Petition — DiSilvio v. United States

. be Supreme Court, U. >

! FILED

75-352 |

SEP 5

IN THE

WACHAEL PODAN. !

Supreme Court of the United States

DOMINIC N. DiSILVIO,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

THOMAS A. LIVINGSTON, Esq.

Attorney for Petitioner

DENNIS J. CLARK, Esq.

The Colonial Building

205 Ross Street

Pittsburgh, Pennsylvania 15219

SMITH BROS... LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

TABLE OF CONTENTS

PAGE

Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit 1

r. 1

, è *.. RC ON 2

,, rr OTR eG 2

Constitutional Provision Involveennlnl 3

rere eee eee 4

s, 22 8

Reasons for Granting the Wr it 11

D è˙—ü———... . abisneibnes 17

Appendix A- Memorandum and Order of District

1 18

Appendix B—Opinion and Order of Court of Ap-

„PP deaniiadbiainibeasbdnibiniaes 21

Appendix C—Order of Court of Appeals Sur Peti-

, r 29

Appendix D- Certificate of Service 30

TABLE OF CITATIONS

CASES

Commonwealth v. Dale, Pa. Super., 335 A. 2d 454

r one alee ene 12

Downum v. United States, 372 U.S. 734, 83 S.Ct.

I a cases Seino 11

Dunson v. United States, 404 F. 2d 447 (9th Cir.

c ee epee 15

In Re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970) . 16

Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422

%%% 12

United States v. Allegrucci, 258 F. 2d 70 (3d Cir.

nnn 15

1 11, 12, 16

ii

Table of Citations.

CASES PAGE

United States v. Beard, 414 F. 2d 1014 (3d Cir.

BEE CCC 16

United States v. Green, 355 U.S. 184, 78 S. Ct. 221

r 12

United States v. Manuszak, 234 F. 2d 421 (3d Cir.

Ec 257 =. SR oR 14, 15

UNITED STATES CONSTITUTION

,, ̃ RANTS Aare k APOE RT 11, 12, 16

STATUTES

Federal Rules of Criminal Procedure, Rule 29 13

Title 18, United States Code, Section 669 passim

IN THE

Supreme Court of the United States

DOMINIC N. DiSILVIO,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Dominic N. DiSilvio, your petitioner, prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Third Circuit

entered in the above entitled case on July 17, 1975, and

the Order denying the Petition for Rehearing dated

August 6, 1975.

OPINIONS BELOW

An opinion was rendered by the United States Court

of Appeals for the Third Circuit in this matter. Said

opinion, affirming the district court’s order denying

Petitioner—defendant’s motion to dismiss the indict-

ment, is not yet reported but is set forth herein at

appendix B. The court’s order denying the petition

for rehearing is not yet reported but is set forth herein

at appendix C.

The district court’s memorandum and order deny-

ing Petitioner-defendant’s motion to dismiss the in-

dictment is set forth herein at appendix A.

Question Presented.

JURISDICTION

The opinion of the United States Court of Appeals

for the Third Circuit was filed on July 17, 1975. A timely

petition for rehearing was denied on August 6, 1975.

Pursuant to Rule 22 of the Rules of this Honorable

Court, the within Petition for Writ of Certiorari is being

filed within thirty (30) days after the entry of the court

of appeals’ final order.

The jurisdiction of this Honorable Court is invoked

under 28 United States Code, Section 1254 (1).

QUESTION PRESENTED

Whether the indictment at criminal number 74-139

violates Petitioner’s constitutional right against double

jeopardy since the evidence presented by the govern-

ment at his prior trial of the indictment at criminal

number 73-201 was insufficient to sustain a conviction

on identical charges?

Constitutional Provision Involved.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution of the

United States provides as follows:

No person shall be held to answer for a capitai

or other infamous crime unless on a presentment or

indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when

in actual service, in time of war or public danger;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall pri-

vate property be taken for public use without just

compensation.

Federal Statutes Involved.

FEDERAL STATUTES INVOLVED

Title 18, United States Code, Section 659 provides

as follows:

§ 659. INTERSTATE OR FOREIGN SHIPMENTS BY

CARRIER; STATE PROSECUTIONS

Whoever embezzles, steals, or unlawfully takes,

carries away, or conceals, or by fraud or deception

obtains from any pipeline system, railroad car,

wagon, motortruck, or other vehicle, or from any

tank or storage facility, station, station house, plat-

form or depot or from any steamboat, vessel, or

wharf, or from any aircraft, air terminal, airport,

aircraft terminal or air navigation facility with

intent to convert to his own use any goods or chat-

tels moving as or which are a part of or which con-

stitute an interstate or foreign shipment of freight,

express or other property; or

Whoever buys or receives or has in his posses-

sion any such goods or chattels, knowing the same

to have been embezzled or stolen; or

Whoever embezzles, steals, or unlawfully takes,

carries away, or by fraud or deception obtains with

intent to convert to his own use any baggage which

shall have come into the possession of any common

carrier for transportation in interstate or foreign

commerce or breaks into, steals, takes, carries

away, or conceals any of the contents of such bag-

gage, or buys, receives, or has in his possession any

such baggage or any article therefrom of whatever

nature, knowing the same to have been embezzled

or stolen; or

Federal Statutes Involved.

