DEFENSE LAWYERS IN THE FEDERAL FRAUD TRIAL of three men accused of concealing the involvement of a convicted felon in the sale of land in Everett to Wynn Resorts plan to open their case with the testimony of the real estate attorney who handled the deal. But that attorney won’t be appearing in person.
Instead, the jury will listen to the 2 1/2-hour grand jury testimony of Paul Feldman, a partner at Davis Malm & D’Agostine. He testified under a grant of immunity before a grand jury in 2014, but the immunity was not extended to the ongoing trial in US District Court in Boston. Because Feldman would likely invoke his Fifth Amendment rights at the trial, defense attorneys are settling for a replay of his grand jury testimony.
The highly unusual arrangement will let the jurors hear Feldman without him ever appearing in court. US District Court Judge Nathaniel Gorton approved the arrangement, even allowing the defense to show jurors a picture of Feldman to allow them to “put a face” with the man on the tape.
Attorneys for the three defendants – Dustin DeNunzio, Anthony Gattineri, and the convicted felon Charles Lightbody – sought to call Feldman as a witness because his testimony “is so deeply exculpatory that it could, on its own, entitle defendants to a judgment of acquittal,” according to a previously sealed court motion seeking to force prosecutors to reinstate the grant of immunity to allow Feldman to testify.
“He has been a Massachusetts Super Lawyer for over a decade and maintains the highest Martindale-Hubbell rating that a lawyer can attain,” said the defense motion. “In a city chock full of well-regarded business lawyers, he is among the cream of the crop.”
But Assistant US Attorney S. Theodore Merritt filed his own motion defending the prosecution’s decision to withdraw Feldman’s immunity after he testified before the grand jury and to drop Feldman from the prosecution’s witness list.
“The government only recently learned of the June 19, 2013, meeting at which Feldman, DeNunzio, and [another partner, Paul] Lohnes discussed using a 1031 exchange to distribute the proceeds of the casino to Lightbody, Lohnes, and Gattineri,” Merritt wrote, referring to an IRS section that allows land sellers to protect some proceeds from capital gains taxes. “This information suggests that there is at least probable cause to believe that Feldman committed perjury or obstructed justice and that he was a conspirator with defendants.”
Gorton sided with federal prosecutors and denied the motion.
On Thursday, a State Police lieutenant assigned to the Massachusetts Gaming Commission was on the stand all day under withering cross-examination about his investigation into Lightbody and the other landowners.
Lt. Kevin Condon said he was concerned when he heard jail house tapes of conversations between Lightbody and reputed mobster Darin Bufalino that appeared to indicate Lightbody was going to cash in when the land was sold to Wynn even though he allegedly signed off on selling his 12.5 percent share to Gattineri months before Wynn entered the picture.
Under questioning by Joshua Levy, an attorney for DeNunzio, Condon admitted nothing in the state’s gambling law prevents convicted felons from selling land to casino operators. But Condon said such a sale would not be a good thing for “public confidence” in the emerging industry.
“I don’t think that’s in the statute,” Condon said when asked to pinpoint where the law mandates background checks on land sellers. “I think it’s more broad. It ensures the public confidence in the integrity, so I think that wraps in the whole process. There’s a lot of little loopholes.”