FEDERAL COURT
Somerset man loses bid for new trial
David R. Cain Jr., a logger and tree-trimmer who was convicted of running a violent gang in Niagara and Orleans counties, has been turned down in his bid for a new trial in federal court.
U. S. District Judge Richard J. Arcara has scheduled sentencing dates in January for Cain, his brother, his cousin and his mother.
Cain, 38, of Somerset, was convicted of 17 felony charges in December after a lengthy trial on allegations that he used arson, death threats and violence to intimidate business rivals in the two counties.
The U. S. attorney’s office has said that it will seek a prison sentence of at least 50 years for Cain. Cain’s brother, Christopher, 35, and their cousin, James Soha, 32, were convicted of lesser charges in the same trial.
In a long-awaited ruling, Arcara recently decided that the three men received a fair trial and that a government prosecutor did not act improperly when he asked that Cain’s preferred attorney — Angelo Musitano — be removed from the case.
But the appeal process is not over, one of Cain’s court-appointed attorneys, Daniel J. Henry Jr., said Friday. After his sentencing, which is scheduled for Jan. 12, Cain intends to appeal to the U. S. Second Circuit Court of Appeals in New York City, Henry said.
“[Cain] feels that he did not get a fair trial, that there was no racketeering enterprise and that he was unfairly prevented from having his attorney of choice,” Henry said.
In court papers, prosecutor Anthony M. Bruce argued that Cain and his co-defendants did receive a fair trial. He also argued that Musitano was properly excluded from the case because of a conflict of interest involving a witness.
Arcara scheduled sentencing for Christopher Cain, also of Somerset, for Jan. 20. Soha, of Lockport, is scheduled for sentencing Jan. 28.
In the trial, Bruce portrayed David Cain as a ruthless man who used violence and threats to drive rivals out of business. Cain was defended by two court-appointed attorneys, Henry and Joel L. Daniels, who characterized Cain as a hardworking businessman victimized by lying witnesses.
One witness, Dan Gollus, who runs a tree service in Hartland, testified that after Cain threatened to kill him, Cain twice forced his car off the road and into ditches. He also testified that his work equipment was extensively vandalized and a 1949 vintage airplane was set afire and destroyed.
Witnesses testified that Cain was behind other arsons, including a fire that destroyed the personal car of a Niagara County sheriff’s deputy, parked in the deputy’s Newfane driveway.
Sentencing for the Cains’ mother, Ann Cain, 55, of Barker, is set for Jan. 29. She was convicted of felony witness tampering after a trial in 2006.
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