Drive. According to the Government, and unrebutted by Biaggi, these accounts were all corroborated by other witnesses and documentary evidence.
Biaggi claims that the Government "acknowledged Guariglia as the 'pivotal' witness for both the Wallach and Biaggi trials." (Biaggi's Rule 33 Motion For a New Trial, 55) (emphasis in original). However, as the testimony cited just the page before indicates, the actual testimony of Assistant U.S. Attorney Mary Shannon at Guariglia's perjury trial was that "Guariglia was considered to be, by me and others, to be a pivotal witness in virtually all of the Wedtech investigations because Mr. Guariglia had been in all of the transactions with which we were dealing and because Mr. Guariglia was able to recreate the events with greater accuracy than some of his colleagues." (Id. at 54). In the first place, being a pivotal witness is not equivalent to being the centerpiece. Secondly, this testimony refers to the investigation of Wedtech, not to the trial of Biaggi. As is obvious from the testimony attached as Exhibit K to Biaggi's motion, AUSA Shannon is discussing Guariglia's role in the multi-year investigation of Government corruption, part of which eventuated in the Biaggi trial.
Thus, since Guariglia's testimony was neither the centerpiece of the trial and was fully corroborated, the perjury should not alter the result. There were six days of cross-examination of Guariglia; it is unlikely that the three instances of perjury cited by petitioners would have altered the verdict. U.S. v. Petrillo, 821 F.2d 85. 88 n.2 (2d Cir. 1987).
In addition, at trial the jury was advised to scrutinize Guariglia's testimony with greatest of wariness. In charging the jury much effort was taken to instruct the jury that the testimony of an accomplice, such as Guariglia, was to be "received with caution and weighed with great care." (Tr. 20,082).
Specifically, the jury was instructed as to the testimony of accomplices such as Guariglia that the fact that they "sought and obtained from the government a benefit for themselves in return for their testimony here requires that you view their testimony with suspicion, weighing it with great care, subject it to close and searching scrutiny." (Tr. 20,085). The jury was instructed explicitly that since Guariglia was a convicted felon his testimony should be subject to close and searching scrutiny." (Tr. 20,086).
In its own direct examination of Guariglia the Government brought out his history of crimes and misconduct. In their cross-examination, petitioners also addressed this issue. There is therefore no reason to believe that if the jury had knowledge of Guariglia's perjuries that it would have acquitted petitioners. It would only be cumulative impeachment evidence of an already impeached witness whose testimony the jury was instructed to regard with searching scrutiny.
Petitioners merely claim that Guariglia's testimony was central to the convictions. The Government in response then proves, with numerous citations to the record and to the evidence at the trial, that it was not. Petitioners do not contravert the Government's argument. In fact, in the case of Richard Biaggi and Stanley Simon they do not even bother to respond to it at all.
B. Richard Biaggi
Richard deposited the money he "earned" on the stock sales into a savings account as did Ehrlich. Ehrlich's was deposited into a joint account which he shared with his wife, but Richard's was deposited only in his name, although he was married, and he withdrew only enough money to pay taxes and one other comparatively small sum. Moreover, as noted by the Government, while Richard owed money on two mortgages with 14% interest, he had hundreds of thousands of dollars deposited in the savings account that only earned 6% to 7%. (Tr. 920-22, 5653-71, 5704-16; GX 30A, 30B, 43A-P, 44A-V, 58, 58 A-C,59, 59 A-C). The Government, therefore, implied that the money was not his and that his awareness of this explains why he never spent the money he "earned" from the sale of "his" stock.
Richard Biaggi's conviction on Counts Sixteen and Seventeen for filing false tax returns is amply supported by other evidence. Other cooperating witnesses testified that the stock was really Mario Biaggi's (Tr. 751-58, 6773-74).
Additionally, Irvin Wolf, Biaggi and Ehrlich's accountant, wrote to Ehrlich to consult him on the tax consequences of "you and the Congressman receiving 112,500 shares of stock." (GX 905A0). In 1985, Ehrlich asked for a tax analysis assuming the stock ownership was 40% Mario Biaggi, 20% Ehrlich, and 40% Richard Biaggi (Tr. 5832-51, 6204-09; GX 902, 903) and in 1986 Biaggi met with the accountant and rearranged the ownership as 60% Richard Biaggi, 40% Ehrlich. (Tr. 6079-81).
As the Government points out, Richard could not have received the shares for any services rendered to Wedtech. When the stocks were received in Richard's name in July, 1983 (worth almost $ 2 million two months later when Wedtech went public) he had only been practicing law for nine months and had spent little time on the Wedtech account. (Tr. 871-78, 5183-85, 6386-95, 6797, 8030, 8922). Richard Biaggi was not then a partner in the firm. (Tr. 5047-50, 5355, 5800-05, 7978, 8127-31, GX 7A, &B, 18A-D). The evidence was ample that he was a nominee and that he knew it.
Thus, the Government argues convincingly, that given the volume of corroborating evidence and the extensive cross examination of Guariglia, this case is more like U.S. v. Petrillo, 821 F.2d 85 (2d Cir. 1987), than Wallach. See also U.S. v. Diaz, 922 F.2d 998, 1007 (2d Cir. 1990), cert. den. 111 S. Ct. 2035, 114 L. Ed. 2d 119 (1991).
