Law Review: Nightmare finally ends for a lawyer wrongly linked to Scarfo

When FBI agents knocked on the door of his home just before sunrise Nov. 1, 2011, in Chappaqua, N.Y., a wealthy suburb north of Manhattan, David Adler's nightmare was just beginning.

As his wife and two children looked on, Adler was marched out of the house, handcuffed and placed in a car, and then driven to the federal courthouse in Camden.

There, the bookish securities lawyer with thinning gray hair and rimless spectacles was charged with conspiring with a group led by mobster Nicodemo Scarfo, son of the infamous former mob boss, to take control of a Texas finance company and then loot it of millions.

The case eventually became a six-month running drama in U.S. District Court in Camden that concluded July 3. The bundle of charges, doled out variously among the defendants, included security, wire, mail, and bank fraud; extortion; and money-laundering.

For the 64-year-old Adler, he, his family, and his career were virtually kidnapped by the charges for nearly three years. Adler declined requests for an interview.

It was a classic mob bust-out. A cash-rich but weakly managed company is targeted by a handful of tough guys, who with threats and intimidation forced noncompliant board members and executives out of the company. After the mobsters were in control, the new board signed off on rich deals arranged by the new bosses.

And soon the Scarfo crew was styling: traveling the country in a new Mitsubishi turboprop, sailing the Caribbean in a yacht named Priceless, splurging on jewelry, and driving a $200,000 Bentley.

In all, some $12 million walked out the door of the north Texas mortgage company, First Plus Financial Group, in 2007 and 2008. As the scheme unfolded, two of its primary actors, Salvatore Pelullo, described in the indictment as a mob associate, and Scarfo, a made member of the Lucchese crime family, periodically touched base with Scarfo's father, also named Nicodemo, to share details.

Dad, of course, is the onetime Philadelphia mob boss now in federal prison.

In one choice excerpt from a tape, the younger Scarfo and Pelullo discuss the death - of natural causes - of a First Plus employee, one who had knowledge of their scheme and who they worried might tell the police. Scarfo thoughtfully expressed relief as he compared the situation to the death of former Enron chief executive Kenneth Lay shortly after his 2006 conviction in connection with Enron's fraudulent schemes.

"Sal, you wanna know something, though?" Scarfo says. "That's one [the employee's death] I know you can't take credit for [laughter], and that's the natural, best thing. You know what I mean? That is so Enron-ish . . . Kenneth Lay, he bailed out and took a heart attack."

The indictment reads as if it were written by a scriptwriter for The Sopranos. And in some key respects, a jury later found, it was just as fanciful.

So earlier this month, a federal jury found Scarfo, Pelullo, and two others guilty. But it acquitted Adler and two other lawyers indicted in the scheme. Barry Gross, the Drinker Biddle & Reath lawyer who defended Adler, says it's not hard to see why. The indictment was loaded with suggestive quotes and excerpts from the taped telephone conversations.

Yet many of the facts asserted by the prosecution against Adler and the two other attorneys fell apart upon closer examination because the rest of the tapes painted a very different picture, or at least a muddled one. Specifically, the government charged, Adler had engaged in a racketeering conspiracy by concealing from regulators the hidden interests of Pelullo in two worthless companies that he and Scarfo arranged to sell to First Plus.

Adler never knew of Pelullo's mob affiliation, Gross said, and had no idea that Scarfo was involved.

"If you are Dave Adler, you've spent your whole career building a reputation as an honest, law-abiding person," Gross said. "Then one day, the government decides that based on a couple of phrases on a couple of calls on a couple of days with someone that unbeknownst to you the government believes is a bad guy, they now think you are a bad guy too."

Read the indictment and you come away with the feeling that Adler was a mob insider. It is rich with mobster street lingo. At the trial, the government offered extensive testimony on the structure of the Philadelphia and North Jersey mobs, the turf battles and rivalries.

The problem, Gross said, is that the guns and mob talk had nothing to do with his client, who was merely involved in, as lawyers like to say, "papering" the transactions. The tapes even showed him pressing Pelullo for stricter controls on company operations and tougher leadership by the board.

Like any fervent defense lawyer, Gross demanded a meeting with New Jersey U.S. Attorney Paul Fishman in the summer of 2011 to make these points, but to no avail.

What really angers Gross is that once it was clear an indictment was on the way, he asked that his client be allowed to turn himself in rather than face arrest at his home. There was no flight risk. This was, after all, a man who had spent his life in the tedious world of securities and transactional law, not the underworld.

No such luck. The FBI came to the house.

James Strazzella, a professor of criminal law at Temple University and a former federal prosecutor, says there are multiple checks and balances aimed at preventing prosecutorial overreach. But, he adds, the decision to prosecute is "a very human decision" with very little legal recourse for acquitted criminal defendants, who say they have been unfairly targeted.

Where does that leave Adler? He agreed to leave his New York firm in the summer of 2011 after the government said he would be indicted. He went to work as house counsel for a client but at a greatly reduced salary.

For years, Adler was consumed by his own defense and the worry of what was in store, including spending up to 20 years in jail. Though he was acquitted, his resumé will always have an asterisk.

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