Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
Nos. 01-2159
01-2610
UNITED STATES,
Appellee,
v.
ARTHUR D'AMARIO, III,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Joseph A. DiClerico, U.S. District Judge]*
[Hon. Steven J. McAuliffe, U.S. District Judge]*
Before
Stahl, Senior Circuit Judge,
Lipez and Howard, Circuit Judges.
Arthur D'Amario, III on brief pro se.
Margaret E. Curran, United States Attorney, and Donald C.
Lockhart, Assistant U.S. Attorney, on brief for appellee.
March 12, 2003
*Of the District of New Hampshire, sitting by designation.
Per Curiam. In Appeal No. 01-2159, Arthur D'Amario,
III, has appealed a district court order denying his motion to
recover postconviction investigative expenses D'Amario
incurred. In Appeal No. 01-2610, D'Amario has appealed
district court orders denying his motion for a new trial and
his motion to modify the conditions of his supervised release.
We reject the government's contention that the notices of
appeal were untimely filed and affirm the district court
orders.1
Appeal No. 01-2159
After his conviction, D'Amario hired a private
investigator. After we affirmed that conviction, D'Amario
proffered the paid $1000 invoice to the district court and
sought to have the government reimburse him for the money he
had spent. The district court denied the motion, reciting that
its pretrial approval of investigative expenses did not cover
these expenses and that D'Amario had not obtained prior
approval before incurring these postconviction expenses.
There was no abuse of discretion in denying this
motion for reimbursement. See United States v. Manning, 79
F.3d 212, 218 (1st Cir.) (reciting standard of review), cert.
denied, 519 U.S. 853 (1996). The court was correct in reciting
1
We deny D'Amario's motion to consolidate these instant
appeals with United States v. D'Amario, No. 02-2354.
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that D'Amario had failed to obtain preapproval and D'Amario
provides no authority for his bare assertion that he is
entitled to reimbursement. Moreover, contrary to D'Amario's
current contention, the pretrial expenses that had received
preapproval, in fact, were incurred and were paid.
When D'Amario filed his motion for reimbursement, he
did not ask that the district court judge (Judge DiClerico)
recuse himself from ruling on it. On appeal, D'Amario contends
that Judge DiClerico should have recused himself, sua sponte.
Assuming, without deciding, that the issue is properly
preserved, there is no point in granting D'Amario's requested
relief, i.e., a remand for reconsideration by another judge.
This is so whether the standard of review is abuse of
discretion, see In re Allied-Signal Inc., 891 F.2d 967, 970
(1st Cir. 1989), cert. denied, 495 U.S. 957 (1990), or error of
law (plain or otherwise), see United States v. Antar, 53 F.3d
568, 573 (3rd Cir. 1995). D'Amario did not obtain preapproval
for his after-conviction incurrence of $1000 in expenses for
investigative services. No judge could conclude otherwise.
We affirm the July 30, 2001 order of the district
court denying the motion for reimbursement of expenses.
Appeal No. 01-2610
While we ordinarily review a challenge to the
imposition of conditions of supervised release for abuse of
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discretion, D'Amario did not object to any of the conditions
either at sentencing or on direct appeal and, thus, we would
review for plain error. See United States v. Allen, 312 F.3d
512, 514 (1st Cir. 2002). The standard of review can not be
more generous where here D'Amario is challenging not the
imposition of conditions of supervised release but the district
court's subsequent refusal to modify certain conditions of
supervised release. D'Amario's current challenge does not
establish plain error in the district court's denial of
D'Amario's motion to modify conditions of his supervised
release.
There was no manifest abuse of discretion in denying
D'Amario's new trial motion. See United States v. Desir, 273
F.3d 39, 42 (1st Cir. 2001). D'Amario's arguments on appeal do
not convincingly suggest that the proffered "evidence" was
newly discovered, obtained with due diligence, or material to
the criminal charge.
We affirm the October 30, 2001 orders of the district
court denying the motion for a new trial and the motion to
modify the conditions of supervised release.
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