casino which defendants asserted showed that Guariglia had indeed gambled. At this point Assistant United States Attorneys Weiss and Jacobson along with the Chief of the Major Crimes Unit, Mark Hellerer, and then Deputy U.S. Attorney Louis Freeh conducted an investigation including extensive questioning of Guariglia regarding his trips to Atlantic City as well as discussions with individuals who were with Guariglia on those occasions. From this, the government concluded that Guariglia had not gambled during the time of the cooperation agreement and they argued his credibility to the jury accordingly.
Several months after the trial, in December 1989, the government received new information indicating that Guariglia had in fact gambled in Puerto Rico -- not Atlantic City -- during the period of the cooperation agreement. The government investigated the matter and determined that on the general gambling question Guariglia had perjured himself during the course of his testimony at trial. The government notified defense counsel and on June 26, 1990, Guariglia was indicted for perjury, a jury convicting him on February 27, 1991 of two counts of perjury committed during the course of the Wedtech trial.
Wallach moved for a new trial based on Guariglia's perjury. I denied this motion on April 4, 1990, U.S. v. Wallach, 733 F. Supp. 769 (S.D.N.Y. 1990), concluding that there was ". . . neither allegation nor evidence that the prosecutors had any knowledge as to Guariglia's now-disclosed perjury," and that in the total picture the perjury going to credibility was so minor as not to be material. On Wallach's appeal, however, Judges Meskill and Keenan concluded that the government "should have known" that Guariglia was committing perjury, while Judge Altimari concluded that the government had no knowledge of Guariglia's perjury. All three agreed, however, that had the jury known of the perjury, "it probably would have acquitted. . . ." There was no suggestion in the appellate opinion, though, that the prosecutors, well qualified attorneys than five years, should be relieved.
While Wallach claims that Weiss and Jacobson should be disqualified because of their alleged improper motivation in re-prosecuting Wallach in order to "vindicate" themselves and "repair the damage done by Guariglia's perjury to their own careers", Wallach offers nothing beyond mere speculation to support this. Further, Wallach's claim that they are going forward with the retrial for impermissible personal reasons, is undermined by the fact that this retrial was personally authorized by the United States Attorney for the Southern District, Otto Obermaier, after discussions with Wallach's counsel and an opportunity for Wallach to present his arguments as to why the government should not proceed with retrial.
Secondly, Wallach seeks to disqualify Weiss and Jacobson on the ground that since Guariglia's perjury at the first trial will be in issue at the trial, Weiss and Jacobson will be necessary witnesses called to testify about statements made to them by Guariglia or, in prosecuting, will act as unsworn witnesses. Wallach asserts that in the event Guariglia takes the stand in the retrial, and denies his gambling or his false statements to the government in this regard, Weiss and Jacobson will be called to impeach him. First, it is not at all clear that Guariglia will be called as a witness, or if he is that he would deny gambling or making false statements to the government. Thus, evidence of Guariglia's perjury may not be relevant on a retrial, whether Guariglia is called or not called, and even if such evidence is deemed relevant, no showing has been made that Weiss or Jacobson will have to either testify in this regard or act as unsworn witnesses, as it is not clear that such evidence, if relevant, cannot be obtained through other heretofore fully sanctioned means.
