United States v. Joseph A. Rizzo
UNITED STATES of America v. Joseph A. RIZZO, Appellant
Opinion
OPINION OF THE COURT PER CURIAM:
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) - 1
After careful consideration, we have concluded that the above order of June 3, 1970, is not a “final decision”
2
under 28 U.S.C. § 1291 for *695 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, 274 F.2d 582 (D.C.Cir.), cert. denied, 361 U.S. 916 , 80 S.Ct. 262 , 4 L.Ed.2d 361 (1959); United States v. Swidler, 207 F.2d 47 (3d Cir.), cert. denied, 346 U.S. 915 , 74 S.Ct. 274 , 98 L.Ed. 411 (1953).
The appeal will be dismissed, and the mandate issue forthwith.
1
. The indictment charges that defendant “did willfully aid and assist in and procure the preparation and presentation of a return and document, to wit, Internal Revenue Form 1099, * * * which was false and fraudulent as to a material matter in that the name of the ultimate recipient of the income from the payment of a winning parimutuel ‘Big Exacta’ ticket by Brandywine Raceway was falsely stated, misrepresented and concealed. * * * ”
2
. In Berman v. United States, 302 U.S. 211, 212-213 , 58 S.Ct. 164, 166 , 82 L.Ed. 204 (1937), the Court said:
Final judgment in a criminal case means sentence. The sentence is the judg *695 ment. * * * The sentence was not vacated. It stood as a final determination of the merits of the criminal charge. To create finality it was necessary that petitioner’s conviction should be followed by sentence * * *. In criminal cases, as well as civil, the judgment is final for the purpose of appeal “when it terminates the litigation * * * on the merits” and “leaves nothing to be done but to enforce by execution what has been determined.”
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