U.S. v. Venable

• Decision Date: 07 September 1978
• Docket Number: No. 78-1262,78-1262
• Parties: UNITED STATES of America v. Edward G. VENABLE, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 71

585 F.2d 71

UNITED STATES of America v. Edward G. VENABLE, Appellant.

No. 78-1262.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Sept. 7, 1978.

Decided Oct. 5, 1978.

Robert N. deLuca, U.S. Atty., Richard W. Beckler, Deputy Chief, Fraud Section, U.S. Dept. of Justice, Breckinridge L. Willcox, Atty., Fraud Section, U.S. Dept. of Justice, Washington, D.C., for appellee.

Jeffrey M. Miller, Nasuti, Miller & Fioravanti, Philadelphia, Pa., for appellant.

Before GIBBONS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

On this appeal, the defendant Venable seeks review of a denial by the district court of his motion to bar his retrial on two counts of a five count indictment. At his initial trial, Venable was acquitted of three of the five counts in the indictment. As appears in the subsequent factual recital, the three counts of which he was acquitted are related to the two counts as to which retrial has been ordered.

Two principal issues are before us for consideration. The first is whether this appeal may be taken from the trial court's order since the effect of denying Venable's motion is to require that a retrial proceed. The second is whether the doctrine of collateral estoppel, as embodied in the constitutional guarantee against double jeopardy, precludes a retrial because certain facts necessary to sustain a conviction on the two charges to be prosecuted in the retrial had been established in Venable's favor during the original trial.

We hold that Venable's appeal is properly before us under the collateral order doctrine, and that retrial is not prohibited under the collateral estoppel doctrine.

I

Edward G. Venable is the former Chairman of the Delaware County Housing Authority. He was indicted on April 13, 1977, by a federal grand jury on three counts of extortion under 18 U.S.C. § 1951 (1977) ¹, and two counts of perjury under 18 U.S.C. § 1623 (1977) ². Counts I-III of the indictment alleged three instances in which funds were extorted from Joseph Baldino, an architect, in order that Baldino might be awarded contracts by the Housing Authority for the provision of architectural services. Count IV charged that Venable committed perjury when he denied before the grand jury any knowledge that other members of the Housing Authority were receiving payoffs. Count V alleged that Venable perjured himself when he denied that he himself had participated in receiving payoffs from Baldino.

Trial before a jury was commenced on July 18, 1977. The principal government witness was Baldino, who testified that he had paid Venable $500 on May 25, 1973, at a luncheon at the Red Coach Grill; $500 on July 27, 1973, at the Brass Rail Restaurant; and $500 on October 15, 1973, also at the Brass Rail Restaurant. The payoff at the Red Coach Grill was corroborated by the testimony of another government witness. However, following the close of the defendant's case, the government learned that the Red Coach Grill had been renamed the Franklin Stove Restaurant in late 1972, and had not been opened for lunch since October 1972. This information was disclosed to the district court judge and defense counsel, and these facts were stipulated to prior to closing arguments.

On July 26, 1977, the jury returned a verdict of not guilty as to the extortion counts, Counts I-III, but guilty as to the perjury counts, Counts IV-V. Viewing these verdicts as inconsistent, the trial judge refused to record them and sent the jury back for further deliberations. During the course of these deliberations, the jury sent the following note to the trial judge:

Sir, we believe that Mr. Venable was untruthful before the grand jury. We do not believe that the Government proved any instances of personal payoffs beyond a reasonable doubt.

Does this deal with a personal payoff or his personal knowledge of other payoffs?

In response to this inquiry, the district court judge reread Count V of the indictment to the jury. He then instructed the jury that it was the government's contention that Venable "was untruthful because he did know that he had made a solicitation and he did know that he had received money, but he denied having made the solicitation and having received money." N.T., vol. VI, p. 26.

After further deliberations, the jury then sent another note to the trial judge:

Your Honor, we stand firm as to our decision of Mr. Venable's untruthfulness. However, we do not have enough evidence to find him guilty beyond a reasonable doubt on the first three counts of extortion. We are not sure that they took place on the dates specified in the indictment. Does this matter?