Whoever embezzles, steals, or unlawfully takes

by any fradulent device, scheme, or game, from any

railroad car, bus, vehicle, steamboat, vessel, or air-

craft operated by any common carrier moving in

interstate or foreign commerce or from any passen-

ger thereon any money, baggage, goods, or chattels,

or whoever buys, receives, or has in his possession

any such money, baggage, goods, or chattels, know-

ing the same to have been embezzled or stolen—

Shall in each case be fined not more than $5,000

or imprisoned not more than ten years, or both; but

if the amount or value of such money, baggage,

goods or chattels does not exceed $100, he shall be

fined not more than $1,000 or imprisoned not more

than one year, or both.

The offense shall be deemed to have been com-

mitted not only in the district where the violation

first occurred, but also in any district in which the

defendant may have taken or been in possession of

the said money, baggage, goods, or chattels.

The carrying or transporting of any such mon-

ey, freight, express, baggage, goods, or chattels in

interstate or foreign commerce, knowing the same

to have been stolen, shall constitute a separate

offense and subject the offender to the penalties

under this section for unlawful taking, and the

offense shall be deemed to have been committed in

any district into which such money, freight, ex-

press, baggage, goods, or chattels shall have been

removed or into which the same shall have been

brought by such offender.

Federal Statutes Involved.

To establish the interstate or foreign commerce

character of any shipment in any prosecution under

this section the waybill or other shipping document

of such shipment shall be prima facie evidence of

the place from which and to which such shipment

was made. The removal of property from a pipeline

system which extends interstate shall be prima

facie evidence of the interstate character of the

shipment of the property.

A judgment of conviction or acquittal on the

merits under the laws of any State shall be a bar

to any prosecution under this section for the same

act or acts. Nothing contained in this section shall

be construed as indicating an intent on the part of

Congress to occupy the field in which provisions of

this section operate to the exclusion of State laws

on the same subject matter, nor shall any provision

of this section be construed as invalidating any

provision of State law unless such provision is in-

consistent with any of the purposes of this section

or any provision thereof. As amended Oct. 14, 1966,

Pub. L. 89-654, § 1(a)-—(d), 80 Stat. 904.

Rule 29 of the Federal Rules of Criminal Procedure

provides as follows:

MOTION FOR JUDGMENT OF ACQUITTAL

(a) Motion Before Submission to Jury. Mo-

tions for directed verdict are abolished and motions

for judgment of acquittal shall be used in their

place. The court on motion of a defendant or of its

own motion shall order the entry of judgment of

acquittal of one or more offenses charged in the

indictment or information after the evidence on

Federal Statutes Involved.

either side is closed if the evidence is insufficient to

sustain a conviction of such offense or offenses. If a

defendant’s motion for judgment of acquittal at the

close of the evidence offered by the government is

not granted, the defendant may offer evidence with-

out having reserved the right.

(b) Reservation of Decision on Motion. If a

motion for judgment of acquittal is made at the

close of all the evidence, the court may reserve

decision on the motion, submit the case to the jury

and decide the motion either before the jury returns

a verdict or after it returns a verdict of guilty or is

discharged without having returned a verdict.

(c) Motion After Discharge of Jury. If the

jury returns a verdict of guilty or is discharged

without having returned a verdict, a motion for

judgment of acquittal may be made or renewed

within 7 days after the jury is discharged or within

such further time as the court may fix during the

7-day period. If a verdict of guilty is returned the

court may on such motion set aside the verdict and

enter judgment of acquittal. If no verdict is re-

turned the court may enter judgment of acquittal.

It shall not be necessary to the making of such a

motion that a similar motion has been made prior

to the submission of the case to the jury.

As amended Feb. 28, 1966, eff. July 1, 1966.

Statement of the Case.

STATEMENT OF THE CASE

History

Your Petitioner, Dominic N. DiSilvio, was indicted

at criminal number 73-201 in the Western District of

Pennsylvania. The federal grand jury charged that Di-

Silvio received certain chattels which he knew had been

stolen from an interstate shipment of freight in viola-

tion of 18 U.S.C. $659.

A jury trial was convened before the Honorable

Barron P. McCune, District Judge, on April 10, 1974, in

the United States District Court for the Western Dis-

trict of Pennsylvania. On April 15, 1974, following the

conclusion of the government’s case in chief, Judge

McCune denied Petitioner’s motion for judgment of

acquittal. On April 16, 1974, Judge McCune granted

Petitioner’s motion to dismiss the indictment.

A notice of appeal from the order of the district

court granting Petitioner’s motion to dismiss the indict-

ment was filed by the government. A notice of appeal

from the order of the district court denying Petitioner’s

motion for judgment of acquittal was filed by Petitioner.

