United States v. Bertoli ( 1994 )


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  •                                                                                                                            Opinions of the United
    1994 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-28-1994
    USA v. Bertoli
    Precedential or Non-Precedential:
    Docket 94-5167
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
    Recommended Citation
    "USA v. Bertoli" (1994). 1994 Decisions. Paper 172.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1994/172
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _________________
    No. 94-5167
    _________________
    UNITED STATES OF AMERICA
    v.
    RICHARD O. BERTOLI,
    Appellant
    _________________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Criminal No. 89-00218-3)
    _______________
    Argued September 20, 1994
    BEFORE:   GREENBERG, ROTH, and ROSENN, Circuit Judges
    (Filed: October 28, 1994)
    ______________
    Richard W. Levitt
    148 East 78th Street
    New York, NY 10021
    James D. Crawford (argued)
    Schnader, Harrison, Segal &
    Lewis
    1600 Market Street
    Suite 3600
    Philadelphia, PA 19103
    Attorneys for Appellant
    Edna B. Axelrod
    Glenn J. Moramarco (argued)
    Office of United States Attorney
    970 Broad Street
    Room 502
    Newark, NJ 07102
    Attorneys for Appellee
    GREENBERG, Circuit Judge.
    This is an appeal from a final judgment of conviction
    and sentence entered by the United States District Court for the
    District of New Jersey on March 30, 1994.   Richard O. Bertoli,
    the appellant, was convicted of obstruction of justice and
    conspiracy to obstruct justice, the third and sixth counts of a
    six-count indictment.   On March 28, 1994, the district court
    sentenced Bertoli to a total term of 100 months imprisonment to
    be followed by two concurrent three-year terms of supervised
    release.   In addition, the court imposed a $7 million fine.
    Bertoli appeals from both his sentence and his
    conviction.   He contends that he is entitled to a new trial
    because:   (1) the district court failed to inquire properly into
    whether premature jury deliberations prejudiced him; (2) the
    district court's method of conducting ex parte in camera
    interviews with certain jurors violated his constitutional and
    procedural rights; and (3) the district court improperly supplied
    the jury with written transcripts of certain testimony.     Bertoli
    argues in the alternative that his sentence should be vacated
    because:   (1) the district court applied the wrong version of the
    Sentencing Guidelines Manual, thereby violating his right to be
    free from ex post facto punishments; (2) the district court's
    calculation of the loss under the fraud guideline is not
    supported by the record; (3) the district court erred by upwardly
    departing to $7 million from the guidelines range fine of
    $125,000.    Finally, Bertoli urges that if the case is remanded,
    it should be reassigned to a different judge.
    For reasons we explain in detail below, we will affirm
    the judgment of conviction but we will vacate the sentence.       We
    decline to order that the case be reassigned to a different
    judge, and therefore we will remand the matter to the district
    court for resentencing in accordance with this Opinion.
    I.   INTRODUCTION
    On September 29, 1989, a grand jury returned a six-
    count superseding indictment, charging Bertoli and two co-
    defendants, Richard Cannistraro and Leo Eisenberg, with violating
    RICO, 18 U.S.C. § 1961, et. seq., conspiracy to violate RICO,
    conspiracy to commit securities fraud, and three counts of
    obstruction of justice.    In January 1992, the grand jury returned
    a second superseding indictment, adding obstruction of justice
    counts against Bertoli and Cannistraro, based on their alleged
    continuing efforts to hinder the criminal prosecution.     Eisenberg
    eventually pled guilty to the RICO count of the first superseding
    indictment, and Cannistraro pled guilty to an information
    charging him with conspiracy to obstruct justice.     Bertoli thus
    became the sole remaining defendant.
    Much of the substantive conduct described at the trial
    is not generally relevant to this appeal.     However, certain
    evidence is -- evidence of conduct underlying Counts One and Two,
    which the district court termed the "stock manipulations
    schemes," and of conduct underlying Counts Three and Six, the
    counts of conviction.1   Essentially, Bertoli and his co-
    conspirators were charged with unlawfully manipulating the prices
    of certain stocks.    The scheme worked by creating artificial
    demand, which in turn artificially raised the price of the
    stocks.   For example, Bertoli allocated units of certain initial
    public offerings of stock ("IPOs") to individuals and entities he
    controlled.    Those players restricted the purchase and sale of
    the stocks in keeping with Bertoli's and Eisenberg's
    instructions, thus, essentially setting the price, creating a
    demand, and ensuring that the price rose.    After the prices rose,
    Bertoli and the others sold their shares at a profit.
    Additionally, to raise the prices still further, Cannistraro, who
    was an analyst at the firm of Wood Gundy, Inc., attracted buyers
    by writing favorable reports about the IPOs.2
    The third count charged Bertoli with conspiracy to
    obstruct several criminal and civil investigations into his
    unlawful securities fraud.    The count alleged that he conspired
    to obstruct:    (1) an investigation conducted by the Securities
    and Exchange Commission ("SEC"), beginning in 1983, of fraudulent
    and manipulative trading of two stocks; (2) a civil action
    1
    . Most of the issues in this appeal involve incidents occurring
    at trial, and the trial court's responses. We set forth those
    facts as they become pertinent in the analysis.
    2
    . Count One specifically charged that the defendants violated
    the Racketeer Influenced and Corrupt Organization Act ("RICO"),
    18 U.S.C. §§ 1961, et seq., by conducting the affairs of Monarch
    Funding Corp., a securities brokerage firm in New York City,
    through a pattern of racketeering activity. Count Two charged
    the defendants with conspiracy to violate RICO.
    brought in 1985 by the SEC against Bertoli and others; (3) a
    1985-86 grand jury investigation; (4) a 1987 prosecution against
    Cannistraro; and (5) the current action.    The conspirators
    allegedly achieved their object by causing brokers and others to
    conceal evidence from the investigators and the grand jury.      The
    count alleged 33 overt acts, consisting of telephone calls
    between the defendants and others, and false statements by the
    defendants.     The count alleged that in furtherance of the
    conspiracy, the defendants destroyed documents relating to
    certain accounts, filed a false financial disclosure form with
    the United States Probation Office, transferred funds in the
    Cayman Islands, and knowingly submitted false affidavits during
    this prosecution.    Count Six charged that Bertoli and others
    obstructed justice by transferring certain proceeds of
    racketeering activity from the Cayman Islands to the Principality
    of Andorra in Europe, with the deliberate intent to hide their
    criminal activity and unlawful gains from the United States
    government.
    The case against Bertoli was tried between June 1,
    1993, and August 24, 1993.    For the first seven weeks of trial,
    Bertoli was pro se; thereafter, an attorney entered the case on
    his behalf.   On August 24, 1993, the jury returned a verdict
    finding Bertoli guilty of one count of obstruction of justice
    (Count Six) and one count of conspiracy to commit obstruction of
    justice (Count Three).    But the jury acquitted Bertoli on all
    other counts.    Bertoli made a timely motion for a new trial,
    which the district court denied.    On March 28, 1994, after the
    district court imposed the sentence, Bertoli timely filed his
    notice of appeal.   We have jurisdiction pursuant to 28 U.S.C. §
    1291 and 18 U.S.C. § 3742.        The district court had jurisdiction
    pursuant to 18 U.S.C. § 3231.         We will address the trial issues
    and the sentencing issues in turn.
    II.    DISCUSSION
    A.     Trial Issues
    1.   Adequacy of court's inquiry into jury misconduct
    Bertoli first contends that the trial court failed
    adequately to investigate whether premature jury deliberations
    prejudiced him.   Bertoli moved for a mistrial on the issue; he
    also made a post-trial motion for a new trial.           Both motions were
    denied.
    a.   Factual background
    On August 11, 1993, the court began reading the charge
    to the jury.   During a recess, Juror Six informed the court that
    an alternate juror had engaged her in a premature, improper
    discussion about the merits of the case.           With counsel present,
    the juror was brought before the court, and the following
    colloquy ensued:
    THE COURT: You mentioned to me as I was walking out
    that somebody mentioned to you an opinion about the
    case?
    THE JUROR:    Correct.
    THE COURT: I don't want to know what it is. Has that
    affected your ability to be fair and impartial?
    THE JUROR:    I don't think so.         In fact, I'm sure it has
    not.
    App. at 675-76.   The trial court procured from Juror Six the
    identity of the jurors who engaged her in the premature
    conversations.    All three of them -- Jurors Thirteen, Fourteen
    and Fifteen -- were alternates.     One at a time, the court
    summoned these alternate jurors to the courtroom for questioning
    by the court in the presence of counsel for both Bertoli and the
    government.   The record reflects the following conversation
    between the court and Juror Thirteen:
    THE COURT: The juror who was just out here indicated
