verdict or any evidence which came to light following the trial. Wolkowski argues that the evidence was insufficient to support the verdict as to Count 2. He also urges that the denial of his previous motions for a severance of his trial from that of Messerlian was a fatal error, and that the jury charge as to Count 2 was improper. He also contends that he should be granted a new trial on the basis of the weight of the evidence. Defendant Messerlian makes no new arguments in support of his renewed motion, but merely reincorporates those made previously. We first address Wolkowski's arguments.
In assessing Wolkowski's renewed Rule 29 motion, we must determine "whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt." Powell, 53 U.S.L.W. at 4015; see United States v. Lowell, 490 F. Supp. 897, 901 (D.N.J. 1980) aff'd 649 F.2d 950 (3d Cir. 1981). He argues that the evidence is insufficient to support a finding that a unitary conspiracy existed, that Wolkowski was a member of that conspiracy, and that the conspiracy had the goal of obstructing a federal proceeding. Much of the argument presented in support of this motion depends on our declining to consider, in deciding this motion, evidence adduced in support of Count 4 of the indictment. As we have held in Part II, supra, we are constrained by the Dunn/Powell rule to consider all of the evidence presented at trial; we will not interpret the jury's verdict as a finding as to, e.g., the truthfulness of Wolkowski's testimony before the grand jury.
When last we addressed this issue, we found that the evidence was sufficient to support the conspiracy Count. Relying on United States v. Maker, 751 F.2d 614 (3d Cir. 1984) and United States v. Riccobene, 709 F.2d 214 (3d Cir. 1983), cert. denied, 464 U.S. 849, 104 S. Ct. 157, 78 L. Ed. 2d 145, we found that the government had produced evidence sufficient for a rational juror to find a unitary conspiracy with the goal of preventing "disclosure of the events surrounding the alleged assault." (TT, vol. 29, p. 5080). We also found that there was evidence supporting the government's theory that the conspiracy aimed at preventing disclosure to "all comers," and that it continued to operate in such a manner so as to obstruct federal proceedings. We found that the holding of United States v. Perlstein, 126 F.2d 789 (3d Cir. 1942) is that this conspiracy, if proven to exist, runs afoul of 18 U.S.C. § 1503. (TT, vol. 29, pp. 5080-81).
Wolkowski argues that the evidence is insufficient to connect him to any conspiracy to impede justice or protect Messerlian from prosecution. He argues that a fair assessment of the evidence compels the conclusion that the jury returned a guilty verdict against him based either on his close association with Messerlian or based on speculation or surmise. Either ground is, of course, improper. United States v. Samuels, 741 F.2d 570 (3d Cir. 1984); Landrum v. Warden, Federal Correctional Institution, 623 F.2d 416 (5th Cir. 1980). We have reexamined the evidence presented during the course of the trial. We reaffirm our finding that the evidence is sufficient to allow the jurors to find a unitary conspiracy, and that Wolkowski was a member. Given our finding that we must examine the entire record in connection with this motion, and that we may not excise that portion which Wolkowski argues the jury "rejected," there is no need for a recapitulation of the analysis supporting our prior denial of this motion. (See TT, vol. 29, pp. 5079-82a).
We now address Wolkowski's Rule 33 motion, pursuant to which we examine the weight, rather than the sufficiency of the evidence in order to determine whether a new trial is warranted. See Tibbs v. Florida, 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211 (1982). We have examined the argument presented with respect to the jury charge on Count 2. We find that the charge is consistent with United States v. Perlstein, supra, which stands for the proposition that a conspiracy to obstruct justice, which at some point adopts the specific goal of obstructing a federal proceeding, may properly be charged in an indictment against the members as a conspiracy to obstruct a federal proceeding.
We find that a jury could rationally find that the conspiracy existed, and that it continued to operate so as to attempt to obstruct a federal investigation; we believe that they were properly charged as to the elements of Count 2.
We similarly reaffirm our decision as to the severance motion. We recognize the seriousness of this argument; we continue to believe, however, that the jury was able to compartmentalize the evidence and fairly analyze the guilt, or lack thereof, of each defendant. This belief has been buttressed by the nature of the jury's verdict, by which it returned findings of not guilty as to defendants Slattery and Mangione on counts nearly identical to those faced by Wolkowski. We reject Wolkowski's argument that he was in a position, with respect to severance, significantly different from that of Mangione or Slattery.
Wolkowski argues that this case presents a " Dansker problem." United States v. Dansker, 537 F.2d 40 (3d Cir. 1976). He argues that the jury verdict calls into question what may be called the linchpin evidence of his membership in the conspiracy. We read Dansker and related cases (see, e.g., United States v. Gallagher, 576 F.2d 1028 (3d Cir. 1978) as holding that a new trial should be granted where proof of an essential element of a count has been struck as a matter of law. It should be evident at this point that we do not view the not guilty verdict as to Count 4 as the equivalent of a legal ruling striking Overt Acts 3 and 6 of Count 2 from the indictment. Viewed in light of Powell, this case does not present a " Dansker issue."
