         10-155-cr
         United States v. Dionisio

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21st day of March, two thousand eleven.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10
11
12       UNITED STATES OF AMERICA,
13
14                             Appellee,
15
16                      -v.-                                                             10-155-cr
17
18       DOMINICK DIONISIO,
19
20                             Defendant-Appellant.
21
22
23       FOR APPELLANT:                James R. Froccaro, Jr., Port Washington,
24                                     NY.
25
26       FOR APPELLEES:                Nicole M. Argentieri, David C. James, and
27                                     James D. Gatta, Assistant United States
28                                     Attorneys, for Loretta E. Lynch, United
29                                     States Attorney for the Eastern District
30                                     of New York, Brooklyn, NY.
31
32
33
 1       Appeal from an order of the United States District

 2   Court for the Eastern District of New York (Irizarry, J.),

 3   which denied Appellant’s renewed motion to dismiss the

 4   indictment.

 5
 6       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 7   AND DECREED that the district court’s order is AFFIRMED.

 8       Appellant Dominick Dionisio appeals from an order of

 9   the United States District Court for the Eastern District of

10   New York (Irizarry, J.), which denied his motion to dismiss

11   the indictment on account of double jeopardy.   We assume the

12   parties’ familiarity with the underlying facts, the

13   procedural history, and the issues presented for review.

14       We review Dionisio’s double jeopardy challenge de novo.

15   United States v. Dionisio (Dionisio I), 503 F.3d 78, 81 (2d

16   Cir. 2007).   Here, the district court denied Dionisio’s

17   motion pursuant to the law-of-the-case doctrine’s mandate

18   rule.   The mandate rule provides: “where issues have been

19   explicitly or implicitly decided on appeal, the district

20   court is obliged, on remand, to follow the decision of the

21   appellate court.”   Burrell v. United States, 467 F.3d 160,

22   165 (2d Cir. 2006) (internal quotation mark omitted).      “In

23   other words, the trial court is barred from reconsidering or

                                   2
 1   modifying any of its prior decisions that have been ruled on

 2   by the court of appeals.”     Id. (internal quotation marks

 3   omitted).     “When an appellate court has once decided an

 4   issue, the trial court, at a later stage in the litigation,

 5   is under a duty to follow the appellate court’s ruling on

 6   that issue.”     United States v. Cirami, 563 F.2d 26, 32 (2d

 7   Cir. 1977).     The mandate rule “forecloses relitigation of

 8   issues expressly or impliedly decided by the appellate

 9   court.”     United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.

10   2001) (internal quotation mark omitted).

11       In Dionisio I, we held that jeopardy had not attached

12   to the dismissed conspiracy charge because Dionisio never

13   faced a genuine risk of conviction for that charge.

14   Dionisio I, 503 F.3d at 89.     Dionisio petitioned this court

15   for rehearing or rehearing en banc, making the same

16   arguments he makes today.     In his rehearing petition, he

17   included a transcript of his guilty plea.     We rejected his

18   argument that allocuting to “some” elements relevant to the

19   conspiracy charge placed him at genuine risk of conviction.

20   See United States v. Dionisio, No. 06-0908-cr (2d Cir. Mar.

21   24, 2008) (order denying rehearing).

22



                                     3
 1       Consequently, the mandate rule precluded the district

 2   court from considering Dionisio’s renewed motion.   We have

 3   considered Dionisio’s additional arguments on appeal and

 4   have found them to be without merit.   Accordingly, the order

 5   of the district court denying Dionisio’s motion to dismiss

 6   the indictment is hereby AFFIRMED.

 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10




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