Lawyers for Mr. Marcello contend that he should only be responsible for paying funeral expenses of victims, under case law, and that he really shouldn't pay anything.
And in a unique argument against the payment of any restitution, Marcello attorney Marc Martin states that certain mob murder victims would have been eventually been put in prison with measly income potential.
"The government's expert speculates as to the earnings potential and life expectancy of certain murder victims," wrote Mr. Martin in a motion filed Tuesday in U.S. District Court. "The expert failed to take into account the victims' actual circumstances, i.e., their specific actual damages. For example, the evidence showed that Nicholas D'Andrea and Michael Spilotro were criminals. If they had been convicted and sentenced (Michael Spilotro was awaiting a federal criminal trial at the time of his death), their prison earning capacity would have been pennies an hour."
Marcello's lawyer also challenges whether convicted mob bosses should be on the hook for restitution for "victims for whom the jury did not reach a verdict during the special verdict phase (Henry Cosentino, Paul Haggerty, John Mendell, Vincent Moretti, Donald Renno, Nicholas D'Andrea and Emil Vaci). Restitution cannot be awarded for such persons. A conviction is a condition precedent for a restitution judgment," states Martin. "There is no authority for awarding restitution in instances where the jury fails to reach a verdict."
As a result, Martin says "Defendant James Marcello respectfully moves this Honorable Court to deny the government's request for restitution and/or order any lawful and equitable relief."
Marcello is scheduled to be sentenced on Dec. 17 by Judge James Zagel. Co-defendant's in the Operation: Family Secrets case will also be sentenced before Christmas. All are facing the prospects of lengthy stays in the penitentiary for their roles in a lucrative, decades-long Outfit enterprise.