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AFONSO BAKER & ARCHIE, P.C. ATTORNEYS AT LAW


PHONE: (856) 786-7000 FAX: (856) 385-8181

ALBERT M. AFONSO, ESQ. THEODORE J. BAKER, ESQ. TROY A. ARCHIE, ESQ. ERIC R. FOLEY, ESQ. TERRELL A. RATLIFF, ESQ.

VIA PACER Honorable Robert B. Kugler United States District Judge Mitchell H. Cohen Courthouse One John F. Gerry Plaza 4th and Cooper Streets Camden, NJ 08101 Re: USA v. Salvatore Pelullo Criminal No.: 11-740 (RBK)

Dear Judge Kugler: On behalf of Salvatore Pelullo, attached please find a supplemental motion we pray the Court will consider in weighing arguments regarding release from detention. I apologize to the Court and the Government for this late submission. I filed Mr. Pelullo's bail position last week and he wanted additional information added after I did so. Unfortunately I was preparing for a state trial that resolved this week before jury selection and was not able to finish this submission until today. Thank you in advance for your anticipated attention and consideration in this matter. Respectfully Submitted, /s/ Troy A. Archie, Esquire

AB&A
TAA:jd

LAWYERS@AFONSOBAKER.COM

April 19, 2013

21 ROUTE 130 SOUTH CINNAMINSON, NEW JERSEY 08077 PHONE (856) 786-7000 FAX (856) 385-8181

Case 1:11-cr-00740-RBK Document 470 Filed 04/19/13 Page 2 of 19 PageID: 9823

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA

v.

SALVATORE L. PELULLO, et al.

: : : : : : :

Criminal No. 11-740

DEFENDANT SALVATORE L. PELULLOS SUPPLEMENTAL BRIEF IN SUPPORT OF MARCH 11, 2012 MOTION FOR RELEASE FROM DETENTION

INTRODUCTORY STATEMENT Our criminal justice system is predicted upon the presumption of innocence for all accused, regardless of the unproven crime alleged, yet Defendant Salvatore L. Pelullo has nonetheless been imprisoned for nearly two years (nineteen months), with at least an additional year until a verdict is rendered. Mr. Pelullo undeniably has a fundamental constitutional right, pursuant to the Sixth Amendment, to the effective assistance of counsel, as well as the right to provide meaningful assistance to his trial team. His current incarceration, however, not only hampers that right; it effectively obliterates it. Although there are literally millions of pages of documents that contain relevant and exculpatory material, he remains without meaningful search capacity to help navigate through the voluminous discovery. The sheer scope, volume and breadth of the material make it simply impossible for the Defendant to review the governments supposed evidence without computer access, which his incarceration prohibits. In addition, whereas other defendants, with far simpler and less document intensive cases, enjoy unfettered access to their legal defense team, Mr. Pelullo does not. In a case of this complexity, with the prospect of serving a minimum of 30 years if convicted of all charges, Mr. 1

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Pelullo should equally have unfettered access to his entire legal defense team in a productive work environment. Instead he has nothing more than piecemeal access, with the limited

documents counsel can supply on an ad hoc basis, to be evaluated in small conference rooms without phone access. In short, as a United States citizen who is presumed innocent of crimes he denies committing, Defendant Pelullo has the undeniable right to assist his counsel in understanding the extraordinary universe of discovery that is critical to his defense. At this juncture, Mr. Pelullo is presumably only a few months away from the start of motions to suppress nearly 18,000 recorded conversations he has yet to hear nor review, and approximately six months from the commencement of a gravely serious criminal trial that could deprive him of his liberty for the rest of his life. He should have the opportunity to present the best defense possible, and assist his counsel with the preparation of that defense to the fullest extent that the law allows. Otherwise, the presumption of innocence, and the constitutional guarantees upon which our entire system is based, become mere words, without substance or meaning insofar as Mr. Pelullo is concerned. Finally, as this Court is aware from previous filings, Mr. Pelullo has brought to the Courts attention issues involving his physical health and mental well-being. The current prison conditions and a change in medication have caused Mr. Pelullo's physical and mental condition to continue to be an issue. At this critical juncture, with upcoming motions to suppress and a subsequent trial, Mr. Pelullo has the right to be at his absolute physical and mental best, in order to offer meaningful assistance with his defenses. Instead, as his incarceration continues and his health continues to be suspect, he will be able to offer less and less meaningful input on the discovery. Because he has dire need to review the millions of pages of discovery without the