    to me that you mentioned to her something about the
    case. I stress I did not ask her what it is, I do not
    know what it is, I don't want to know what it is.
    I have instructed all the jury not to express or
    deliberate in any way in the case.
    Have you mentioned anything to anybody else about
    the case?
    THE JUROR:    No, I haven't your Honor.
    THE COURT:   Again, you can't go into any detail.
    I'm going to excuse you from deliberation.    . . .
    App. at 677-78.   The court had nearly identical conversations
    with Jurors Fourteen and Fifteen.    Both of the jurors denied
    discussing the case with any juror other than Juror Six and the
    court excused both from their responsibilities as well.
    When the court concluded its voir dire, Bertoli moved
    for a mistrial or, alternatively, either that the court similarly
    question the other jurors or that Juror Six be excused.    Stating
    that "[s]he has expressed to me her ability to be fair and
    impartial and I'm satisfied she can be on that", the court denied
    the motions.   App. at 680.   Bertoli's counsel then requested the
    court to probe further into the intra-jury communications.    The
    court reiterated its belief that the jury remained untainted, but
    agreed to "in camera ask each of them what they said and seal it,
    so the Circuit has it."   App. at 687.   During the next recess,
    the alternate jurors and Juror Six were called into the judge's
    chambers for further interviews.   Neither Bertoli nor his
    attorney was present for this second round of questioning.
    The court first interviewed Juror Thirteen.    Because
    Bertoli relies heavily on this conversation, we quote the
    transcript extensively:
    THE COURT: Juror number six, Sheila, Miss Wheil, says
    that you mentioned something to her and that's what she
    mentioned to me and that's what I asked you about in
    court.
    You're not a deliberating juror. From what I
    know, it's no big deal, but just to satisfy the
    attorneys out there, I'm putting it on the record.
    Don't be concerned.
    A:   Okay.
    Q:   Did you express an opinion as to guilt or
    innocence?
    A:   No.
    Q:   You didn't?
    A:   No. That's why I was wondering why I was excused
    because --
    Q:   Everybody would have been excused anyway.     We had
    all 12 jurors.
    Please, don't be upset with me or the process.
    A:   I'm not.
    First of all, let me say something. It's been an
    honor and privilege to be here. I realize this is the
    process. I have learned a lot, I really have. I
    learned a lot. It's been a privilege and I kind of
    feel violated about what happened today because --
    Q:    You know, don't, because from -- you were number
    13.   From number 13 to 20, you all knew that.
    A:    I understand that.
    Q:    You guys did yeomen work. . . .
    *   *   *
    Look, Miss Wheil just mentioned to me that you
    mentioned something to her about the case and I said,
    fine, I'll find out about it.
    That's why I asked if you mentioned anything to
    anybody else. You said you didn't.
    I just want to put it on the record so these
    attorneys have their record. It will be sealed.
    If they want to use it, the Court of Appeals will
    look at it. It's no big deal as far as you're
    concerned. I'm just trying to maintain the integrity
    of the process.
    A:    I understand.
    Q:    Please don't be upset with me.
    A:    No, but I would like to tell you what happened.
    Q:    Sure.
    A:   I pulled in the parking lot this morning, so I
    waited for her, to walk in the building together.
    She says to me, she says, 'How in the hell does he
    think he's going to get away with this?'
    I say to her, I says, 'What are you talking about?
    Get away with what?'
    She says, 'Bertoli.'
    I says, 'Bertoli's innocent until he's proven
    guilty.'
    Q:    That's all you said.
    A:    That's what I said.
    Q:    It's not a problem.
    A:   I'm not going to go through the process of
    deliberating. But you have to look at all of the
    evidence before you can say the man is guilty.
    Q:   As you heard my instruction out in court, that's
    exactly what I told the jury.
    A:   This is what I told her this morning.      I walked in
    the building and that's [sic] was it.
    Your Honor, we don't even communicate. The only
    reason why I waited for her this morning was because I
    thought, well, I don't run into her very often, I'll
    wait for her just to be polite.
    Q:    Mr. Bowen, it's no big deal.
    A:   But, your Honor, I got a lot of questions I want
    to ask you.
    Q:   I told -- as a matter of fact, once the jurors
    begin deliberating, I'll bring all the alternates in
    and we can talk about the case. That's not a problem.
    I told you folks we would do that.
    When the jury returns its verdicts, I'll sit down
    and chew the fat with them, too.
    That's all I want to do right now is just clear
    this up. It's no big deal. There is no problem. I
    see absolutely no consideration.
    A.   But there is a problem.      There is a problem.
    Q:   Well --
    A:   The problem is with her because she's been
    expressing opinions all along in the trial. No one has
    communicated with her.
    Q:   Great.    That's terrific.   That's terrific.
    A:   She's the only one that has expressed an opinion
    and for the three of us to take the weight, this looks
    very bad.
    Q:      No, no, please.
    You have to understand, I'm not assessing blame on
    anyone and the only reason I'm talking to you right now
    is just to have a record for the lawyers.
    A:      Your Honor, there's a problem.
    Q:      Please, there is no problem with you and we can --
    A:      Just forget it?
    Q:   You have no problem. I really feel bad that
    you're upset -- because you have been such -- it's been
    fun just having you.
    A:      It has been fun.
    I'm not upset. Don't get me wrong if I'm
    expressing myself that way.
    Q:   Let it drop. It's no big deal and I want to tell
    the other two jurors that I feel bad for them, too.
    A:      It's one of those things.
    Q:      It's just one of those things.
    App. at 689-93.
    The in camera examinations of the other two alternate
    jurors took much less time.    The jurors each denied expressing or
    being told a view as to Bertoli's guilt or innocence.    The court
    then proceeded to question Juror Six:
    Q:   Have deliberations begun yet?
    A:      Absolutely not.
    Q:      . . . Have you prejudged the case?
    A:      No I have not.
    Q:      Are you fair and impartial?
    A:      I believe I am.
    Q:   And are you ready to begin your deliberations with
    the jury?
    A:      Yes.
    Q:      From scratch?
    A:      Yes.
    Q:   Okay. There is nothing that would prevent you
    from being fair and impartial in the case?
    A:      No.
    Q:      That's it.   Don't worry about it.
    App. at 694-95.
    Following these conversations, the court made factual
    findings, outside the presence of the attorneys "for whatever
    purpose it may be appropriate, for the circuit, if necessary."
    App. at 696-97.    The court concluded that Juror Six did not
    prejudge the case, that there had been no outside influence of
    the jury, and that Juror Thirteen's accusations about Juror Six
    arose "more out of pique than out of accuracy."        App. at 696.
    The court found that no one in the jury room had made any
    determination as to guilt or innocence.      Rather, "if there's been
    any comment, it may have been sporadic comments on individual
    witnesses or individual presentation of evidence or the amount of
    evidence or the manner of the presentation of the evidence."          
    Id. He concluded
    that "I am satisfied upon further reflection that
    this jury did exactly what it was supposed to do up to the time
    it began deliberations this afternoon."   App. at 697.
    According to its March 28, 1994 Letter Opinion3
    (hereinafter "Opinion") and findings, the court based its
    determinations on its evaluation of "the demeanor and credibility
    of all four jurors upon questioning and from general observation
    of the jury throughout the ten-week trial."   App. at 279.   It
    found Juror Thirteen's accusations against Juror Six incredible,
    because "the statement Alternate Juror Thirteen sought to
    attribute to Juror Six was wholly out of character for her."
    App. at 281.   Moreover, it contrasted Juror Six's "cool, calm and
    deliberate" responses with Alternate Juror Thirteen's visible
    consternation.   App. at 281.
    While the interviews and fact-findings were
    transcribed, the court initially sealed the transcripts.     It
    released them to the attorneys when the verdicts were returned.
    Upon receipt of the transcripts, Bertoli made a renewed motion
    for a new trial based on what he characterized as new evidence,
    meaning the content of the transcribed conversations.
    b.   Analysis
    Bertoli contends that his Sixth Amendment right to a
    fair trial before an impartial jury has been violated because the
    district court failed adequately to investigate and assess
    3
    . The district court issued a 629-page letter-opinion after the
    sentencing, setting forth the reasons for a variety of its pre-
    trial, trial and post-trial decisions.
    whether premature communications among the jurors about the
    merits of the case prejudiced him.     The government argues in
    response that the district court thoroughly and adequately
    questioned the affected jurors and that the court's findings are
    in accord with the evidence in the record.
    We review a district court's denial of motions for a
    mistrial and a new trial, as well as its investigation of jury
    misconduct, for abuse of discretion.      United States v. Resko, 
    3 F.3d 684
    , 688 (3d Cir. 1993); Rotondo v. Keene Corp., 
    956 F.2d 436
    , 438 (3d Cir. 1992); Government of Virgin Islands v. Lima,
    
