ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Crim. Nos. 76-22-1, 2, 3 & 4.
Van Dusen, Adams and Gibbons, Circuit Judges.
This is an appeal primarily arising out of the declaration of a mistrial in a criminal proceeding. The defendants proffer three issues for our consideration: whether the issuance of a second indictment against the defendants violates the Double Jeopardy Clause; whether the prosecution engaged in misconduct which precludes the possibility of a fair trial; and whether a trial under the second indictment is barred by the statute of limitations. However, as a threshold matter, we must first decide whether this Court has jurisdiction, at the present time, to consider any of the points pressed by the defendants.
On February 25, 1976, defendants Cerilli, Buffone and Yackovich were indicted for conspiracy and substantive violations of the Hobbs Act. All three men are high ranking officials of the Pennsylvania Turnpike Commission, and it is alleged that they had demanded and obtained money from persons who leased equipment to the Commonwealth by the wrongful use of fear and under color of official right.
A trial commenced in late April of 1976 and took place over a three-week period. On May 17, 1976, the district judge charged the jury, and the deliberations then were initiated. Shortly thereafter, the judge was informed that one of the jurors had taken ill. Such juror was examined first by a nurse and then by a physician at a nearby hospital emergency room. The district court consulted with the medical personnel, and the juror then was hospitalized.
As a result of this development, the trial judge gave defense counsel the choice of proceeding with eleven jurors or moving for a mistrial. Also, the defense attorneys were asked if they would stipulate that the ill juror could rejoin his colleagues if and when he sufficiently recovered. But the defendants and their attorneys opted for a mistrial.
Immediately prior to and following the declaration of the mistrial, the proceedings received extensive press coverage in Pittsburgh and throughout Pennsylvania. Interviews were conducted with many of the principals in the case, including an interview with one Assistant United States Attorney who voiced his disappointment in the mistrial and who indicated that the case would be retried.
On May 21, 1976, the government filed a motion to reconvene and poll the jury, claiming that "prior to the separation of the ill juror, the jury had unanimously agreed on a verdict as to several counts of the indictment." Such motion was asserted in anticipation that partial verdicts might be entered. On May 25, however, the trial court denied the motion to reconvene and poll the jury. The press reported, in considerable depth, the events surrounding the motion to reconvene.
Not content to leave all post-trial maneuvering to the government, the defendants presented a motion for a judgment of acquittal on May 24 and, in July of 1976, also moved to dismiss the indictment or at least to secure a change of venue because of the extensive publicity that had been accorded the proceedings.
A "superseding" indictment was filed on August 5, 1976, which named a new defendant (Shurina) and listed six additional substantive counts. One admitted purpose of this second indictment was to counter court rulings in the original trial that had excluded evidence of similar acts of alleged corruption on the part of the defendants, acts which the government had desired to introduce on issues such as motive, intent and preparation. In the view of the district judge, such similar acts should have been set forth in the initial indictment, and he was unwilling to permit a constructive amendment of the indictment by admitting such evidence.
The defendants' request for acquittal was denied on August 13. But, on August 24, the defendants filed another motion to dismiss the charges against them or to obtain a change in venue. The motion to dismiss rested, in part, on the premise that any proceedings based on the superseding indictment would impermissibly expose the defendants to double jeopardy. On January 25, 1977, and after a hearing, the dismissal motion was rejected by the district judge. However, he reserved decision respecting the venue issue until the voir dire for the retrial was completed.
On February 2, 1977, the defendants filed an appeal from the denial of their motion to dismiss. At that juncture, the government moved to quash the appeal on grounds that there was no final appealable order. Such motion and the ...