On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 85-00195-01,-02
Before: GIBBONS, Chief Judge, BECKER, Circuit Judge and BROWN, District Judge*fn*
The government appeals from orders of the United States District Court for the Eastern District of Pennsylvania granting appellee Nathaniel Coleman's motion for a new trial and granting appellee Anthony Del Bono's motion for a judgment of acquittal.
Jurisdiction over the government's appeal of the order granting appellee Coleman's motions for a new trial and appellee Del Bono's motions for a new trial and appellee Del Bono's motion for acquittal is based upon 18 U.S.C. § 3731 (1982), which expressly authorizes such an appeal by the United States in a criminal case in which the district court has issued an order "granting a new trial after verdict or judgment. . . ."
Although appellee Del Bono contends that 18 U.S.C. § 3731 does not authorize government appeals of judgments of acquittal may be appealed so long as an order reversing the district court would not result in a retrial. United States v. Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977); Government of Virgin Islands v. Hoheb, 777 F.2d 138 (3d Cir. 1985). Although not expressly enumerated in 18 U.S.C. § 3731, judgments of acquittal are appealable under that section. United States v. Leal, 781 F.2d 1108 (5th Cir. 1986). "The availability of an appeal depends not on statutory restrictions; rather, only the double jeopardy clause of the Fifty Amendment limits the government's power to do so." Id. at 1110. If this court were to reverse the judgment of acquittal that was granted after the jury verdict of guilty, then the verdict would merely be reinstated and the defendant would not have to be retried. As such, the double jeopardy clause would not be violated. United States v. Jannotti, 673 F.2d 578, 580 n.1 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (1982).
On June 2, 1980, appellee Coleman was scheduled to stand trial in the United States District Court for the Eastern District of Pennsylvania for various federal narcotics charges. The government's primary witness in that case was Nigel Anderson (Anderson), who had agreed to act as a confidential informant against Coleman. On various occasions, Anderson wore a body recorder while he was purchasing heroin from Coleman, and the transactions were recorded.
On June 1, 1980, the day before the trial, Anderson was found dead in a room at the crossroads Motel in Whitpain, Pennsylvania. The government contended that Coleman and Del Bono were responsible for luring Anderson to the motel room and having him murdered, so that he would not be able to testify at Coleman's trial. Del Bono was at the time a business associate and friend of Coleman. Coleman and Del Bono were indicted and charged with violations of 18 U.S.C. § 241 (1982), which prohibits conspiring "to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him . . .", 18 U.S.C. § 1503 (1982), which prohibits obstruction of "the due administration of justice," and 18 U.S.C. § 2 (1982), which forbids anyone from aiding, abetting, inducing or causing an act to be done by another which is "an offense against the United States."
Coleman and Del Bono were tried on these charges in the Eastern District of Pennsylvania in September of 1985. The jury found Del Bono not guilty of the obstruction of justice charge, but was deadlocked as to the conspiracy charge against him, and as to both the conspiracy and obstruction of justice charges against Coleman. A mistrial was declared, and a new trial was held in December, 1985. This time the jury found Coleman guilty of conspiracy and obstruction of justice, and found Del Bono guilty of conspiracy. Within four days after the jury verdicts, Coleman and Del Bono filed motions for extensions of the time period within which to file post-trial motions.
Over four weeks after the jury verdicts, the court granted the motion for an extension of time, giving the defendants until January 15, 1986 to file post-trial motions. Del Bono and Coleman each filed motions for a judgment of acquittal and for a new trial. On March 10, 1986, the district court denied Coleman's motion for a judgment of acquittal but granted his motion for a new trial. The court also granted Del Bono's motion for a judgment of acquittal and denied as moot his motion for a new trial.
As to Del Bono, the court held that the evidence submitted by the government was insufficient to prove beyond a reasonable doubt that Del Bono had conspired to violate Anderson's civil rights. As to Coleman, the court ordered a new trial, because it found that the prosecution committed a Brady violation by withholding from the defense a proffer letter which it had issued to one Haywood Logan, the government's primary witness against Coleman. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The letter promised Logan certain positive considerations in his own pending narcotics trial in exchange for his testimony against Coleman. In addition, the court sua sponte held that the constant "bickering" and "derisive ...