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many, severe restrictions that are concomitant with his being imprisoned, absent release he will simply not be able to assist counsel with his own defenses in the limited time remaining. Mr. Pelullo does not seek to relitigate issues that have already been decided by this Court and the Third Circuit. Rather, the novel question is whether Mr. Pelullo currently presents too great a flight risk to be released pending trial and, by implicit extension, whether Mr. Pelullos prolonged detention violates the Due Process Clause or the Sixth Amendment. The Third Circuit standard plainly 1) contemplates that the risk of flight must assessed based on the circumstances as they exist at the time of the due process challenge, not at the time of the initial detention, and 2) requires that, in evaluating the merits of the defendants due process claim, risk of flight is to be considered as merely one, non-determinative factor among a number of other factors. The length of detention in this case and the non-speculative length of future detention are factors that weigh heavily in Mr. Pelullos favor. The length of the pretrial delay in this case, as well as the inordinate complexity, are directly attributable to the Government, which establishes that his detention has become punitive in violation of the Due Process Clause. Finally, Mr. Pelullo has not been able, and will continue to be unable, to adequately prepare for trial of this extraordinarily complex case while incarcerated. 1 Accordingly, he must be released pending trial, subject to such conditions which this Court may impose on his release. LEGAL ARGUMENT I. NEITHER THIS COURTS NOR THE THIRD CIRCUITS PRIOR RULINGS REGARDING MR. PELULLOS DETENTION GOVERN THE RESOLUTION OF THE ISSUES PRESENTED IN THIS MOTION, WHICH RAISES DUE PROCESS IMPLICATIONS OF HIS CONTINUED DETENTION.
1

See Judge Kuglers Court Orders, Dkt. No., filed stating that this is an extremely difficult case, and filed stating that [t]he Court recognizes the extraordinary nature and complexity of this case, the extent and gravity of the charges levied against Pelullo, the hundreds of thousands of records involved, and the enormous amount of time no doubt necessary to review those documents and adequately prepare a defense. submitted herewith as Exhibit 1. 3

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18 U.S.C. 3142(f) makes clear that a trial court may reopen a detention hearing at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of [the] person as required and the safety of any other person in the community. However, newly discovered evidence is not the sole criterion for determining whether pre-trial detention warrants reconsideration. On the contrary, [a]side from the gateway for further review provided by 3142(f), a trial court should revisit the detention issue to examine the due process implications of [the defendants] continued detention. United States. v. Archambault, 240 F.Supp.2d 1082, 1084 (D.S.D. 2000). The United States Supreme Court, in fact, has held that limited pre-trial detention will not violate due process, provided that it remains regulatory, and not penal, since at some point detention in a particular case might become extensively prolonged, and therefore punitive, in relation to Congress' regulatory goal. United States v. Salerno, 481 U.S. 739, 747 (1987). Federal courts throughout the United States have thereby held that prolonged pre-trial detention may become excessive and consequently punitive so as to offend due process constraints. Archambault, 240 F.Supp.2d at 1085 (citations omitted). In order to make this determination, the Third Circuit has identified two categories of factors that must be evaluated to determine if due process compels release. First, the district court should analyze the factors that were relevant to the initial detention decision, which include an evaluation of whether the government has shown the defendant to be a flight risk and, if so, whether there are any conditions or combination of conditions which will reasonably ensure his appearance. Second, the court should consider additional factors as the length of the detention that has in fact occurred, the complexity of the case, and whether the strategy of one side or the other has added 4

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needlessly to that complexity." United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986); see also United States v. Hare, 873 F.2d 796, 801 (5th Cir. 1989). In the present case, the courts analysis must necessarily be premised solely upon on the defendants current circumstances. Since the factors that were relevant to the initial

