U.S. v. Tranowski

• Decision Date: 23 March 1983
• Docket Number: No. 82-1489,82-1489
• Citation: 702 F.2d 668
• Parties: 12 Fed. R. Evid. Serv. 1161 UNITED STATES of America, Plaintiff-Appellant, v. Walter TRANOWSKI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 668

702 F.2d 668

12 Fed. R. Evid. Serv. 1161

UNITED STATES of America, Plaintiff-Appellant, v. Walter TRANOWSKI, Defendant-Appellee.

No. 82-1489.

United States Court of Appeals Seventh Circuit.

Argued Jan. 25, 1983.

Decided March 23, 1983.

Howard M. Pearl, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellant.

Jeffrey Heller, Seyfarth, Sahw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellee.

Before BAUER and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Stanley Tranowski used a counterfeit $5 bill to buy two "Whoppers" at a Burger King restaurant, and was tried and convicted of violating the federal counterfeiting law. The jury rejected his brother Walter's alibi testimony, and Walter was later indicted for perjury. At Walter's trial, a critical issue was whether a photograph of Stanley kneeling with his mother and his dog in front of rosebushes in bloom had been taken on the day when he was accused of having passed the counterfeit bill, as Walter had testified. Walter was convicted, and appealed. This court reversed. United States v. Tranowski, 659 F.2d 750 (7th Cir.1981). Most of the opinion is devoted to the question whether an astronomer's testimony purporting to demonstrate from the angle of the shadow cast by the dog that the photograph could not have been taken on the day Walter said it was taken was sufficiently reliable to be admissible. The court held it was not, id. at 754-57, but in the last paragraph of its opinion examined the sufficiency of the other evidence to support Walter's conviction, concluded it was not sufficient, and ordered the judgment of conviction reversed, id. at 757.

The government then filed a motion for a new trial in the district court. The defendant argued that a new trial would place him in double jeopardy. The district court agreed, and denied the government's motion, on the ground that "the Seventh Circuit opinion clearly rejects, not as inadmissible but as untrustworthy, the expert [astronomer's] testimony and expressly finds that the balance of the evidence is not sufficient to support the conviction. The opinion concludes with a reversal of the case without remand for the obvious reason that a second trial would be double jeopardy."

The first question is our jurisdiction over the appeal. In a criminal case the United States may appeal only from the "order of a district court dismissing an indictment or information," 18 U.S.C. Sec. 3731, and the district court did not purport to dismiss the indictment. The label, however, is unimportant, as is shown by United States v. Esposito, 492 F.2d 6, 10 (7th Cir.1973), which held that the grant of the defendant's motion for arrest of judgment was "tantamount to the dismissal of an indictment," and therefore appealable under section 3731, though not labeled a dismissal.

Section 3731, in confining government appeals to dismissals and further providing that "no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution," was intended to "allow [government] appeals whenever the Constitution [i.e., the double jeopardy clause] would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). The district judge terminated this case on the government's motion to retry Walter Tranowski. The motion, and the action on the motion, preceded any trial on remand. Since jeopardy does not attach until the defendant is " 'put to trial before the trier of facts,' " Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), the double jeopardy clause does not prevent the government from appealing the denial of its motion, and therefore the denial was a dismissal within the meaning of section 3731. Of course, if as Tranowski argues our previous opinion amounted to directing an acquittal, retrial would constitute double jeopardy, and would be barred. But it is not barred because of the proceedings on remand.

Coming to the merits, we do not accept the characterization of this court's previous decision as directing that Tranowski be acquitted. The bulk of the opinion was devoted to a discussion of the astronomer's testimony, and despite the district court's contrary view we believe this court held his testimony inadmissible rather than simply unpersuasive. The discussion in the opinion begins with a reference to "admissibility," proceeds to a lengthy discussion of the Federal Rules of Evidence, states that "since there remains no other theory upon which [the astronomer's testimony] could have been admitted, it was error to rule otherwise," 659 F.2d at 755, and amplifies this conclusion with repeated quotations from decisions holding expert testimony inadmissible on various grounds, see id. at 757.

Having held the expert testimony inadmissible the court went on to hold that the remaining evidence that the government had presented--"the testimony of the neighbors and of the Burger King and...