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Defendant-appellant Alan Raphael appeals from an order entered on March 5, 1992 in the United States District Court for the Southern District of New York (Sweet, J.) denying his motion to dismiss, on double jeopardy grounds, the second superseding indictment naming him as a defendant in this case. 786 F.Supp. 355. The indictment charges Raphael with two counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341. These charges are based on the fraudulent reporting of the theft of an automobile to obtain financial benefits and were recast from an earlier indictment charging mail and wire fraud in order to eliminate certain allegations relating to the alteration of a vehicle identification number ("VIN"). The earlier indictment (the first superseding indictment) had included separate counts charging Raphael with the substantive offenses of VIN alteration and possession of a vehicle with an altered VIN. The VIN counts were dismissed by the district court prior to the submission of the case to the jury. The mail and wire counts in the first superseding indictment were submitted to the jury, and a verdict of 831*831 guilty was rendered. However, the district court set aside those convictions and ordered a new trial.

In rejecting Raphael's double jeopardy claim, the district court observed that "[t]he last trial ended in ... an order for a new trial on the three fraud counts, at Raphael's behest," and for that reason determined that "the upcoming trial is just another stage in this prosecution." Analyzing the present indictment, the district court concluded that "[t]he superseding indictment on the fraud charges, although styled differently, does not subject Raphael to double jeopardy." For the reasons that follow, we agree with the district court that there is no double jeopardy bar to the prosecution of Raphael on the recast indictment.


980 F.2d 830 (1992)

UNITED STATES of America, Appellee,


Mario ALEGRIA; Victor Pena; Rafael Mercedes; George Espinal, Defendants, Alan Raphael, Defendant-Appellant.

No. 1835, Docket 92-1157.

United States Court of Appeals, Second Circuit.

Argued August 13, 1992.

Decided November 19, 1992.

New York Law School location: File #1528, Box #130