determination should be re-evaluated, and since the court is compelled to consider additional factors as well, prior decisions based on the defendants circumstances at that earlier time do not govern the resolution of a later motion predicated upon constitutional deprivations. The prior opinions of the Third Circuit are not law of the case which govern the instant application. The Third Circuits opinions regarding Mr. Pelullos detention neither found any facts nor decided an issue of law that precludes the arguments currently advanced by Mr. Pelullo. In short, the present Motion is not just another attempt by Mr. Pelullo to obtain release under 18 U.S.C. 3142. On the contrary, Mr. Pelullo now brings a direct constitutional challenge to his continued detention, which raises important issues this Court has not before considered in this case. The evidence establishes that Mr. Pelullo is unable to offer meaningful assistance in the preparation of his defense based upon the FDC prison setting. These insurmountable difficulties, in turn, imperil the protections guaranteed him by the Sixth Amendment. See Motion filed on March 11, 2013. Based on the above, this court should order his immediate release, with sufficient

conditions to ameliorate any potential risk of flight. II. THE FACTORS THAT A COURT MUST CONSIDER WHEN A DETAINEE RAISES A DUE PROCESS CHALLENGE COMPEL THE CONCLUSION THAT MR. PELULLOS CONTINUED CONFINEMENT CONSTITUTES PUNISHMENT IN VIOLATION OF THE DUE PROCESS CLAUSE. It is axiomatic that our criminal justice system requires the trial court to presume a defendant is innocent until he is proven guilty. Within such a system, "valid pretrial detention assumes a punitive character when it is prolonged significantly." United States v. Gatto, 750 5

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F.Supp. 664 (D.N.J. 1990)(quoting United States v. Theron, 782 F.2d 1510, 1516 (10th Cir.1986)). The Court of Appeals for the Third Circuit has thereby recognized that at some point due process may require a release from pretrial detention...." United States v. Accetturo, 783 F.2d 382, 388 (3d Cir.1986). To determine when that point has been reached, the Third Circuit has developed a non-exhaustive list of relevant factors. First, the Third Circuit standard requires the district court to analyze the factors that were relevant to the initial detention decision, which includes the strength of the government's proof that defendants pose a risk of flight or a danger to the community and whether there are any conditions or combination of conditions to reasonably ensure his appearance. Id. Second, although [t]here is no magical formula to determine precisely when continued detention has crossed the line, a trial court must consider the length of detention that has in fact occurred, the complexity of the case, ... whether the strategy of one side or the other has needlessly added to the complexity...." and any other factor relevant to the "fundamental fairness" of the continued pretrial detention. Gatto, 750 F.Supp. at 674 (quoting Accetturo, 783 F.2d at 388 and 395) (Sloviter, J., dissenting in part). In the present case, analysis of the above factors leads to the inescapable conclusion that Mr. Pelullos continued detention has crossed the line from regulatory to punitive, compelling his immediate release, subject to sufficient conditions. A. Mr. Pelullos Continued Detention Violates the Due Process Clause, Since Intervening Circumstances from the Time of the Initial Detention, Including the Deterioration of His Health, Establish that He Is Not a Flight Risk.

The mere fact that risk of flight has been deemed a basis for pretrial detention at the outset does not mean that the Due Process Clause automatically countenances prolonged flightbased detentions. In addition, the Second Circuit has expressly recognized that due process may permit longer periods of detention for dangerousness than it does for risk of flight detentions:

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the constitutional limits on a detention period based on dangerousness to the community may be looser than the limits on a detention period based solely on risk of flight. In the former case, release risks injury to others, while in the latter case, release risks only the loss of a conviction. United States v. Millan, 4 F.3d 1038, 1048 (2d Cir. 1993)(quoting United States v. Orena, 986 F.2d 628, 631 (2d Cir. 1993)); see also United States v. El-Hage, 213 F.3d 74, 80 (2d Cir. 2000). Thus, the Due Process Clause is less willing to condone prolonged detentions based on risk of flight than detentions based on dangerousness, where the regulatory purpose is stronger. In the present case, reevaluation of the risk of flight leads to the conclusion that Mr. Pelullo is not only unwilling, but frankly, unable to leave the jurisdiction. The Court is aware from previous review of Mr. Pelullos medical records the he has mental, and emotional health issues that are constantly monitored during his incarceration, a situation that requires continuing and ongoing treatment. Even if the medical issues of many, or even most, detainees can be fully resolved by treatment obtained at or through the FDC, most detainees do not share the same physical and mental health issues as Mr. Pelullo, nor do they have cases of such overwhelming complexity. And, most importantly, the need to obtain adequate treatment for these issues, which it appear he cannot obtain as an FDC detainee due to his excessive gain in weight and constant mood swings while medicated, militates in favor of finding that he is not a flight risk. The fact that continued detention is simply unnecessary is undergirded by the panoply of different conditions the government can impose to ensure his appearance. In addition, while going over issues with Mr. Pelullo he has expressed on multiple occasions that his family has undergone significant changes during the period of his incarceration. First, his nephews wife has given birth to two children in the preceding nineteen months. Mr. Pelullo obviously has been unable to visit them, and more importantly, missed both of their baptisms. Like many followers of the Roman Catholic faith, especially for those of 7