By judgment order dated September 23, 1974, the

United States Court of Appeals for the Third Circuit

affirmed Judge McCune’s order dismissing the indict-

ment. By judgment order dated September 26, 1974, the

Third Circuit found that Judge McCune’s denial of Peti-

tioner’s motion for judgment of acquittal was not ap-

pealable and therefore dismissed Petitioner’s appeal on

that issue.

On April 19, 1974, Petitioner was indicted at crim-

inal number 74-139 in the Western District of Pennsyl-

Statement of the Case.

vania and charged with receiving certain chattels which

he allegedly knew had been stolen from an interstate

shipment of freight in violation of 18 U.S.C. $659, the

same charge recited at criminal number 73-201.

On November 22, 1974, Petitioner filed a motion to

dismiss the indictment at criminal number 74-139. Said

motion alleged that, as a result of the dismissal of the

indictment at criminal number 73-201, any further prose-

cution of Petitioner under the indictment at criminal

number 74-139 will violate Peiitioner’s constitutional

right not to be placed twice in jeopardy.

On January 7, 1975, Judge McCune issued a memo-

randum and order denying Petitioner’s motion to dis-

miss the indictment. Petitioner subsequently filed a

notice of appeal from said order in the United States

Court of Appeals for the Third Circuit. By opinion dated

July 17, 1975, the court affirmed said order. A Petition

for Rehearing was denied on August 6, 1975. The within

Petition for Writ of Certiorari follows.

Facts

The following testimony was presented by the gov-

ernment at the trial on criminal number 73-201, which

trial terminated (by dismissal of the indictment) after

the conclusion of both the government and defense

testimony:

According to a General Electric Company shipment

record, one hundred (100) radios/cartons supposedly

were shipped from General Electric to the Port Author-

ity of Allegheny County, Pennsylvania, in August, 1972.

The shipment originated in Lynchburg, Virginia. In

Roanoke, Virginia, it was unloaded, transferred to a

different unit and combined with other freight. On

10

Statement of the Case.

August 29, 1972, at the Port Authority receiving area

in Pittsburgh, Pennsylvania, it was discovered that the

shipment was twenty (20) cartons short.

A General Electric Company official testified that

he personally had no way of knowing whether the full

shipment had been received by the Port Authority, nor

did he have personal knowledge of what happened to

the twenty (20) missing cartons.

In May, 1973, nine months after they were reported

missing, the cartons were recovered in Joseph Chepes’

garage in Masontown, Pennsylvania. Mr. Chepes had

received these cartons/radios from the Petitioner in

Pittsburgh, Pennsylvania, during that same month (i.e.

May, 1973).

11

Reasons for Granting a Writ of Certiorari.

REASONS FOR GRANTING A WRIT OF

CERTIORARI

The Indictment at Criminal Number 74-139 Violates

Petitioner’s Constitutional Right Against Double Jeop-

ardy Since the Evidence Presented by the Government

at His Prior Trial of the Indictment at Criminal Num-

ber 73-201 Was Insufficient to Sustain a Conviction on

Identical Charges.

Petitioner DiSilvio contends that the indictment at

criminal number 74-139 violates his constitutional right

against double jeopardy because the evidence presented

by the government at his prior trial of criminal number

73-201 was insufficient to sustain a conviction. As noted

above, the charges recited at 74-139 are identical to those

recited at 73-201. Therefore, since the evidence already

presented at the first trial failed to prove that Petitioner

violated 18 U.S.C. 8659 as charged in the indictment at

73-201, a retrial of the same charge would be contrary to

the Double Jeopardy Clause of the Fifth Amendment

to the United States Constitution. 1

Petitioner urges that this contention was miscon-

strued and misinterpreted by the court of appeals. In-

stead of reviewing Petitioner’s argument, the court

determined that [o] ur focus for purposes of this appeal

1. As this Court has held, the prohibition of the

Double Jeopardy Clause in the United States Constitu-

tion is “not against being twice punished but bein

twice put in jeopardy”, United States v. — 163 U.

662, 669, 16 S.Ct. 1192, 1194 (1896) ; d jeopardy

attaches when the j jury is empaneled. 1 v. United

— 372 U.S. 374, 83 S.Ct. 1033 (1963). Here,

= attached when the jury was empaneled on

April 10, 1974, at criminal number 73-201.

12

Reasons for Granting a Writ of Certiorari.

is directed solely at the district court’s dismissal of the

indictment” (opinion of the court dated July 17, 1975,

hereinafter referred to as opinion“, appendix 24). The

Court then decided that the granting of a defendant’s

motion to dismiss a defective indictment does not bar

retrial of that defendant. With this decision, Petitioner

concurs. However, the within matter involves a different

issue. Here, Petitioner did not challenge his re-indict-

ment on the basis that the mere dismissal of the first

indictment prevented a second trial, but he asserted

that the Fifth Amendment protects him from a second

trial when the evidence at the first trial on identical

charges was insufficient to sustain a conviction. Re-

gardless of the fact that the first indictment was even-

tually dismissed because of a defect in its language,

this did not occur until after the government had com-

pleted its case and Petitioner had requested a judgment

of acquittal which the trial court denied. Accordingly,

DiSilvio sought what is essentially appellate review of

this lower court denial of his motion for judgment of

acquittal. Failure by the court of appeals to undertake

such a review, it is suggested, frustrates the policies un-

derlying the Double Jeopardy Clause. See: United States

v. Green, 355 U.S. 184, 78 S.Ct. 221 (1957).

