Leonard A. Pelullo v. UNITED STATES OF AMERICA (D.C. Civil No. 3-01-cv-00124) No. 09-1882 UNITED STATES OF…

ALD-43 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4343
LEONARD A. PELULLO,
Appellant
v.
UNITED STATES OF AMERICA
(D.C. Civil No. 3-01-cv-00124)
No. 09-1882
UNITED STATES OF AMERICA
v.
LEONARD A. PELULLO,
Appellant
(D.C. Crim. No. 2-94-cr-00276-002)
On Appeal from the United States District Court
for the District of New Jersey
District Judge: The Honorable Dickinson R. Debevoise
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 and
For a Decision on the Issuance of a Certificate of Appealability
November 13, 2009
Before: SLOVITER, AMBRO and SMITH, Circuit Judges

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1 The reversed claim alleged a violation of Brady v. Maryland, 373 U.S. 83
(1963).
2
(Opinion filed: November 19, 2009)
OPINION
PER CURIAM
On November 8, 1996, a federal jury found Leonard Pelullo guilty of numerous
charges of money laundering, conspiracy, and embezzlement of about $4.1 million dollars
from the employee benefit plans belonging to the Compton Press Inc. Although the jury
determined that Pelullo should forfeit $3,562,897, the District Court did not include an
order of forfeiture in the sentence (210 months plus restitution) or judgment (the
judgment was later amended to add the forfeiture). Pelullo appealed; we affirmed.
United States v. Pelullo, 185 F.3d 863 (3d Cir. 1999) (table), cert. denied, 528 U.S. 1096
(2000) (referred to as “Pelullo I”).
The subsequent procedural history spanning a decade of litigation is well known to
the parties and is fully set forth in the District Court Opinion. We will summarize the
facts pertinent to this appeal. In United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005)
(“Pellulo II”), we reversed the District Court’s order granting a new trial on one of two
claims Pelullo raised in a motion filed in 1999 pursuant to Rule 33 of the Federal Rules of
Criminal Procedure.1 We affirmed the District Court’s denial of relief under 28 U.S.C. §

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2 The court also denied the previously unaddressed § 2255 claims and Pelullo’s
motion to add a new § 2255 ineffectiveness of counsel claim. In 2007, we denied
Pelullo’s request for a certificate of appealability as to the rejected § 2255 claims. C.A.
No. 05-5458 (3d Cir. April 25, 2007).
3 We will summarily affirm Pelullo’s appeal in C.A. No. 09-1882. We discern no
error in the District Court’s order correcting the judgment to include forfeiture, which was
entered in full accordance with our mandate. See Pardini v. Allegheny Intermediate Unit,
524 F.3d 419, 423 (3d Cir. 2008) (noting that the trial court must proceed in accordance
with the mandate and the law of the case as established on appeal).
3
2255 on two of four claims raised in Pelullo’s motion to vacate. We remanded the matter
with directions to reinstate Pelullo’s conviction and sentence and to consider the
unaddressed § 2255 claims. Pelullo’s Rule 33 newly discovered evidence claim, on
which the District Court had deferred consideration, remained outstanding.
On remand, the District Court reinstated the final judgment and conviction.
Among other determinations not relevant here, the District Court granted § 2255 relief
and vacated its order amending the judgment to impose forfeiture because it lacked
jurisdiction to enter such an order.2 (See Pelullo v. United States, Civ. A. No. 01-00124,
Slip. Op., Oct. 20, 2005, at 10-21). In 2008, we affirmed the reinstated sentence, vacated
the District Court’s order regarding forfeiture, and remanded for entry of an order adding
forfeiture to the sentence. United States v. Pelullo, 305 F. App’x 823, 827-28 (3d Cir.
Nov. 18, 2008), cert. denied, Pelullo v. United States, ___ S. Ct. ___, 2009 WL 1147615
(Oct. 5, 2009). On remand, the District Court corrected the judgment of conviction and
sentence to include forfeiture in the amount of $3,562,897, pursuant to our mandate.
Pelullo filed a timely appeal, docketed as C.A. No. 09-1882.3

