'But although not technically a former acquittal, the judgment was conclusive upon all that it decided.'
In relation to this the court say in the DeAngelo case (138 F.2d 468):
'Nor can there be any requirement of mutuality with respect to a criminal judgment's conclusiveness.'
Notwithstanding, the court subsequently refers to the verdict in the former case as though it were the judgment. It is submitted that this is not the rule. A verdict without a judgment does not raise an estoppel or operate as res judicata or autrefois acquit.
The trial court carefully called the attention of Mr. Margiotti, counsel for the defense, to this technical requirement in plenty of time to have cured the matter by the introduction of a judgment. He was of counsel in the former trial also. However, Mr. Margiotti chose to stand on the record as it was. In the exposition of estoppel in criminal cases set out in United States v. Oppenheimer, 242 U.S. 85, 87, 37 S. Ct. 68, 69, 61 L. Ed. 161, 3 L.R.A. 516, the point is made abundantly plain
'It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government's consent before a jury is empaneled; * * * .' (Emphasis supplied.)
In any event, as a practical matter, the court gave the defendant complete protection against re-trial of the facts underlying the former judgment, if there was any. As noted above, the court extended the rule far beyond anything to which this defendant was entitled.
The point is raised as to the defendants Greenes and Memolo that the Grand Jury testimony given by them respectively was recited by the official reporter to the jury in this case. It is contended that there was no authority for the use of such testimony in the case of the prosecution in chief but that the United States would be confined to the use of such testimony for impeachment of the particular defendant as a witness. The court, by positive instructions, prevented the use of this testimony as against any of the other defendants and therefore, none are involved in consideration of this question except the defendants who gave the testimony themselves. The Government is always entitled to prove what the defendant said about the acts charged in the indictment. The expressions of a defendant may be denials of guilt. They may contain hearsay. They are admitted for the purpose of showing his state of mind with reference to the acts done. The Government has never been denied the right to use a confession of a defendant in chief provided it was voluntarily made. Proof of ordinary admissions can be made without preliminary foundation as to voluntariness even when produced in chief. The evidence of the admissions before the Grand Jury of one of these defendants should not be excluded simply because these were made before an official body. Even though the testimony is construed as a confession it should not be excluded from the Government's case in chief. The rule as to admissions and confessions made elsewhere certainly should control here. The testimony was adduced before the Grand Jury in response to lawful process, namely, a subpoena, and the record shows that the defendant was specifically warned of his right against self-incrimination. The secrecy of the Grand Jury investigation should be no bar. All the precautions which are often lacking in extra-judicial admissions or confessions were here taken. Therefore, the Government had a right to bring out the relation of the testimony of each of these defendants as against him alone on the ground that it contained admissions against interest. The court carefully instructed the jury that proof of a conspiracy and the doing of an overt act must be found before the admissions of a defendant could be used to determine whether that defendant was a participant in the conspiracy.
The motions are denied.