APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-432)
Before Seitz, Chief Judge, Hunter, Circuit Judge, and Lacey,*fn* District Judge.
This appeal presents the issue whether retrial of the defendant appellant (McKoy), following termination of her original trial by mistrial declared by the district court over her objection, is violative of the Double Jeopardy Clause of the fifth amendment. McKoy appeals from denial below of her motion to dismiss the indictment on double jeopardy grounds. We reverse.
On October 5, 1977, and following a preliminary examination held on September 7, 1977, before a magistrate who found probable cause, Fed.R.Crim.P. 3, 5.1, McKoy was indicted in three counts, charged with possession of stolen mail (18 U.S.C. § 1708); aiding and abetting the forgery of a United States Treasury check (18 U.S.C. §§ 495 and 2); and uttering of the same check (18 U.S.C. §§ 495 and 2).
Critical to the charges against McKoy, and to the issue before us, was whether McKoy was present in the store of one Piatigorsky in October 1976 when the forged treasury check, which was the subject of the indictment herein, was allegedly passed to Piatigorsky by a customer. At trial and pretrial the United States, relying chiefly upon Piatigorsky's evidence, contended that McKoy was not only present, but indeed had aided and abetted her companion in passing the check. McKoy denied she was present. Additionally, she stated that, at a time between the preliminary examination and the indictment, she had confronted Piatigorsky in his store and that he had, in the ensuing discussion, admitted that she had not been in the store at the time he received the forged check. Piatigorsky acknowledged the confrontation but denied he had exculpated McKoy.
What was eventually to lead to the mistrial was first brought to the attention of the trial judge at a hearing on January 24, 1978, a month before trial, when McKoy's attorney stated that he had been present during McKoy's confrontation of Piatigorsky and had heard Piatigorsky exculpate McKoy. The court, recognizing the significance of the issue, suggested that McKoy's attorney might have to testify at trial in support of her testimony, and that, if he intended to do so, he should not continue as trial counsel.
The problem raised by the court was then thoroughly discussed, App. 22a-37a; unfortunately, it was not completely resolved. Initially, the court stated that counsel's decision whether to testify or not had to be made before the upcoming hearing on McKoy's motion to suppress Piatigorsky's photographic identification testimony (which was held on February 17, 1978), that if he testified he would have to withdraw as trial counsel, and that, if the suppression motion were to be denied, counsel "would have an affirmative duty to appear as a witness." App. 22a-23a; App. 30a.*fn1
Counsel then stated that he was "willing to decide it today. . . . I will not testify. I think I have two other people who will testify." App. 33a-34a. The Assistant United States Attorney then asked the court to bar McKoy's attorney from including, in any questions put at trial to McKoy or any other witnesses to her confrontation with Piatigorsky, any suggestion that the attorney had also been on the scene and "was taking the same position as the witness." App. 34a.
The court, while rejecting this request, indicated that, if McKoy's attorney did make such a reference, the United States would be permitted "to comment very, very freely on that." App. 35a.*fn2
The court, unwilling to accept counsel's decision not to testify, then reopened the issue, urging counsel "to make that decision as to whether or not your present client's interest is best served by your appearing as a witness and having someone else try the case." App. 36a-37a. The court then addressed the defendant personally:
I want you and (your attorney) to discuss whether or not he will appear as a witness and, if he does, then it may mean that, and probably would mean, that you have to get other counsel but I ...