Before SMITH, HAYS, and TIMBERS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This appeal presents a single substantive question - may a district court order the dismissal of an indictment on grounds of double jeopardy solely because two previous trials of an accused have resulted in deadlocked juries? Judge Dooling answered that question in the affirmative, and ordered the indictment against Luis Castellanos dismissed, 349 F. Supp. 720. For the reasons below, we reverse.
The relevant facts may be quickly stated. The underlying indictment alleges a conspiracy to sell cocaine. The main government witness at both trials was Horace D. Balmer, a New York City undercover detective, who testified about appellee's involvement in the alleged conspiracy. At each trial, the defense was presented wholly through the testimony of the defendant himself, who denied any narcotics dealings, and a number of character witnesses. The first jury was discharged after it deadlocked 11 to 1 for conviction; the second after it split 7 to 5 for acquittal.
After the second mistrial, appellee moved for a judgment of acquittal pursuant to Rule 29(c), Fed.R.Crim.P., and "for such other and further relief as to this Court may seem just and proper." Judge Dooling, in a written memorandum, denied the motion for acquittal, noting that there "was unmistakably an issue for the jury to resolve." However, concluding that he had the power to grant a motion to dismiss where there had been two previous jury disagreements and the record indicated no special circumstances contributing thereto in either trial, Judge Dooling ordered the indictment dismissed on grounds of double jeopardy. It is this order from which the government appeals.
At the outset, appellee confronts us with a claim that we lack jurisdiction over the appeal. He bases his argument upon the language of 18 U.S.C. § 3731, which provides:
"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."
Castellanos contends that since Judge Dooling held that further prosecution was barred by the Double Jeopardy Clause, the statute forbids appeal.
We cannot accept appellee's argument, which would have the effect of making the district courts the final arbiters of the constitutional meaning of the Clause. An order such as the one here, dismissing an indictment on grounds of double jeopardy prior to the impaneling of a new jury, was clearly appealable under the predecessor to the present § 3731. United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). Nothing in either the legislative history or the language of the new statute, Pub.L. 91-644, Title III, § 14(a), 84 Stat. 1890, indicates the slightest intention to cut back the scope of former § 3731. Indeed, quite the opposite seems true, for the statute was described as designed to eliminate "technical distinctions in pleadings as limitations on appeals by the United States," Conference Rep. No. 91-1768, 91st Cong., 2d Sess.; 1970 U.S.Code Cong. & Admin.News at 5848, and the text of the law itself instructs us that its "provisions shall be liberally construed."
The reference to the Double Jeopardy Clause in the statute, rather than barring appeal in a case like this, seems designed to meet the unrelated problem posed by the Supreme Court's interpretation of the old Criminal Appeals Act in United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970). There, the Court construed a provision that allowed appeals "From the decision or judgment sustaining a motion in bar, where the defendant has not been put in jeopardy,"
"... as confining the Government's right to appeal... to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached." Id. at 302-303, 90 S. Ct. at 2137.
The Court explicitly rejected Mr. Justice White's position that the statutory language merely restated the prohibition of the Fifth Amendment, holding instead that the statute forbade appeals from rulings made after jeopardy attached, regardless of whether or not retrial would have been constitutionally barred after appellate review. Id. at 304-306, 90 S. Ct. 2117.*fn1
The new statute was apparently aimed at this dilemma, seeking to make the government's right to appeal coextensive with its ability to retry the defendant if its arguments on the merits should prevail on review. Id. at 306-307, n. 61, 90 S. Ct. 2117. But of course, the government's ability to retry Castellanos is precisely what is at issue here. At worst then, we lack jurisdiction and must dismiss only if Judge Dooling's ruling is correct, and conversely, if the order below is in error, we have ...