Petitioner’s argument is simple, yet logical. It is

beyond doubt that an acquittal bars a retrial. United

States v. Ball, supra. Since an acquittal is required

when the evidence is insufficient to sustain a conviction,

insufficiency of the evidence also would bar a retrial.

Sapir v. United States, 348 U.S. 373, 75 S.Ct. 422 (1955) ;

see also: Commonwealth v. Dale, Pa. Super., 335 A. 2d

454 (1975). Therefore, if this Court finds that the evi-

dence presented at the trial below was insufficient to

sustain a conviction for a violation of 18 U.S.C. §659

13

Reasons for Granting a Writ of Certiorari.

(even pursuant to a properly worded indictment), a

re-trial of Petitioner by virtue of a new indictment

should be barred.

While it is true that the court of appeals wrote that

„. . . the evidence introduced at trial on the original

indictment was sufficient to make out a prima facie case

under the statute” (opinion, 23), Petitioner maintains

that this statement does not resolve the issue raised by

him. First, as mentioned above, the lower court’s “focus”

was not on this issue. Second, the proper question as in

all appeals in criminal cases, is whether the evidence

was sufficient under the indictment and not whether the

evidence was sufficient under the statute (even though

Petitioner firmly believes that the evidence in the in-

stant case is wholly insufficient under either criteria).

Third, the correct standard of review was not applied.

The standard is not whether a “prima facie” case has

been established, but whether the. . . evidence is in-

sufficient to sustain a conviction” of the offense charged

in the indictment. Federal Rules of Criminal Procedure,

Rule 29.

Applying the Rule 29 standard to the case at 73-201

(the first trial), Petitioner argues that the evidence

presented through the course of the government’s case

was insufficient to sustain a conviction of the offense

charged. In order that one be convicted of violating

the provision of 18 U.S.C. $659, which is recited

in the indictment, two (2) elements must be proven.

First, embezzled or stolen goods or chattels must be

shown to have been embezzled or stolen from one or

more of the following:

„. .. any pipeline system, railroad car, wagon,

motortruck, or other vehicle, or from any tank or

14

Reasons for Granting a Writ of Certiorari.

storage facility, station, station house, platform or

depot or from any steamboat, vessel, or wharf, or

from any aircraft, air terminal, airport, aircraft

terminal or air navigation facility .. . . 18 U.S.C.

$659.

In the case at bar, no evidence was presented as to how

or from where the goods were embezzled or stolen. More-

over, the record is devoid of any evidence which proves

that the goods were in fact embezzled or stolen. Charles

W. White, the Regional Service Manager for General

Electric Company, testified that he had no personal

knowledge of what happened to the twenty (20) missing

radio units, and that he had no way of knowing whether

the full shipment of radios was ever received. Cecil Web-

ster, the Supervisor of Security for Associates Transport

and the individual who investigated the loss of certain

items in the shipment, testified that he had no personal

knowledge of the facts alleged in the shipping records.

Even Thomas Lamark, the driver for Associated Trans-

port who discovered at the Port Authority receiving area

that his shipment was twenty (20) cartons short, could

not explain where or how or whether in fact the goods

were embezzled or stolen. Under these circumstances,

the holding of United States v. Manuszak, 234 F. 2d 421

(3d Cir. 1956), is directly applicable. There, the Third

Circuit held:

“Under this statute (18 U.S. C. §659), it is

not a federal crime to steal goods from an inter-

state shipment of freight unless the goods are taken

from one of the specifically enumerated places or

facilities. Other thefts, although of goods which are

—

15

Reasons for Granting a Writ of Certiorari.

part of an interstate shipment, are not federal

crimes.” 234 F. 2d at 423 (Emphasis supplied) 2

Here, no evidence has been presented to show that the

goods in question were taken from one of the enumerated

places or facilities listed in the statute. Therefore, in

view of the language of 18 U.S.C. $659 and the Manuszak

decision, there is no evidence of a federal crime.

The second element necessary to prove a violation

of the relevant provision of 18 U.S.C. $659 is the re-

quirement that the person who receives or possesses

“any such goods or chattels” must do so. . knowing

the same to have been embazzled or stolen. Here,

three (3) government witnesses, Joseph Allen Chepes,

Joseph Chepes and Bernice Chepes, either possessed the

goods in question or knew of their existence in May,

1973. Each of these witnesses testified that they had no

reason to believe that the radios were stolen. Further-

more, considering the record as developed at trial, no

inference can arise that Petitioner knew that the radios

were stolen because such an inference is only permis-

sable when the goods involved are “recently” stolen.

