The opinion of the court was delivered by: GARTH
On February 23, 1967, a federal grand jury returned a nine-count indictment charging two conspiracies and seven substantive violations of 18 U.S.C. § 1952. Defendants made more than 40 pretrial motions, one of which sought dismissal of the indictment on the basis of "alleged systematic exclusion of and discrimination against women in compiling the grand jury lists." United States v. Zirpolo, 450 F.2d 424 (3rd Cir. 1971). The District Court denied this motion. 288 F. Supp. 993 (D.N.J. 1968).
After a lengthy trial, the jury returned a verdict convicting defendant Jacks on Counts I, VI and VII; defendants Feldman and Leuty on Counts I and VI; defendant Colonial Pipeline Company on all Counts; defendant Rowland Tompkins Corporation on Counts I through VI; and defendant Bechtel Corporation on Counts VI and VII. Defendants appealed and the Court of Appeals for this Circuit reversed the convictions holding that the procedure utilized in the selection of the grand jury which returned the indictment was violative of federal law. United States v. Zirpolo, supra. On July 29, 1971, the District Court entered an Order on mandate setting aside the convictions and dismissing the indictment.
On August 3, 1971, within six months of both the Court of Appeals decision and the District Court's dismissal of the earlier indictment, a federal grand jury returned a nine-count indictment identical in all material respects with the earlier indictment. Defendants were again charged with the same offenses charged in the earlier indictment, including those upon which the defendants had been acquitted. The aforementioned defendants have each moved to dismiss this latter indictment. In support of their applications to this Court, defendants advance the following contentions:
(1) That the Court of Appeals in United States v. Zirpolo, supra, expressly prohibited the present indictment of the defendants;
(2) That the indictment returned against the defendants is barred by 18 U.S.C. § 3282;
(3) That all Counts of the present indictment violate the fifth amendment's prohibition against double jeopardy;
(4) That the Counts of the 1971 indictment which charge offenses upon which defendants were acquitted violate the principle of autrefois acquit.4
After holding that the grand jury selection process was unconstitutional, the Court of Appeals in United States v. Zirpolo, supra, considered the possible retroactive application of its decision. The Court stated:
"* * * [We] are concerned that the application of full retroactivity could have a profound effect on the administration of criminal justice. Where a challenge to the jury selection process has been preserved and the statute of limitations has run, no new indictment could be returned. In cases in which the statutory limitation has not expired, reindictments and new trials would be required, creating serious, adverse effects on criminal trial calendars * * *." United States v. Zirpolo, 450 F.2d at 433.
"Whenever an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury * * * after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment * * *." 18 U.S.C. § 3288.
Defendants contend that the Court of Appeals clearly held that the present indictment was barred, notwithstanding the existence of 18 U.S.C. § 3288, and that the statement of the Court in that respect is res judicata and the "law of the case". In order for the Court of Appeals to have determined that these ...