Linen Supply, supra, 430 U.S. at 571 (brackets in original). The Third Circuit has recently applied this test to a proceeding terminated after the jury was sworn, but prior to a fact-finding as to guilt or innocence. Thus, in United States v. Maker, supra, the court held that the district court's dismissal of an indictment for failure to allege facts sufficient to sustain a conviction on a charge of a single scheme to defraud did not bar an appeal, or a re-trial, of such case. 751 F.2d at 623-24. Though the district court had based its holding in part upon the transcript of prior civil proceedings and the government's opening, as well as the indictment, the Court of Appeals held that the factual determinations it made did not resolve an essential element of the case, and that the prior ruling was thus appealable. Id. at 623 and n.30.
Here, there was overwhelming evidence, presented at the trial below, that defendant had indeed transported checks valued at greater than $5,000 across state lines, in violation of 18 U.S.C. § 2314. The jury so found, based upon an improper charge, see Defendant's Supp. App., 1/5/83 Transcript at 54, and the court, in its Opinion, agreed. 555 F. Supp. at 378 (". . . defendant was clearly guilty of transporting and negotiating stolen checks and the jury so found.") While in complete agreement with the jury's verdict of guilt, the court nonetheless dismissed the indictment on what it saw as purely legal grounds, amounting, in effect, to drafting error in the indictment. Though defendant argues as persuasively as possible that in so ruling, the court took into account the facts as presented to the jury in the form of stipulations or of the checks themselves, see Defendant's Supp. App., 1/4/83 Transcript at 79, 85, such was clearly not the case. Indeed, the court's ruling was based solely upon and directed toward the indictment itself. The sufficiency of the evidence actually presented was not at issue, and was not considered by the court in arriving at its decision. Rather, the court's decision was predicated upon an analysis of the indictment alone and would have been the same had no evidence been presented.
Accordingly, the double jeopardy clause poses no obstacle to defendant's re-prosecution, and the motion to dismiss on double jeopardy grounds must be denied. Such result is in perfect accord with the caselaw. Just as appellate reversal of a conviction on grounds other than sufficiency of the evidence does not bar a re-trial, so does reversal by the trial court itself on such legal grounds pose no double jeopardy problem. See, e.g., United States v. Wilson, supra, 420 U.S. at 345 ("It is difficult to see why the rule [that an appellate court's reversal of a conviction on legal grounds does not bar further review, or retrial] should be any different simply because the defendant has gotten a favorable post-verdict ruling of law from the District Court rather than the Court of Appeals . . ."). See also United States v. Kopp, 429 U.S. 121, 50 L. Ed. 2d 336, 97 S. Ct. 400 (1976) (bench trial). See generally United States v. DiFrancesco, supra, 449 U.S. at 130 (citing cases).
Similarly, the events of this case can be analogized to the successful motion for a mistrial which, as noted by the Third Circuit, constitutes an effective waiver of defendant's "valued right to have his trial completed by a particular tribunal," United States v. DiFrancesco, supra, 449 U.S. at 128; see United States v. Maker, supra, 751 F.2d at 621 n.25, and thus is the "result of the deliberate choice of the defendant" to obtain "the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence. . . ." Id. at 621, quoting United States v. Scott, supra, 437 U.S. at 100. Had the court thus dismissed the indictment prior to submission of the case to the jury, re-trial would not have been barred. See United States v. Scott, supra, 437 U.S. at 100 (Defendant "has not been 'deprived' of his valued right to go to the first jury [but if re-trial were barred] the public [would be] deprived of its valued right to 'one complete opportunity to convict those who have violated its laws. '"), quoting Arizona v. Washington, 434 U.S. at 509. That the court chose to submit the case to the jury was appropriate, in light of the Supreme Court's expressed preference for so acting, in order that in the event of a reversal, the guilty verdict could be reinstated without the inefficiency and anxiety of a new trial. See Scott, supra, 437 U.S. at 100 n.13 (citing cases). See also Government of the Virgin Islands v. Christensen, 673 F.2d 713, 718-19 (3d Cir. 1982). It was also a choice necessitated by the timing of defendant's motion, which could have been made before trial, since it was directed to the indictment alone, but was made much later, in an effort to gain some strategic advantage. The court acknowledged this effort in its Opinion, but concluded that the defendant had raised a jurisdictional problem, which could be noticed at any time. 555 F. Supp. at 376. However, the issue which emerged was not simple of resolution, and the court required time to research it and write an opinion. The court's timing in doing so was thus attributable to defendant and, for this reason too, cannot be said to have prejudiced him. See Lee v. United States, supra, 432 U.S. at 34. Rather, the court acted to upset a conviction which would otherwise have been reversed by the Third Circuit. Neither its timing,
nor its action can be said to constitute error. Nor in any event can re-trial after dismissal on the basis of a defective indictment, see, e.g., Lee, supra, 432 U.S. at 30-31; Illinois v. Somerville, 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066 (1973), or any other reason unrelated to the guilt or innocence of a defendant, see, e.g., Scott, supra, (pre-indictment delay), be said to be barred by the double jeopardy clause.