    774 F.2d 1245
    , 1250 (3d Cir. 1985).      That discretion extends to
    the court's findings on whether the jury misconduct prejudiced
    the defendant.   
    Resko, 3 F.3d at 688
    .
    "It is fundamental that every litigant who is entitled
    to trial by jury is entitled to an impartial jury, free to the
    furthest extent practicable from extraneous influences that may
    subvert the fact-finding process."    Waldorf v. Shuta, 
    3 F.3d 705
    ,
    709 (3d Cir. 1993).    Partly to ensure that this right is upheld,
    "[i]t [has been] a generally accepted principle of trial
    administration that jurors must not engage in discussions of a
    case before they have heard both the evidence and the court's
    legal instructions and have begun formally deliberating as a
    collective body."     
    Resko, 3 F.3d at 688
    ; see also United States
    v. DiSalvo, No. 93-1442, 
    1994 U.S. App. LEXIS 23727
    at *62 (3d
    Cir. August 31, 1994).    Premature deliberations present a number
    of dangers, all in some manner affecting or touching upon the
    criminal defendant's Sixth Amendment right to a fair and
    impartial jury trial. In Resko, we identified a number of these:
    (1) Since premature deliberations are more likely to
    occur before the defendant has had an opportunity to
    present his or her case, the prosecution has an unfair
    influence on the juror's initial impressions;
    (2) Once a juror has expressed views on a particular
    issue, that juror has a "stake" in the expressed view
    and may give undue weight to additional evidence that
    supports, rather than undercuts, his or her view;
    (3) Individual conversations between selected jurors
    thwart the goal of a collective, deliberative process
    between the jurors as a group;
    (4) Often, the premature deliberations occur before
    the jurors are instructed on the reasonable doubt
    standard, and hence the jurors may reach a result using
    an incorrect, and unconstitutional, standard of proof.
    
