United States v. Dimattina

• Decision Date: 30 March 2012
• Docket Number: 11-CR-705
• Parties: UNITED STATES OF AMERICA, v. FRANK DIMATTINA, Defendant.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA,

v.FRANK DIMATTINA, Defendant.

11-CR-705

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: March 30, 2012

MEMORANDUM, ORDER, & STATEMENT OF REASONS

Appearances:

For the defendant: Lawrence H. Schoenbach

Michael J. Ryan

Conigatti & Ryan, LLP

For the government: Jack Dennehy

United States Attorney's Office

JACK B. WEINSTEIN, Senior United States District Judge:

I. Introduction..................................................2

II. Facts.................................................................4 III. New Trial Not Permitted................................................................8

IV. Sentence.....................................................12

A. Guidelines Calculations.....................................................13

B. Incarceration.....................................................13

1. Count Three.....................................................13

2. Count Two.....................................................13

C. Fine, Special Assessment, and Supervised Release.....................................................17

V. Release Pending Appeal Is Warranted.......................................................18

A. Power of District Courts to Grant Release Pending Appeal.....................................................18

1. Statutory Language.....................................................18

2. Legislative History.....................................................20

3. Interpretations by Other Courts of Appeals.....................................................21

4. Second Circuit Case Law.....................................................23

5. Plain Language Seems to Forbid Release by District Court.....................................................25

6. Weight of Precedents Allowing Release Followed.....................................................26

B. Exceptional Reasons Merit Release.....................................................27

1. 18 U.S.C. § 3143(b)(1) Factors Are Satisfied.....................................................27

2. Case Presents Extraordinary Circumstances.....................................................28

VI. Conclusion.....................................................31

I. Introduction

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 andsensible 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 18U.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.

II. Facts

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 ¶ 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 One) and conspiracy to commit extortion (Count Two) in connection with a school lunch contract bid from Bowers, and extortion (Count Four) and conspiracy to commit extortion (Count Five) 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 contract extortion (Count Three). Id.

Both the complaint and the indictment alleged that the school lunch contract extortion and the use of the firearm occurred "[o]n or about and between June 1, 2010 and September 1, 2010, both dates being approximate and inclusive." Sealed Compl., Doc. Entry 1, Sept. 15, 2011; Indictment, Doc. Entry 11, Oct. 13, 2011.

On October 25, 2011, defendant moved for a bill of particulars, seeking, among other things, to force the government to state with more specificity when the alleged extortions occurred. See Def.'s Mot. for a Bill of Particulars 6-7, Doc. Entry 13, Oct. 25, 2011 ("The Indictment does not provide any guidance as to when . . . the offenses w[ere] committed.Problematically, the school lunch allegations assert a time frame spanning three months . . . . The Indictment is purposely devoid of specificities and occurrences during such months . . . .").

Defendant's motion was denied. Following the general practice of this court, the United States Attorney in effect turned over its complete file to aid the defendant in preparing for trial. At the hearing for the instant motion, the government credibly averred that, in doing so, it revealed everything it knew about the date of the alleged incident. See Tr. of Sentencing Hr'g, Mar. 30, 2012. Bills of particulars under this district's generous discovery procedure are usually redundant.

Trial began on January 3, 2012. See Doc. Entry 57, Jan. 3, 2012. On January 4, Bowers took the stand, testifying as follows: 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. See Trial Tr. 108:16-17, Jan. 4, 2012; see also id. 166:6-7 (stating that the extortion occurred "[a]pproximately the 25 of June, I think it was a Saturday—it was a Saturday"). 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. Id. at 108:16 - 110: 11. To induce Bowers to withdraw his bid, DiMattina threatened him. Id. 110:15-110:21. Demonstrating the seriousness of this demand, DiMattina lifted his shirt to reveal a gun stuck in his waistband. Id. 110:15-111:3....