APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-170)
Before Gibbons, Hunter and Garth, Circuit Judges.
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.
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)*fn1, and two counts of perjury under 18 U.S.C. § 1623 (1977)*fn2 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 ...