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Italian descent, Mr. Pelullo considers baptism to be one of the most sacred sacraments in the church. His nephew, in fact, chose Mr. Pelullo to be the older childs baptismal godfather, which became impossible given his current confinement. Second, Mr. Pelullos oldest daughter has given birth to his first grandchild, who he also has not seen. Third, Mr. Pelullo has just learned that his uncle on his mothers side, with whom defendant shared a close relationship, was found dead on April 16, 2013, presumably of a heart attack. Finally, Mr. Pelullos eldest son, his namesake and first born natural child, is set to graduate from Cheltenham High School this year. Mr. Pelullo has expressed concern about what direction his sons life will take as he stands at this significant crossroads, and hopes to offer him some wisdom and advice, which inevitably becomes diluted and difficult when delivered wearing a prison jumpsuit in a crowded room with a host of other inmates. The inability to counsel, and in some cases even see, members of his family obviously contributes to his stress and anxiety, further affecting his health. It is significant for this Court to understand that Mr. Pelullo does not seek to personally appear at the significant family events detailed above, such as baptisms, graduations and funerals. He understands that, if released, he will be confined to the residence of a family member (presumably his mother). However, he seeks merely to hold his granddaughter and his nephews children in his arms. He hopes to offer meaningful advice and counsel to all of his children, but specifically his son who stands at a critical juncture in his life. He wants to offer support and consolation to his family members, and specifically his mother, suffering from the loss of loved ones. In short, he simply wants to be there for his family, since his family is the primary focus of his life, as it is for many Roman Catholic Italian-Americans. He takes his obligations to his family seriously. He treats his religion, and the sacraments that are part of that

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religion, with the utmost importance. And this attachment to his family, with the corollary desire to be there to support them in their times of need, insures that he will not flee the jurisdiction. B. The Complexity of the Case, and the Fact that the Government has Needlessly Added Both to It and the Delay, Compel Mr. Pelullos Release.

The Government cannot reasonably dispute that the complexity of this case, and the delay in even obtaining a trial date, are a direct result of its actions. Although Mr. Pelullo was arrested on this Indictment on November 1, 2011, a short history of the governments investigation reveals that his involvement in this matter ensued long before that moment in time. Three and one-half years earlier, on May 8, 2008, the government descended upon 43 people and/or entities in 5 states, pursuant to multiple search warrants and subpoenas for documents, and seized 14 bank accounts, personal and corporate property (including entire computer systems), and both personal and corporate assets from numerous companies. The government effectively halted and derailed legitimate businesses through their wide-ranging actions and chose to add unneeded and unnecessary complexity to this matter. To illustrate, the government executed warrants at the offices of First Plus Financial Group, the parent public company that owned and operated several subsidiaries across the country, such as Rutgers Investment Group, First Plus Development, First Plus Enterprises and other second and third tier subsidiaries. It seized corporate documents and files, computers, records, legal files and other materials necessary to maintain and run the business. The entities were without the ability to respond to on-going civil litigation, hundreds of legitimate loans could not be closed, and multi-national contracts were interrupted. As a result, First Plus Financial Group and its subsidiaries that employed approximately 1,500 people and subcontractors were unable to meet payroll and creditor obligations. Similarly, L & L Holdings, owned by the L.A.P. Trust (the Lana A. Pelullo Trust held for the benefit of Pelullo children), 9

