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United States v. Rizzo

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: March 17, 1971.

UNITED STATES OF AMERICA
v.
JOSEPH A. RIZZO, APPELLANT

McLaughlin and Van Dusen, Circuit Judges, and Hannum, District Judge.

Author: Per Curiam

Opinion OF THE COURT

This appeal is from a June 3, 1970, district court order, 313 F. Supp. 734, denying a Motion for Judgment of Acquittal, which was taken under advisement and was determined after the jury had been discharged due to its inability to reach a verdict, in a criminal prosecution for violation of 26 U.S.C. § 7206(2).*fn1 After careful consideration, we have concluded that the above order of June 3, 1970, is not a "final decision"*fn2 under 28 U.S.C. § 1291 for the reasons stated in Gilmore v. United States, 264 F.2d 44 (5th Cir.), cert. denied, 359 U.S. 994, 79 S. Ct. 1126, 3 L. Ed. 2d 982 (1959). See also Mack v. United States, 107 U.S. App. D.C. 73, 274 F.2d 582 (D.C.Cir.), cert. denied, 361 U.S. 916, 80 S. Ct. 262, 4 L. Ed. 2d 186 (1959); United States v. Swidler, 207 F.2d 47 (3d Cir.), cert. denied, 346 U.S. 915, 74 S. Ct. 914, 98 L. Ed. 411 (1953).

The appeal will be dismissed, and the mandate issue forthwith.


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