United States v. Tommassello , 178 F. App'x 139 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-26-2006
    USA v. Tommassello
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-5022
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    Recommended Citation
    "USA v. Tommassello" (2006). 2006 Decisions. Paper 1209.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1209
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    BPS-174                                                       NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________
    No. 05-5022
    ________________
    UNITED STATES OF AMERICA
    v.
    ROBERT TOMMASSELLO,
    Appellant
    ________________
    On Appeal From the United States District Court
    For the Middle District of Pennsylvania
    (D.C. Crim. No. 01-cr-00409)
    District Judge: Honorable Thomas I. Vanaskie
    ________________
    Submitted For Possible Dismissal for Lack of Timely Filing and Possible Summary
    Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
    March 23, 2006
    Before: RENDELL, AMBRO and GREENBERG, Circuit Judges
    (Filed April 26, 2006)
    ________________
    OPINION
    ________________
    PER CURIAM
    Robert Tommassello appeals the District Court’s order denying his motion to
    vacate his conviction and sentence filed pursuant to Fed. R. Civ. P. 60(b). On February 2,
    2001, in S.E.C. v. Tommassello, M.D. Pa. Civ. No. 98-cv-00322, the District Court
    entered a consent order of a permanent injunction against Tommassello. The District
    Court reserved the amount of disgorgement and penalties. In February 2002,
    Tommassello pled guilty to fraud and tax evasion and was sentenced in March 2003 to
    thirty-seven months in prison. On May 13, 2005, Tommassello filed a motion pursuant to
    Fed. R. Civ. P. 60(b). The District Court denied the motion, and Tommassello filed a
    timely notice of appeal.
    In his Rule 60(b) motion, Tommassello argued that the consent order, which
    permanently enjoined him from violating certain federal laws, constituted criminal
    punishment. Thus, he contended, one count of his criminal conviction was in violation of
    the Double Jeopardy Clause. The District Court determined that a motion pursuant to
    Rule 60(b) could not be used to attack a criminal conviction. It then concluded that even
    if Tommassello’s claims were properly before it, they were meritless. We agree with the
    District Court that regardless of how Tommassello’s motion is construed, his claims are
    without merit. The Double Jeopardy Clause only prohibits multiple criminal punishments
    for the same conduct. Hudson v. United States, 
    522 U.S. 93
    , 99 (1997). The permanent
    injunction against Tommassello in the SEC action is not a criminal punishment and did
    not trigger the protections of the Double Jeopardy Clause. See S.E.C. v. Palmisano, 
    135 F.3d 860
    (2d Cir. 1998).
    Summary action is appropriate if there is no substantial question presented in the
    appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by
    2
    the District Court, we will summarily affirm the District Court’s order. See Third Circuit
    I.O.P. 10.6.
    3
    

Document Info

Docket Number: 05-5022

Citation Numbers: 178 F. App'x 139

Filed Date: 4/26/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023