United States v. Ralph Affinito

Plaintiff-Appellant United States of America appeals the district court’s order granting Defendant-Appellee Ralph Affini-to’s motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The jury had returned guilty verdicts against appellee on five counts of mail fraud under 18 U.S.C. § 1341 . Subsequently, but prior to sentencing, the Supreme Court handed down its decision in McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987). Ap-pellee renewed his prior motion for acquittal, arguing that the government’s prosecution relied at least in part on theories prohibited by the McNally decision.

The government concedes that aspects of both the indictment and the jury instructions run afoul of the McNally decision. But it contends that the district court’s order was not a true acquittal triggering the bar of double jeopardy. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . This court’s appellate jurisdiction is the major issue on appeal. As we find that the double jeopardy clause does not prohibit the government’s appeal pursuant to 18 U.S.C. § 3731 , we reverse the Rule 29 judgment of acquittal and remand this case…