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owned certain buildings that housed First Plus Restoration, First Plus Facility Services, and First Plus Development, the East Coast Premier Group. When the governments seizures shut down those businesses, they were unable to pay rent to their landlord, L&L Holdings, who, in turn, ultimately defaulted on its mortgages and was irreparably harmed. As a result, Mr. Pelullos now ex-wife and children were forced to go on welfare, file for Chapter Seven bankruptcy and watch as their primary residence went into foreclosure, while Mr. Pelullo himself was essentially forced into involuntary bankruptcy and government-imposed destitution. To justify the extraordinary amount of time and resources devoted to its investigation, its massive scope, and the presentation to the Grand Jury, the government has from the outset maintained a Mafia-esque view of Mr. Pelullo and his otherwise legitimate dealings. As this Court is well aware, the government repeatedly raises the specter of organized crime, making salacious, irrelevant and superfluous La Cosa Nostra allegations. The following point simply cannot be overstressed: the instant case has nothing to do with organized crime nor mob violence. It is a complex case about an alleged fraud, and nothing more. In fact, it is beyond dispute that prior to this case, Mr. Pelullo has never been charged with any connection to organized crime. He has never been convicted of being a part of any criminal enterprise. He has not even been accused of being affiliated with, nor even mentioned in, any case involving organized crime (such as the recent Ligambi trial or any other mob trial in history for that matter), and the government articulated as such in its supporting affidavits and the Indictment. The government nonetheless maintains that miraculously, after 46 years without any connection to anything Mafia related, Mr. Pelullo has now become some sort of central organized crime figure. Patently, these allegations are designed solely to paint a an unduly prejudicial picture of Mr. Pelullo and detain him on grounds that simply do not apply.

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Significantly, the government chose to make this case as complex as it is through its seizure of both personal and corporate property, its far-reaching net designed to swallow anything and everything in any way even ostensibly related to the Defendant, and its unsupported claims of connection to the mob underworld. For three and one-half years before an indictment was even handed down, Defendant Pelullo has been embroiled in this investigation. For three and one-half years the government delayed bringing charges while individuals lived under the stress of a federal investigation and impending charges. More importantly, however, the government unilaterally caused this three and one-half year delay without adequate reason. The facts cited within the affidavits of probable cause in support of the search warrants, document subpoenas, and applications for wiretaps were well known to the government as of May 8, 2008, and do not differ is any meaningful respect from the allegations set forth in the Indictment. This three and one-half year period is thereby important in evaluating the complexity of the case, the reasons for the delay, and Mr. Pelullos ability to mount a viable defense, precisely because of the prejudice that has resulted from the delay. To illustrate, from the time the government initiated the investigation until the Indictment occurred, key witnesses were lost for one reason or another. Peter Fox, President of Rutgers Investment Group a first tier subsidiary of First Plus Financial Group - would have been a key witness for Mr. Pelullo, who is now dead. Mr. Pelullo firmly believes he was driven to his death by the pressures and embarrassment of the investigation and lack of business. He committed suicide on December 8, 2009. Harold Garber, an attorney who helped orchestrate the FPFG deal died during the three and one-half year delay. Larry Barcello, an attorney with Paul, Hastings, Janofsky, and Walker, LLP, who previously represented Mr. Pelullo, died in November 2010. JD Draper, a key witness who we believe

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could have provided information favorable to the defense, also died during the investigation. Finally, the substantial stress caused by the extensive investigation and detention caused Mr. Pelullo himself to become manic-depressive and suicidal, and at times has adversely affected his ability to assist counsel in the preparation of his defense. It is now 2013, nearing the seven-year mark since Mr. Pelullo has had the governments investigation lingering and bubbling under the surface of his life and constitutional rights. The government has enjoyed every advantage in establishing its case, ranging from the protracted investigation described above, nearly unlimited resources and manpower and significant time for preparation, unhampered by any of the nearly insurmountable impediments faced by Mr. Pelullo as a pretrial detainee seeking to mount a viable defense. The government nonetheless continues to delay this matter by requesting more time to meet its obligations, while Mr. Pelullo sits in jail with both his mental and physical health continuing to deteriorate. He has been the victim of an assault by his prison guards, has unjustly been placed into solitary confinement, has gained over one hundred pounds and has had his medications changed and increased. The undisputed facts display a woefully unlevel playing field, caused mostly by the governments actions, which can only be even partially ameliorated by his immediate release so that he may meaningfully participate in his defense. By contrast, Mr. Pelullo cannot be held responsible for delays resulting from the conditions of his confinement and the prison restrictions, which sharply curtailed his ability to meaningfully assist in the preparation of his defenses. Mr. Pelullo has been dependent on counsel bringing him limited numbers of printed documents from the Flight Deck database out of the many millions it contains, a constitutionally unacceptable impediment to his right to personally review discovery and to assist counsel in the preparation of his defense. Mr. Pelullos

