Filed: Apr. 30, 2009
Latest Update: Mar. 02, 2020
Summary: 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2009 Decisions States Court of Appeals for the Third Circuit 4-30-2009 USA v. Arthur D'Amario, III Precedential or Non-Precedential: Non-Precedential Docket No. 08-4735 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Arthur D'Amario, III" (2009). 2009 Decisions. Paper 1452. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1452 This decision is brought to you for free and open access by the
Summary: 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2009 Decisions States Court of Appeals for the Third Circuit 4-30-2009 USA v. Arthur D'Amario, III Precedential or Non-Precedential: Non-Precedential Docket No. 08-4735 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Arthur D'Amario, III" (2009). 2009 Decisions. Paper 1452. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1452 This decision is brought to you for free and open access by the ..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Arthur D'Amario, III" (2009). 2009 Decisions. Paper 1452.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1452
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
CLD-153 NOT PRECEDENTIAL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
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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.)
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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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