                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2477




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"USA v. D'Amario" (2007). 2007 Decisions. Paper 137.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/137


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  BLD-24                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-2477
                                      ___________

                           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
                                   October 18, 2007
               Before: MCKEE, RENDELL and SMITH, Circuit Judges

                               (Filed: December 5, 2007)
                                       _________

                                        OPINION
                                       _________

PER CURIAM

      In December 2006, a jury sitting in the United States District Court for the District

of New Jersey found Arthur D’Amario 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,

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including a Rule 33 motion for a new trial, were denied by opinion and order entered

March 27, 2007. D’Amario was sentenced to eighty-four months of imprisonment.

D’Amario filed a counseled notice of appeal, which is currently pending in this Court.

See United States v. D’Amario, C.A. No. 07-1955.

       Meanwhile, during the months between the jury’s verdict and the sentencing

hearing, D’Amario made a number of written pro se submissions 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. By orders entered January 31, 2007 and March 23,

2007, the District Court denied the motions and twice ordered D’Amario to cease and

desist from filing any further pro se motions, as he was represented by counsel.

       After counsel filed D’Amario’s notice of appeal after sentencing, on April 23,

2007, D’Amario filed another pro se Rule 33 motion for a new trial, acknowledging that

his appointed counsel was representing him on direct appeal, but suggesting that the

scope of counsel’s duties 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.

                                             2
       D’Amario appeals pro se the orders entered April 27, 2007 and May 8, 2007. He

has filed a motion for summary action, seeking summary remand for the District Court’s

disposition on the merits of his Rule 33 motion. He has also filed a supplement to his

motion.

       Upon review of the record, we conclude 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)). D’Amario argued in his

motion for leave to file a pro se Rule 33 motion that appointed counsel might suffer a

conflict regarding the evidence that formed the basis of the pro se motion for a new trial,

and on this basis, he sought to proceed pro se. However, 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 appeal. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (no

constitutional right to hybrid representation).

       Moreover, we add that collateral attacks upon convictions pursued while a direct

appeal is pending are disfavored as a matter of judicial economy, as the results on direct

appeal may nullify the District Court’s efforts in adjudicating a collateral attack. See

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);

                                              3
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). D’Amario’s motion for a new trial, like his direct appeal, seeks to

challenge his conviction and sentence. The possibility that he might obtain relief via

direct appeal further validates the District Court’s denial of a merits review of

D’Amario’s pro se submissions; we cannot say that this case presented extraordinary

circumstances warranting the District Court’s review after a counseled appeal had been

taken.

         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 summary action,

which seeks summary remand, is denied.




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