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4 In 2003, during the pendency of the appeal in Pelullo II, Pelullo filed a motion to
expand the appellate record with over 25 exhibits of alleged Brady materials. We
remanded for the District Court’s consideration. The District Court denied the motion
after an evidentiary hearing. See United States v. Pelullo, Crim. A. No. 94-00276, Slip.
Op. at 16 & 22 (D.N.J. Jan. 4, 2004).
4
In March 2007, Pelullo filed a second Rule 33 motion, raising an ineffectiveness of
counsel claim. He also filed a request to supplement his original Rule 33 motion with two
“newly discovered” letters, from Michael Rich, Esq. to Fred Schwartz, dated June 20,
1991, and from Schwartz to Rich, dated July 25, 1991 (“the Rich letters”) and sought the
District Court’s decision on the outstanding newly discovered evidence claim raised in his
original Rule 33 motion. In addition to pursuing Rule 33 relief, Pelullo filed a Rule 60(b)
motion in which he claimed that new evidence of FBI 302 interviews and other material
depicting the corrupt activities of a Government informant, Thomas Giacomaro, and
Special Agent Mount called into question the correctness of the District Court’s 2004
order denying Pelullo’s motion to supplement the record,4 and unfairly influenced our
decision in Pelullo II, reversing the District Court’s grant of relief on his Brady claim. He
also contended that the new evidence established that the Government had perpetrated a
fraud on the court. For relief he sought an order vacating the District Court’s 2004 order
and its 2005 order reinstating his judgment and conviction.
On October 14, 2008, the District Court disposed of the Rule 33 and Rule 60(b)
motions. The District Court dismissed as untimely Pelullo’s Rule 33 motion to add a new
ineffectiveness of counsel claim and his request to supplement the 1999 Rule 33 motion

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5 We will summarily affirm the denial of Pelullo’s Rule 60(b) claim of alleged
fraud upon the federal court. The District Court did not abuse its discretion in concluding
that Pelullo did not produce any evidence pertaining to the Compton Press case that
warranted reopening the proceedings. See Brown v. Phila. Hous. Auth., 350 F.3d 338,
342 (3d Cir. 2003) (abuse of discretion standard).
5
with the Rich letters. (D. Ct. Op. at 47-48.) The District Court denied the outstanding
1999 Rule 33 claim on its merits. (Id. at 54-58.) Additionally, the District Court
dismissed Pelullo’s 60(b) motion for lack of jurisdiction, holding that, to the extent that
he challenged the underlying conviction and sentence, the motion constituted an
unauthorized second or successive § 2255 motion. (Id. at 48-54.) The District Court also
denied Pelullo’s Rule 60(b) claim to the extent that it alleged a fraud on the court.5 (Id. at
52.) Pelullo filed a motion for reconsideration, which the District Court denied on March
10, 2009. Pelullo filed a timely appeal on March 23, 2009, docketed as C. A. No. 08-
4343.
We have jurisdiction over these consolidated appeals pursuant to 28 U.S.C. §
1291. Upon de novo review of the record and careful consideration of Pelullo’s
submissions on appeal, we conclude that no substantial question is presented on appeal
and that summary action is warranted with respect to the District Court’s orders denying
his 1999 and 2007 Rule 33 motions, its denial of Pelullo’s Rule 60(b) motion alleging a
fraud on the court, and its order correcting the judgment to include forfeiture. See LAR
27.4 and I.O.P. 10.6. We decline to issue a certificate of appealability as to the District
Court’s dismissal of Pelullo’s Rule 60(b) motion because Pelullo failed to meet the

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applicable standard.
I.
Summary Affirmance
We turn first to the denial of Pelullo’s 2007 Rule 33 motion to add an ineffective
assistance of counsel claim and his request to supplement the original new trial motion
with the Rich letters. Motions for new trial based on newly discovered evidence “must be
filed within 3 years after the verdict or finding of guilty.” See Fed. R. Crim. P. 33(b)(1).
Otherwise, new trial motions “must be filed within 7 days after the verdict or finding of
guilty.” Id. 33(b)(2). First, we seriously doubt that the evidence presented in both
Pelullo’s motion and supplement request qualifies as newly discovered evidence under
Rule 33(b)(1). Because his claim of ineffective assistance of counsel is a legal claim,
separate from and unrelated to the issues at trial, it is not newly discovered evidence for
Rule 33 purposes. See United States v. DeRewal, 10 F.3d 100, 104-05 (3d Cir. 1993).
As for the Rich letters, although Pelullo acknowledged that the DOL produced the letters
in response to his FOIA requests, he failed to specify exactly when he requested them and
the date or dates on which the DOL produced them. See United States v. Herman, 614
F.2d 369, 371 (3d Cir. 1980) (requiring, inter alia, that “new” evidence under Rule 33
must be in fact, newly discovered, in other words discovered since the trial, and facts
must be alleged from which the court may infer diligence on the part of the movant).
In any event, even if we assume that the aforementioned evidence is “newly
discovered” for Rule 33 purposes, we discern no error in the District Court’s denial of

