U.S. v. Ceccolini

Decision Date15 September 1976
Docket NumberD,No. 1125,1125
Citation542 F.2d 136
PartiesUNITED STATES of America, Appellant, v. Ralph CECCOLINI, Defendant-Appellee. ocket 76-1091.
CourtU.S. Court of Appeals — Second Circuit

Peter D. Sudler, Sp. Atty., U. S. Dept. of Justice, New York City (Michael D. Abzug, Sp. Atty., U. S. Dept. of Justice, Robert B. Fiske, Jr., U. S. Atty., Southern District of New York, New York City, Steven A. Schatten, Asst. U. S. Atty., on the brief), for appellant.

Joel Martin Aurnou, White Plains, N. Y. (Greenspan & Aurnou, White Plains, N. Y., on the brief) for appellee.

Before KAUFMAN, Chief Judge, and FEINBERG and VAN GRAAFEILAND, Circuit Judges.

FEINBERG, Circuit Judge:

This admirably argued case comes to us in an unusual procedural posture. After a non-jury trial in the United States District Court for the Southern District of New York on two counts charging perjury before a grand jury, 18 U.S.C. § 1623, Judge Lee P. Gagliardi found defendant Ralph Ceccolini not guilty on one count and guilty on the other. But the judge then immediately set aside the guilty verdict on the ground that essential testimony against defendant had to be suppressed as the fruit of an illegal search. Citing 18 U.S.C. § 3731 and 28 U.S.C. § 1291, the Government appeals and argues that the judge erred in suppressing the evidence and setting aside the verdict. Appellee Ceccolini contends that the Double Jeopardy Clause bars the Government's appeal and, even if that is not so, that the judge's ruling was correct. We reject the former contention, but agree with the latter. Therefore, we affirm.

I.

The relevant facts are as follows. In the second half of 1973, federal authorities conducted an investigation of gambling in North Tarrytown, New York. Surveillance by federal agents included various stores, including defendant Ceccolini's Sleepy Hollow Flower Shop, which were frequently visited by Francis J. Millow, a target of the investigation. In this period, the agents did not question any employee of any of these businesses. Surveillance was discontinued in December 1973. 1

On December 18, 1974, North Tarrytown Police Officer Ronald Biro entered the flower shop merely, according to Biro, to enjoy a cigarette break. He went into the part of the shop customarily used only by employees, where he noticed on the cash register an envelope with some money sticking out. Biro picked up the envelope, examined its contents, saw that it contained currency and policy slips, and replaced it. Lois Hennessy, an employee, was present while this was going on. Biro did not tell Miss Hennessy what he had seen in the envelope but did ask her questions about it. Miss Hennessy told Biro that Ceccolini had told her to give the envelope to someone.

Within 24 hours, Biro notified North Tarrytown detectives who, in turn, informed Lance Emory, an FBI agent who had participated in the gambling investigation. About four months later, Emory interviewed Miss Hennessy at her home for about 20-30 minutes. At the time, Emory was under the impression that Biro's activities had been entirely legal. Miss Hennessy related the events of the December 18, 1974 incident to Emory. Thereafter, defendant Ceccolini was subpoenaed before the grand jury and testified that he had never taken policy bets at his flower shop for Francis J. Millow. The following week, Miss Hennessy gave contradictory testimony before the grand jury; shortly afterwards, Ceccolini was indicted on the perjury charge now the subject of this appeal. 2

Ceccolini made several motions in preparation for trial. In July, the district judge granted various requests for discovery; the Government did not comply until the end of September, shortly before the scheduled trial date. The Government's list of witnesses included Officer Biro, and when the defense interviewed him, it learned for the first time of Biro's December 18, 1974 search. At the start of the trial, defendant orally moved to suppress testimony, including Miss Hennessy's, derived from Biro's search but acceded to the judge's suggestion that the hearing on the motion proceed simultaneously with the non-jury trial. Thereafter, the judge heard testimony from Officer Biro, Agent Emory and others. At the close of the Government's case, defendant moved for a directed verdict, which was denied. Defendant testified in his own behalf and called other witnesses. The judge, as the trier of fact, reserved decision until after considering a memorandum of law submitted by the Government on the suppression of Miss Hennessy's testimony.

