Federal prosecutors, seeking to overturn a controversial federal judge's order, asked the U.S.COURT OF appeals yesterday to reaffirm therecent bribery and conspiracy convictions of D.C mayoral aide Joseph P. Yeldell and millionaire developer Dominic F. Antonelli Jr.
Accussing U.S District Court Judge Gerhand A. Gesell of engaging in "a preciptious rush to judgement," the prosecutors urged the Court of Appeals to set aisde Gessell's order of a month agon granting Yeldell and Antonelli a new trial and to reinstate the guilty verdicts that had been returned against the two men by a federal jury. Their second trial has already been scheduled to start Feb. 20.
Sharply objecting to Gesell's court order, the prosecurtors said, "Its [the court's] findings of fact were without support in the record, its rulings of law were contrary to binding precedent, and its order was beyond the jurisdiction and power of the court." The prosecutors asserted that the court-ordered new trial amounted to a "windfall" for Yeldell and Antonelli.
Gesell had ordered a new trial for Yeldell, who is currently on unpaid leave from his job as a top aide to Mayor Walter E. Washington, and Antonelli, a real estate developer and parking company owner, chiefly because of a surprise, 11th-hour disclosure that one juror had failed to divulge that she had once had a small checking account a Madison National Bank. Antonelli had been a founder, director and major stockholder in the Madison bank, which was repeatedly mentioned in criminal charges and testimony at the trial.
Gesell ruled that the juror had "made intentional nondisclosures" and had, "in effect, misled counsel" for Antonelli and Yeldell by failing to disclose her Madison account and responding inaccurately to one other question during jury selection procedures at the start of the trial in October. Gesell described the actions by the juror, Diane P. Jones, as amounting to "reckless" conduct. He ordered a new trial, in part, "to preserve the integrity of the jury system."
Gesell said yesterday that he would have no comment on the prosecutors' legal move, known as a petition for a writ of mandamus. Lawyers for Yeldell and Antonelli could not be immediately reached for comment. The petition was filed by Earl J. Silbert, the U.S attorney for the District of Columbia, and the three assistant U.S. attorneys who prosecuted Yeldell and Antonelli - Henry F. Scheulke III, Richard L. Beizer and Michael Lehr.
Knowledgeable court officials described yesterday's petition as an unusual one and said a three-member Court of Appeals panel would have considerable latitude in how it handles it. Officials said it is unclear whether the court will act rapidly or engage in lengthy deliberations that could result in delays even if it allows a second trial to proceed. In a separate move, Antonelli has already asked that his second trial be moved outside Washington because of widespread publicity surrounding the first trial.
Before Gesell issued his order for a new trial, Yeldell and Antonelli had been convicted on Oct. 24 of corrupt- ly conspiring to arrange an allegedly lucrative D.C government lease of a Northeast Washington building from a partnership controlled by antonelli. In return for Yeldell's help in securing the lease, Antonelli was found by the jury to have secretly given Yeldell a $338000 personal loan after helping Yeldell obtain other short-term loans from Madison National Bank.
In their petition yesterday, the prosecutors reiterated several objections they had raised before Gesell issued his order for a new trial. They also added some new contentions.
The prosecutors noted that Gesell had not found any evidence of bias by Jones, the juror, and they argued that her failure to respond correctly to court questions was "totally immaterial" to the issue of possible bias. They asserted, moreover, that Judge Gesell had "no factual basis" for concluding that Jones' nondisclosures were "intentional."
The prosecutors also contended tha the defense lawyers' request for a new trial was filed too late and that the defense could have raised the same issues at the start of the trial or before it had ended.
"Defendants should not be allowed to gamble on a jury verdict and then only if convicted, initiate an in-depth investigation about the jurors who convicted them," the prosecutors said in their petition.