United States v. Wallach, Rusty Kent London, Eugene Robert Wallach, A/K/A "E. Robert (Bob) Wallach," and Wayne Franklyn Chinn

ALTIMARI, Circuit Judge,

concurring:

I cannot subscribe to the notion that the Assistant United States Attorneys (“AU-SAs”) v/ho represented the government in this case should have known that Anthony Guariglia was committing perjury at the time of trial. I do agree, however, that reversal is warranted despite the fact that the government had no knowledge of Guar-iglia’s perjury. Accordingly, I write separately to express my views on these issues.

The idea that the government would knowingly rely on false testimony in obtaining a conviction is repugnant to the very concept of ordered liberty and is perhaps the most grievous accusation that can be levelled against a prosecutor. See Napue v. Illinois, 360 U.S. 264, 269 , 79 S.Ct. 1173, 1177 , 3 L.Ed.2d 1217 (1959); see also Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935). A review of the entire record including the post-argument submissions 1 leaves me with the firm conviction that the AUSAs properly discharged the obligations of their office. Therefore, in contrast to the majority, I do not believe that “a virtual automatic reversal” of the defendants’ convictions is mandated. United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975), cert. denied, 429 U.S. 819 , 97 S.Ct. 66 , 50 L.Ed.2d 80 (1976).

To appreciate fully what the prosecutors knew about the admission of Anthony Guariglia’s perjurious testimony, it is important to understand when and how this matter initially arose. During vigorous cross-examination, defense counsel confronted Guariglia with documents, obtained from the Tropicana Casino in Atlantic City, indicating that Guariglia had signed three markers totalling $15,000 in September 1988 and one $50,000 marker in October 1988. These markers provided strong circumstantial evidence that, despite his testimony to the contrary and despite the requirements of his cooperation agreement, Guariglia had gambled after the summer of 1988. On re-direct examination, Guariglia reiterated that he had not gambled. Instead, he claimed that he had exchanged the markers totalling $15,000 for cash and had used the $50,000 marker to obtain chips for Marshal Koplitz, a friend and business associate.

Certainly, if the government had simply accepted at face value Guariglia’s some *474 what dubious explanation, a legitimate question might be raised about the prosecutors’ conduct. .However, this is not what occurred. Rather, in the midst of trial, the AUSAs extensively questioned Guariglia about the events in Atlantic City and the truthfulness of his testimony. Moreover, in an attempt to ascertain the truth or falsity of Guariglia’s story, the AUSAs located and interviewed Koplitz and another individual who was with Guariglia in Atlantic City. Both verified Guariglia’s version of events. Additionally, the prosecutors— albeit with limited success — attempted to contact and interview Tropicana Casino officials. Thus, it seems to me that the AU-SAs did all that was reasonable to assure that they were neither relying on false testimony nor permitting false testimony to go uncorrected. Cf Stofsky, 527 F.2d at 244 (“We do not employ the omniscience of a Monday morning quarterback as the standard for determining what investigation should have been made by the government.”).

It should also be realized that when the government did obtain meaningful evidence that Guariglia had perjured himself at trial, the AUSAs did not hesitate in undertaking an investigation and prosecution that ultimately resulted in Guariglia’s perjury conviction. To my mind, this is a further illustration that throughout the proceedings the AUSAs sought to learn — not avoid or ignore — the truth.

Thus, I believe that the critical issue on this appeal is whether Guariglia’s perjury is so material that “the jury probably would have altered its verdict if it had had the opportunity to appraise the impact [of the perjury] not only upon the factual elements of the government’s case but also upon- the credibility of the government’s witness.” Stofsky, 527 F.2d at 246 . In considering this issue, the district court concluded that “this additional brace of wrongdoings, if known to the jury, would not in any way have had the slightest effect upon its verdict.” United States v. Wallach, 733 F.Supp. 769, 771 (S.D.N.Y.1990). This conclusion was based on Judge Owen’s consideration of a broad array of factors:

The testimony was not material: Guarig-lia’s gambling and skimming did not bear on the defendants’ guilt or innocence, only on Guariglia’s credibility. And here, these instances of falsehood would have been merely minor, cumulative additions to the massive mound of discredit heaped upon Guariglia over several days of both direct and cross-examination. The jury heard that Guariglia’s past included: bribery of numerous government officials, including Congressmen Biaggi and Garcia, Richard D. Ramirez of the Navy, Gordon Osgood of the Army, Jer-rydoe Smith of the Postal Service, Peter Neglia of the Small Business Administration and Vito Castellano of the National Guard; commercial bribes to bank officials and a Con Edison employee; countless false filings with the Securities and Exchange Commission, the Small Business Administration and the Internal Revenue Service; the use of kickbacks, frauds and the use of the ‘FHJ slush fund’ to steal $1,624,702 from Wedtech; the payment of over $500,000 in illegal payoffs to union officials for labor peace; the fabrication of a Navy telex to inflate Wedtech’s apparent profit; concealing ill-gotten gains in nine foreign bank accounts; false statements to District Attorney Morgenthau and his staff when the investigation began, and, during the course of the investigation, obtaining a false Swedish passport. The defendants also brought out post-cooperation wrongdoing in connection with tax irregularities, arguable continued gambling in Atlantic City, and continued failure to make restitution to the Wedtech shareholders....

Id. at 771-72 .

While the foregoing recitation is undeniably powerful, it is also somewhat misleading, because it fails to take proper account of the unique and oftentimes devastating impact of a witness perjuring himself in front of a jury. While disclosure of such perjury might not transform the jury’s image of the witness from paragon to knave, see United States v. Gilbert, 668 F.2d 94, 96 (2d Cir.1981), cert. denied, 456 U.S. 946 , *475 102 S.Ct. 2014 , 72 L.Ed.2d 469 (1982), it may provide the proverbial straw that broke the camel’s back. See, e.g., United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir.1975). Indeed, as the majority cogently explains, Guariglia was an essential witness at trial and, while there may have been heated argument over his credibility and misdeeds, his ongoing perjury had not been revealed to the jury.

In sum, I agree with the majority’s conclusion that reversal of the convictions is warranted. But I do so solely on the ground that “the jury probably would have altered its verdict” had it been aware of Guariglia’s on-going perjury. Stofsky, 527 F.2d at 246 . In all other respects, I concur in the majority’s well-reasoned opinion.

. I note with displeasure that much of the information regarding Guariglia’s perjury and the government’s response to that perjury was presented in a series of post-argument letters to the Court. As this Court has previously stressed, such submissions are looked upon with extreme disfavor. See United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir.1987) (per curiam). However, it was the defendants who initiated the submissions, to which the government merely responded.