Appeal from order of the United States District Court for the Southern District of New York, David N. Edelstein, J., denying motion to dismiss indictment on double jeopardy grounds.
Feinberg, Chief Judge, Meskill and Newman, Circuit Judges.
Kwang Fu Peng appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, J., denying his motion to dismiss an indictment because it subjected him to double jeopardy. Appellant's first trial ended in a mistrial, declared sua sponte by Judge Edelstein after the judge disqualified appellant's counsel from continuing in the case. 602 F. Supp. 298. For reasons stated below, we affirm the order of the district court.
Appellant Peng was arrested in July 1984 on a complaint charging him with interstate transportation of property obtained by theft, conversion or fraud in violation of 18 U.S.C. § 2314. Shortly thereafter, an indictment on this count was returned. It was soon superseded by an indictment that added a count of wire fraud, 18 U.S.C. § 1343. Both of these counts arise out of the same series of transactions, the characterization of which is very much in dispute. The government has alleged that appellant defrauded certain businessmen, including one Geoffrey Harrison Galley, by holding himself out as the representative of a Far Eastern government interested in selling 400 metric tons of gold. Appellant, the government contends, was thereby able to persuade his victims to advance him $200,000 to pay for certain "expenses," a sum that appellant proceeded to convert to his own use. Appellant has at all times maintained that the $200,000 was a non-refundable commission, his to keep even though the proposed deal was never consummated.
Immediately after his arrest, appellant retained Anthony J. Ferrara, Esq., as his counsel. Ferrara continued in this capacity through appellant's trial, which began on January 29, 1985. In his opening, Ferrara argued what appears to have been the theme of his client's defense: "What this case is all about is an attempt by Geoffrey Harrison Galley, a multi-millionaire from England, to get out of a bad business deal." In support of this characterization, Ferrara noted that even after Peng's arrest, Galley "continued to negotiate in an attempt to resurrect this transaction."
Galley was the first witness called by the government. It is undisputed that at no time during his direct examination was Galley asked for, nor did he give, any testimony relating to post-arrest contacts with Peng or his attorney. During cross-examination, in support of the defense's theory, Ferrara sought to elicit testimony from Galley regarding such post-arrest negotiations. After Ferrara made reference to Peter Skourlis -- who, appellant alleges, was Galley's agent in New York -- the following exchange took place:
FERRARA: You did talk to Mr. Skourlis about this gold transaction, correct?
FERRARA: You did not talk to him about the gold transaction?
GALLEY: I don't believe an answer yes or no is adequate for the question.
FERRARA: Did you talk to Mr. Skourlis?
THE COURT: Please give the answer you believe is adequate.
GALLEY: Mr. Skourlis approached me and said, "Do you, sir, wish to meet with me," because there was a terrible misunderstanding. Mr. Peng had all the money and had not in fact, touched the money, and he could prove that all the statements that he had made concerning the ...