United States v. Allegrucci, 258 F. 2d 70, 73 (3d Cir.

2. In Manusak, the Third Circuit also held that an

indictment ch theft of goods from an interstate

shipment under 18 U.S.C. 8659 is defective unless the

specific place or facility from where the goods are stolen

is set forth in the indictment. However, the Second,

Fourth and Ninth Circuits (cf. Dunson v. United States,

404 F. 2d 447, 448-449 (9th Cir. 1968) ) have held contra.

Therefore, if the instant case had been tried in one of

those three circuits, the original indictment would not

have been dismissed. The issue there would be, as it is

here, whether the evidence presented by the government

is sufficient to sustain a conviction on the charges al-

leged in the indictment.

16

Reasons for Granting a Writ of Certiorari.

1958). As explained above, there is no evidence here

that the goods were stolen. Regardless, it cannot be

said that the goods were “recently” stolen since they

were reported as missing in August, 1972, and not re-

covered until May, 1973. Accordingly, the government

also failed to prove the second element of the statutory

provision.

In light of the above discussion and the Fifth

Amendment principle of due process which requires

“proof beyond a reasonable doubt of every fact necessary

to constitute the crime .. .” In Re Winship, 397 U.S.

358, 364, 90 S.Ct. 1068, 1073 (1970), Petitioner submits

that the government failed to present sufficient evidence

to sustain a conviction of 18 U.S.C. $659. .

In denying Petitioner’s motion to dismiss the in-

dictment, the trial court relied on United States v. Ball,

supra. and United States v. Beard, 414 F. 2d 1014 (3d

Cir. 1969). However, these cases are distinguishable

from the instant matter. In both, the court held that re-

versal of a conviction due to a fatally defective indict-

ment did not bar the government from reindicting and

retrying a defendant. Here, the issue is different. Here,

Petitioner simply contends that since the evidence of-

fered at the first trial failed to prove a violation of

18 U.S.C. 8659, a retrial on the same charge would be

contrary to the Double Jeopardy Clause. Thus, the lower

court’s reliance was misplaced, and its denial of the

motion to dismiss the indictment was error.

17

Conclusion.

CONCLUSION

In the instant matter, Petitioner believes that he

raises a very important question for this Honorable

Court’s consideration. For this reason and others dis-

cussed above, the Petition for a Writ of Certiorari should

be granted.

Respectfully submitted,

THOMAS A. LIVINGSTON, Esq.

Attorney for Petitioner

DENNIS J. CLARK, Esq.

18

Appendiz A.

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

+

UNITED STATES OF AMERICA

v. — Criminal No. 74-139

DoMINIc N. DISILvIo

4

Memorandum and Order

BARRON P. McCuNE, District Judge

January 7th, 1975.

The defendant has moved to dismiss the within in-

dictment on the ground that the defendant has twice

been placed in jeopardy. This is the second indictment

of defendant charging a violation of 18 U.S.C. 659.

The first indictment was returned at No. 73-201,

charging a violation of 18 U.S.C. 659, the receipt of

stolen chattels knowing the same to have been stolen

from interstate commerce. The defendant was tried on

the charge and at the end of all the testimony the de-

fendant’s motion to dismiss the indictment was granted

under the holding in U.S. v. Manuszak, 234 F.2d 421

(3rd Cir. 1956). At the conclusion of the government’s

case, a motion for judgment of acquittal had been

denied.

In U.S. v. Manuszak, supra, it was held that an in-

dictment returned under 18 U.S.C. 659 must specify the

place or facility from which the goods were taken, i. e.,

a station house, platform, wharf, etc. The indictment at

No. 73-201 lacked the required specificity.

19

Appendiz A.

Both rulings were appealed. The government ap-

pealed the dismissal of the indictment and this ruling

was affirmed. The defendant appealed the refusal to

enter judgment of acquittal and this appeal was dis-

missed as premature. It was not yet appealable.

The government then returned a more specific in-

dictment charging that defendant had received and

possessed certain radios which had been stolen from the

freight depot of Associated Transport, Inc. in Monroe-

ville, Pennsylvania, knowing the radios to have been

stolen.

(The first indictment had been similar except that

it had omitted to name the location from which the

theft had taken place).

In our view, double jeopardy had not occurred nor

will it occur if and when another jury is sworn because

the first indictment was a nullity and jeopardy in that

indictment, therefore, never attached, see U.S. v. Ball,

163 U.S. 662 (1896) and U.S. v. Beard, 414 F.2d 1014

(3rd Cir. 1969).

The defendant argues, however, that we have

heard all of the evidence once and it will do no good

to repeat it because it was insufficient then and the mo-

tion for judgment of acquittal should have been granted

the first time it was made and will, of necessity, be

granted the second time around. The difficulty with the

argument is that we do not know what the evidence will

be at the second trial.

