APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 74-139).
Adams, Rosenn and Hunter, Circuit Judges.
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.*fn1 DiSilvio then moved for dismissal of the indictment which was defective in failing to state the facility from which the theft had occurred. The district court granted DiSilvio's motion to dismiss the indictment.*fn2 A more complete indictment charging DiSilvio with the same violation of 18 U.S.C. § 659 was subsequently issued. DiSilvio's pretrial motion to dismiss was denied and the instant appeal followed.*fn2a
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, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969); United States v. Ball, 163 U.S. 662, 41 L. Ed. 300, 16 S. Ct. 1192 (1896).*fn3 See: United States v. Beard, 414 F.2d 1014, 1017 (3d Cir., 1969) (where we stated that reversal of a conviction obtained under a defective indictment did not bar retrial.) Similarly, the Supreme Court has stated: "Where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial errors." United States v. Jorn, 400 U.S. 470, 485, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971); United States v. Tateo, 377 U.S. 463, 12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964).*fn4 In this Circuit, the cases applying the double jeopardy provision have been consistent with the above statement by the Supreme Court. United States v. Pappas, 445 F.2d 1194, 1200 (3d Cir., 1971) cert. denied sub nom; Mischlich v. United States, 404 U.S. 984, 92 S. Ct. 449, 30 L. Ed. 2d 368 (1971); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 558 (3d Cir., 1969) cert. denied 399 U.S. 912, 26 L. Ed. 2d 566, 90 S. Ct. 2206 (1970). See also: United States v. Jamison, 164 U.S. App. D.C. 300, 505 F.2d 407, 410 (1974); United States v. Romano, 482 F.2d 1183, 1187 (5th Cir., 1973);*fn5 United States v. Goldstein, 479 F.2d 1061, 1066 (2d Cir., 1973); Roberts v. United States, 477 F.2d 544, 545 (8th Cir., 1973); United States v. Franke, 409 F.2d 958, 959 (7th Cir., 1969); Raslich v. Bannan, 273 F.2d 420 (6th Cir., 1959).*fn6
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 determination to allow reprosecution in these circumstances reflects the judgment that the defendant's double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial errors. 400 U.S. at 484.
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 ...