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relief. Both the motion and the supplement request were filed well beyond three years
after the verdict or finding of guilt, which was entered in Pelullo’s case in November
1996. See Fed. R. Crim. P. 33(b)(1). Thus, neither the motion nor the supplement
request was pending when the matter was remanded in 2005 pursuant to our mandate in
Pelullo II. Because the motion and supplement request were filed almost eight years after
expiration of the time period for filing Rule 33(b)(1) motions, the District Court properly
dismissed them. See United States v. Wright, 363 F.3d 237, 248 (3d Cir. 2004) (noting
that if a defendant moves for a new trial, a trial judge may not grant a new trial on a
ground not raised in the original motion) (internal quotations and citations omitted); see
also United States v. Custodio, 141 F.3d 965, 966 (10th Cir. 1998) (“a defendant may not
add new arguments in support of a motion for new trial by including them in an
amendment filed after the time under Rule 33 has expired”).
That leaves the outstanding claim from Pelullo’s original Rule 33 motion filed in
1999, alleging that newly discovered documents obtained from the files of two related
civil lawsuits demonstrated that key witnesses, Kenneth Falk, Moshe Milstein, and David
Hellhake testified falsely at his criminal trial. The “new evidence” consisted of the three
documents: (1) the August 1994 declaration of Kenneth Falk (one of Pelullo’s business
lawyers) (about Milstein’s disbursement of funds in the National Media litigation
settlement); (2) Falk’s 1998 deposition testimony (about Hellhake’s role in writing a
letter in 1989 answering claims made by former trustees of Compton Press about misuse
of funds); and (3) Fred and Murray Schwartz’s answers to interrogatories (about Murray

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Schwartz’s sole shareholder interest in Away To Travel, Inc.).
We conclude that the District Court properly denied Pelullo’s outstanding Rule 33
claim on the merits. (See D. Ct. Op. at 56-58.) We agree that Pelullo did not act with
reasonable diligence in procuring Falk’s 1994 declaration and that the information
contained in Falk’s 1998 deposition testimony was not new. Pelullo readily
acknowledged that he was aware before his trial of the lawsuit in which Falk made a
declaration in 1994 and subsequent deposition. (See Brief in support of 1999 Rule 33
motion, at 2.) Although Pelullo could not have known in 1996 that Falk would testify at a
deposition two years later about his involvement in writing the 1989 letter, Pelullo knew
or should have known about the letter well before his trial. Most important, Falk was a
defense witness at trial. Pelullo had the opportunity to ask Falk both before and at trial
about the 1989 letter and he could have questioned Falk about Milstein’s role in the
National Media litigation settlement.
As for Murray Schwartz’s interrogatory response, Pelullo claims that he did not
know prior to trial about the lawsuit in which the documents were found. Whether
Pelullo was aware of the lawsuit at the time of trial or not, the interrogatory response
itself does not constitute the kind of evidence that warrants a new trial. Pelullo’s claim
ultimately fails as to all of the allegedly new evidence pertaining to Falk, Milstein and
Hellhake, because he cannot show that a jury probably would have acquitted him had the
evidence been presented at trial. As the District Court correctly determined, “the [trial]
evidence on all counts was overwhelming.” (D. Ct. Op. at 57.)

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II.
Certificate of Appealability
Pelullo filed a motion pursuant to Rule 60(b) (which he supplemented), in which
he sought an order from the District Court vacating its 2004 order denying Pelullo leave
to expand the record in Pelullo II and its order reinstating his conviction in 2005, based
on new evidence (FBI 302 documents) relating to the corrupt activities of the
Government’s informant Giacomaro and Special Agent Mount. The District Court
correctly concluded that this motion was an attempt to challenge the underlying
conviction and sentence. Accordingly, Pelullo must obtain a certificate of appealability.
See Morris v. Horn, 187 F.3d 333, 339-40 (3d Cir. 1999).
To the extent that he collaterally attacked his reinstated conviction and sentence
under Rule 60(b), the motion is a “second or successive” § 2255 motion. See Pridgen v.
Shannon, 380 F.3d 721, 727 (3d Cir. 2004). Absent our prior authorization, the District
Court lacked jurisdiction to consider the successive § 2255 motion. See 28 U.S.C. §§
2255(h) and 2244(b); Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002). Even if we
were to construe the Rule 60(b) motion as an application for authorization to file a second
or successive § 2255 motion, we would deny it because Pelullo’s claim does not involve
newly discovered evidence or a new rule of constitutional law that the Supreme Court has
made retroactive to cases on collateral review. §§ 2255(h) and 2244(b). Additionally, for
the reasons set forth by the District Court in its thoughtful and comprehensive opinion at
pages 30 to 44, Pelullo failed to show that the evidence, “if proven and viewed in light of

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the evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense.” See 28 U.S.C. § 2255(h)(1).
Accordingly, we will affirm the judgment of the District Court. Pelullo’s request
for a certificate of appealability is denied. Pelullo’s motions to appoint counsel, to stay
briefing, and to stay the appeals and remand the matter to the District Court are denied.

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