence he had received earlier for the same 

count. Because we will reverse Pelullo's conviction on Count 54, 

we need not address Pelullo's sentencing argument. 

 

8. An in-depth discussion of the substance of the three day 

hearing is set forth in the district court's opinion. 

Pelullo III, 895 F. Supp. at 723-30. 
24

 For the foregoing reasons, we will reverse the district 

court's order on the § 2255 motion and remand for a new trial on 

Count 54. We will also reverse the district court's order on the 

Rule 33 motion and remand for a new hearing. We will affirm the 

district court's order in all other respects.