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United States v. Battista

United States Court of Appeals for the Second Circuit

May 13, 2009, Argued; August 6, 2009, Decided

Docket No. 08-3750-cr

Opinion

 [*227]  WESLEY, Circuit Judge:

Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering  [**2] information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association ("NBA") gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution. The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses. Only Battista challenges the imposition of restitution on appeal. For the reasons that  [*228]  follow, we affirm the restitution order of the district court.

FACTS

Donaghy began his career as an NBA referee in September 1994 and continued in that position for thirteen seasons. He first began placing bets on NBA games, including games he officiated, during the 2003-04 season through his friend Jack Concannon. The conspiracy at issue here, however, began in December 2006 and continued until April 2007. Donaghy provided "picks" on NBA games, again including games he officiated, to co-conspirators Battista and Martino. Battista agreed to pay Donaghy a fee for each game in which Donaghy correctly picked the winner. Donaghy provided  [**3] the picks to Martino, Martino relayed the information to Battista, and Battista placed the bets. According to the government, Donaghy and Martino devised a code for communicating picks over the telephone using the names of Martino's two brothers. If Donaghy mentioned Martino's older brother, the pick would be the home team; if Donaghy referred to Martino's younger brother, the pick would be the visiting team. In making his picks, Donaghy relied on, among other things, nonpublic information to which he had unique access by virtue of his position as an NBA referee. This information included his knowledge of the officiating crews for upcoming NBA games, the interactions between certain referees, players and team personnel, and the physical condition of players. During the course of the conspiracy, Martino met with Donaghy in several cities for the primary purpose of paying Donaghy for his correct predictions.

After the government discovered the gambling scheme, Donaghy agreed to cooperate with its investigation. Thereafter, in August 2007, Donaghy pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 and conspiracy to transmit wagering information in violation  [**4] of 18 U.S.C. § 1084. In February 2008, Battista and Martino were both charged with conspiracy to commit wire fraud and conspiracy to transmit wagering information. 2 As pertinent here, the indictment alleged that Martino and Battista committed the following overt acts in furtherance of the conspiracy to transmit wagering information:

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575 F.3d 226 *; 2009 U.S. App. LEXIS 17505 **

UNITED STATES OF AMERICA, Appellee, -v.- JAMES BATTISTA, ALSO KNOWN AS BABA, ALSO KNOWN AS SHEEP, Defendant-Appellant.

Prior History:  [**1] Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. We hold that the district court acted within its discretion in ordering Battista to pay restitution to the National Basketball Association under the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663.

United States v. Donaghy, 570 F. Supp. 2d 411, 2008 U.S. Dist. LEXIS 56776 (E.D.N.Y., 2008)

CORE TERMS

restitution, district court, conspiracy, wagering, attorney's fees, games, expenses, pick, guilty plea, co-conspirators, restitution order, fraud or deceit, wire fraud, factors, offense of conviction, criminal offense, sentencing, harmed

Criminal Law & Procedure, Appeals, Standards of Review, Abuse of Discretion, Sentencing, Restitution, Clear Error Review, De Novo Review, Clearly Erroneous Review, Findings of Fact, De Novo Review, Conclusions of Law, Imposition of Sentence, Evidence, Governments, Legislation, Interpretation