The final argument presented by Wolkowski is an appeal to the conscience of the court. We appreciate the genuine spirit with which this request is made. We assure Mr. Wolkowski that we have approached this matter as one presenting grave issues -- not the least of which are the potential penalties, whether imposed by this court or others -- which have arisen as a result of the guilty verdict. Wolkowski has argued that we must review this Rule 33 motion as though we were sitting as a "thirteenth juror." We are familiar with this rhetorical description of the process; we wish to point out, however, that it is a misleading one. In weighing the evidence presented in this matter, we are permitted by the rule to grant a new trial "in the interest of justice." As the rule has been interpreted, our discretion does not extend to the grant of a motion if the evidence were to fail to convince us of guilt beyond a reasonable doubt -- as it would if we were to sit as a juror. Rather, we are empowered to grant a new trial if we are convinced that the evidence is such that the verdict of the jury was not "rational," Powell, 53 U.S.L.W. at 4015, or if the verdict is against the weight of the evidence.
We heard the testimony as it was admitted during the three months of this trial. We have examined and reexamined the evidence, in light of the demeanor and credibility of the witnesses, and we simply cannot in good conscience find that the decision was against the weight of the evidence.
Defendant Messerlian raises no new arguments or issues. The main thrust of Messerlian's pre-trial motions, as well as his motion for acquittal following the government's case, was that Count 1, which charges that he wilfully deprived Joseph Topolosky of liberty without due process of law -- by administering summary punishment -- fails to charge a violation of federal law. We addressed these issues pre-trial and again at the close of the government's case. (See TT, vol. 29, pp. 5060-70). On the latter occasion we concluded that sufficient evidence had been adduced, both from eyewitnesses and expert testimony, to allow the jury to find a violation of 18 U.S.C. § 242. We have reviewed the record of this case, and we reaffirm that determination. Counseled primarily by United States v. Dise, 763 F.2d 586 (3d Cir. 1985), cert. denied, 474 U.S. 982, 106 S. Ct. 388, 88 L. Ed. 2d 341 (1985) and United States v. Delerme, 457 F.2d 156 (3d Cir. 1972), we find that ample evidence was presented which would allow a rational juror to find that Messerlian's conduct constituted a criminal violation of Joseph Topolosky's civil rights. The court in Dise held that the intent element of § 242 is satisfied if a defendant "acted in reckless disregard of the law as he understood it," even if he was not thinking in constitutional terms. We find that the record amply supports the inference that Messerlian acted "intentionally" within the meaning of Dise. (See, TT, vol. 29, pp. 5064-65). We reaffirm our prior analysis of the evidence presented during the course of our denial of the Rule 29 motion at the close of the government's case. At that time we found that,
the record allows a reasonable juror to conclude that, one, Messerlian administered the blows which have been described by the medical experts; and two, that he did so not for any legitimate police purpose, such as for the protection of persons or property, but rather for the purpose of administering punishment. We find that the evidence adduced in the government's case could allow the jury to find beyond a reasonable doubt that Messerlian administered "a physical beating as punishment for allegedly breaking the law [, acting] as prosecutor, judge, and jury." United States v. Delerme, 457 F.2d 156, 161 (3d Cir. 1972).
(TT, vol. 29, p. 5068). We reject the argument, for the reasons we have expressed on previous occasions, that there was a failure of proof either as to Messerlian's intent to deprive the victim of his rights, or as to the nature of Messerlian's conduct as rising to the level of a constitutional violation.
For the reasons stated above, we deny Wolkowski's and Messerlian's renewed Rule 29 motions, and their motions for a new trial.
We find that all post-trial motions must be denied. The evidence presented was sufficient to support the verdict; we have weighed the evidence and we find that a new trial is not warranted. We have rejected the post-trial evidence of Dr. Aronson. We find that he did not testify truthfully when he claimed the United States Attorney's Office concealed exculpatory evidence, that the "new evidence" which he now offers is merely cumulative of that previously considered, and that it would not affect the jury's verdict on retrial.
Implicit in these conclusions is the finding that Messerlian and Wolkowski received a fair trial. They were given considerable latitude in presenting evidence to the jury. Their cases were vigorously and intelligently presented by able counsel.
The evidence presented against the defendants, on the other hand, was substantial and compelling. We believe that the task left for the jurors after the completion of the presentation of evidence, was a difficult one. The length of their deliberations, the nature of their requests for information during those deliberations, and the nature of the verdicts leads to the conclusion that they intelligently and seriously examined the evidence and, as is their proper function, made the difficult factual determinations.
We find that the jury verdicts were proper, appropriate and fully supported by the evidence. We recognize that the verdicts have unhappy implications for everyone within the criminal justice system. They bring into sharp focus abuses of power and authority by persons sworn to protect the public welfare. However, only if the criminal justice system polices itself can it maintain the respect of the society it seeks to serve.
This matter having come before the court on the post-trial motions of defendants Harry Messerlian and Henry Wolkowski for judgments of acquittal or in the alternative for a new trial, and the court having considered the evidence presented in a hearing on March 14, 1986, and having considered the briefs and argument presented in support of and in opposition to the motions, and for good cause shown as is more fully described in the opinion of the court filed even date herewith;
It is on this 28th day of April 1986,
ORDERED that the motions be and hereby are denied.