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ability to meet with his attorneys was severely curtailed as the result of institutional policies at FDC Philadelphia where Mr. Pelullo has now been incarcerated for nearly nineteen months. The volume of documents Mr. Pelullo is permitted to maintain in his cell has also been severely limited and must be maintained in a non-secure environment. Thus, the length of time needed to prepare his case for trial is not reflective of any tactic or strategy employed by Mr. Pelullo, and he should not be considered as responsible for it. C. The Length of the Defendants Detention, Coupled With the Non-Speculative Length of Future Detention, Constitute a Violation of Due Process.

In United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000), the defendant was charged, along with others, including Osama Bin-Laden, with six conspiracies to kill United States citizens and destroy United States property abroad and was detained on both dangerousness and flight grounds. El-Hage was alleged to have been a key participant in Al Qaeda and a member of conspiracies to murder American military personnel in Somalia and to bomb the American embassies in Kenya and Tanzania, bombings which killed more than two hundred people and injured thousands. Id. at 77. The regulatory interest in detention of defendants who have been found to pose such an aggravated risk of danger to the lives of individuals both in this country and abroad is obvious (in vivid contrast to the basis found by the Court for Mr. Pelullos detention). Nonetheless, even in the situation where a defendant poses a clear danger to the public, he still may challenge his continued detention based on constitutional grounds, such as those set forth in the present case. United States v. El-Gabrowny, 35 F.3d 63 (2d Cir. 1994). In fact, the El-Gabrowny Court went on to say "if the trial is substantially delayed, El-Gabrowny may renew his motion in the district court; this opinion does not intend to suggest that his pretrial detention may continue indefinitely. And in the event of a substantial further delay, the government may be required to make a more convincing showing of his dangerousness 13

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and/or risk of flight. Id. at 65 (emphasis added). The circumstances in El-Gabrowny and ElHage are not even remotely comparable to those present in this case. 2 The fact that the actual total length of a defendants pretrial detention can be calculated with a reasonable certainty, as it can be here, is a factor which redounds to the benefit of the defendant, not the government. See, e.g., United States v. Melendez-Carrion, 820 F.2d 56, 60 (2d Cir. 1987)(Given the length of pretrial confinement and the non-speculative aspects of future confinement, this factor [duration of detention] weighs in appellants' favor (emphasis added)); United States v. Aileman, 165 F.R.D. 571, 591 (N.D.Cal. 1996)(Since the nonspeculative expected length of Aileman's detention will be at least thirty-five months, the length of detention prong of the due process analysis weighs strongly in favor of releasing Aileman (emphasis added)); United States v. Gatto, 750 F.Supp. 664, 675 (D.N.J. 1990)(The nonspeculative duration of defendants' detention heavily weighs in favor of their release at this time). In Gatto, the District Court held: The length of defendants' pretrial detention in this case is substantial. Defendants have now been detained fifteen months pending trial and their trial date is over three months away. The government estimates that the trial of these defendants will take three months; defendants suggest that their trial will last at least six months and perhaps over a year. If this court accepts the conservative estimate of the government as to the length of In Millan, the defendants were charged with drug offenses which triggered the rebuttable presumption that no condition or combination of conditions and were detained on both flight and dangerousness grounds would suffice, 4 F.3d at 1047, which places the burden on the defendant to present rebutting evidence. See United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992). In addition, one defendant in Millan had a prior history of failing to appear in other cases, id. at 1045-46, and, as to the other, the testimony of a confidante of his indicated that Millan received more than $20 million in gross proceeds from his drug organization and that Milan himself had told him that he had money stashed in Argentina and elsewhere. See United States v. Millan, 824 F.Supp. 38, 42 (S.D.N.Y. 1993). The government also refers the Court to another case in this district in which the defendant was detained for 40 months before his trial began, Response at 16 n.5, but insofar as appears from the PACER docket for that case, the defendant never sought release on due process grounds. 14
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this trial[the defendants] will be detained twenty-one months before a jury adjudicates their guilt. If defense counsel's estimate is correct, defendants may be detained close to three years before a jury renders a verdict. Gatto, 750 F.Supp. at 674. The District Court deemed the length of detention as critical due to the crucial liberty interest at stake." Id. at 675 (quoting United States v. Suppa, 799 F.2d 115, 120 (3d Cir.1986)). The First Circuit, in turn, has held that sixteen months would exceed due process limitations in many, perhaps most cases, unless the defendant were directly responsible for the delay. U.S. v. Zannino, 798 F.2d 544, 548 (1st Cir. 1986) In the present case, Mr. Pellulo has been incarcerated for nearly nineteen months without even a trial date having been set. This point simply cannot be overstated: more than a year of a presumed innocent mans life has been spent in prison without any adjudication of guilt. Since the court has indicated a potential trial date sometime in the fall of 2013, with an anticipated sixmonth duration, a conservative estimate would place a verdict to be delivered sometime in the Spring of 2014. The end result is that Mr. Pelullo will have been incarcerated for approximately 30 months, 2.5 years, while presumed to be innocent. unconscionable in a criminal justice system like ours. D. His Continued Detention Violates Fundamental Fairness, Since He Has Been Unable to Prepare for His Trial or Meaningfully Assist in His Defense. This amount of time is simply

