Before FAHY, Senior Circuit Judge, and LEVENTHAL and WILKEY, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
PINA, a/k/a PEEWEE a/k/a SHORTMAN, APPELLANT; UNITED STATES
Nos. 78-2274, 78-2275, 78-2276, 78-2277, 78-2278, 78-2279, 78-2280, 78-2294, 78-2295, 78-2296 1978.CDC.246
Certiorari Denied February 26, 1979. See 99 S. Ct. 1287.
Appeals from the United States District Court for the District of columbia.
This case is before us on expedited consideration of appellee's motion for summary affirmance and appellant Pina's motion for summary reversal.
By an indictment returned on August 18, 1978, the ten appellants were charged with participating in a narcotics conspiracy and related offenses. *fn1 The indictment charged a conspiracy involving misuse of medical prescriptions by doctors in several states, as a source of drugs, and a number of channels of distribution. We were advised at oral argument that this is the culmination of a 2-year major investigation.
Trial commenced on October 30, 1978, before Judge Thomas A. Flannery. In due course, a jury was selected and sworn and counsel made opening statements. The Government presented a large number of documents and 43 witnesses, most of whom were custodians of documents. Then, November 13, 1978, Judge Flannery took ill.
On November 14, 1978, Judge Gerhard Gesell took the bench and announced that, due to Judge Flannery's illness, the trial would be continued until November 20, 1978. On November 20, 1978, Judge Gesell again continued the trial, due to Judge Flannery's illness, until November 27, 1978. On November 27, 1978, Judge Gesell again took the bench and announced that Judge Flannery would be unable to continue with the trial for health reasons and that the active judges of the court, having been polled as to whether they would be able to take over the trial, replied in the negative, since they already had other matters on their calendars. *fn2 Judge Gesell announced that he saw no alternative but to declare a mistrial with a new trial to be set at a later date. Before bringing in the jury, Judge Gesell allowed defense counsel an opportunity to comment. At this point the defense attorneys objected that a mistrial was not necessary at this time, and that the defense was willing to await the assignment of a new judge. The objections were overruled. A written order declaring a mistrial for reasons of manifest necessity was filed on November 28, 1978.
The case was reassigned to Judge Louis Oberdorfer. At a status call conference held November 29, Judge Oberdorfer set hearings on motions for December 14, with trial set for December 18, 1978. Defendants moved to dismiss the indictment on the ground that a second trial would violate the Fifth Amendment's prohibition against double jeopardy. Judge Oberdorfer denied these motions on December 14, 1978, and filed an order and memorandum opinion the next day. 467 F. Supp. 575 (1978). Appeals were promptly filed, most of them on December 14. This court expedited consideration of the appeals pursuant to Judge Oberdorfer's request. *fn3 On December 28, 1978, oral argument was heard on the Government's motion for summary affirmance, the oppositions thereto filed by the appellants, and the appellant's motion for summary reversal.
This appeal from the denial of motions to dismiss the indictment on double jeopardy grounds is properly before the court as an appealable final order. Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). We grant the Government's motion for summary ...