However, it seems to me that we should find some

way to determine what additional facts, if any, will be

introduced. A record is available of the first trial. If

nothing more is to be produced, why not allow argument

now on the question whether that evidence is sufficient

20

Appendiz A.

to go to a jury? If additional evidence is to be produced,

why not find out what it will be? It is not likely that any

of the witnesses can be influenced in this case. The sav-

ing of time and expense to the government and to the

defendant should dictate that we try to avoid an argu-

ment after a second trial which would be no different

than the argument we can hear now if the evidence the

second time around will be precisely or substantially the

same as that already heard. -

Accordingly, the court will, pursuant to Rule 17.1,

cali a pretrial conference at which we will determine

what, if any, additional testimony will be offered. If

none will be offered, we will be in position to make a pre-

trial ruling on a renewed motion for judgment of ac-

quittal, assuming the record can be adopted as an offer

of proof. If additional testimony is to be offered, we will

be in a better position to determine whether another

trial is necessary.

The motion to dismiss the indictment is denied.

The court will hold a pretrial conference on January

15, 1975, at 4:00 P.M. in Court Room No. 10 for the pur-

poses set forth above.

It is so ordered.

BARRON P. MCCUNE

United States District Judge

ec: David M. Curry, A. U. S. A.

United States Courthouse

Pittsburgh, Pa. 15219

Thomas A. Livingston, Esq.

Colonial Building

Ross at Second

Pittsburgh, Pa. 15219

21

Appendix B.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 75-1083

UNITED STATES OF AMERICA,

Appellee,

v.

DOMENIC N. DiSILVIO,

Appellant.

(D.C. Criminal No. 74-139)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Argued May 13, 1975

Before ADAMS, ROSENN and HUNTER, Circuit Judges

Richard L. Thornburgh

David M. Curry

Attorneys for Appellee

Thomas A. Livingston

Dennis J. Clark

Attorneys for Appellant

22

Appendiæ B.

Opinion of the Court

(Filed July 17, 1975)

HUNTER, Circuit Judge:

In this case, we must decide whether the double

jeopardy clause bars the federal government from prose-

cuting appellant, Domenic DiSilvio, on a second indict-

ment. The initial indictment was dismissed on defend-

ant’s motion after the jury had been impanelled and

after evidence had been offered by the prosecution. We

conclude that the double jeopardy clause does not bar

a second trial. Accordingly, we affirm the district court’s

denial of appellant’s motion to dismiss the second in-

dictment.

I.

Appellant DiSilvio was indicted for receipt and pos-

session of radios stolen from an interstate shipment in

violation of 18 U.S.C. § 659. After presentation of the

government’s case in a jury trial in April of 1974, Di-

Silvio moved for judgment of acquittal. The motion was

denied. 1 DiSilvio then moved for dismissal of the in-

dictment which was defective in failing to state the fa-

cility from which the theft had occurred. The district

court granted DiSilvio’s motion to dismiss the indict-

ment.2 A more complete indictment charging DiSilvio

1. DiSilvio appealed from the denial of his motion

for acquittal. This court held that under 28 U.S.C. §1291,

it was without jurisdiction to review such a non-final

order.

2. Relying on this court’s decision in United States

v. 2 254 F. 2d 421 (3d Cir., 1956), the district

court dismissed the indictment. The government ap-

pealed from the dismissal of the first indictment and we

affirmed.

23

Appendiæ B.

with the same violation of 18 U.S.C. § 659 was subse-

quently issued. DiSilvio’s pretrial motion to dismiss was

denied and the instant appeal followed. 2a

II.

DiSilvio argues that, although he moved for dismis-

sal of the first indictment, we must grant the requested

relief because the evidence offered by the government

in the first trial was insufficient to support a guilty ver-

dict. The first trial ended not because of any assessment

of the evidence but because the district court ruled as a

matter of law that the indictment was defective. We

conclude that the evidence introduced at the trial on the

original indictment was sufficient to make out a prima

facie case under the statute. Therefore, we need not ad-

dress DiSilvio’s contention that the double jeopardy

clause prohibits the government from trying a defend-

2a. It is the general rule that a defendant may not

appeal from a denial of a motion to dismiss since there

has been no final order as required by 28 U.S.C. § 1291.

In Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

541 (1949), the Supreme Court carved out an exception

to the final judgment rule where denial of an immediate

appeal would effectively deny review. In Cohen the court

reviewed a denial of defendant’s request that plaintiffs

file an expense bond in a shareholder’s derivative suit

as required by state law stating that “the rights con-

ferred by the statute if it is applicable will have been

lost probably irreparably,” 337 U.S. at 546, unless im-

mediate review is permitted.

With the Fourth Circuit, we deem this Cohen lan-

guage especially appropriate in the double jeopardy con-

text. United States v. Lansdown, 460 F.2d 164, 170, et

seq. (4th Cir., 1972). In Lansdown the court stated:

We believe that the district court’s denial of a

motion to dismiss based on a claim of double jeop-

ardy is a final and appealable order under Cohen.

