United States of America, Appellee, v. James Sutton Regan, Jack Z. Rabinowitz, Steven Barrysmotrich, Charles M. Zarzecki, Paul A. Berkman,and Bruce Lee Newberg, Defendants-appellants, 946 F.2d 188 (2d Cir. 1991)

ORDER AMENDING OPINION

On June 28, 1991 we filed a decision affirming in part and reversing in part judgments of conviction that followed a trial on a 64-count indictment in the Southern District of New York. As appears in our opinion, reported at 937 F.2d 823, we separated the plethora of counts into two groups which we labeled "THE TAX FRAUDS" and "THE SECURITIES FRAUD". For various reasons, we vacated the counts in the tax frauds group but affirmed the counts in the securities fraud group. We also affirmed the conspiracy count whose allegations fell into both groupings.

Although appellants James Sutton Regan, Jack Z. Rabinowitz, Paul A. Berkman, and Steven Barry Smotrich did not argue in either their briefs or oral presentations in this court that they did not conspire to commit securities fraud, they now move to have their conspiracy convictions vacated. Because the participants in the trial below all appear to have assumed that these four defendants were not involved in the alleged securities fraud and there is little proof to justify a finding to the contrary, we conclude that the motion should be granted. The weakness in the Government's case concerning participation by these defendants in the securities fraud portion of the alleged conspiracy inclines us to the belief that the jury considered the conspiracy count against these four defendants only as it related to the alleged tax frauds. In any event, we are unable to state with certainty the true basis of the jury's general verdict against these four defendants on the conspiracy count. See Zant v. Stephens, 462 U.S. 862, 881, 103 S. Ct. 2733, 2745, 77 L. Ed. 2d 235 (1983); United States v. Garcia, 907 F.2d 380, 381 (2d Cir. 1990). Accordingly, our prior decision is amended to provide that the conviction of the four above-named defendants on the conspiracy count is vacated, and the issue of their guilt on this count is remanded for further proceedings.

In its response to the above motion, the Government pointed out that the court had made clerical errors with regard to the securities fraud counts on which Newberg and Zarzecki were convicted. The Government is correct. The errors apparently resulted from confusing the paragraph numbers with the count numbers in the lengthy and complicated indictment. Whatever the cause, they must be corrected. Both defendants were properly convicted on counts 48 to 53, and our prior decision therefore is amended to provide that the convictions of both Newberg and Zarzecki on counts 48 to 53 are affirmed.