(concurring in part and dissenting in part).
I am fully in accord with the reasoning and conclusion of the majority that the judgment of dismissal should be affirmed as to the defendant Moss. But I cannot agree that the district court erred in dismissing the complaint as .to the .other defendants also, for I think that the question of perjury in the plaintiff’s criminal trial in the Pennsylvania court which he now seeks to litigate was necessarily determined against him by the verdict and judgment of guilty rendered in that trial and that he is accordingly estopped from relitigating it here. And, of course, if the testimony of the Commonwealth’s witnesses, on which the plaintiff admits he was convicted, was truthful, as I believe the verdict against him necessarily decided, then his charge of conspiracy necessarily fails.
I. agree, of course, that, as the Supreme Court held in Emich Motors Corp. v. General Motors Corp., 1951, 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534, in determining whether the litigation of a question in a civil suit is barred by the judgment of conviction in a prior criminal suit, the standard is whether the question was “ ‘distinctly put in issue and directly determined’ in the criminal prosecution.” But I note that in the Emich Motors Corp. case the Court also said: “In the case of a criminal conviction based on a jury verdict of guilty, issues which were essential to the verdict must be regarded as having been determined by the judgment.” It is true that in most cases it may not appear with certainty from the face of the plaintiff’s civil complaint that the issue upon which he seeks to rely was “distinctly put in issue and directly determined” by the jury in his prior criminal trial. Our case of Basista v. Weir, 1965, 340 F.2d 74, presents such a situation.
However, where as here the issue involved is whether the prosecution witnesses, upon the basis of whose false testimony the plaintiff says that he was convicted, did actually commit perjury at his trial, the issue is one the resolution of which by the jury was “essential to the verdict.” For if, as the plaintiff alleges, it was the testimony of those witnesses which influenced the jury to find him guilty, .the jurors must necessarily have believed them to be telling the truth. I think, therefore, that the district court rightly concluded that the judgment entered on the verdict of guilty in the plaintiff’s prior criminal trial estopped him from relying in his present suit upon the claim .that they committed perjury, regardless of whether or not the issue of their veracity was distinctly put in issue by the charge of the trial judge. Certainly the basic function of the fact finder, be he juror or judge, in every trial which is contested on the facts is to determine where the truth lies. He is always squarely faced with this task and he must perform it if he is faithful to his sworn duty to render a true verdict. And in doing so he necessarily determines that the testimony of those witnesses is .truthful which is necessary to his findings. I think, therefore, that, at least in the absence of allegations of fraud in the conduct of the jurors in the performance of their duty or other intrinsic fraud in the trial, and there are no such allegations here, the district court was fully justified in holding that the plaintiff was estopped, from relying in the present suit upon allegations of perjury by the Commonwealth’s witnesses upon whose testimony he admits that he was convicted and in dismissing the complaint as to all the defendants.
Since in my view the judgment of dismissal was right and should be affirmed in whole, I would not, gratuitously, open it to permit amendment of the complaint, as the majority proposes to do.