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December 26, 1979

Robert Roy WOODWARD.

The opinion of the court was delivered by: KNOX

The Court of Appeals for the Third Circuit has remanded this cause for our initial determination of defendant Robert Roy Woodward's contention that the Fifth Amendment's protection against double jeopardy as incorporated in the doctrine of collateral estoppel bars his conviction for perjury under 18 U.S.C. § 1623. U. S. v. Woodward, No. 78-1864, 595 F.2d 1215 (3d Cir. March 9, 1979 as amended March 28, 1979).


 The perjury charge arose out of testimony Woodward gave in his own behalf at an earlier trial in which he was charged with eight counts of transporting forged checks in interstate commerce in violation of 18 U.S.C. § 2314 and aiding and abetting in violation of 18 U.S.C. § 2 and one count of conspiring to commit the above offenses in violation of 18 U.S.C. § 371. Defendant was acquitted upon a general verdict on all counts following a trial held before Chief Judge Weber of this court. The government's theory as summarized by the Circuit, was as follows:

 The indictment on the basis of which defendant was convicted *fn1" in this court here charges that (Count 2): *fn2"

"ROBERT ROY WOODWARD, while under oath, did knowingly declare before said court and jury, in substance, that he had no knowledge concerning the acquisition or disposition of false identification, the typewriter from the offices of W and W Trucking and the checkwriter recovered by the Federal Bureau of Investigation from Susan Walker's apartment.
"6. The aforesaid testimony of ROBERT ROY WOODWARD, as he then and there well knew and believed, was false."

 Defendant's collateral estoppel claim was raised for the first time on appeal and, accordingly, the Circuit directed that we make the initial determination of such claim. This contention was never brought to the attention of this court during the proceeding here, but is now before us pursuant to the Circuit's mandate.

 The doctrine of collateral estoppel applies to criminal cases as part of the constitutional protection against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). The doctrine has its roots in the double jeopardy clause's policy against exposing a defendant to repeated risks of a conviction for the same offenses. In Ashe v. Swenson, the Supreme Court stated the reviewing court's approach to the issue as follows:

" "Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443, 90 S. Ct. 1189, 1194.
"The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 240 (92 L. Ed. 180). Any test more technically restrictive would of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal." Id. at 444, 90 S. Ct. at 1194 (footnotes omitted).

 We must, therefore, on the basis of the voluminous records in both cases determine whether the first trial necessarily decided that defendant's relevant testimony was true. Simply stated, does collateral estoppel preclude the relitigation of the truthfulness of defendant's testimony?


 Defendant, as stated, was indicted on charges of conspiracy, interstate transportation of forged, falsely made and counterfeited checks, and aiding and abetting in violation of Title 18 U.S.C. §§ 371, 2314 and 2. Four of defendant's alleged co-conspirators were called as government witnesses. Gary Laird and Kenneth Krayeski testified that Woodward had given them the forged checks, that they had cashed them at his direction, and delivered the proceeds to him for distribution among the conspirators. Susan Walker, a co-conspirator who knew that Woodward had disposed of the checkwriter, changed her testimony so as not to implicate Woodward. (Compare Tr. 276-289 of the initial trial with Tr. 178-195 of the subsequent perjury trial). David Ball, a co-defendant who had entered a plea of guilty testified that Woodward was not involved in the scheme and shouldered the responsibility himself. (Tr. 187-249). Another co-conspirator, Edward "Peanuts" Nowakowski, who was also a government witness, fled the district and was unavailable to testify. Nowakowski testified at the perjury trial that Woodward procured false identification and disposed of the typewriter and checkwriter. (Tr. 72-82) Woodward's defense at trial was that he had no connection with the scheme. On the stand Woodward categorically denied that he had any knowledge of the details of the scheme; he denied procuring false identification, obtaining and disposing of the checkwriter and typewriter used to forge the checks. (Tr. 440-486) In his closing argument, Woodward's counsel contended that the government's witnesses were unbelievable and that the government had failed to meet its burden of proof. Woodward was acquitted by general verdict on all counts.

 Following the jury verdict of not guilty, Woodward was indicted for violating 18 U.S.C. § 1623 by reason of the false testimony he had given at the trial concerning his knowledge or lack of knowledge of the details of the criminal scheme. At the perjury trial, Nowakowski testified that he had given Woodward one of the sets of false identification used in the scheme, that he and Woodward had delivered the checkwriter to Susan Walker's apartment and that he had then disposed of the typewriter by throwing it into Lake Erie. Nowakowski testified that they had taken the checkwriter and the typewriter from defendant's office (Tr. 71-80).

 Susan Walker corroborated Nowakowski's testimony that it was he and Woodward who brought the checkwriter to her apartment and that she had lied at defendant's first trial at Woodward's request. (Tr. 178-194) Jay Nedell, Esq., an attorney who was associated with defendant's original counsel at the first trial, identified a tape recording of a November 5, 1975, pretrial interview with Walker in which she stated that Woodward brought the checkwriter to her apartment. (Tr. 256-271) Defendant again took the stand in his own defense and categorically denied having any knowledge of the details of the scheme. (Tr. 467-558) The substance of his testimony at the two trials was essentially the same. Defendant was found guilty of perjury.


 Defendant argues that Ashe v. Swenson, supra, bars his conviction. The evidence introduced in the perjury case was essentially the same as the evidence presented on the earlier charges. We are, therefore, "called upon to determine whether the "same evidence' test or the "same transaction' test properly defines the scope of the "same offense' phrase in the double jeopardy clause. *fn3" Compare Ashe v. Swenson, 397 U.S. 436, 452-60, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (Brennan, J., concurring) with Id., at 463-64, 90 S. Ct. 1189 (Burger, C. J., dissenting). See generally the Supreme Court 1976 Term, 91 Harv.L.Rev. 70, 101-14 (1977)." U. S. v. Venable, 585 F.2d 71, 74 n. 3 (3d Cir. 1978).

 Ashe, however, does not prohibit the admission of the Same evidence at the second trial, but only prohibits the relitigation of the issues conclusively decided in defendant's favor in the first prosecution. Accord, U. S. v. Fowler, 463 F. Supp. 649, 651 (W.D.Va.1978); Smith v. U. S., 277 F. Supp. 850 (D.Md.1967), aff'd 401 F.2d 773 (4th Cir. 1968). Application of collateral estoppel under defendant's reasoning would convert the guarantee ...

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