As previously stressed, the arguments advanced here are made not in the context of 3142, but instead in support of Mr. Pelullos argument that the violation of his rights under the Sixth Amendment provides further indicia that his nineteen month period of pretrial incarceration has become punitive in violation of the Due Process Clause. Mr. Pelullo plainly has not, through any of his counsel, had meaningful access to the large database of Rule 16 discovery documents in a searchable format. Present counsel have not yet been able to provide Mr. Pelullo with a workable means to search discovery documents while he remains 15

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incarcerated, providing a vitally important reason why the Due Process Clause demands Mr. Pelullos pretrial release. Mr. Pelullo has lost invaluable timenearly two years since his arrest and incarcerationin meaningfully reviewing the discovery documents and having the ability to search through the more than 1 million pages of financial records, emails, data, documents, and other information assembled by the prosecution. With suppression motions and upcoming trial, absent release, Mr. Pelullo will have been denied constitutionally required access to discovery that is minimally required to comport with due process. As set forth above, the nature of his confinement and the inability to participate in the many changes experienced by his family has had a deleterious effect upon Mr. Pelullo, compounded by lack of access to the discovery, all of which has exacerbated his level of stress and anxiety. He is nonetheless, despite these conditions, compelled to defend himself in an inordinately complex, document driven case involving multiple defendants and multiple charges. As demonstrated in Mr. Pelullos and Mr. Scarfos previous Motions and again in this Brief, the deterioration in Mr. Pelullos health has diminished his ability to provide counsel with the assistance they need, regardless of how many hours he spends with them. More than one year in prison, of which 25 days were spent in maximum security solitary confinement recovering from a total loss of feeling on the side of his face due to an assault by guards, have all impeded Mr. Pelullos capacity to assist counsel and prepare for trial, a problem that will become further amplified once trial begins. As Mr. Pelullo has amply shown, considerable time, does not automatically equate to productive time. Mr. Pelullo is being forced to prepare for trial of an overwhelmingly complex case in such a debilitated state provides powerful support for his due process and Sixth Amendment arguments. The fact remains that he has not had, nor does he yet have, full search-capable access to the universe of discovery documents. Also, since his

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imprisonment, Mr. Pelullo has never had and still does not have unfettered access to his legal defense team. Both deprivations violate fundamental fairness, compelling his immediate release so that he may meaningfully participate in his defense. His continued detention is constitutionally untenable.

CONCLUSION For all the foregoing reasons, and for all the reasons set forth in Mr. Pelullos Motion, this Court should release Mr. Pelullo pending trial, subject to such conditions as this Court may impose on his release. Respectfully submitted, /s/ Troy A. Archie TROY A. ARCHIE, ESQ. Afonso, Baker & Archie, P.C. 21 Route 130 South Cinnaminson, NJ 08077 (856) 786-7000 Attorney for Defendant, SALVATORE L. PELULLO

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Case 1:11-cr-00740-RBK Document 470 Filed 04/19/13 Page 19 of 19 PageID: 9840

CERTIFICATE OF SERVICE I hereby certify that on April 19, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all registered parties including AUSA Steven DAguanno and the Court April 19, 2013. /s/ Troy A. Archie TROY A. ARCHIE, ESQ.

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