Dimattina v. United States

• Decision Date: 13 June 2013
• Docket Number: 11–CR–705.,Nos. 13–CV–1273,s. 13–CV–1273
• Citation: 949 F.Supp.2d 387
• Parties: Frank DiMATTINA, Movant, v. UNITED STATES of America.
• Court: U.S. District Court — Eastern District of New York

949 F.Supp.2d 387

Frank DiMATTINA, Movant,
v.
UNITED STATES of America.

Nos. 13–CV–1273, 11–CR–705.

United States District Court,
E.D. New York.

June 13, 2013.

[949 F.Supp.2d 391]

Jeffrey H. Lichtman, Esq., Law Offices of Jeffrey Lichtman, Sarita Kedia, Esq., Law Offices of Sarita Kedia, Marc A. Fernich, Esq., Law Offices of Marc Fernich, New York, NY, for the Movant.

Loretta E. Lynch, Esq., United States Attorney by Jack Dennehy, Esq., Assistant United States Attorney, Eastern District of New York, for the Government.

FINDINGS OF FACT AND LAW, MEMORANDUM, ORDER, AND JUDGMENT ON 28 U.S.C. § 2255 MOTION
JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

I.	Introduction	391
II.	Facts and Procedural History	392

A.	Crime of Conviction	392
B.	Rule 33 Motion	396
C.	Sentencing	399
D.	Direct Appeal	399
E.	Section 2255 Motion: Substance and Practice	399
F.	Section 2255 Hearings	402

III.	Section 2255 Collateral Attack Prior to Resolution of Direct Appeal	405
IV.	Asserted Grounds for Relief	409

A.
Ineffective Assistance of Counsel
409

1.	Law	409
2.	Application of Law to Facts Pertaining to Ineffective Assistance of Counsel	410

B.
Actual Innocence
414

1.	Law	414
2.	Application of Law to Facts Pertaining to Actual Innocence	421

V.	Certificate of Appealability	422
VI.	Conclusion	422

I. Introduction

Prior to resolution of his appeal before the Court of Appeals for the Second Circuit, defendant Frank DiMattina (“DiMattina” or “Defendant”) seeks collateral relief from a conviction and sentence imposed on one count of extortion and another for use of a firearm in connection with extortion.

This odd—but sensible, in view of the circumstances—procedural turn, directed by the appellate court, raises interesting procedural questions by requiring the trial court to rule on a then-nonexistent motion pursuant to 28 U.S.C. § 2255 after the direct appeal was taken but before it has been decided. See Part III, infra.

DiMattina contends in this collateral attack that (1) he received ineffective assistance of trial counsel and (2) he is innocent. An alibi defense—presented first in a post-trial motion pursuant to Rule 33 of

[949 F.Supp.2d 392]

the Federal Rules of Criminal Procedure and now collaterally pursuant to 28 U.S.C. § 2255—lies at the heart of DiMattina's claims.

Trial counsel's failure to pursue this “defense” is the basis for the ineffective assistance claim. The same evidence he adduces in arguing that his trial attorneys missed an obvious alibi defense is offered in support of his actual innocence claim. Neither ground asserted by DiMattina provides a viable avenue to section 2255 relief. See Part IV, infra.

DiMattina's trial attorneys ably handled the defense. See Part IV.A, infra. They vigorously pursued a strategy of disproving the credibility of the government's key witness. At no point during, or immediately after, the trial did DiMattina suggest or hint to his lawyers a possible alibi defense. Omniscience by a lawyer cannot be assumed. The client bears some responsibility for providing, at minimum, a scintilla of reason to investigate and pursue an alibi.

Exploration of the law and facts supporting a claim of actual innocence is required. See Part IV.B, infra. It is assumed—because of the availability of new tools, in some cases, to demonstrate innocence almost to a certainty—that a showing of actual innocence may now provide a substantive as well as procedural ground for collateral relief. See Part IV.B.1, infra. But the burden of sustaining such a claim—however it may be defined—has not been met. See Part IV.B.2, infra.

For reasons stated orally and on the following findings of law and facts, the section 2255 motion is denied.

II. Facts and Procedural HistoryA. Crime of Conviction

Following a three day jury trial that began in January 2012, DiMattina was found guilty of one count of extortion in connection with a competitor's bid on a school lunch program and a separate count of using a firearm in connection with the extortion. See United States v. DiMattina, 885 F.Supp.2d 572, 576–77 (E.D.N.Y.2012) (denying Rule 33 motion, setting forth basis for sentence imposed and granting bail pending appeal). He was acquitted on three additional counts related to destroying a window of the restaurant he had sold to the chief witness against him, Walter Bowers. See Jury Verdict, United States v. DiMattina, No. 11–CR–705 (E.D.N.Y. Jan. 6, 2012), ECF No. 62.