Several months later, the judge in open court pronounced the defendant guilty on Count 1 but then immediately stated his assumption that the defendant's prior motion for a directed verdict included "a motion now . . . to set aside the verdict of guilty on Count 1." Defendant's counsel quickly acquiesced, and the judge then gave an oral opinion in which he first granted the motion to suppress Miss Hennessy's testimony and then set aside the verdict for insufficient evidence. Some colloquy followed in which defense counsel said that the testimony should have been suppressed before the verdict, in which event the Double Jeopardy Clause would have barred government appeal. The judge disagreed and confirmed this view in a later memorandum opinion, which stated, in relevant part:

In light of the serious legal issues raised by the motion to suppress particularly on the question of taint it was this court's explicit intention that the government have the right to appeal an adverse decision on that issue. 18 U.S.C. § 3731 clearly contemplates that the government be permitted to appeal trial court rulings which do not place a defendant in double jeopardy. Here Ceccolini was found guilty on the basis of all the evidence presented to this court. His conviction was set aside because evidence adduced at trial indicated that the testimony of the government's key witness was tainted by an illegal search. The hearing on the motion to suppress was consolidated with the trial for the convenience of the court, counsel and the witnesses, without objection by Ceccolini. Furthermore in this case the issue of taint was sufficiently uncertain that had there been a jury trial, the court would have let the Hennessy testimony go to the jury and then ruled on the motion to exclude it in the event Ceccolini was convicted. Under those circumstances, the government would then have had the right to appeal this court's ruling. There is no reason why the government should be deprived of this opportunity because the case was tried without a jury.

This appeal by the Government followed.

II.

Ceccolini renews his argument that under the circumstances of this case the Double Jeopardy Clause precludes a government appeal. He claims that the judge should have ruled on the admissibility of Miss Hennessy's testimony before deciding the ultimate issue of guilt or innocence. Had the judge done that, he would have had to acquit because the evidence was otherwise insufficient to convict, as the judge found. Since the Government could not have appealed from such a judgment, it should not be able to do so now.

The argument is correct as far as it goes but it does not go far enough. The judge could have followed the suggested procedure but it was not the only possible alternative. The judge could also have ruled on the motion to suppress prior to the start of the trial. If he had followed that course and reached the same result, the Government points out to us, it could have immediately appealed under 18 U.S.C. § 3731 to test the suppression ruling. We are aware that Ceccolini did not know until just before trial about Biro's search and his connection with the Hennessy testimony and so could not have moved sooner. 3 We also realize that such a motion would have required a separate evidentiary hearing. But in a non-jury case such potential duplication of testimony is often eliminated at trial, if the motion to suppress is denied, by allowing the record of the suppression hearing to be used at trial. That procedure would have been preferable to the one followed here. See United States v. Birrell, 470 F.2d 113, 115 (2d Cir. 1972).

In any event, we agree with the district judge and the Government that the course followed here did not deprive it of the right to appeal. The judge as trier of fact first found defendant guilty and then granted defendant's motion to set aside the guilty verdict. In United States v. De Garces, 518 F.2d 1156 (2d Cir. 1975), the same sequence occurred and we held, on the authority of United States v. Jenkins, 420 U.S. 358, 365, 368, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), that the Government could appeal. The trier of fact in De Garces was a jury and here it was a judge, but the distinction is not controlling. If the Government's position on the merits is correct, "a retrial would not be required." United States v. Jenkins, supra, 420 U.S. at 365, 95 S.Ct. at 1011, citing United States v. Wilson, 420 U.S. 332, 344-45, 352-53, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). In De Garces, since the Government's position on the merits was correct, we merely vacated the judgment of acquittal granted by the judge after the guilty verdict and remanded the case to the district court with directions to reinstate that verdict. If the Government were correct here on the merits, we would follow the same procedure. 4 This appeal is not offensive to the Double Jeopardy Clause.

III.

We turn now to the merits of the Government's appeal. The most damning evidence on Count 1 was the testimony of Lois Hennessy that, while she was an employee at the flower shop, she saw customers place bets with Ceccolini and that she knew these bets were turned over to Millow. Although Miss Hennessy's testimony was corroborated, the judge was correct in holding that without it there was insufficient evidence to convict defendant. The more difficult...

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