US v. D'AMATO, Crim. No. 88-196-2.

• Decision Date: 21 August 1989
• Docket Number: Crim. No. 88-196-2.
• Citation: 722 F. Supp. 221
• Parties: UNITED STATES of America v. Carmen J. D'AMATO, a/k/a "Butchie".
• Court: U.S. District Court — Eastern District of Pennsylvania

722 F. Supp. 221

UNITED STATES of America v. Carmen J. D'AMATO, a/k/a "Butchie".

Crim. No. 88-196-2.

United States District Court, E.D. Pennsylvania.

August 21, 1989.

Robert E. Courtney, U.S. Dept. of Justice, Philadelphia, Pa., for plaintiff.

James C. Schwartzman, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

DITTER, District Judge.

This case comes before the court on defendant's motion to have bail continued pending the resolution of his appeal to the Third Circuit. Carmen J. D'Amato was convicted by a jury of conspiracy to defraud the Internal Revenue Service in violation of 18 U.S.C. § 371, and was acquitted of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846.¹ I denied D'Amato's post-trial motions, sentenced him to serve a four year period of incarceration, ordered him to pay a fine of $100,000, and required him to surrender to the United States marshal within thirty days. At sentencing, bail was continued pending D'Amato's surrender to the marshal. The present motion to have it continued pending resolution of his appeal must be denied.

Section 3143(b) of Title 18 sets forth the standard for release or detention of convicted defendants pending appeal:

The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds (1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to Section 3142(b) or (c); and (2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

Section 3143(b) places the burden on the defendant to establish four factors before the court may order release pending appeal:

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;

(2) that the appeal is not for purpose of delay;

(3) that the appeal raises a substantial question of law or fact; and

(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

United States v. Miller, 753 F.2d 19, 24 (3d Cir.1985). In Miller, the Third Circuit defined "substantial question" as "one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Id. at 23. A creatively drafted appeal, however, does not necessarily warrant release in accordance with Sections 3142(b) or (c) of Title 18 in light of the fourth Miller factor. An issue must be "likely to result in reversal or an order for a new trial" if decided in defendant's favor; hence, alleged trial errors which were harmless or which had no prejudicial effect, and questions which are not integral to the merits of conviction will not warrant release pending appeal. Id. If an issue can be categorized as "fairly debatable," it may be substantial. United States v. Smith, 793 F.2d 85, 89 (3d Cir.1986) (quoting United States v. Handy, 761 F.2d 1279, 1282 n. 2 (9th Cir.1985)).

In its response to D'Amato's motion, the government does not contend that D'Amato is likely to flee or that he poses a danger to any person or to the community. The government opposes the motion on the basis that the issues to be raised by D'Amato on appeal do not satisfy the third and fourth Miller factors.²

D'Amato states that the issues he will raise on appeal "include, but are not limited to the following: a. those issues raised in pretrial proceedings in this case; b. those issues raised in post trial motions in this case; c. those issues set forth in the case of United States v. Minarik, 875 F.2d 1186 (6th Cir.1989)." Defendant's motion at 3.

Pretrial Motions

D'Amato filed six pretrial motions: to suppress physical evidence, for disclosure of impeaching information, for severance, for relief from prejudicial joinder, for the production of agents' rough notes, and to join in applicable motions of other defendants.

As a result, I ordered that the government preserve all rough notes of interviews and promptly provide defendant with all material tending to show his innocence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Following my order, D'Amato did not contend that the government either failed to disclose impeaching material or destroyed its rough notes from interviews of witnesses; hence, any objections pursuant to Brady were waived and cannot form the basis of a "substantial question ... likely to result in reversal or an order for a new trial" on appeal.

By order of September 14, 1988, I denied D'Amato's motion to sever his trial from that of his co-defendant, Anthony J. Curcio, and his motion for relief from prejudicial joinder. For the reasons set forth in my September 14 order, and particularly in light of the fact that the jury acquitted D'Amato on the drug conspiracy count while finding his co-defendant guilty, there has been no prejudice to D'Amato from a consolidated trial that would raise a "substantial question" on appeal. Any minimal prejudice that D'Amato may have suffered as a result of consolidation would not create grounds for either reversal or a new trial.

By memorandum and order of Dec. 30, 1988, see U.S. v. D'Amato, 705 F.Supp. 237 (E.D.Pa.1988), I denied D'Amato's motion to suppress physical evidence. The reasons for my decision were based entirely on controlling legal precedent and are set forth at length in that opinion. The issues raised in D'Amato's motion to suppress are well-settled, are not "fairly debatable," and therefore are not "substantial."

D'Amato's motion to join the applicable motions of his co-defendants was granted as unopposed. The "applicable" motions, all filed by Curcio, were to have the court instruct potential witnesses, for leave to file additional pretrial motions, to compel the government to confirm or deny existence of evidence, for a bill of particulars, for a pretrial hearing on admissibility of co-conspirators' statements, and for disclosure of matters occurring before the grand jury. I denied Curcio's motion requesting that I instruct potential witnesses inasmuch as the government never instructed witnesses not to talk to defense counsel and no witness refused to talk to defense counsel by reason of any communications from the government. By order of November 28, 1988, I refused Curcio's motion for leave to file additional pretrial motions since counsel knew of no other motions that he wished to file. The same day, I denied Curcio's motion to compel the government to confirm or deny the existence of evidence since the government had already furnished all of the requested information relating to offenses charged in the indictment. Curcio's request for a bill of particulars was then properly denied as unnecessary. The motion for a pretrial hearing concerning co-conspirators' statements was also properly refused as unnecessary, since the government was required to offer independent evidence in its case-in-chief to support admission of those statements. The government met its burden at trial; hence, there was no prejudice to D'Amato in my refusing this motion. In view of D'Amato's failure to establish any particularized need or any basis at all for the grand jury material, the motion requesting disclosure was properly refused by order of November 28, 1988.

D'Amato did not contend at trial that my refusal to grant the motions filed by Curcio in any way prejudiced his ability to prepare for trial or adequately to defend himself. Any issues raised by D'Amato on appeal concerning these pretrial decisions are far from novel. Many of these decisions were within the sound discretion of the court, and could hardly be labeled as "fairly doubtful" or "fairly debatable." Consequently, my refusal to grant the pretrial requests by Curcio raises no "substantial" issues for D'Amato on appeal. If any of these pretrial decisions were wrong, the error was harmless at best; hence, there is no likelihood that a decision in D'Amato's favor would result in reversal or an order for a new trial.

Post Trial Motions

D'Amato filed a motion for judgment of acquittal, or in the alternative, for a new trial, which was denied by memorandum and order on June 30, 1988. See U.S. v. D'Amato, 1989 WL 73691. I carefully considered each of the issues raised in his motion, including sufficiency of the evidence, the propriety of certain pretrial rulings, and the alleged prejudice of several evidentiary rulings, and found all of his allegations to be without merit. For the reasons set forth in my June 30 opinion, I find that D'Amato can raise no substantial issue on appeal arising out of the sufficiency of the evidence to convict him, or out of my pretrial or evidentiary rulings, that would entitle him to reversal or an order for a new trial.

Minarik Issues

Paragraph one of count ten of the indictment, which sets forth the tax conspiracy on which D'Amato was convicted, states in pertinent part:

From in or about August 1984, up to and including on or about October 15, 1986, ... Anthony J. Curcio and Carmen J. D'Amato, ... did unlawfully, knowingly and willfully ... conspire ... with each other and with other co-conspirators ... to defraud the United States Government by impeding ... the lawful governmental

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