Certiorari Denied December 8, 1975. See 96 S.Ct. 447.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
In this case, we must decide whether the double jeopardy clause bars the federal government from prosecuting appellant, Domenic DiSilvio, on a second indictment. The initial indictment was dismissed on defendant's motion after the jury had been impanelled and after evidence had been offered by the prosecution. We conclude that the double jeopardy clause does not bar a second trial. Accordingly, we affirm the district court's denial of appellant's motion to dismiss the second indictment.
Appellant DiSilvio was indicted for receipt and possession of radios stolen from an interstate shipment in violation of 18 U.S.C. § 659. After presentation of the government's case in a jury trial in April of 1974, DiSilvio moved for judgment of acquittal. The motion was denied.
DiSilvio argues that, although he moved for dismissal of the first indictment, we must grant the requested relief because the evidence offered by the government in the first trial was insufficient to support a guilty verdict. The first trial ended not because of any assessment of the evidence but because the district court ruled as a matter of law that the indictment was defective. We conclude that the evidence introduced at the trial on the original indictment was sufficient to make out a prima facie case under the statute. Therefore, we need not address DiSilvio's contention that the double jeopardy clause prohibits the government from trying a defendant on a legally sufficient indictment when at a previous trial based on a defective indictment devoted to the same allegedly criminal act the prosecutor has rested his case without establishing all the elements of the offense. Our focus for purposes of this appeal is directed solely at the district court's dismissal of the indictment.
The Supreme Court has consistently held that the double jeopardy clause does not bar reprosecution of a defendant who succeeds in overturning his conviction on appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).
In the instant case DiSilvio does not even allege that he was forced to seek a mistrial because of any intentional misconduct by the court or prosecution. At most, the United States Attorney was negligent in preparing a defective indictment. In Jorn, the Supreme Court suggested that negligent errors by the government which necessitate defendant's motion for a mistrial, are not sufficient to bar reprosecution. The court stated:
The language makes clear that a defendant need not be set free on double jeopardy grounds where negligence on the part of the government requires the court to grant defendant's motion for a mistrial.
Absent a showing of more than mere negligent error by the United States Attorney in the preparation of the first indictment, DiSilvio's argument in this case is without merit.
For the foregoing reasons, the district court's denial of the motion to dismiss the indictment will be affirmed.
With the Fourth Circuit, we deem this Cohen language especially appropriate in the double jeopardy context. United States v. Lansdown, 460 F.2d 164, 170, et seq. (4th Cir., 1972). In Lansdown the court stated:
This analysis is equally appropriate under Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), where the continuing validity of Cohen was indicated.
As such, we conclude that 28 U.S.C. § 1291 does not bar us from reviewing the denial of a motion to dismiss an indictment on double jeopardy grounds.
We note that in another context, state habeas corpus, we have recently held a state court's rejection of claims that a second trial is barred on double jeopardy grounds to be reviewable before the state defendant is subjected to a second trial. Although these cases dealt with exhaustion of state remedies rather than finality under § 1291, we stated that denial of immediate review would cause the habeas petitioner to forfeit the interests double jeopardy seeks to protect. See: United States ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir., 1975); United States ex rel. Stewart v. Hewitt, 517 F.2d 993 (3d Cir., 1975). That analysis is equally relevant in the finality context.
In United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the district court as trier of fact dismissed the indictment after presentation of the government's case. The Supreme Court agreed that appeal and reprosecution were barred since the dismissal, based as it was on facts adduced at trial, was tantamount to a judgment of acquittal. Reprosecution would require a second "resolution of factual issues going to the elements of the offense charged . . .." 95 S.Ct. at 1013.
In Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), the indictment was dismissed in pretrial proceedings before jeopardy had even attached. Government appeal was clearly proper in Serfass.
None of these cases addresses the effect of a legal ruling, made on defendant's motion, after jeopardy has attached, thus leaving Jorn as the last case to discuss, albeit in dicta, the issue raised by DiSilvio.