    Resko, 3 F.3d at 689-70
    .   Thus, premature deliberations must be
    guarded against and responded to appropriately.   
    Id. at 689.4
    In this regard, "'[w]e have recognized that 'voir dire'
    is the appropriate method for inquiry into possible prejudice or
    4
    . In Resko, we noted that "the practice has developed that
    trial judges admonish juries at the outset of trial not to
    discuss the case with anyone before the conclusion of the trial."
    
    Resko, 3 F.3d at 689
    (citing cases and commentary).
    In this case, the trial court admonished the jurors on
    a number of occasions. For example, after the parties'
    respective summations, the court instructed the jury:
    As I cautioned you yesterday, I indicated you should
    not discuss or deliberate [on] this matter. Although
    you heard the summations of the attorneys, you've not
    had the benefit of my charge and I direct that you
    should not begin deliberations in any way until you've
    had the benefit of my charge and you're all together in
    the juryroom.
    App. at 274.
    bias on the part of jurors, and that the procedure used must
    provide a reasonable assurance for the discovery of prejudice.'"
    
    Waldorf, 3 F.3d at 709
    (quoting Government of Virgin Islands v.
    Dowling, 
    814 F.2d 134
    , 139 (3d Cir. 1987)) (also citing United
    States v. Pantone, 
    609 F.2d 675
    (3d Cir. 1979); United States v.
    Clapps, 
    732 F.2d 1148
    (3d Cir.), cert. denied, 
    469 U.S. 1085
    , 
    105 S. Ct. 589
    (1984); United States v. Jackson, 
    649 F.2d 967
    (3d
    Cir.), cert. denied, 
    454 U.S. 1034
    , 
    102 S. Ct. 574
    (1981)).
    Nonetheless, "[t]he particular method of conducting
    voir dire is left to the sound discretion of the district court."
    United States v. DiSalvo, 
    1994 U.S. App. LEXIS 23727
    at *57 n.18.
    Thus, in United States v. Console, 
    13 F.3d 641
    (3d Cir. 1993),
    cert. denied, ____ U.S. ____, 
    114 S. Ct. 1660
    (1994), we noted
    that where the trial court has conducted an individualized voir
    dire, we generally should defer to its handling of the situation.
    In that case, "the [district] court conducted a corrective voir
    dire and was 'convinced that there was no prejudicial juror
    misconduct and . . . that defendants received a fair trial'".
    
    Id. at 667
    (quoting 
    Clapps, 732 F.2d at 1152
    ) (alteration in
    original).    Hence, we held that the trial court did not abuse its
    discretion.    
    Id. at 667
    -68.
    There are compelling reasons why the trial court must
    be given wide latitude to assess and respond to allegations of
    juror misconduct.   "The trial court is obviously in a far better
    position to observe the impact of premature jury discussions of
    guilt, and to make a considered judgment as to the effectiveness
    of a cautionary instruction."   
    Pantone, 609 F.2d at 679
    ; see also
    
    Clapps, 732 F.2d at 1152
    (same).   After all, "the trial judge
    develops a relationship with the jury during the course of a
    trial that places him or her in a far better position than an
    appellate court to measure what a given situation requires."
    Government of Virgin Islands v. 
    Dowling, 814 F.2d at 137
    ; see
    also 
    Resko, 3 F.3d at 690
    ("the trial judge has discretion . . .
    to decide how to deal with a situation in which there is an
    allegation of . . . premature jury deliberations"); United States
    v. Thornton, 
    1 F.3d 149
    , 155 (3d Cir.) (same), cert. denied, ____
    U.S. ____, 
    114 S. Ct. 483
    (1993); United States v. Aiello, 
    771 F.2d 621
    , 629 (2d Cir. 1985) (same); United States v. Phillips,
    
    664 F.2d 971
    , 998 (5th Cir. 1981) (same), cert. denied, 
    457 U.S. 1136
    , 
    102 S. Ct. 2965
    (1982).
    Of course, even though the trial court is entitled to
    deference, the reviewing court must satisfy itself that "the
    district court meaningfully . . . assess[ed] the nature and
    extent of the jurors' premature discussions in order to ascertain
    whether there has been any prejudice to the defendants."    
    Resko, 3 F.3d at 690
    .   Consequently, when the district court has failed
    adequately to ensure that the defendant has not been prejudiced
    by the improper conduct, we have remanded the case for a new
    trial.   See, e.g., Government of Virgin Islands v. Weatherwax, 
    20 F.3d 572
    , 578-79 (3d Cir. 1994) (attorney's failure to request
    court to investigate the prejudicial effect of jury exposure to
    extra-record newspaper accounts of trial could constitute
    ineffective assistance of counsel for habeas corpus purposes);
    
