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U.S. v. Steel, No. 09-50335 (11-23-10) (Graber with Wallace and Mills, Sr. D.J., C.D.Ill).

"Wait, wait, before retrial, I get an appeal on the sufficiency of evidence." That is essentially the position of the defendant, who got a remand for an Allen instruction error on his first appeal from a Hobbs Act conviction. The case went back to the district court, where the defendant asked the court for a judgment of acquittal for insufficiency of evidence on the conspiracy count. The court denied the motion, and the defendant then sought this interlocutory appeal, arguing that the ruling placed him in double jeopardy. The 9th acknowledged that insufficiency of evidence may be intertwined with a double jeopardy appeal. However, there has to be a terminated jeopardy. Here, though, the remand and the ruling on a procedural issue (jury instruction) had not terminated the defendant's original jeopardy. The district court ruled against the defendant, and that ruling can be later reviewed.

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