The law does not liberally permit a defendant to call a prosecutor as a witness. On the contrary, a defendant must demonstrate a compelling and legitimate need to do so. United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975), cert. denied, 424 U.S. 942, 47 L. Ed. 2d 348, 96 S. Ct. 1410 (1976); United States v. Torres, 503 F.2d 1120, 1124 (2d Cir. 1974). Where witnesses other than the prosecutor can testify to the same matters or conversations, no compelling need exists. United States v. Roberson, 897 F.2d 1092, 1098 (11th Cir. 1990). Consistent with the policy of the United States Attorney's office, whenever Assistant United States Attorneys Weiss and Jacobson interviewed Guariglia, a third party, and frequently more than one additional agent, was always present. This conforms with the ABA Standards Relating to the Prosecution Function stating, "the prosecutor should avoid interviewing a prospective witness except in the presence of a third person,"
which was designed to avoid precisely the problem raised by Wallach, namely that a prosecutor will be required to testify as to a conversation with a witness in the event a conflict arises. United States v. Birdman, 602 F.2d 547, 552-53 (3rd Cir. 1979). This policy also eliminates the risk that either Weiss or Jacobson would be put in the position of an "unsworn witness" in the event that a dispute arose as to what occurred during a conversation with Guariglia as a third party can be called and thereby remove the need for the prosecutors to question Guariglia in such a way as to bolster their own credibility. See United States v. Dennis, 843 F.2d 652, 656 (2d Cir. 1988) citing United States v. McKeon, 738 F.2d 26, 35 (2d Cir. 1984). Thus, should any conversation between Guariglia and the government become relevant, and should it become necessary to call a witness to testify as to statements made by Guariglia, a third party, other than Weiss or Jacobson could be called.
Moreover, the necessity of calling any witness to testify to matters concerning conversations or agreements between the government and Guariglia is sharply reduced, if not eliminated, by the government's offer to stipulate to much of what Wallach says he wishes to introduce through testimony of the prosecutors. Stipulations provide an adequate substitute for testimony and may eliminate the need to disqualify an attorney based on conversations between the attorney and a witness. See States v. Diozzi, 807 F.2d 10, 13-14 (1st Cir. 1986). The government has offered to enter into a long list of stipulations regarding Guariglia's gambling, his perjurious denial of such gambling at trial, and the fact that these actions violated his cooperation agreement. The government has also offered to stipulate further, should such additional stipulations be relevant. Wallach also has the opportunity to attack Guariglia's credibility, should such attack be relevant, by introducing evidence of Guariglia's perjury conviction, Fed.R.Evid. 609(a)(2), and may be permitted to contradict testimony given at the retrial by reading portions of the transcript from the first trial.
Given the present prosecutors' familiarity with the case, gained through the extensive involvement they have had - Weiss since the inception of the case in early 1987 and Jacobson since 1988 - it would cause an extreme waste of resources to order them now replaced. Wallach's assertion that hundreds of other Assistant United States Attorneys are available to handle the retrial is no answer and such a late-hour transfer could well severely prejudice the government. Wallach has failed to demonstrate that disqualification is necessary, and accordingly, the motion is denied.
III. Motion to Dismiss on the Ground of Double Jeopardy
Finally, Wallach moves to dismiss the indictment on the ground that the Double Jeopardy Clause bars retrial. Wallach relies on United States v. Burks, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978), which held that the government may not retry a defendant after a reversal based on a lack of evidence. Id. at 11. Although throughout his brief Wallach argues that the Court of Appeals reversed his conviction because of insufficient evidence, that is not, in fact, the basis for the Court's reversal. Rather, in reversing the conviction because of Guariglia's perjury, the Court held that, had the jury known of Guariglia's false testimony it probably would have acquitted. Nowhere in its opinion did the Court of Appeals address the sufficiency of the evidence presented by the government as to Wallach's guilt.
Indeed, Wallach in his appellate brief requested that the Court dismiss the indictment. The Court of Appeals declined to do so. Not only did it state, as Wallach concedes, that it was "remanding for a new trial," but the Court indicated its assumption that the case would be retried by discussing defendants' additional arguments on appeal in light of "the likelihood of a new trial," advising the District Court on a clarification that should be made in the jury instructions "in the event of a retrial," and addressing an evidentiary problem which should be avoided "in the event of retrial." Accordingly, I conclude that Wallach's claim of double jeopardy is frivolous, and it is denied.
Accordingly, for the reasons stated above, each of Wallach's three motions is denied.
Dated: March 30, 1992
New York, New York
United States District Judge