                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2008

USA v. D'Amario
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4134




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"USA v. D'Amario" (2008). 2008 Decisions. Paper 1466.
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BLD-88                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4134
                                     ___________

                          UNITED STATES OF AMERICA

                                            v.

                                ARTHUR D'AMARIO,

                                                 Appellant


                      ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                           (D.C. Criminal No. 06-cr-00112)
                     District Judge: Honorable Paul S. Diamond
                     ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   December 20, 2007

         Before:    MCKEE, RENDELL AND SMITH, CIRCUIT JUDGES.

                            (Opinion filed: March 10, 2008)

                                      _________

                                       OPINION
                                      _________

PER CURIAM

                                           1
       After a jury trial in the United States District Court for the District of New Jersey,

Arthur D’Amario was found guilty of threatening to murder a United States Judge in

violation of 18 U.S.C. § 115(a)(1)(B). His counseled post-trial motions, including a Rule

33 motion for a new trial, were denied. Also, D’Amario submitted several pro se

documents in District Court, including memoranda in support of a Rule 33 motion for a

new trial, a motion for release, a motion for sanctions, and letters. The District Court

denied the pro se motions and twice ordered D’Amario to cease and desist from filing any

further pro se motions because he was represented by counsel. On March 26, 2007,

D’Amario was sentenced to eighty-four months of imprisonment. Counsel filed a direct

appeal, which is currently pending in this Court at C.A. No. 07-1955.

       D’Amario then filed another pro se Rule 33 motion for a new trial, suggesting that

the scope of counsel’s duties regarding his representation on direct appeal did not

encompass a post-trial Rule 33 motion. By order entered April 27, 2007, the District

Court rejected D’Amario’s arguments and denied the motion, specifically noting that the

contentions may well be raised in the pending direct appeal, and that the scope of

counsel’s duties includes Rule 33 motions. D’Amario then filed a motion for leave to file

a pro se Rule 33 motion for a new trial and a motion for release pending the decision on

his Rule 33 motion. On May 8, 2007, the District Court denied the motions and again

ordered D’Amario to cease and desist from filing any further pro se motions. Acting pro

se, D’Amario appealed these orders and sought summary remand for the District Court to



                                              2
consider the merits of his Rule 33 motion. This Court affirmed the District Court by

order entered December 5, 2007 (C.A. No. 07-2477).

       Meanwhile, D’Amario continued to submit pro se filings to the District Court,

including a motion requesting the District Court to vacate the order restricting his post-

trial pro se filings; to assign new counsel located in Denver, Colorado; to grant a new

trial; and to grant immediate release. On October 10, 2007, the District Court denied the

motions and again ordered D’Amario to cease and desist from filing any further pro se

motions. As in its previous orders, the District Court noted that it would consider

motions filed by counsel only.

       D’Amario now appeals pro se the October 10, 2007 order. He has filed a motion

for bail, to which the government has filed a response in opposition. D’Amario has also

filed a memorandum in support of summary reversal of the District Court’s order.

       We have reviewed the record. As with D’Amario’s pro se appeal in C.A. No. 07-

2477, we conclude here that the District Court acted within its authority to issue

limitations on D’Amario’s pro se filings submitted while represented by counsel. See

United States v. Vampire Nation, 451 F.3d 189, 206 n.17 (3d Cir. 2006) (citing United

States v. Essig, 10 F.3d 968, 973 (3d Cir. 1993) (noting general rule on appeal regarding

pro se arguments made by counseled parties)). The Constitution does not confer a right to

proceed simultaneously by counsel and pro se, and the District Court was not obligated to

consider D’Amario’s pro se motions in light of his being represented by counsel on direct



                                              3
appeal. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (no constitutional right to

hybrid representation). Moreover, D’Amario’s goal in seeking a new trial, as in his direct

appeal, is to challenge his conviction and sentence. The possibility that D’Amario might

obtain relief via direct appeal further validates the District Court’s refusal to consider his

pro se submissions when he has a counseled direct appeal pending. Cf. Kapral v. United

States, 166 F.3d 565, 570 (3d Cir. 1999) (commencement of an action under 28 U.S.C.

§ 2255 while direct appeal is pending is generally inappropriate); Womack v. United

States, 395 F.2d 630, 631 (D.C. Cir. 1968) (a District Court may consider a section 2255

motion only in “extraordinary circumstances” when a direct appeal is pending).

       Because this appeal presents us with no substantial question, see I.O.P. 10.6, we

will summarily affirm the District Court’s order. D’Amario’s motion for bail is denied.1

To the extent that D’Amario’s memorandum in support of summary remand may be

construed as a motion for summary action, the motion is denied.




       1
        We note that D’Amario also attempted to file a motion for bail in his pro se
appeal in C.A. No. 07-2477. On August 28, 2007, the Clerk of this Court refused to
consider that motion and referred the motion to D’Amario’s counsel on direct appeal.
The Clerk’s order correctly noted that the Court does not permit “hybrid” representation.
D’Amario is confined based on the judgment being challenged in his direct appeal, and
counsel is responsible for the decision-making in prosecuting that appeal–including
whether to file a motion for bail pending the outcome of that appeal.
                                            4