24

Appendiz B.

ant on a legally sufficient indictment when at a previous

trial based on a defective indictment devoted to the

same allegedly criminal act the prosecutor has rested

his case without establishing all the elements of the

offense. Our focus for purposes of this appeal is directed

solely at the district court’s dismissal of the indictment.

The Supreme Court has consistently held that the

double jeopardy clause does not bar reprosecution of a

defendant who succeeds in overturning his conviction on

appeal. North Carolina v. Pearce, 395 U.S. 711 (1969) ;

First, defendant’s right is under the fifth amend-

ment and it is separable from and collateral to, the

main cause of action, which is whether he is inno-

cent or guilty of the crime charged. Second, the

right claimed is a constitutional one and, as such,

is too important to be denied review. Finally, if re-

view is not had now, the right claimed—to be free

from being twice forced to stand trial for the same

crime—will be irreparably lost. 460 F.2d at 164.

This analysis is equally appropriate under Eisen v.

Carlisle & Jacquelin, 417 U.S. 156 (1974), where the con-

tinuing validity of Cohen was indicated.

As such, we conclude that 28 U.S.C. S 1291 does not

bar us from reviewing the denial of a motion to dismiss

an indictment on double jeopardy grounds.

We note that in another context, state habeas

corpus, we have recently held a state court’s rejection

of claims that a second trial is barred on double jeopardy

grounds to be reviewable before the state defendant is

subjected to a second trial. Although these cases dealt

with exhaustion of state remedies rather than finality

under § 1291, we stated that denial of immediate review

would cause the habeas petitioner to forfeit the interests

double jeopardy seeks to protect. See: United States

ex rel. Webb v. Court of Common Pleas, No. 74-1980 (3d

Cir., May 13, 1975); United States ex rel. Stewart v.

Hewitt, No. 74-732 (3d Cir., June 10, 1975). That analy-

sis is equally relevant in the finality context.

25

Appendix B.

United States v. Ball, 163 U.S. 662 (1896).3 See: United

States v. Beard, 414 F.2d 1014, 1017 (3d Cir., 1969)

(where we stated that reversal of a conviction obtained

under a defective indictment did not bar retrial.) Simi-

larly, the Supreme Court has stated: “Where circum-

stances develop not attributable to prosecutorial or

judicial overreaching, a motion by the defendant for

mistrial is ordinarily assumed to remove any barrier to

reprosecution, even if the defendant’s motion is necessi-

tated by prosecutorial or judicial errors.” United States

v. Jorn, 400 U.S. 470, 485 (1970) ; United States v. Tateo,

377 U.S. 463 (1964).4 In this Circuit, the cases applying

the double jeopardy provision have been consistent with

the above statement by the Supreme Court. United

States v. Pappas, 445 F.2d 1194, 1200 (3d Cir., 1971)

cert. denied sub nom; Mischlich v. United States, 404

3. Reversals or mistrials granted on the basis of

insufficient evidence or any other assessment of the

facts presented at trial do bar reprosecution. Fong Foo

v. United States, 369 U.S. 141 (1962).

4. Where a mistrial is declared, not in response to

a motion by defendant, but by the trial court sua sponte,

the double jeopardy clause requires that a more string-

ent test be applied. A swa sponte mistrial is justified only

when the “manifest necessity” test of United States v.

Perez, 9 Wheat. (22 U.S.) 579, 580 (1824) has been

satisfied. United States v. Jorn, 400 U.S. at 485. United

States ex rel. Russo v. Superior Court, 483 F.2d 7, 12 (3d

Cir.) cert. denied 414 U.S. 1023 (1973). It should be

noted that even under this stringent “manifest neces-

sity” test, a trial court’s sua sponte declaration of a

mistrial upon discovery of a defective indictment has

been held not to bar reprosecution under the double

jeopardy clause. Illinois v. Somerville, 410 U.S. 458,

469 (1972). If retrial was constitutionally proper on the

facts of Somerville where the trial court declared a mis-

trial without defendant’s consent, surely retrial is proper

in the instant case where defendant’s own motion initi-

ated the declaration of a mistrial.

26

Appendix B.

U.S. 534 (1971); United States ex rel. Montgomery v.

Brierley, 414 F.2d 552, 558 (3d Cir., 1969) cert. denied

399 U.S. 912 (1970). See also: United States v. Jamison,

505 F.2d 407, 410 (D.C. Cir., 1974); United States v.

Romano, 482 F.2d 1183, 1187 (5th Cir., 1973) ;5 United

States v. Goldstein, 479 F.2d 1061, 1066 (2d Cir., 1973);

Roberts v. United States, 477 F.2d 544, 545 (8th Cir.,

1973); United States v. Franki, 409 F.2d 958, 959 (7th

Cir., 1969); Raslich v. Bannan, 273 F.2d 420 (6th Cir.,

1959 ) .6

In the instant case DiSilvio does not even allege that

he was forced to seek a mistrial because of any inten-

tional misconduct by the court or prosecution. At most,

the United States Attorney was negligent in preparing

5. Over a strong dissent, the Fifth Circuit has

more recently barred retrial of a defendant who moved

for a mistrial when the trial judge acted precipitously

in banishing defense counsel. United States v. Dinitz, 492

F.2d 53 (5th Cir., 1974). The decision was affirmed by

a divided court en banc, 504 F.2d 855 (5th Cir., 1974).

