caused by the government's prosecution of this case as a unified scheme was that it linked the defendants with Henry J. Cianfrani, a convicted felon. Mr. Cianfrani's highly publicized conviction involved abuses of his position as a state senator and Majority Leader of the Pennsylvania Senate. Although Mr. Cianfrani never appeared at defendants' trial, because he was an unindicted co-schemer, there were constant references to him and his misdeeds.12a In a sense, the absent Cianfrani became the symbol of the "corrupt politician;" as an unindicted co-schemer, his "corruption" inevitably rubbed off on the defendants. This guilt by association was particularly pernicious because at least as to defendants Camiel and Fumo, the United States did not present evidence establishing their participation in a scheme involving Mr. Cianfrani.
Having found a prejudicial variance, I must determine whether the appropriate remedy is a judgment of acquittal or a new trial. Citing several legal authorities,
Mr. Camiel argues that a finding of prejudicial variance requires a judgment of acquittal. In his post-trial motions, Mr. Fumo asserts that a prejudicial variance is grounds for a new trial. While there are cases going both ways on this question, the standard for determining whether to grant a judgment of acquittal or a new trial is not clear. First, there is a paucity of cases discussing the issue. Second, those cases which deal with the question offer differing analyses. For example, the Second Circuit, in United States v. Russano, 257 F.2d 712, 716 (2d Cir. 1958) and later in United States v. Bertolotti, 529 F.2d 149, 158 (2d Cir. 1975) observed that a reviewing court must evaluate a prejudicial variance in the context of the particular case to determine whether a new trial or dismissal of the indictment would be in the "interests of justice." In United States v. Eaton, 501 F.2d 77, 80 (5th Cir. 1974), the Fifth Circuit stated that a finding of a materially prejudicial variance is equivalent to a finding of insufficiency of evidence and thus requires a court to enter a judgment of acquittal.
Viewing the variance in this case in light of these principles, I find that the appropriate remedy is to grant judgment of acquittal in favor of the defendants. First, I do not believe that the "interests of justice" would be served by granting a new trial and permitting the United States to retry this case. From the outset, the defendants have claimed that the government could not prove the single scheme alleged in the indictment. The United States has steadfastly maintained that it could prove the single scheme set out in the indictment. Despite my observations about the possible adverse consequences to the government of its failure to prove at trial the single scheme (N.T. 9/10/80, pp. 20, 69), the government declined to restate the scheme as multiple schemes and elected to try the defendants on the one scheme as alleged. Although it was given every opportunity to prove the scheme alleged in the indictment, the United States has failed. Under these circumstances, the interests of justice would not be served by granting a new trial instead of judgment of acquittal.
The second and more important reason why a judgment of acquittal is appropriate here is that double jeopardy considerations would preclude a new trial of the defendants under the present indictment. As I discussed previously, the government failed to prove that the defendants participated in the unitary scheme described in the indictment. Therefore, as a matter of law, the government's evidence was insufficient to prove the crime alleged.13a Under the principles stated in Hudson v. Louisiana, -- - U.S. -- , 450 U.S. 40, 101 S. Ct. 970, 971, 67 L. Ed. 2d 30 (1981), and Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1 (1978), when a reviewing court has found that the government, having received a "fair opportunity to offer whatever proof it could assemble," did not produce legally sufficient evidence, the Double Jeopardy Clause bars a retrial.
For all of the foregoing reasons, I find that the appropriate remedy to the prejudicial variance in this case is judgment of acquittal.
II. OTHER ARGUMENTS MADE IN SUPPORT OF JUDGMENT OF ACQUITTAL.
The defendants have presented other theories which they contend require me to grant judgments of acquittal. Many of these arguments challenge the sufficiency of the government's evidence regarding the requisite elements of the crime of mail fraud.
For example, Mr. Fumo claims that the government did not produce "substantial evidence" that he acted with a specific intent to defraud. However, as I have determined that the defendants are entitled to judgments of acquittal because the United States failed to prove the scheme alleged in the indictment, I need not reach the question of whether it established the essential elements of the offense as to each defendant. Accordingly, I will not discuss or decide the other arguments made both in support of and in opposition to judgment of acquittal.
III. MOTIONS FOR NEW TRIAL.
In their post-trial motions, the defendants also have made a number of arguments in support of their request for a new trial. Having carefully considered all of these claims, with one exception, I find them without merit and will not discuss them in this memorandum.
All of the defendants have requested a new trial on the basis that the prosecutor made improper comment during his closing argument regarding the credibility of their testimony at trial. In a number of opinions, the Third Circuit has expressed its disapproval of prosecutorial comment on the veracity of a witness or on the guilt of a defendant. See, e.g. United States v. Gallagher, 576 F.2d 1028, 1041-43 (3d Cir. 1978). In United States v. LeFevre, the Court of Appeals adopted Standard 5.8(b) of the American Bar Association's Prosecution Standards, which states:
It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence of the guilt of the defendant.