Appeal by the United States from an order entered in the Western District of New York, John T. Curtin, Chief Judge, after the jury had convicted defendant of perjury, granting him a new trial and striking portions of the indictment.
Lumbard and Timbers, Circuit Judges, and Oscar H. Davis,*fn* Court of Claims Judge.
The United States appeals, pursuant to 18 U.S.C. § 3731 (1970), from an order entered in the Western District of New York, John T. Curtin, Chief Judge, after the jury had convicted defendant of perjury, granting him a new trial and, for purposes of the new trial, striking portions of the single count indictment. A threshold question is whether this appeal is authorized by § 3731, as a matter of both statutory interpretation and constitutional law. We hold that we lack appellate jurisdiction to review that part of the order which granted a new trial and therefore we dismiss the appeal to that extent. With respect to that part of the order which struck portions of the indictment, we hold that we have jurisdiction under § 3731 to review it and, as to that part of the order, we reverse and direct that the new trial proceed on the unexpurgated indictment.
In a single count indictment returned February 12, 1975 Nicholas Alberti was charged with knowingly making false material declarations under oath before a grand jury in violation of 18 U.S.C. § 1623 (1970). At the five day trial in June 1976 the government's evidence showed that Alberti appeared as a witness before a grand jury in the Western District of New York on October 16, 1974. He had been granted immunity. The grand jury was investigating alleged illegal gambling, loansharking, and racketeering in violation of 18 U.S.C. §§ 1955 et seq., and 1961 et seq. (1970). It was material to the grand jury investigation to determine whether a card game known as "ziganette" (or "siginete") took place regularly at Nairy's Social Club in Buffalo; whether large sums of money were wagered during that game; and whether certain persons received a percentage of the wagers. Alberti's allegedly false testimony before the grand jury in response to various questions concerning the above subjects formed the basis of the government's charge of perjury. Essentially, Alberti denied having knowledge that the game of ziganette was played at Nairy's, knowledge that one Michael Bona was connected with the game, and knowledge of the identities of other dealers and the percentage of wagers taken as the house share.*fn1
On Friday, June 11, 1976, at the close of all of the evidence, defense counsel moved for a judgment of acquittal. He claimed that the evidence adduced at trial was insufficient, and that the questioning before the grand jury was too ambiguous and imprecise, to support a perjury conviction. Decision on the motion was reserved. Both sides completed their summations Friday afternoon and the jurors were sent home for the weekend, to return the following Monday for the charge and deliberations.
The Friday evening edition of the Buffalo Evening News carried an article that contained unfavorable references to Alberti and connected him with the underworld and the activities at Nairy's Social Club. Defense counsel brought the article to the court's attention upon resumption of the trial on Monday, June 14. He requested first that the jurors be questioned as to whether they had seen the article, then that a mistrial be declared, and finally, after the first two requests had been denied, that the jurors be given a specific instruction about the article. The court reconsidered and agreed to conduct a voir dire. Upon the jury's return to the courtroom, however, the court proceeded with the charge and inadvertently failed to question the jurors or to give them instructions regarding the publicity. Later that day the jury returned a verdict of guilty.
On June 18 defense counsel filed his post-verdict motions. He renewed his motion for a judgment of acquittal on the same grounds of insufficiency and imprecision on which his earlier motion for acquittal had been based. He also moved in the alternative for a new trial on the ground that the newspaper publicity may have had a prejudicial effect on the jury.
After hearing arguments on July 16 and August 5 on the motions, the court filed a reasoned opinion on September 30. The court denied the motion for an acquittal on the ground that, although it found merit in certain of defendant's claims of insufficiency and imprecision, the questioning before the grand jury as reflected in certain other portions of the indictment was sufficiently precise, and the falsity of Alberti's answers was supported by sufficient evidence, to sustain the conviction. The court did grant defendant's alternative motion for a new trial on the ground of possible prejudicial publicity. For purposes of the new trial the court sua sponte struck from the indictment those specifications of perjury that it had ruled could not independently support a conviction. From the order granting a new trial and striking portions of the indictment, the United States appeals.
II. APPELLATE JURISDICTION
The right of the United States to appeal from an adverse ruling in a criminal case is governed by the Criminal Appeals Act, 18 U.S.C. § 3731 (1970). See generally United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349, 45 U.S.L.W. 4337 (1977); United States v. Sanges, 144 U.S. 310, 36 L. Ed. 445, 12 S. Ct. 609 (1892). The Act was amended in 1970 as part of the Omnibus Crime Control Act, Pub. L. No. 91-644, tit. III, § 14(a), 84 Stat. 1890. Present § 3731 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 or information 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."
The Supreme Court has stated that "the legislative history makes it clear that Congress intended to remove all statutory barriers to government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975). We therefore must determine whether the language of the statute encompasses this appeal and, if so, whether such appeal nevertheless is barred because the double jeopardy clause would prohibit further prosecution.
Despite the breadth of the coverage of § 3731, we hold that it does not authorize a government appeal from the order granting a new trial. Such an order does not "[dismiss] an indictment . . . as to any one or more counts . . . ." Having failed to come within this express threshold requirement of the statute, the government cannot appeal the new trial order. ...