Upon receipt of this note, the verdict was recorded.

Following entry of this verdict, the court granted Venable's motion for a new trial because the prosecutor had improperly commented on Venable's failure to testify, thus violating his fifth amendment privilege against self-incrimination. Venable v. United States, 443 F.Supp. 178 (E.D.Pa.1977). Venable then moved to bar retrial on the two perjury counts on the ground of double jeopardy and, as to Count V, on the ground of collateral estoppel. Both motions were denied.

While the notice of appeal was from the orders denying Venable's motions to "bar retrial on the ground of double jeopardy" and to "dismiss count five on grounds of collateral estoppel," the only issue raised in Venable's brief before us is the court's denial of his motion addressed to count five. ³ We therefore limit our discussion to that issue.

II

An order of the district court is not generally appealable unless it is final within the meaning of 28 U.S.C. § 1291 (1977), or, if interlocutory, is made appealable by the terms of 28 U.S.C. § 1292 (1977). The final order requirement of § 1291 was given a practical interpretation when the Supreme Court announced the collateral order doctrine in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under this rule, immediate appeal is allowed from decisions "in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1225.

In this case, the order of the district court denying Venable's motion to bar retrial is not archetypically final in the sense that it terminates proceedings in the court below. Its consequence, rather, is to require that a new trial commence. Nor is the order an interlocutory one made appealable by § 1292. If this court properly has appellate jurisdiction, it must therefore be because the appeal is from a collateral order of the type described in Cohen v. Beneficial Loan Corp., supra.

United States v. DiSilvio, 520 F.2d 247 (3d Cir. 1975), established the rule in this Circuit that the district court's denial of a motion to dismiss based on a claim of double jeopardy is a final and appealable order under the collateral order doctrine. ⁴ The double jeopardy claim is collateral in the sense that it is independent of the issue of guilt or innocence of the crime charged. Also, the claim is of constitutional dimension and its very substance the right to be free from trial twice on the same issue would be defeated if the appellant were required to await appellate review until after the second trial.

Recently, in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Supreme Court confirmed that a pretrial order denying a motion to dismiss an indictment on grounds of double jeopardy falls within the Cohen collateral order doctrine and thus satisfies the jurisdictional prerequisites of § 1291. ⁵ The court cautioned however, that not all claims asserted in the motion to dismiss are immediately appealable. Because the Abney decision was based on the special considerations attaching to double jeopardy claims, the Supreme Court held that immediate appeal of other claims raised by the motion to dismiss would be permissible only if such claims independently fell within the Cohen exception.

Venable's claim here that retrial on Count V is barred by the doctrine of collateral estoppel is properly a fifth amendment claim inasmuch as Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), holds that the federal law of collateral estoppel is embodied in the constitutional guarantee against double jeopardy. If the government is collaterally estopped from establishing at a second trial those facts necessary to sustain conviction on the crimes charged, Venable's right not to be subject to a second trial will then have been vindicated. Venable's claim is thus of constitutional magnitude; the protection afforded by embodiment of the collateral estoppel doctrine in the double jeopardy clause is precisely analogous to the traditional protection afforded by that clause. Moreover, denial of review at this time may result in irreparable injury if, after retrial, Venable's double jeopardy claim is found to be meritorious. We therefore hold that the district court's denial of the motion to bar retrial is an appealable collateral order which vests this court with § 1291 jurisdiction.

III

Venable's basic contention is that his retrial on Count V of the indictment is prohibited because his acquittal on the extortion charges contained in Counts I-III established conclusively certain facts in his favor which would be necessary to sustain his conviction for perjury. He argues that the ultimate issue determined at trial of the extortion charges was whether he had received payoffs from Baldino, and that his acquittal on those charges conclusively establishes the fact that he had not received such payments. Thus, he contends, a conviction cannot be sustained on grounds that he perjured himself before the grand jury when he denied having...