APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. District Court Criminal Action No. 71-587.
Kalodner, Aldisert and Garth, Circuit Judges.
After considering the contention raised by appellant that the order of April 19, 1973, dismissing the indictment after trial and conviction is appealable and United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970), and it appearing therefore that the district court's order is not appealable by the government under 18 U.S.C. § 3731, it is
Ordered and adjudged that the appeal be and is hereby dismissed.
Opinion SUR PETITION FOR PANEL REHEARING
We have before us a paper,*fn1 filed by the United States-appellant, which we shall treat as a petition for rehearing, which seeks, inter alia, panel rehearing of an order entered on September 21, 1973, dismissing this appeal on the ground that the order of the district court was not appealable under 18 U.S.C. § 3731.
An indictment, returned on October 28, 1971, charging the defendant with violation of 29 U.S.C. § 501(c), embezzling funds of a labor organization, alleged that the defendant converted $1,233.15 of the monies of the International Brotherhood of Electrical Workers, Local 367, to use in paying for a portion of the expenses of his daughter's wedding reception at the Easton Hotel. Defendant, business manager of the Union, allegedly converted the money by way of a check signed by two officers of the Union, Robert Schaefer and Robert L. Brinker.
The F.B.I. began an investigation of this case and other cases involving the defendant in April of 1968, and continued it through June of 1970. The investigation concerning the subject of this indictment was completed by the F.B.I. by June of 1969, after which evaluations were made by the Organized Crime Strike Force and by the United States Attorney's Office. These evaluations resulted in a delay which caused the indictment to be returned October 28, 1971, three days prior to the running of the statute of limitations.
Prior to trial defendant filed a motion to dismiss the indictment on the basis of prosecutorial pre-indictment delay. Two pre-trial hearings were held, and the defendant established that the two signatories to the check were no longer available: Brinker had died, and Schaefer was terminally ill. The court denied defendant's motion, and the case proceeded to trial. After the jury returned a verdict of guilty, defendant filed motions for arrest of judgment, judgment of acquittal and a new trial. The district court ordered that the case be dismissed pursuant to F.R. Cr. P. 48(b) concluding that the prosecutorial pre-indictment delay had substantially prejudiced the defendant's right to a fair trial under the due process clause of the Fifth Amendment. See, United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). The government appealed; we dismissed the appeal by judgment order.
In its "petition" the government argues that our dismissal of the appeal and our reliance on United States v. Sisson, 399 U.S. 267, 26 L. Ed. 2d 608, 90 S. Ct. 2117 (1970), overlook the clearly expressed intent of Congress to authorize an appeal from all post-conviction orders except where prohibited by the double jeopardy clause. We disagree.
After the Supreme Court's decision in Sisson Congress amended 18 U.S.C. § 3731.*fn2 That section presently provides:
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy ...