                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-2009

USA v. Arthur D'Amario, III
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4735




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"USA v. Arthur D'Amario, III" (2009). 2009 Decisions. Paper 1452.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1452


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CLD-153                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                           Nos. 08-4735, 08-4898 and 09-1574
                                     (consolidated)
                                     ___________

                            UNITED STATES OF AMERICA

                                            v.

                              ARTHUR D’AMARIO, III,
                                            Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. Crim. 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
                                     April 9, 2009

           Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges

                              (Opinion filed: April 30, 2009)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       These consolidated appeals stem from Appellant Arthur D’Amario’s second

conviction for threatening to assault and murder a federal judge, in violation of 18 U.S.C.
§ 115(a)(1)(B), for which he was sentenced on March 26, 2007, to eighty-four months of

imprisonment. While his counseled direct appeal in that case has been pending,

D’Amario has besieged the District Court and this Court with pro se motions and appeals.

Presently before us are D’Amario’s consolidated pro se appeals from three separate

orders of the District Court denying one counseled and two pro se Rule 33 motions for a

new trial. The Government has asked us to summarily affirm, and to “refuse to docket

any more such improper pro se motions” or pro se appeals. For the reasons that follow,

we will summarily affirm the District Court’s orders, and deny the Government’s request

to limit D’Amario’s appellate rights.

       We begin with the Government’s request for this Court to place a moratorium on

the docketing of D’Amario’s pro se filings unless they are “filed in 07-1955 [the docket

number of the direct appeal] by counsel.” As we have previously stated in the civil

context, “a pattern of groundless and vexatious litigation will justify an order prohibiting

further filings without permission of the court.” Chipps v. U.S. District Court for the

Middle District of Pa., 882 F.2d 72, 73 (3d Cir. 1989). In addition, a District Court has

the authority to issue limitations on pro se filings submitted while the party is 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)). Here, the District Court




                                              2
has eight times enjoined D’Amario’s pro se filings, but to no avail.1 To the extent that the

District Court must take additional steps to effectuate its injunction, we encourage it to do

so. Nonetheless, we refrain from enjoining D’Amario’s ability to appeal from orders that

the District Court enters notwithstanding its “cease and desist” mandate, and therefore

deny the Government’s request.

       In disposing of these appeals, we remind D’Amario that there is no constitutional

right to hybrid representation. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984).

Thus, a district court is not obligated to consider pro se motions by represented litigants.

Further, challenges to convictions pursued while a direct appeal is pending are generally

disfavored as a matter of judicial economy. See, e.g., 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). As we have previously explained to

D’Amario, this is so because the results on direct appeal may nullify a district court’s

efforts in adjudicating a collateral attack.

        There being no substantial question presented by D’Amario’s appeals, we will

summarily affirm the District Court’s orders. See LAR 27.4; I.O.P. 10.6. The

Government’s request that this Court refuse to docket future pro se motions or appeals by

D’Amario, while he is simultaneously represented by counsel, is denied without



   1
    Each order has mandated that D’Amario, “who is represented by counsel, shall cease
and desist from filing any further Pro Se Motions.” (Dist. Ct. dkt #’s 195, 207, 223, 242,
251, 297, 303, and 304.)

                                               3
prejudice. D’Amario’s pending motion for expeditious adjudication of his appeals, and

the Government’s motion to summarily dismiss, are denied as moot. D’Amario’s pending

motions for immediate release and/or bail are denied, and we remind him that “counsel is

responsible for the decision[] . . . to file a motion for bail pending the outcome of [his

direct appeal].” United States v. D’Amario, 268 F. App’x 179, 181 n.1 (3d Cir. 2008).

Finally, D’Amario’s motions for summary reversal, recusal and production of transcripts

are denied.




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