Cellini's attorney Dan Webb told ABC7, "We are asking the court to throw out a portion of the jury verdict." He expects to file the motion on Monday with Judge James Zagel.
Prosecutors will argue against it.
Cellini was found guilty on two of four counts in the corruption case on November 1 when a jury concluded Cellini was part of an effort seven years ago to shake down a Hollywood movie producer for a $1.5 million campaign contribution for then Illinois governor Rod Blagojevich. The producer cried foul, the shakedown was never completed, and while the jury concluded that Cellini never directly said "give me the money or else," it still found he was part of a conspiracy to commit extortion.
Webb will ask the judge to throw out the two convictions. Because he was found not guilty in the other two counts, he cannot be retried as that would be double jeopardy, Webb said.
The female juror did not disclose her convictions for a drug possession and drunk driving without a license in 2000 and 2008, respectively.
Webb said because of that failure to disclose, she made false statements to the court; and because the juror is a convicted felon, she is legally ineligible to sit on a jury under federal law, which he said makes Cellini's jury illegal.
However, Randall Samborn, spokesperson for the U.S. Attorney's Office in Chicago said that's not the case. Through a statement, he said, "Federal law disqualifies persons who have been convicted of felonies from serving on juries only so long as their 'civil rights have not been restored.' Under Illinois law, civil rights are automatically restored upon the 'completion of any sentence of imprisonment or upon discharge from probation, conditional discharge or periodic imprisonment.' Thus, a person who has completed his or her sentence on a felony conviction is not disqualified from serving on a federal jury."
Samborn declined to comment on the facts about the Cellini case, writing "it is appropriate to reserve our comments for the courtroom on matters that could be the subject of litigation."
"If the court finds that juror should have been off this jury then it will be a mistrial and they will have to start again," said attorney Ronald Safer, a former federal prosecutor who is not involved in the case.
"It can happen every day and probably does. And that's why courts are reluctant to go behind people's answers," said Safer said. "We don't want to do that but here, you've got something that is really black and white and difficult to overlook."
The Cellini appeal is similar to a strategy used by former governor George Ryan's defense team when appealing his corruption conviction. Two jurors were tossed during the trial for not disclosing on their jury forms their convictions. But the judge in that case replaced them, and the trial went on.
With Cellini, the deliberations are over and prosecutors say "federal law appropriately provides great respect for a jury's verdict, and holds that it should not be lightly disturbed."
