Pierce, Winter and Miner, Circuit Judges.
On Petition for Rehearing.
We grant rehearing in the instant case, as requested by defendants Raphael Bloom and Herbert Stone, to reconsider their convictions for perjury. Familiarity with our prior opinion, 846 F.2d 135 (2d Cir. 1988), is assumed. In that decision, we reversed the conspiracy and mail and securities fraud convictions of defendants because the government's expert witness was wrongly allowed to give opinions that embodied legal conclusions and were based on that witness's assessment of the credibility of the testimony of other witnesses. However, we affirmed the convictions of defendants Bloom and Stone for perjury under 18 U.S.C. § 1623 (1982), after determining that their challenges to those convictions were without merit.
Defendants' petitions for rehearing argue that the subject of the perjury was closely related to the subject of the improper opinion testimony and that the principal witness on the perjury count was the witness to whose credibility the government's expert witness had attested. We agree. The allegedly perjurious answers were to questions that used the term "manipulation," which was also used in the improper opinion testimony, and that involved the conduct of Sarcinelli, whose credibility was improperly bolstered by the expert.
Specifically, Bloom was charged with perjury based on the following grand jury testimony:
Q: Do you have any knowledge concerning Mr. Sarcinelli manipulating any of the stocks that were discussed here today?
A: I don't, no. I knew he was active in some of these stocks or he had an active interest in them, but most of them never did anything anyway, so far as I know.
Q: Do you have any knowledge of Mr. Kimmis or Mr. Quinn manipulating the stocks we've been talking about?
A: I don't have any knowledge of that, no.
Q: Do you know [sic] any knowledge of them or anyone else using European Auto, Sundance, TONM, Enerdine for purposes of either manipulating those stocks or for laundering illegal money?
The indictment maintains that the above statements were perjurious because:
In truth and in fact, as defendant Bloom then well knew, during at least 1980 and 1981, he had participated in a scheme with defendant Sarcinelli and others to manipulate the price of European Auto common stock and had ...