    Waldorf, 3 F.3d at 713
    (remanding case for new trial on damages
    where district court failed to conduct a "searching inquiry into
    the extent and nature of the prejudicial extrajudicial
    information that reached the jurors so as to ascertain for itself
    whether there was a substantial likelihood of prejudice such that
    a new trial was warranted"); 
    Resko, 3 F.3d at 695
    (remanding case
    for new trial where district court failed to conduct meaningful
    inquiry into allegations of prejudicial intra-jury
    communications).
    This case is not like those, however, and we do not
    find that the district court abused its discretion in its
    response to the allegations of improper intra-jury
    communications.    We further conclude that the district court's
    finding that the intra-jury communications did not prejudice
    Bertoli is supported adequately by the record.
    In the first place, intra-jury communications pose a
    less serious threat to a defendant's right to an impartial trial
    than do extra-jury influences, and therefore district courts are
    entitled to even greater deference in their responses to them
    than in responses to outside influences.   See, e.g., 
    Resko, 3 F.3d at 690
    (citing cases). As we said in Resko:
    It has long been recognized that when jurors are
    influenced by the media and other publicity, or when
    they engage in communications with third parties, these
    [outside] influences pose a substantial threat to the
    fairness of the criminal proceeding because the
    extraneous information completely evades the safeguards
    of the judicial process. In contrast, when there are
    premature deliberations among jurors with no
    allegations of external influence on the jury, the
    proper process for jury decisionmaking has been
    violated, but there is no reason to doubt that the jury
    based its ultimate decision only on evidence formally
    presented at trial.
    
    Resko, 3 F.3d at 690
    (emphasis in original);   DiSalvo, 1994 U.S.
    LEXIS 23727 at *62 (intra-jury influences less serious than
    extra-jury influences).   Because extra-jury influences are far
    more serious than intra-jury influences, certain extra-jury
    influences create a presumption of prejudice that must be
    rebutted by the government for the court to uphold the
    conviction.   See United States v. 
    Console, 13 F.3d at 666
    .   But
    cases involving impermissible intra-jury contacts do not create
    such a presumption.   See 
    id. at 666
    n.29 (presumption of
    prejudice not created in Resko because the case "did not involve
    third-party contact with a juror").
    The distinction between extra-jury influences and
    intra-jury communications is significant, and becomes apparent by
    comparing the facts of this case with those in Waldorf.     In that
    personal injury case, the plaintiff was rendered a quadriplegic
    as a result of a motor vehicle accident.   During the trial, media
    reports of a verdict in a similar case, to which the jury was
    exposed and which they discussed among themselves, "placed before
    the jury the very same type of information the district court had
    excluded as inadmissible."   
    Waldorf, 3 F.3d at 707
    .   Thus, the
    circumstances posed a serious risk that an extraneous and
    inadmissible newspaper article may have vitiated procedural
    rulings based on fairness to both sides.   In this case, by
    contrast, and similarly to most cases involving premature
    deliberations, there is no contention that the jury was exposed
    to extraneous influences; instead, the concern is that the trial
    was tainted because jurors prematurely spoke their views about
    the evidence they properly were considering.   Thus, we should be
    especially wary about second-guessing the district court in this
    case.
    At any rate, the court did conduct a voir dire of
    particular members of the jury, and did make findings that the
    premature deliberations did not prejudice Bertoli.   As detailed
    above, after Juror Six approached the court with her accusations,
    the court immediately ascertained the identities of the jurors
    who had engaged her in premature conversations.   The court then
    questioned the four jurors with counsel present, determined that
    Juror Six was the only juror with whom they conversed about the
    case, and then disqualified the three alternate jurors.   The
    court also satisfied itself that Juror Six had not prejudged the
    case.
    While Bertoli argues that Juror Six should have been
    disqualified, we cannot say that the court's finding that she was
    not tainted by the premature deliberations was clearly erroneous.
    Indeed, quite the opposite is true.   The court examined her
    twice, and relied on her answers to its questions, her demeanor,
    her behavior during the trial and the fact that she was the juror
    who brought the premature deliberations to the court's attention.
    See, e.g., 
    Clapps, 732 F.2d at 1152
    (trial court's decision to
    remove jurors who spoke to a third juror, but not to remove the
    third juror, when that juror informed the court about the
    conversations, was not clearly erroneous).
    Similarly, we cannot say that the court's decision to
    believe Juror Six over Juror Thirteen was clearly erroneous.     The
    trial court had to believe one of the two jurors.   And as the
    court said in its opinion, despite interviews with three
    alternate jurors, only Juror Thirteen identified Juror Six as the
    culprit.   Moreover, the trial court was entitled to consider the
    fact that Juror Six volunteered information to the court, while
    Juror Thirteen did not.
    Further, we do not find error in the trial court's
    denial of counsel's request that it question the other jurors.
    Because the court believed Juror Six and disbelieved Juror
    Thirteen, there was no need to investigate further, as the court
    interviewed all the jurors involved in the misconduct.   Of
    course, Bertoli could -- and does -- argue that the court at any
    rate should have corroborated its impressions by interviewing the
    other jurors.   But in the first place, "[t]he more speculative or
    unsubstantiated the allegation of misconduct, the less the burden
    to investigate."    United States v. Caldwell, 
    776 F.2d 989
    , 998
    (11th Cir. 1985).   Second, in these type of situations, the trial
    court must balance the potential benefits of further
    investigation against the possible harm of calling attention to a
    relatively minor situation about which the other jurors may have
    been unaware:
    '[i]n determining whether to [question jurors] . . .,
    the court must balance the probable harm resulting from
    the emphasis such action would place upon the
    misconduct and the disruption involved in conducting a
    hearing against the likely extent and gravity of the
    prejudice generated by that misconduct. We, as an
    appellate tribunal, are in a poor position to evaluate
    these competing considerations; we have only an
    insentient record before us.'
    
