12-1361-cr
United States v. DiMattina

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 1st day of July, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           SUSAN L. CARNEY,
           CHRISTOPHER F. DRONEY,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee-Cross-Appellant,

                               -v.-                                                              No. 12-1361-cr

FRANK DIMATTINA, A/K/A FRANKIE D, A/K/A FRANKIE
ARIANA,

                      Defendant-Appellant-Cross-Appellee.
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FOR APPELLEE:                                                             Susan Corkery, John J. Dennehy, Assistant
                                                                          United States Attorneys, for Loretta E. Lynch,
                                                                          United States Attorney for the Eastern
                                                                          District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT:                                                  Marc Fernich, Sarita Kedia, New York, NY.

       Appeal from a judgment, entered April 3, 2012, of the United States District Court for the
Eastern District of New York (Jack B. Weinstein, Judge).


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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is VACATED and the cause
REMANDED for further proceedings consistent with this Order.

        Defendant Frank DiMattina argues that his conviction for extortion is invalid because he did
not “obtain” any property for purposes of the Hobbs Act. The Government, in its brief on appeal,
agrees and concedes that the judgment must be vacated in all respects. The Government now seeks
remand to the District Court “so that [it] can move to dismiss the indictment with prejudice under
Rule 48(a) of the Federal Rules of Criminal Procedure.” Appellee Br. 11. We agree that is the
appropriate course of action.

       For the reasons set out above, we VACATE the April 3, 2012, judgment of the District
Court and REMAND the cause for further proceedings consistent with this Order.



                                              FOR THE COURT,
                                              Catherine O’Hagan Wolfe, Clerk of Court




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