Such is precisely the case here. The court's earlier determination that the indictment did not allege an offense under section 2314 depended upon nothing more than the language of the indictment itself; it relied upon no facts whatsoever. See United States v. Appawoo, 553 F.2d 1242, 1244-46 (10th Cir. 1977). Thus, the court does not here "[afford] the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Burks v. United States, supra, 437 U.S. at 11. See also United States v. DiFrancesco, supra, 449 U.S. at 128. Indeed, in the first prosecution of this matter, the government had all the evidence it needed to convict defendant of the offense alleged, and defendant was, in fact, properly found guilty. However, such evidence was introduced pursuant to a fatally flawed indictment, and as a result, the indictment had to be dismissed. Unfortunately for defendant, the government, and the court, such dismissal occurred subsequent to trial, due to the intentional timing of defendant's motion. However, defendant's having waited for jeopardy to attach before raising such motion, see United States v. Maker, 751 F.2d at 620 n.22, citing Crist v. Bretz, 437 U.S. 28, 38, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978), does not mean that dismissal precludes a second trial, for the attachment "is the beginning rather than the end of our analysis." Maker, supra, 751 F.2d at 620 n.22. As a dismissal which most certainly did not resolve any factual elements of the offense charged in defendant's favor, and which, in fact, resolved no factual elements at all, the court's action clearly does not preclude a re-trial, irrespective of the label placed on defendant's motion, in the court's Order or in the Third Circuit's Opinion.
Of course, such dismissal nonetheless redounds to defendant's benefit. He is now subject to a maximum fine of $10,000 and term of imprisonment of ten years; under the prior indictment, these numbers were multiplied twenty fold. More important, he is now entitled to a second opportunity to prove his innocence, having failed the first time. While he must therefore go through another trial, the court here concludes that such trial "is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect." Scott, supra, 437 U.S. at 91. See also Tibbs, supra, 457 U.S. at 44; DiFrancesco, supra, 449 U.S. at 131. Defendant's motion to dismiss on double jeopardy grounds is denied.
B. Collateral estoppel
Defendant also contends that the government ought to be collaterally estopped from pursuing the instant indictment, arguing that the specific factual issues presented were resolved against defendant by the court's prior decision dismissing the indictment and entering a judgment of acquittal. However, the court has already ruled, supra, that no such factual issues were resolved in defendant's favor and that no such acquittal actually occurred. Rooted as it is in the double jeopardy clause, see Ashe v. Swenson, 397 U.S. 436, 445, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970), the use of collateral estoppel in the criminal context depends first, upon the existence of an acquittal and second, upon a realistic and rational approach to whether "the jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Id. at 444. Of course, collateral estoppel is broader than double jeopardy: "Even though there has been no former acquittal of the particular offense on trial, a prior judgment of acquittal on related matters has been said to be conclusive as to all that the judgment determined." United States v. DeAngelo, 138 F.2d 466, 468 (3d Cir. 1943), cited in United States v. Keller, 624 F.2d 1154, 1157 (3d Cir. 1980). Here, however, there has been no judgment of acquittal, only the dismissal of an indictment as improperly drafted. Further, the only facts determined by a factfinder, albeit based upon an erroneous jury instruction, were determined contrary to defendant's position, and would indicate that he in fact committed the crime charged herein. Thus, both the application of the doctrine of collateral estoppel to this particular case and the policy concerns engendered by criminal law enforcement in general, see Standefer v. United States, 447 U.S. 10, 24-25, 64 L. Ed. 2d 689, 100 S. Ct. 1999 (1980), require that defendant's motion to dismiss on collateral estoppel grounds be denied.
The court understands that until at least July 17, 1985, defendant will remain incarcerated and thus an application for bail at this time is premature.
An appropriate order will issue.