Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2003

USA v. Pelullo
Precedential or Non-Precedential: Non-Precedential

Docket 02-2249




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Recommended Citation
"USA v. Pelullo" (2003). 2003 Decisions. Paper 665.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/665


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                                            NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               __________

                   No. 02-2249
                   __________


         UNITED STATES OF AMERICA

                          v.

             LEONARD A. PELULLO


          PINTLER CREEK RANGE, INC.,

                          Appellant
                   __________

  On Appeal From The United States District Court
     For The Eastern District of Pennsylvania
             (D.C. No. 91-cr-00060)


   District Judge: The Honorable Robert F. Kelly
                    __________

    Submitted Under Third Circuit LAR 34.1(a)
                March 31, 2003
                 __________

Before: McKEE, SMITH and COWEN, Circuit Judges

           (Opinion Filed: April 4, 2003)
                 ____________

                    OPINION
                  ____________
SMITH, Circuit Judge

                                              I.

       In this case Pintler Creek Range, Inc., (“Pintler”) appeals from the District Court’s

order requiring Leonard Pelullo to forfeit his property in Montana, arguing that the District

Court lacked subject matter jurisdiction. Pintler’s counsel also attempts to make

arguments on behalf of Mary Louise Jalilvand despite the fact that Jalilvand was the

appellant in a separate suit which was dismissed for lack of standing. Because the District

Court had subject matter jurisdiction over the forfeiture proceeding, and Pintler offers no

other reason why it would be entitled to set aside the forfeiture, the order of the District

Court will be affirmed.

                                              II.

       On January 27, 1995, Leonard Pelullo was convicted by a jury in the United States

District Court for the Eastern District of Pennsylvania of racketeering in violation of 18

U.S.C. § 1962(c). The jury also returned a special verdict of forfeiture in which they found

that Pelullo obtained real property in Montana as the result of his racketeering activity.

       In September of 1995, the District Court ordered Pelullo to forfeit his interest in

the Montana property pursuant to 18 U.S.C. § 1963. The government then began an

ancillary forfeiture proceeding in accordance with 18 U.S.C. § 1963(l) to adjudicate third

party claims to the Montana property. Susan Gehrke filed a petition asserting an ownership

interest in the property on behalf of herself and her minor daughter, Arianna Pelullo.

Pintler Creek Range, Inc., (“Pintler”) also filed a petition asserting a claim to the property.

                                               2
Attorney Anne M. Dixon appeared as counsel of record for both Pintler and Gehrke.

       In February of 1997, Susan Gehrke passed away. Initially, Forrest Gehrke, Jane

Gehrke, Russell Gehrke, Michelle Gehrke and Leonard Pelullo were given joint legal

custody of Arianna. On June 1, 1998, the Gehrkes relinquished legal and physical custody

of Arianna to Mary Louise Jalilvand.

       On September 29, 1998, Forrest Gehrke purported to enter into a stipulation with

the government to withdraw Susan Gehrke’s petition on behalf of Arianna. In the same

document, Dixon, on behalf of Pintler and Susan Gehrke, executed a stipulation providing

that Pintler and Gehrke withdrew their forfeiture petitions and consented to the entry of

final order and judgment of forfeiture. The District Court approved the stipulation by order

dated March 1, 2002. On March 5, 2002, the District Court entered the final order and

judgment of forfeiture.

       Mary Louise Jalilvand and Pintler each filed appeals which were consolidated on

July 17, 2002. On July 30, the appeal by Jalilvand was dismissed without prejudice to her

right to file her claim on behalf of Arianna in the District Court, because Jalilvand was not a

party to the original forfeiture proceeding and did not have standing to appeal. Pintler’s

appeal remains.

                                              III.

       Counsel argues that forfeiture was improper because the District Court did not have

subject matter jurisdiction to enter its order extinguishing Pintler’s rights in the Montana

property since Anne Dixon was not Pintler’s counsel. Dixon’s authority to act on Pintler’s

                                               3
behalf is unrelated to the District Court’s subject matter jurisdiction. See Insurance Corp.

of Ireland v. Compagnie Des Bauxites De Guinee, 

, 702 (1982) (explaining

that subject matter jurisdiction is a function of the judicial power of the federal courts

under Article III of the Constitution and the authorizing legislation of Congress). The

District Court clearly had subject matter jurisdiction over the criminal proceeding pursuant

to 18 U.S.C. § 3231 and over the forfeiture proceeding under 18 U.S.C. § 1963(l). In

addition, since Anne Dixon appeared as counsel for Gehrke and Pintler, and because Pintler

does not introduce any evidence that Dixon was without authority to do so, her signature on

the stipulation was binding as to both Pintler and Gehrke’s estate.

       Counsel also puts forth the argument that because Forrest Gehrke was not Arianna’s

legal guardian at the time he signed the stipulation, he did not have authority nor the

capacity to waive her rights to the property. Since Jalilvand’s appeal on behalf of Arianna

was dismissed for lack of standing, we cannot reach the merits of this claim.

                                     IV. CONCLUSION

       We affirm the order of the District Court.



TO THE CLERK:



Please file the foregoing Opinion.



                                                             /s/ D. Brooks Smith

                                               4
Circuit Judge