Appeal from a judgment of conviction after jury trial in the United States District Court for the Southern District of New York, Inzer B. Wyatt, Judge, finding defendant guilty of making false declarations before a court in violation of 18 U.S.C. § 1623, and from an order of Judge Wyatt denying defendant's motion for a new trial. Affirmed.
Kaufman, Chief Judge, Mansfield and Mulligan, Circuit Judges.
Vincent Gugliaro appeals from a judgment convicting him of making false declarations while under oath in a federal court. Judgment was entered in the United States District Court for the Southern District of New York on March 1, 1974, after a jury trial before Hon. Inzer B. Wyatt, United States District Judge. He also appeals from an order of Judge Wyatt of February 28, 1974, denying his motion for a new trial. Gugliaro was indicted on seven counts for making false declarations in violation of 18 U.S.C. § 1623. He was acquitted on six counts and convicted of one count (count 4) for which he was sentenced on March 1, 1974, to two years imprisonment with three months to be served in jail, followed by two years probation plus a $3,000 fine. His conviction is affirmed.
Gugliaro and fifteen other defendants were initially indicted on November 19, 1970, on charges of conspiracy to violate the securities laws and to commit mail fraud, together with the corresponding substantive crimes, in connection with the manipulation of securities of the Imperial Investment Corporation. The appellant and nine other defendants were tried on these charges before Judge Morris E. Lasker and a jury. Only two defendants, Bernard Weiss and Ronald Alpert, were convicted. Gugliaro was acquitted on the substantive counts and the jury disagreed on the conspiracy count. (This trial is hereinafter referred to as Imperial I). Gugliaro, together with other defendants, was retried on the conspiracy count before Judge Lawrence Pierce and a jury, and all were acquitted. (This trial is hereinafter referred to as Imperial II). Gugliaro, who did not take the stand in Imperial II, did testify in his own defense in Imperial I, and his indictment for perjury in the present case was based on that testimony.
Gugliaro was convicted of count 4 below because the jury found false his testimony in Imperial I that he had not been in the Potpourri Restaurant and had never seen Weiss there.*fn1 Weiss and Alpert, who had been convicted in Imperial I and who were the co-owners (with a third party) of Potpourri, were stock swindlers who had played leading roles in the scheme. On the trial below, both Weiss and Alpert testified that, from November, 1969 through late January or February, 1970, they had had numerous meetings with Gugliaro at various places, including the Potpourri, to discuss the Imperial stock manipulation. Michael Hellerman, who had pleaded guilty in Imperial I prior to trial, also testified below that he had met with Gugliaro on numerous occasions at Gatsby's Restaurant, and also that Gugliaro had told him that he (Gugliaro) could meet with Alpert and Weiss at Potpourri. At one of the Gatsby meetings, Hellerman testified, he had paid Gugliaro $10,000, which represented profits on the deal and which was to be split with Alpert, Weiss and others. Weiss further testified that, after the Imperial I trial, Gugliaro had been fearful that the Government might be able to establish that he actually had been at Potpourri. He had advised Weiss that his defense would be that he had made an honest mistake since he knew the restaurant as Chez Joey before its name was changed to Potpourri. Both Weiss and Alpert testified that, after the name change, the Potpourri sign had been installed in October, 1969, and that the restaurant was eventually closed in May, 1970. Frances Sanoff testified that she had been employed by Alpert and Weiss as a hat-check girl and had seen Gugliaro in the restaurant on several occasions. Lucille Cicalo, who had worked as a waitress at the restaurant when it was known as Chez Joey and later when it became the Potpourri, testified that she had seen Gugliaro there on various occasions from September, 1969 until May, 1970.
Appellant's major argument on appeal is that his perjury prosecution is barred by the constitutional guarantee against double jeopardy, i.e., the jury's acquittal of Gugliaro in Imperial II necessarily determined the issue to be decided on his perjury trial.*fn2 The question presented here is the same as that raised in our recent opinion in United States v. Tramunti, 500 F.2d 1337, 1345 (2d Cir. 1974), and the same principles of law are applicable.
It is well understood that if an issue of ultimate fact has once been determined by a final judgment in a criminal case, the same issue cannot be relitigated between the same parties in a later prosecution. Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970); United States v. Zane, 495 F.2d 683 (2d Cir. 1974). However, the burden is upon the defendant to show that the jury's verdict in the prior trial necessarily decided the issues raised in the second prosecution. United States v. Friedland, 391 F.2d 378, 382 (2d Cir. 1968); see United States v. Zane, supra, 495 F.2d at 691 n. 5. Moreover, as we have noted in United States v. Tramunti, supra, this presents the defendant who has been acquitted in a criminal case with a most difficult burden since it usually cannot be determined with any certainty upon what basis the previous jury reached its general verdict. 500 F.2d at 1346,. See United States v. Cioffi, 487 F.2d 492, 498 & n. 8 (2d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2410, 40 L. Ed. 2d 774, 42 U.S.L.W. 3629 (1974).
The burden is thus upon the appellant here to establish that by acquitting him of conspiracy in Imperial II, the jury necessarily rejected the Government's evidence that Gugliaro met with Weiss at the Potpourri. As we have noted in Tramunti, this burden is particularly onerous where the acquittal in the criminal case involves the crime of conspiracy. 500 F.2d at 1346-1348,. In order to prove Gugliaro's guilt of the conspiracy charge in Imperial II, the United States had to establish not simply that Gugliaro met Weiss at Potpourri, but, in addition, that they were conspiring to commit securities and mail fraud violations. In determining whether a rational jury could have believed that Gugliaro was present at Potpourri with Weiss and yet could have based its verdict of acquittal on other issues, we must look to the entire record of Imperial II, including the pleadings, the summations, the charge and the evidence. Ashe v. Swenson, supra, 397 U.S. at 444; Sealfon v. United States, 332 U.S. 575, 578-79, 92 L. Ed. 180, 68 S. Ct. 237 (1948).
In our view, the jury might well have decided that the Government's proof that Gugliaro frequented the Potpourri and met with Weiss was credible but that this alone failed to establish the conspiracy. It was suggested by trial counsel in his opening and summation in Imperial II that even if Gugliaro had been present at some meetings and known some of the persons charged with being parties to the scheme, it did not follow that his connection with the alleged conspirators was other than innocent. The restaurant was, after all, a public place and Weiss and Alpert were owners. The jury could reasonably have decided that the mere frequenting of the restaurant and being seen with a proprietor was not tantamount to participation in an unlawful conspiracy. See United States v. Tramunti, supra, 500 F.2d at 1348-1349. In this connection, Judge Pierce had properly instructed the jury:
I want to caution you that mere association with one or more of the conspirators does not make one a member of the conspiracy. Nor is knowledge without participation sufficient. What is necessary is that the defendant you are considering be found to have participated with knowledge of at least some of the purposes of the conspiracy and with intent to aid in the accomplishment of those unlawful ends.
In short, the jury may have acquitted Gugliaro not because he had never been to the Potpourri or seen Weiss there, but because he lacked sufficient knowledge or intent to ...