    Thornton, 1 F.3d at 156
    (quoting United States v. Chiantese, 
    582 F.2d 974
    , 980 (5th Cir. 1978) (alterations in original), cert.
    denied, 
    441 U.S. 922
    , 
    99 S. Ct. 2030
    (1979)).5
    It is true that in Resko, we remanded the case for a
    new trial because the inquiry into the content and effect of
    premature jury deliberations had been inadequate.   But that case
    readily is distinguished.   In Resko, the trial court received
    information that members of the jury were discussing the case
    during recesses and while waiting in the jury room.     The court
    denied defense counsel's request that the court conduct an
    individualized voir dire of the jurors, instead asking each to
    fill out a written 
    questionnaire. 3 F.3d at 687-88
    .   The
    questionnaire asked the jurors simply: (1) whether he or she had
    5
    . The trial court refused to ask the four jurors about the
    substance of their conversations. Apparently, the trial court
    was concerned about violating Fed. R. Evid. 606(b), which
    provides that "[u]pon an inquiry into the validity of a verdict
    or indictment, a juror may not testify as to any matter or
    statement occurring during the course of the jury's deliberations
    . . . ." See app. at 275. Of course, because the conversations
    occurred prior to official deliberations, and because the court
    was not inquiring into the validity of a verdict or indictment,
    the rule did not apply to the situation in this case. Cf.
    DiSalvo, 1994 U.S. App. LEXIS at **65-66 (rule applies to prevent
    judge from inquiring into alleged statements made during
    deliberations). To the contrary, when premature deliberations
    have taken place, we have held that it is generally incumbent
    upon the district court to inquire into "the nature of the
    jurors' discussions." 
    Resko, 3 F.3d at 691
    (emphasis added).
    Nonetheless, under the facts of this case, we find no abuse of
    discretion. The court assured itself that the jurors did not
    discuss guilt or innocence and had not prejudged the case.
    Moreover, the court disqualified the alternate jurors.
    discussed the facts of the case with one or more of the other
    jurors; and (2) if yes, whether, because of those discussions, he
    or she had formed an opinion about the guilt or non-guilt of the
    defendants.    All the jurors answered "yes" to question 1 and "no"
    to question 2.
    By using a two-question form, the district court was
    unable "to know the nature of the jurors' discussions and whether
    these discussions in fact resulted in prejudice to the
    defendants."     
    Id. at 690.
      While the questionnaire told the court
    that each of the jurors engaged in premature discussions, "there
    [was] no way to know . . . whether they involved merely brief and
    inconsequential conversations about minor matters or whether they
    involved full-blown discussions of the defendants' guilt or
    innocence."    
    Id. at 690-91.
       In short, the district court -- as
    well as the reviewing court -- simply had insufficient
    information upon which to evaluate the allegations.        There was no
    voir dire to review, and there were no reliable findings upon
    which we could apply a deferential standard.      Accordingly we were
    unable to review the district court's findings at all.        As we
    explained, the need for a remand was "unfortunate" and we limited
    our holding to the facts of that case, facts which we thought --
    and still think -- unlikely to recur.      
    Id. at 695.
                  Unlike the arguments in Resko, Bertoli's arguments
    are directed to the method and scope of the trial court's
    response, rather than to whether a response existed at all.           It
    is also significant that the trial court's findings are
    corroborated by the nature of the verdict itself.        It is
    difficult to credit Bertoli's accusations, when the allegedly
    prejudiced jury acquitted him on most counts of the indictment
    including the most serious charges.   As we said in an analogous
    context, "[w]hen the jury is instructed to base its verdict
    solely on the evidence and it acquits the defendant of certain
    counts, such factors indicate that the jury was not biased."
    DiSalvo, 
    1994 U.S. App. LEXIS 23727
    at *69 (citing United States
    v. 
    Thornton, 1 F.3d at 156
    ).   See also United States v. Gilsenan,
    
    949 F.2d 90
    , 96 (3d Cir. 1991) (where jury "delivered a fractured
    verdict . . . among the offenses . . . [w]e cannot conceive in
    these circumstances tht the allegedly prejudiced information
    could have had an impact on the verdict"), cert. denied,
    U.S.     , 
    112 S. Ct. 2971
    (1992).
    In sum, we find no abuse of discretion in the trial
    court's handling of the allegations of jury misconduct and its
    finding that the defendant was not prejudiced by the premature
    jury deliberations.
    2.   Propriety of the Ex Parte interviews
    Bertoli next contends that the trial court erred in
    conducting ex parte interviews with members of the jury without
    his presence or the presence of his counsel.   He argues that the
    error was exacerbated by the fact that the court did not unseal
    the transcript of the ex parte discussions until after the jury
    returned its verdict.   Bertoli claims that the trial court's
    actions violated his rights under the Fifth and Sixth Amendments
    and his right to be present during all stages of a trial pursuant
    to Fed. R. Crim. P. 43.    The government responds that Bertoli
    waived his rights under all of these provisions by failing to
    object to the in camera interviews when the district court
    informed the attorneys of its intention to proceed in that
    manner.   Alternatively, the government incorporates the arguments
    made in the trial court's opinion explaining its decision.      As
    this issue involves solely questions concerning the
    interpretation of the Federal Rules of Criminal Procedure and the
    Constitution, our review is plenary.     Government of Virgin
    Islands v. Knight, 
    989 F.2d 619
    , 626 (3d Cir.), cert. denied,
    ____ U.S. ____, 
    114 S. Ct. 556
    (1993).
    a.   Fifth Amendment
    The due process clause of the Fifth Amendment grants
    criminal defendants the "right to be present at all stages of the
    trial where his absence might frustrate the fairness of the
    proceedings. . . . "    Faretta v. California, 
    422 U.S. 806
    , 819 n.
    15, 
    95 S. Ct. 2525
    , 2533 n.15 (1975); United States v. Gagnon, 
    470 U.S. 522
    , 526, 
    105 S. Ct. 1482
    , 1484 (1985); Snyder v.
    Massachusetts, 
    291 U.S. 97
    , 105-06, 
    54 S. Ct. 330
    , 332 (1934).
    This does not mean, however, that the defendant has a
    "constitutional right to be present at every interaction between
    a judge and a juror."     
    Gagnon, 470 U.S. at 526
    , 105 S.Ct. at
    1484.   Rather, "'[t]he mere occurrence of an ex parte
    conversation between a trial judge and a juror does not
    constitute a deprivation of any constitutional right.'"    
    Id. (quoting Rushen
    v. Spain, 
    464 U.S. 114
    , 125-26, 
    104 S. Ct. 453
    ,
    459 (1983) (Stevens, J., concurring in judgment) (alteration
    added)).   In particular, and in the absence of some special
    circumstance, "[i]t is clear that there is no constitutional
    right for a defendant to be present at a conference in chambers
    concerning dismissal of a juror."   United States v. Provenzano,
    
