United States V. Dibernardo

This is the fourth occasion that this Court has considered an appeal involving this case. Since Robert DiBernardo and Theodore Rothstein were tried, convicted, and sentenced in 1981, the case has expanded and grown like kudzu to encompass numerous collateral issues. The issue now before us is simply whether the trial court properly granted these two defendants a new trial. The government contends that the district court abused its discretion in considering the motion for new trial, and that, even if the court could consider the motion, it did not have jurisdiction to grant appellee DiBernardo a new trial because he has been missing since June 1985. We affirm the granting of a new trial for Rothstein, but reverse and remand as to DiBernardo.