Opinion
No. 12-1361-cr
07-01-2014
UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. FRANK DIMATTINA, A/K/A FRANKIE D, A/K/A FRANKIE ARIANA, Defendant-Appellant-Cross-Appellee.
FOR APPELLEE: Susan Corkery, John J. Dennehy, Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY. FOR DEFENDANT-APPELLANT: Marc Fernich, Sarita Kedia, New York, NY.
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand fourteen. PRESENT:
JOSÉ A. CABRANES,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
FOR APPELLEE:
Susan Corkery, John J. Dennehy, Assistant
United States Attorneys, for Loretta E. Lynch,
United States Attorney for the Eastern
District of New York, Brooklyn, NY.
FOR DEFENDANT-APPELLANT:
Marc Fernich, Sarita Kedia, New York, NY.
Appeal from a judgment, entered April 3, 2012, of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is VACATED and the cause REMANDED for further proceedings consistent with this Order.
Defendant Frank DiMattina argues that his conviction for extortion is invalid because he did not "obtain" any property for purposes of the Hobbs Act. The Government, in its brief on appeal, agrees and concedes that the judgment must be vacated in all respects. The Government now seeks remand to the District Court "so that [it] can move to dismiss the indictment with prejudice under Rule 48(a) of the Federal Rules of Criminal Procedure." Appellee Br. 11. We agree that is the appropriate course of action.
For the reasons set out above, we VACATE the April 3, 2012, judgment of the District Court and REMAND the cause for further proceedings consistent with this Order.
FOR THE COURT,
Catherine O'Hagan Wolfe, Clerk of Court