Richard Biaggi's argument, which has no citations to the record or to the evidence introduced at trial, is that without Guariglia's testimony all the evidence against Richard would collapse. However, he does not support this contention at all. The Government's marshalling of the corroborating evidence against Richard Biaggi is convincing argument that his Rule 33 motion should not be granted.
C. Stanley Simon
There was substantial and ample evidence outside the testimony of Guariglia to support Simon's convictions for accepting bribes from Wedtech, extorting funds from Ralph Lawrence, and evading taxes. Documentary evidence showed that Simon received payments from the Wedtech FHJ slush fund and that payments to restaurants were made on Simon's behalf. (GX 73A). Both Moreno and Neuberger, in addition to Guariglia, testified to Simon's extortion of $ 50,000 from Wedtech. (Tr. 1124-31, 9008-09, 11,579-84).
Former Wedtech bookkeeper Ceil Lewis testified that FHJ checks made payable to cash and FHJ reimbursements of Simon's restaurant bills was the method of paying Simon. She also testified that Lawrence picked up checks and cash on Simon's behalf. (Tr. 4501-04).
Moreno testified to giving $ 10,000 of the $ 50,000 to Simon for Atlantic City gambling and to giving him gambling chips there on other occasions. (Tr. 1351-64).
Lawrence also testified at length as to his payment of Simon's hotel, meal, transportation and entertainment expenses while Simon was Borough President and he served as Simon's advance man. (Tr. 10,752-61, 10,773-884).
Simon never questions the fact that there were numerous witnesses who testified to his criminal actions and that there was much documentary evidence in support of his conviction. His contention instead is that if the jury had known of Guariglia's instances of perjury, the entire Government case would somehow fall apart.
Government witness previously employed at Wedtech incriminated Simon for extorting $ 50,000 from Wedtech with respect to Wedtech's application to obtain a lease at One Loop Drive from the New York City Board of Estimate. Although several such witnesses testified, there can be no question that Anthony Guariglia was one of the principal Government witnesses against Simon on this fundamental charge. If the jury was aware that Guariglia was committing perjury on the stand, as is shown by the motion papers of Mario Biaggi, it almost certainly would have discredited his entire testimony. This in turn would have caused the jury to question seriously the entire case against Simon.
(Memorandum of Law in Support of Stanley Simon's Rule 33 Motion for a new trial, 2). To assert, however, is not to prove. Simon does not even attempt to prove this assertion by references to the record. The Government's ample citations to the record and to the evidence at trial remain unrebutted, and indeed, uncommented on, by Simon. Except for Simon's talismanic invocation of Wallach, he provides no citation to the record, and presents no case law whatsoever in support of his motion, relying instead entirely on the motion papers of co-defendant Mario Biaggi. In fact, although there have been numerous extensions granted as to these motions, Simon disregarded this court's April 8, 1993 Order that his Reply to the Government's Answer be submitted by June 4, 1993. Instead, Simon only replied to the timeliness issue argued by the Government, telling the court that he was "writing to respond to only the timeliness issue raised by the Government." (Letter of May 20, 1993, in Reply to the Government's Opposition to the Rule 33 Motions of Stanley Simon and Richard Biaggi, 1).
Simon even notes that corroborating his conviction was the testimony of Fred Neuberger, Ralph Lawrence, and Sabino Fogliano but claims that only if the jury knew of Guarigli's testimony that all the evidence against Simon would somehow magically disappear and appear incredible. This assertion is untenable and unsupported.
V. Timeliness of the Rule 33 Motions of Richard Biaggi and Stanley Simon.
The Government also contends that the Rule 33 motions of Richard Biaggi and Stanley Simon are defective in that they are untimely. The Government notes that Rule 33 motions must be filed within two years of termination of the appellate process and contend that the issuance of a mandate of affirmance of conviction by the Court of Appeals is such a termination.
Petitioners Richard Biaggi and Stanley Simon disagree, claiming in their May 20, 1993 Letter in Reply that this court's July 31, 1991 Rule 35 amendment of their sentences amounts to a final judgment. Movants also claim that the appellate process is not terminated until the Supreme Court either decides or denies certiorari. According to movants, while most other Circuits have rules in accordance with the Government's position here, the Second Circuit has not so decided.
The Government's position is the correct one. In the first place, movants provide no case law to support their contentions that either the granting of a Rule 35 motion or the denial of certiorari amounts to a final judgment. Rule 35 is directed toward sentencing, not toward conviction or acquittal. It does not alter the fact of conviction. It is in no way a "final judgment" as contemplated by Rule 33 but is instead an amendment to the consequences of judgment.
Secondly, Second Circuit case law is in agreement with the Government. In U.S. v. Mallah, 427 F. Supp. 328, 331 (S.D.N.Y.), aff'd without op. 559 F.2d 1205 (2d Cir. 1977) the court held that final judgment issues with the circuit court's issuance of its mandate affirming the conviction. In doing so, it relied on Oddo v. U.S., 171 F.2d 854, 858 (2d Cir.), cert. den. 337 U.S. 943, 93 L. Ed. 1747, 69 S. Ct. 1498 (1949). These cases are still good law, and petitioners have provided no case law to the contrary. Thus, even were there good reason to grant the Rule 33 motions of Richard Biaggi and Stanley Simon on the merits, they cannot be granted on the grounds that they are time-barred.
For the reasons discussed above, all motions are denied.
June 17, 1993
New York, New York
Constance Baker Motley