    620 F.2d 985
    , 997-98 (3d Cir.) (emphasis in original) (citing
    cases), cert. denied, 
    449 U.S. 899
    , 
    101 S. Ct. 267
    (1980); see
    also United States v. Brown, 
    571 F.2d 980
    , 986-87 (6th Cir. 1978)
    (appellants' asserted right to be present at in-chambers
    conference concerning disqualification of juror "was not
    constitutionally required").   In fact, as the Supreme Court has
    intimated, the presence of a defendant with counsel during such a
    conference well may have a counterproductive effect on the
    discussion, by impacting on the jurors' willingness to freely
    discuss the issues.   
    Gagnon, 470 U.S. at 527
    , 105 S.Ct. at 1485;
    United States v. 
    Aiello, 771 F.2d at 629
    (in certain
    circumstances, "the trial judge, aided by his personal
    observation and appraisal of all persons concerned, may choose a
    private inquiry in the more relaxed atmosphere of the robing
    room").
    In this case, the trial court's interview with the
    jurors did not implicate Bertoli's Fifth Amendment rights.
    First, the in camera conversations constituted the second round
    of jury interviews, and essentially went over the same ground as
    the prior voir dire conducted in open court with counsel present.
    Second, as detailed above, the allegations involved solely intra-
    jury communications, as opposed to extraneous influences, so the
    inquiry was not so significant a part of the trial.   Rather, the
    interviews constituted "a short interlude in a complex trial."
    
    Gagnon, 470 U.S. at 527
    , 105 S.Ct. at 1484; see also Verdin v.
    O'Leary, 
    972 F.2d 1467
    , 1482 (7th Cir. 1992) ("'Only a trial
    fundamentally unfair in light of the entire proceedings violates
    the open-ended aspect of [this] constitutional protection.'")
    (quotation omitted) (alteration in original); United States v.
    Brown, 
    923 F.2d 109
    , 112 (8th Cir.) (no constitutional right to
    be present at in camera conference between court and jurors),
    cert. denied, ____ U.S. ____, 
    112 S. Ct. 110
    (1991).   Finally, we
    doubt whether the jurors would have been as comfortable
    discussing their conduct had Bertoli been present.6   Thus, we
    hold that Bertoli had no Fifth Amendment right to be present
    during the in camera interviews.
    b.   Rule 43
    Fed. R. Crim. P. 43 provides in pertinent part:
    (a) Presence Required. The defendant shall be present
    at the arraignment, at the time of the plea, at every
    stage of the trial including the impaneling of the jury
    and the return of the verdict, and at the imposition of
    sentence, except as otherwise provided by this rule.
    (b) Continued Presence Not Required. The further
    progress of the trial to and including the return of
    the verdict shall not be prevented and the defendant
    shall be considered to have waived the right to be
    present whenever a defendant, initially present,
    6
    . The government argues that Bertoli waived any Fifth Amendment
    right he may have had. Because we find that he had no such right
    in this case, there was nothing to waive.
    (1) is voluntarily absent after the trial is
    commenced . . . .
    See also Crosby v. United States, ____ U.S. ____, ____, 
    113 S. Ct. 748
    , 751 (1993).
    In Gagnon, the Supreme Court expressly declined to
    address whether Rule 43 guarantees defendants a right to be
    present during an in camera conference between the trial court
    and a juror.   Other courts, however, generally have held that a
    conference between the court and a juror concerning the possible
    dismissal of a juror does fall within the purview of Rule 43.
    See, e.g., United States v. 
    Brown, 571 F.2d at 985-87
    ; United
    States v. Baca, 
    494 F.2d 424
    , 428-29 (10th Cir. 1974).   In United
    States v. Provenzano, we held that when the relevant facts were
    undisputed and therefore the conference between the court and the
    juror involved solely a question of law, Rule 43 did not 
    apply. 620 F.2d at 998
    (citing Fed. R. Crim. P. 43(c)(3), which provides
    that "[a] defendant need not be present . . . [a]t a conference
    or argument upon a question of law").
    Nonetheless, regardless of whether the defendant does
    have such a right, a question we need not decide, it is well
    settled that the right is subject to both the doctrines of waiver
    and harmless error.   See, e.g., 
    Gagnon, 470 U.S. at 529
    , 105
    S.Ct. at 1486 (right subject to waiver); 
    Provenzano, 620 F.2d at 998
    (right subject to harmless error doctrine).   Here we find
    that Bertoli waived any right he may have had pursuant to Fed. R.
    Cr. P. 43.
    The trial court's decision to conduct in-camera
    interviews of the jurors arose in the following context:
    MR. LEVITT [defense counsel]: I'm still a little
    concerned about the incident with juror number six and
    numbers 13, 14 and 15 . . . .
    THE COURT: I understand what you're saying there, but
    I'm not inclined, and I'll think about as I go into
    chambers, to require them to discuss it and I'm not
    giving you or the Government leave to approach the
    jurors. I'm specifically telling you you do not. When
    I say 'you', I can't look at you both. The collective
    you and your agents, do not have the leave to approach
    these jurors.
    If one of the three jurors were a deliberating
    juror, we might have a different situation, but each
    fortuitously was an alternate juror. Each said they
    did not speak to anybody else and juror number six -- I
    wish I knew her last name, I mean no disrespect to her,
    I believe her first name is Sheila -- indicated that it
    would have no impact on her.
    What I will do, I will in camera ask each of them
    what they said and seal it, so the Circuit has it.
    App. at 686-87.   Bertoli's attorney then asked the court to
    interview other jurors as well.    He made no objection to the
    decision to conduct in-camera interviews and he did not request
    to be present.    Only after receiving the transcript of the in
    camera discussion did Bertoli object to the procedure.
    The contemporaneous objection rule, that the failure
    contemporaneously to assert a right constitutes a waiver of that
    right, applies to a criminal defendant's right to be present
    under Rule 43.    
    Gagnon, 470 U.S. at 529
    , 105 S.Ct. at 1486;
    United States v. 
    Brown, 923 F.2d at 112
    (failure to assert right
    under Rule 43 constitutes waiver); United States v. Doe, 
    964 F.2d 157
    , 159 (2d Cir.) ("waiver by counsel of a defendant's right to
    be present during the proceedings is valid when made in the
    presence of the defendant"), cert. denied, ____ U.S. ____, 
    113 S. Ct. 628
    (1992); cf. Government of Virgin Islands v. Williams,
    
