Instead of seeing real estate attorney Paul Feldman on the witness stand, jurors in the federal fraud trial of Charles Lightbody will instead be shown a photo of Feldman — one defense lawyers hope will represent his demeanor and professionalism — while they listen to a recording of his grand jury testimony.
Defense attorneys for Lightbody and his codefendants are hoping the unusual appearance will allow jurors to hear the “whole story” — that the defendants had acted on Feldman’s sound legal advice when selling a parcel of Everett land to Wynn Resorts for the development of a casino. They deny that the defendants committed fraud by backdating documents, allegedly to hide Lightbody’s interest in the land.
“It’s to allow the jury to see this person, rather than a faceless person,” Joshua Levy, a lawyer for one of the defendants in the case, Dustin DeNunzio, said during a recent court hearing.
The defense lawyers wanted to call Feldman to the stand, saying he was an “indispensable’’ witness. But in an unusual legal development, Feldman has indicated he will not testify and instead invoke his Fifth Amendment right against self-incrimination.
Prosecutors in the case had also planned to call Feldman as a witness —
The reversal by prosecutors has defense lawyers accusing the government of intimidating Feldman and trying to dictate what type of evidence is presented to the jury.
But while defendants are entitled to due process and the right to present a defense, “that right, in my view, does not encompass putting demands on how the prosecution tries its case or which witnesses it chooses to call,” said Daniel S. Medwed, a law professor at Northeastern University.
Feldman’s lawyer, Bruce Singal, said in a statement that Feldman, who is president of the Boston law firm Davis Malm & D’Agostine, has cooperated throughout the federal investigation and during investigations by the state Gaming Commission, which relied on his testimony in past decisions related to the Wynn deal.
“Paul Feldman is one of the most highly respected real estate and environmental lawyers in the state. He has done nothing wrong and has nothing to hide,” Singal said, saying Feldman always gave his clients in the sale of the Everett land “proper and lawful” advice.
“Now at the eleventh hour, he is caught in the crossfire of a criminal trial in which he is not named,” Singal said. “It’s regrettable that the US Attorney’s Office has resorted to this unusual tactic in order to discourage Mr. Feldman from testifying.”
Prosecutors say that DeNunzio, the manager of the real estate group FBT Everett Realty, conspired with Lightbody and another partner in the group, Anthony Gattineri, to hide Lightbody’s financial interest in an Everett property they were looking to sell to Wynn Resorts in late 2012.
Lightbody is a convicted felon with reputed ties to the Mafia, and his interest in FBT Everett would have jeopardized the deal with Wynn. That led Lightbody and his partners to hide Lightbody’s stake in the land deal, prosecutors said.
But defense lawyers say the defendants had planned to transfer Lightbody’s interest to Gattineri long before the first contract to sell the land was signed with Wynn in December 2012.
Lawyers for DeNunzio argue that he was acting on Feldman’s advice that it was OK in July 2013 to backdate documents to August 2012, to properly reflect when the two parties reached an agreement, a point they wanted Feldman to make at trial.
They also say that DeNunzio told Feldman to alert Wynn officials that the FBT partners were ending their relationship with Lightbody, which would negate the allegation that Wynn was an unsuspecting victim of the scheme.
“I don’t do anything, especially on a project like this, without conferring with people, and he’s straight by the book,” DeNunzio told a State Police investigator in July 2013, according to a recording of the interview played for jurors this week. DeNunzio added later, “He’s our lead attorney, he’s like a quarterback of everything we do.”
Prosecutors recently told Feldman that they will not call him as a witness during the ongoing federal trial. They allege there is probable cause to believe he committed a crime — a determination that was made after reviewing an e-mail and notes that were in the defense team’s possession. According to prosecutors, the notes indicate that Feldman was involved in discussions with the partners about re-investing Lightbody’s profits from the sale of the Everett land — after Lightbody supposedly transferred his interest in the property.
Defense attorneys say they will play the two-and-a-half-hour recording of Feldman’s grand jury testimony at the beginning of the defense’s case, possibly Friday.
So far, jurors have heard from a dozen prosecution witnesses, including law enforcement officials, real estate attorneys, and Wynn executives.