Both the complaint, filed in September 2011, and the indictment, filed in October 2011, alleged that the extortion related to the use of a firearm occurred “ ‘[o]n or about and between June 1, 2010 and September 1, 2010, both dates being approximate and inclusive.’ ” DiMattina, 885 F.Supp.2d at 576 (quoting Sealed Compl.). The complaint and indictment make clear that the crime occurred shortly after Bowers, the victim, submitted a bid on a school lunch contract and almost immediately prior to it being withdrawn. See, e.g., Sealed Compl., United States v. DiMattina, No. 11–CR–705 (E.D.N.Y. Sept. 15, 2011), ECF No. 1, at ¶¶ 4–6 (describing that Bowers was confronted by DiMattina “soon after he placed the bid for the School Lunch Program Contract” and that “on the next business day after this confrontation with DiMattina, [Bowers], out of fear for his personal safety, withdrew his bid for the School Lunch Program Contract”).

Several months before the crime, in March 2010, Bowers and DiMattina were involved in a business deal in which DiMattina sold Bowers a catering hall on Staten Island. See DiMattina, 885 F.Supp.2d at 575–77. It was named “Ariana's”

[949 F.Supp.2d 393]

after DiMattina's eldest daughter. Id. DiMattina did not sell, and continued to operate, two separate catering halls—one on Staten Island and another in Woodbridge, New Jersey—under variations of the name “Ariana's.” Id. at 575. The contract governing the sale of “Ariana's” in Staten Island permitted Bowers to use the name for a limited period of time. Id. In a civil suit, DiMattina alleged that Bowers was continuing to use the name “Ariana's” without authority and failed to make payments for the purchase price of the business. Id.

On October 25, 2011, Defendant exercised his right to a speedy trial. See Ltr., United States v. DiMattina, No. 11–CR–705 (E.D.N.Y. Oct. 25, 2011), ECF No. 15. On the same day, he moved for a bill of particulars, requesting that the government state with more specificity when the alleged extortion occurred. See Mot. for Bill of Particulars, United States v. DiMattina, No. 11–CR–705 (E.D.N.Y. Oct. 25, 2011), ECF No. 13.

The motion for a bill of particulars was denied orally at a hearing on November 30, 2011. See Mot. to Vacate, Set Aside, or Correct Sentence, DiMattina v. United States, No. 13–CV–1273 (E.D.N.Y. Mar. 11, 2013), ECF No. 1 (“Section 2255 Mot.”), Ex. C (Tr. of Pre–Trial Conf., Nov. 30, 2011), at 3. Bills of particulars under this federal district's generous discovery procedures are redundant: the court expects the United States Attorney to open its files to the defendant unless there is a good, articulable reason not to do so. Defendant has conceded as much. See Tr. of Sentencing Hr'g, Mar. 30, 2013 (“Mar. 30 Tr.”), United States v. DiMattina, No. 11–CR–705 (E.D.N.Y. Oct. 25, 2011), at 26 (“[Defendant's Counsel]: I know that bills of particulars are routinely denied and they probably should be routinely denied except in cases like this.” (emphasis added)).

The government has demonstrated that before the trial it revealed everything it knew about the date and time of the alleged incident. DiMattina, 885 F.Supp.2d at 576. Material turned over pursuant to 18 U.S.C. § 3500 (“3500 Material”) included an FBI report that summarized two interviews with Bowers as well as Bowers's grand jury testimony. The FBI report stated that Bowers told an agent that he was “called” by DiMattina on a “Saturday morning” before engaging in a “walk-and-talk with DiMattina in approximately July or August of 2010” on a “Saturday.” SeeSection 2255 Mot., Ex. E (“FBI Report”), at 3. The FBI report and grand jury testimony were consistent in relaying that the “walk-and-talk” was initiated when DiMattina approached Bowers at Ariana's in Staten Island, accompanied him to an area next to the catering hall, and threatened him with a gun when discussing their competing bids on a school lunch contract. Id.;Section 2255 Mot., Ex. E (“Grand Jury Tr.”), at 20–22. Both sources of information stated that, after showing Bowers the gun, DiMattina turned to an associate and instructed him, so that Bowers could hear, to physically assault Bowers if he did not withdraw his bid. FBI Report 3; Grand Jury Tr. 22.

The transcript of the grand jury testimony reflected that Bowers placed his bid on the school lunch program in “June because the [priest in charge of the program] said ‘We have to have this wrapped up by July 4th because school is shutting down, and you need at least two months to get all the paperwork together.’ ” Grand Jury Tr. 18–19. Bowers testified before the grand jury that he withdrew his bid after DiMattina had threatened him with a gun on a Saturday. See id. at 21–23. Upon reviewing the FBI report and grand jury

[949 F.Supp.2d 394]

transcript, DiMattina's trial counsel knew the alleged extortion and use of a firearm occurred “between June and July 4.” Tr. of Hr'g on Ineffective Assistance Claim, Mar. 21, 2013 (“Ineffective Assistance Hr'g Tr.”), at 33. DiMattina did not subsequently renew his motion for a bill of particulars. Id. at 34.

Bowers testified to the following facts at trial:

DiMattina was a competing bidder on a contract for a school lunch program at a local Catholic high school. On a “Saturday, the last week in June [2010],” DiMattina approached Bowers at Ariana's. DiMattina asked Bowers to step outside and speak to him. He then led Bowers to an alley behind the catering hall, where they were met by an unidentified accomplice of the defendant. To induce Bowers to withdraw his bid, DiMattina threatened him....