U.S. v. McQuilkin

Decision Date01 March 1982
Docket Number81-2175 and 81-2176,Nos. 81-1844,81-1846,s. 81-1844
Citation673 F.2d 681
PartiesUNITED STATES of America v. Robert McQUILKIN, and Arlene Whalin, Appellants.
CourtU.S. Court of Appeals — Third Circuit

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Mary C. Spearing, Elizabeth K. Ainslie (argued), Asst. U. S. Attys., Philadelphia, Pa., for appellee.

Before ALDISERT, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The principal question before this court is whether it has jurisdiction to hear an intermediate appeal after conviction and grant of a new trial on the contention that the evidence in the first trial was legally insufficient to convict and a second trial is therefore precluded by the Double Jeopardy Clause. Appellants, having been convicted of criminal contempt without a jury trial before a magistrate, succeeded in having their convictions vacated by the United States District Court for the Eastern District of Pennsylvania and the case remanded for a trial on the ground that they were denied a statutory right to a jury trial.

Appellants appeal from the order remanding for a new trial contending that they cannot be retried without being subjected to double jeopardy because the evidence presented at the first trial was insufficient to sustain their convictions. The Government argues that appellants cannot raise the question of the sufficiency of the evidence until the completion of the new trial which has been ordered. Until that time, the Government contends, this court lacks jurisdiction because there is no final order appealable under 28 U.S.C. § 1291.

I.

In 1971, a class of plaintiffs which included low income, minority persons who had been unable to secure adequate housing outside of areas of minority concentration, brought suit against those responsible for construction of the project, which had been planned since 1956. After trial the district court ordered the governmental defendants to "take all necessary steps for the construction of the Whitman Park Townhouse Project as planned." Resident Advisory Board v. Rizzo, 425 F.Supp. 987, 1029 (E.D.Pa.1976), modified, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978).

Because area residents opposed to the project continued to interfere with its construction, a temporary injunction was issued March 17, 1980, by the United States District Court for the Eastern District of Pennsylvania followed by a permanent injunction on April 1, 1980. The injunction generally enjoins the Whitman Area Improvement Council and the Whitman Council, Inc., and "all other persons acting in concert with them or otherwise participating in their aid" from picketing or protesting except as set out in the order and also prohibits other acts of interference with construction of the project. It stated that it was to be enforced by the United States Marshal and Philadelphia police assigned by the city or mayor and deputized by the marshal. Appellants were among defendants charged with criminal contempt for alleged violations of the injunction.

On the morning of June 3, 1980, a crowd gathered at the construction site of the project. At about 10:30 A.M. an attorney for Whitman Council, Inc., spoke to the crowd, urging the people to go home. At approximately 11:00 A.M. the United States Marshal, having been contacted by the supervisor of the deputy marshals who were routinely assigned to the construction area, arrived at the site. At 11:35 A.M. or thereabout, the marshal introduced himself to the crowd using a police bullhorn. The crowd became very noisy and continued to make noise while the marshal announced that they were violating the court order by blocking an access street and access gates to the construction site. The marshal waited about thirty seconds until the noise abated and then announced that those who did not leave within five minutes would be arrested. A portion of those gathered left after the marshal spoke. Between five and ten minutes later police arrived and began making arrests. The appellants were among those arrested.

After a non-jury trial a magistrate found appellants guilty of violating the court order and sentenced each to a period of probation. 1 On appeal to the district court, it reversed on the ground that appellants had been denied their statutory right to a jury trial and remanded the case to the magistrate. Appellants argued in a motion for clarification or reconsideration of the district court's order that they could not be retried because the evidence against them in the trial before the magistrate was insufficient to support conviction and that a retrial would violate the Double Jeopardy Clause. The district court accepted this argument as to one of the appellants, Bob Van Blunk, and on June 23, 1981, modified its order to direct acquittal of that appellant. The court found the evidence sufficient as to the other appellants and they have appealed to this court. We affirm.

II.

As an initial matter, we must determine whether we have appellate jurisdiction of the appeal. The Government contends that this court has no jurisdiction to entertain the double jeopardy claim because there has been no final decision from which appellants can appeal.

Under 28 U.S.C. § 1291 the courts of appeals have "jurisdiction of appeals from all final decisions of the district courts of the United States." This statute embodies a firm congressional policy against interlocutory or piecemeal appeals. Adherence to this policy "has been particularly stringent in criminal prosecutions" because intermediate appeals bring delays and disruptions which seriously impede " 'the effective and fair administration of the criminal law.' " Abney v. United States, 431 U.S. 651, 656-57, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 65 (1976) (quoting DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614).

In Abney, however, the Supreme Court recognized an exception to the general rule that an appeal does not lie until there is a final judgment of conviction. On the assumption that it had jurisdiction, this court in Abney had affirmed by judgment order the district court's denial of the defendants' motions to dismiss on grounds that retrial would expose them to double jeopardy and that the indictment failed to charge an offense. The Supreme Court held that dismissal of the double jeopardy claim was immediately appealable, 2 but that dismissal of the challenge to the sufficiency of the indictment was not.

The Court held that a pretrial order denying a motion to dismiss on double jeopardy grounds fit within the exception of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to the final judgment requirement and thus was a "final decision" within the meaning of 28 U.S.C. § 1291. Abney, supra, 431 U.S. at 662, 97 S.Ct. at 2041. The Court applied a three-part test derived from Cohen to orders denying motions to dismiss on double jeopardy grounds. It found first that such orders "constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant's double jeopardy claim," id. at 659, 97 S.Ct. at 2040, and thus met Cohen's requirement that the order fully dispose of the question at issue.

The Court next considered a second Cohen factor, that an order must not be "simply a 'step toward final disposition of the merits of the case (which would) be merged in final judgment.' " Id. at 658, 97 S.Ct. at 2039 (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1225). The Court explained that

the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him.... Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charges against him.

Id. at 659, 97 S.Ct. at 2040.

The third requirement for an order to fit the Cohen exception is that an important right would be lost if review had to be postponed until final judgment. The Court readily recognized the loss of such a right in an order denying a motion to dismiss on double jeopardy grounds. Emphasizing that the historic clause protects individuals from being twice put to trial as well as from being twice punished, 3 the Court determined that "if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." Id. at 662, 97 S.Ct. at 2041.

In its analysis of the three Cohen factors in the context of a criminal prosecution and the Double Jeopardy Clause, the Court in Abney appears to have leaned heavily on the third factor-an important right would be irretrievably lost if intermediate review were denied. See United States v. MacDonald, 435 U.S. 850, 860 n.7, 98 S.Ct. 1547, 1552 n.7, 56 L.Ed.2d 18 (1978) ("certain claims (because of the substance of the rights entailed, rather than the advantage to a litigant in winning his claim sooner) should be resolved before trial. Double jeopardy claims are paradigmatic.") Thus, as we read Abney, the central reason for the Court's determination that double jeopardy claims fall within the Cohen exception is the nature of the right protected-"the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double...

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