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United States v. McQuilkin

decided: March 1, 1982.



Before Aldisert, Rosenn and Weis, Circuit Judges.

Author: Rosenn


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.


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.*fn1 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.


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 651 (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 ...

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