United States v. DiMattina
| Decision Date | 08 August 2012 |
| Docket Number | No. 11–CR–705.,11–CR–705. |
| Parties | UNITED STATES of America, v. Frank DIMATTINA, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
Lawrence H. Schoenbach, New York, NY, Michael J. Ryan, Conigatti & Ryan, LLP, Staten Island, NY, for the defendant.
Jack Dennehy, United States Attorney's Office, Eastern District of New York, Brooklyn, NY, for the government.
AMENDED MEMORANDUM, ORDER, & STATEMENT OF REASONS
This memorandum deals with three issues: First, when can a new trial be granted by a trial court on the basis of alibi evidence after a jury verdict of guilty, where the failure to present that evidence at trial raises constitutional questions? See Part III, infra. Second, what is the appropriate sentence for the defendant? See Part IV, infra. Third, can bail pending decision on appeal be granted by a trial court, even though the statute seems to grant this power only to an appellate court, if Second Circuit case law allows release by the trial judge, and justice and sensible administration of the criminal law encourage granting bail by the trial court? See Part V, infra.
On January 6, 2012, following a three-day trial, defendant Frank DiMattina was convicted of extorting Walter Bowers, causing him to withdraw his bid for a school lunch contract at a Catholic high school in Staten Island and of using a firearm in connection with that crime. More than three months after the verdict, he moved for a new trial on the basis of newly discovered evidence. See Defs.' Mot. for a New Trial Under Rule 33(b)(1), Doc. Entry 70, Mar. 16, 2012. He contends that he was not aware of the date of the crime prior to trial, but that Bowers' testimony, which was given on the first day of the trial, establishes that the extortion occurred on June 26, 2010. He presented sworn affidavits from eight witnesses, as well as his own affidavit, to establish that he had an airtight alibi.
Oral argument was held on March 26, 2012. As explained in Part III, infra, because evidence of the alibi could have been obtained and presented during the trial, it is not “newly discovered” as required by Rule 33 of the Federal Rules of Criminal Procedure. While the failure to discover and present this alibi might be the basis of an ineffective assistance claim on direct appeal or on collateral attack, it did not justify granting a new trial prior to sentencing.
Sentencing was adjourned to March 30, 2012 to permit further briefing on two issues: 1) whether the court could consider the mandatory minimum of five years required by Count Three in sentencing the defendant on Count Two; and 2) whether the court should grant a stay of the sentence and permit release on bail pending appeal.
DiMattina is now sentenced to five years of incarceration on Count Three in accordance with the mandatory minimum. See Part IV(B), infra. In reliance on the factors enumerated in 18 U.S.C. § 3553(a), one year and one day of incarceration on Count Two is imposed, to run consecutively, to be followed by three years of supervised release. Because no consideration could be given to the term of incarceration imposed on Count Three in sentencing the defendant on Count Two, see Part IV(C), infra, the total sentence of six years and one day is even more excessive than the mandatory minimum requires. A $200 special assessment was imposed. A fine of $10,000 was levied. The defendant will forfeit five lawfully-possessed firearms confiscated by the government upon his arrest.
Defendant will be released pending his appeal. See Part V, infra. Federal law mandates detention of individuals convicted of violent crimes, including extortion, pending appeal. 18 U.S.C. § 3143. The language of the relevant statute appears to provide only an appellate court with the ability to exempt the defendant from this rule on the basis of “extraordinary reasons.” 18 U.S.C. § 3145(c). Nevertheless, the court will follow the majority of courts—including the Court of Appeals for the Second Circuit—which have found that a district court may grant bail pending appeal.
The substantial questions raised on the motion for a new trial may warrant reversal on appeal or a successful collateral attack, leading to a new trial. DiMattina's personal circumstances are such that incarceration may impose unique hardships on his family and many of his employees. These exceptional reasons plus satisfaction of other conditions weigh against defendant's incarceration pending appeal, and warrant granting release on bail. See Part V, infra.
The crimes alleged in this case arise out of a business transaction between the defendant and Walter Bowers. In March 2010, DiMattina sold Bowers a catering hall in Staten Island, New York. Def.'s Pre–Sentence Investigation Report f 2 (“PSR”). It was called Ariana's, after the defendant's eldest daughter. As part of the sale, DiMattina agreed that Bowers could use the name Ariana's for a limited period of time. Id. ¶ 2.
The defendant continues to operate two other restaurants—one in Staten Island, New York and one in Woodbridge Township, New Jersey—under variations of the Ariana's name (Ariana's Loft and Ariana's Grand, respectively). Id. ¶¶ 2, 57–58. He and Bowers are engaged in civil litigation in state court over Bower's continued use of the name Ariana's beyond the contractual period and his failure to pay the full price for the catering hall.
In October 2011, the defendant was charged with four counts of Hobbs Act extortion: extortion (Count Two) and conspiracy to commit extortion (Count One) in connection with a school lunch contract bid from Bowers, and extortion (Count Five) and conspiracy to commit extortion (Count Four) in connection with payments for the sale of the catering hall to Bowers. See Indictment, Doc. Entry 11, Oct. 13, 2011. He was also charged with using a firearm in connection with the school lunch...
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