On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-00195-01.
Hutchinson, Scirica and Rosenn, Circuit Judges
HUTCHINSON, Circuit Judge.
Defendant-appellant, Nathaniel Coleman (Coleman), appeals from a judgment of sentence imposed after a jury found him guilty of violating 18 U.S.C.A. § 241 (West 1969) (Count I), 18 U.S.C.A. § 1503 (West 1984) and 18 U.S.C.A. § 2 (West 1969) (Count II).*fn1 Coleman contends that (1) the government violated the guarantees of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by withholding certain evidence from the defendant and that we should either grant him a new trial or bar the prosecution under the double jeopardy clause of the Constitution; (2) the evidence was insufficient to support the guilty verdicts; (3) the government failed to corroborate Coleman's "confession" to its chief prosecution witness, and (4) he is entitled to a new trial on the basis of the prosecution and defense counsels' improper conduct before the jury and on the basis of the government's closing arguments. For the reasons stated below, we will affirm the judgment of sentence.
As a threshold matter, the convoluted nature of the events leading up to this appeal requires us to discuss our jurisdiction. On May 29, 1985, Coleman and Anthony Del Bono (Del Bono) were indicted on the above charges stemming from the death of Nigel Anderson (Anderson). Anderson was found dead in a room at the Crossroads Motel, Whitpain Township, Pennsylvania, on the eve of Coleman's trial in the district court for various narcotics violations. That trial was scheduled to commence on June 2, 1980. Anderson had agreed to act as a confidential informant against Coleman. In September of 1985, Coleman and Del Bono were first tried on the indictment now appealed in the Eastern District of Pennsylvania. As to Coleman, the jury split evenly on both counts of the indictment. The jury was divided with seven guilty votes and five not guilty votes on Count I of the indictment against Del Bono. He was acquitted on Count II. The trial judge declared a mistrial on those charges upon which the jury failed to agree.
A new trial was held in December of 1985. The jury found Coleman guilty on both counts. It found Del Bono guilty only on Count I, the conspiracy charge. The trial court, noting counsels' incessant "bickering and improper actions" and finding a Brady violation, granted Coleman's request for another new trial. However, it denied Coleman's motion for a judgment of acquittal. Citing the lack of evidence supporting the jury's finding that Del Bono had conspired to prevent Anderson from testifying, the district court granted Del Bono's acquittal motion. It denied Del Bono's new trial motion as moot.
Pursuant to 18 U.S.C.A. § 3731 (West Supp. 1988), the government appealed the order granting Coleman's motion for a new trial and Del Bono's motion for acquittal. Since Coleman's new trial motion under Fed.R.Crim.P. 33 was untimely, we held that the district court did not have the power to order a new trial. Accordingly, we reversed and reinstated the jury's guilty verdict. United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987). However, we affirmed the district court's order granting Del Bono's motion for acquittal. Id. at 807-08. The case was then remanded to the district court for sentencing. On remand, the district court sentenced Coleman to a life term of imprisonment on Count I and a concurrent five year sentence on Count II. Coleman appeals the judgment of sentence.
The government's previous interlocutory appeal under 18 U.S.C.A. § 3731 seeking our review of the new trial and acquittal orders did not, at that time, give this Court jurisdiction to consider those other issues Coleman now raises on appeal. United States v. Margiotta, 646 F.2d 729, 734 (2d Cir. 1981), cert. denied, 461 U.S. 913, 77 L. Ed. 2d 282, 103 S. Ct. 1891 (1983). Because Coleman has now been sentenced, we have before us a final order and appellate jurisdiction is present under 28 U.S.C.A. § 1291 (West Supp. 1988). Flanagan v. United States, 465 U.S. 259, 263, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984).
Coleman's Rule 33 motion for a new trial was untimely. Accordingly, the district court only had power to consider those issues raised pursuant to his Fed.R.Crim.P. 29 motion for acquittal. Coleman, 811 F.2d at 807. In its answer to Coleman's petition for rehearing, the government chose not to rely on this default and agreed that the new trial issues were open on this appeal. Accordingly, we have considered them, but find they lack merit.*fn2
Coleman argues that the government's failure to provide him with Brady materials before the first trial bars the second trial under the double jeopardy clause of the United States Constitution.*fn3 Following the hung jury on both counts of the indictment against Coleman, the second jury found him guilty of all charges. Although the bulk of the purported Brady violations were remedied before the second trial, Coleman contends that the second trial should never have taken place. In other words, the new trial order was insufficient to remedy the prosecutor's misconduct in failing to provide him exculpatory evidence in satisfaction of Brady. This is a legal issue on which our scope of review is plenary.
The constitutional protection against double jeopardy secures a defendant's "valued right to have his trial completed by a particular tribunal." Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834 (1949). That protection, however, has never been described in absolute terms. The right "is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Arizona v. Washington, 434 U.S. 497, 505, 54 L. Ed. 2d 717, 98 S. Ct. 824 (1978).*fn4 In the context of prosecutorial misconduct, the double jeopardy clause will not bar retrial "absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Oregon v. Kennedy, 456 U.S. 667, 676, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982) (emphasis added). Here, assuming arguendo a number of Brady violations prior to the first trial, the double jeopardy clause is not implicated. The prosecutor's withholding of exculpatory evidence from the defendant may only be characterized as an overzealous effort to gain a conviction from the first jury and not as an attempt to subvert Coleman's "valued right" by bringing the case before a second jury. Because the double ...