                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2006

USA v. Tommassello
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5022




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Recommended Citation
"USA v. Tommassello" (2006). 2006 Decisions. Paper 1209.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1209


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BPS-174                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-5022
                                   ________________

                           UNITED STATES OF AMERICA

                                            v.

                              ROBERT TOMMASSELLO,

                                              Appellant
                                   ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Crim. No. 01-cr-00409)
                     District Judge: Honorable Thomas I. Vanaskie
                                  ________________


   Submitted For Possible Dismissal for Lack of Timely Filing and Possible Summary
                 Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 23, 2006

            Before: RENDELL, AMBRO and GREENBERG, Circuit Judges

                                 (Filed April 26, 2006)
                                  ________________

                                       OPINION
                                   ________________

PER CURIAM

      Robert Tommassello appeals the District Court’s order denying his motion to

vacate his conviction and sentence filed pursuant to Fed. R. Civ. P. 60(b). On February 2,
2001, in S.E.C. v. Tommassello, M.D. Pa. Civ. No. 98-cv-00322, the District Court

entered a consent order of a permanent injunction against Tommassello. The District

Court reserved the amount of disgorgement and penalties. In February 2002,

Tommassello pled guilty to fraud and tax evasion and was sentenced in March 2003 to

thirty-seven months in prison. On May 13, 2005, Tommassello filed a motion pursuant to

Fed. R. Civ. P. 60(b). The District Court denied the motion, and Tommassello filed a

timely notice of appeal.

       In his Rule 60(b) motion, Tommassello argued that the consent order, which

permanently enjoined him from violating certain federal laws, constituted criminal

punishment. Thus, he contended, one count of his criminal conviction was in violation of

the Double Jeopardy Clause. The District Court determined that a motion pursuant to

Rule 60(b) could not be used to attack a criminal conviction. It then concluded that even

if Tommassello’s claims were properly before it, they were meritless. We agree with the

District Court that regardless of how Tommassello’s motion is construed, his claims are

without merit. The Double Jeopardy Clause only prohibits multiple criminal punishments

for the same conduct. Hudson v. United States, 522 U.S. 93, 99 (1997). The permanent

injunction against Tommassello in the SEC action is not a criminal punishment and did

not trigger the protections of the Double Jeopardy Clause. See S.E.C. v. Palmisano, 135

F.3d 860 (2d Cir. 1998).

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

                                             2
the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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