The decision seems to go beyond the Jorn dicta that

severe judicial overreaching which causes the defendant

to move for mistrial must be shown before retrial will be

barred. Even under the Dinitz court’s expansive inter-

pretation of the double jeopardy bar, DiSilvio could ex-

pect no relief. DiSilvio has failed to allege any abuse by

the court or prosecution.

6. It has been suggested that a defendant who

moves for a mistrial or who seeks a reversal of a crimi-

nal conviction has waived his double jeopardy objection.

Green v. United States, 355 U.S. 184 at 189 (1957);

United States v. Lansdown, 460 F.2d 164 at 171 n.8 (4th

Cir., 1972). The Supreme Court recently noted in United

States v. Wilson, 43 U.S.L.W. 4301 at 4305 n. 11 (Feb-

ruary 25, 1975) “that the practical justification of the

exception is simply that it is fairer to both the defend-

ant and the government.”

27

Appendiz B.

a defective indictment. In Jorn, the Supreme Court sug-

gested that negligent errors by the government which

necessitate defendant’s motion for a mistrial, are not

sufficient to bar reprosecution. The court stated:

The determination to allow reprosecution in these

circumstances reflects the judgment that the de-

fendant’s double jeopardy interests, however de-

fined, do not go so far as to compel society to so

mobilize its decision making resources that it will

be prepared to assure the defendant a single pro-

ceeding free from harmful governmental or judicial

errors. 400 U.S. at 484.

The language makes clear that a defendant need not

be set free on double jeopardy grounds were negligence

on the part of the government requires the court to

grant defendant’s motion for a mistrial.

Absent a showing of more than mere negligent er-

ror by the United States Attorney in the preparation of

the first indictment, DiSilvio’s argument in this case is

without merit.

7. Wenote that the Supreme Court’s recent double

jeopardy cases are not helpful to DiSilvio. In United

States v. Wilson, 43 U.S.L.W. 4301 (Feb. 25, 1975), re-

trial was not required since the district court had ruled

in post guilty verdict motion that pre-indictment delay

required dismissal of the indictment. Appeal was al-

lowed since a decision in the government’s favor would

not require retrial. The jury verdict rendered at the

first trial could merely be reinstated.

In United States v. Jenkins, 43 U.S.L.W. 4309 (Feb.

25, 1975), the district court as trier of fact dismissed

the indictment after presentation of the government’s

case. The Supreme Court agreed that appeal and re-

prosecution were barred since the dismissal, based as it

was on facts adduced at trial, was tantamount to a

Appendix B.

III.

For the foregoing reasons, the district court’s de-

nial of the motion to dismiss the indictment will be af-

firmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

judgment of acquittal. Reprosecution would require a

second “resolution of factual issues going to the elements

of the offense charged... .” 43 U.S. L. W. at 4312.

In United States v. Serfass, 43 US.L.W. 4315

(March 3, 1975), the indictment was dismissed in pre-

trial proceedings before jeopardy had even attached.

Government appeal was clearly proper in Serfass.

None of these cases addresses the effect of a legal

ruling, made on defendant’s motion, after jeopardy has

attached, thus leaving Jorn as the last case to discuss,

albeit in dicta, the issue raised by DiSilvio.

Appendiæ C.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 75-1083

UNITED STATES OF AMERICA,

Appellee,

v.

DOMENIC N. DiSILVIO,

Appellant.

Sur Petition for Rehearing

Present: SEITZ, Chief Judge, VAN DUSEN, ALDISERT,

ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and

GARTH, Circuit Judges

The petition for rehearing filed by

Appellant

in the above entitled case having been submitted to the

judges who participated in the decision of this court

and to all the other available circuit judges of the cir-

cuit in regular active service, and no judge who con-

curred in the decision having asked for rehearing, and a

majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the

court in banc, the petition for rehearing is denied.

By the Court,

JAMES HUNTER, III

James Hunter, III, Judge

Dated: August 6, 1975

Appendiz D.

APPENDIX D

Certificate of Service

Petitioner, Dominic N. DiSilvio, by his attorneys,

Thomas A. Livingston, Esq., and Dennis J. Clark, Esq.,

hereby certify that the within Petition for Writ of Cer-

tiorari has been forwarded by mail for filing to the Clerk

of the Supreme Court of the United States in Washing-

ton, D.C., and that a true and correct copy of said Peti-

tion has been served by mail upon the Office of the Solici-

tor General of the United States, Department of Justice,

Washington, D.C.

THOMAS A. LIVINGSTON, Esq.

Attorney for Petitioner

DENNIS J. CLARK, Esq.