    892 F.2d 305
    , 309 (3d Cir. 1989) (under contemporaneous objection
    rule, a party must object contemporaneously "to any matter
    believed to be erroneous, at peril of relinquishing the
    opportunity to challenge that matter on appeal"), cert. denied,
    
    495 U.S. 949
    , 
    110 S. Ct. 2211
    (1990).
    A defendant need not be warned expressly of his or her
    rights under Rule 43, nor must a waiver exist on the record.
    Rather, the simple failure to assert the right constitutes a
    waiver.     In Gagnon itself, the trial court had announced its
    intention to proceed with in camera discussions, and called a
    recess.     The defendants lodged no objections, then or afterwards,
    and the Supreme Court held that the failure to assert the right
    constituted a waiver.     
    Gagnon, 470 U.S. at 523
    , 
    529, 105 S. Ct. at 1483
    , 1486.    Similarly, in Provenzano, we held that a defendant's
    failure to object contemporaneously to the court's assertion of
    an intent to hold an in camera conference without the defendant
    present constituted a waiver of any 
    right. 620 F.2d at 998
    ,
    cited with approval in 
    Gagnon, 470 U.S. at 528
    n.2, 105 S. Ct. at
    1485 
    n.2.
    In this case, the trial court announced its intention
    to conduct in camera interviews without Bertoli or his counsel
    present, and Bertoli failed to assert any right under Rule 43.7
    7
    . Relying on the transcript that the court ultimately released
    to him, Bertoli contends that even if he consented to in camera
    Bertoli nonetheless argues that, based on the transcript, the
    trial court only stated an intention to interview the alternate
    jurors and that he was not appraised of the court's intention to
    interview Juror Six.   In light of the colloquy quoted in the
    text, this argument is without merit.    It is clear that the court
    was contemplating interviewing all four jurors.8
    c.   Sixth Amendment
    Bertoli also contends that the in camera ex parte
    interviews violated his right to effective assistance of counsel,
    since the refusal to allow counsel to be present at the
    conference constituted a constructive denial of the right to an
    attorney.   The Sixth Amendment provides every criminal defendant
    with the right to the effective assistance of counsel.    While it
    may have been preferable to have counsel present, see 
    Aiello, 771 F.2d at 630
    , and while the district court should have released
    (..continued)
    interviews, he did not consent to the court's method of
    conducting the interviews. It is unfortunate that the trial
    judge did not release the transcript of the interviews
    immediately after the in camera conference. This does not,
    however, change our analysis. Our review of the transcript
    reveals that the court did what it told counsel it would do.
    What occurs at a conference is not preordained; the possibility
    of an unforseen revelation always exists. By waiving his right
    to be present at the conference, Bertoli took the risk of what
    might occur. At any rate, we are satisfied that the record
    supports the court's credibility determinations.
    8
    . At any rate, any error the district court may have committed
    was harmless. It is unclear what Bertoli would have gained by
    being present, other than the opportunity to request again more
    extensive questioning. On the other hand his presence may have
    stifled the jurors. Overall, we see no prejudice to Bertoli from
    the procedure followed.
    the transcript promptly, we cannot say that Bertoli was
    prejudiced by the trial court's decision to conduct the
    interviews without counsel present.    In the first place, the
    responsibility of making the credibility determinations rested
    with the court, not counsel.    See United States v. Marrero, 
    904 F.2d 251
    , 261-62 (5th Cir.), cert. denied, 
    498 U.S. 1000
    , 
    111 S. Ct. 561
    (1990).    Second, counsel did not ask to be present at
    the interviews when the court announced his intention to hold
    them.   Finally, the interviews were transcribed and the
    transcript was made available to counsel -- albeit belatedly --
    in time for counsel to move for a new trial before the district
    court itself.     See 
    Aiello, 771 F.2d at 629
    -30 (failure of court
    to include counsel in in camera discussion with jury constituted
    harmless error when court held second hearing with counsel
    present).
    3.   Providing written transcripts to jury
    At several points during deliberations, the jury sent
    notes to the trial court requesting certain testimony.     Each time
    the court overruled Bertoli's objection and provided the
    transcripts to the jury.    It appears that the jury ultimately
    asked for and obtained the transcripts of the entire testimony of
    12 witnesses.
    Bertoli argues that the trial court erred in providing
    the jury with these transcripts.    He contends that by acceding to
    the jury's request, the trial court permitted the risk that the
    jury would overvalue the written transcripts at the expense of
    the other evidence.    He also points to the risks involved should
    a jury misread the transcripts or rely on one juror's
    interpretation.
    Although we never have ruled on the propriety of
    providing juries with written transcripts of testimony, we have
    held that "[a] trial court has broad discretion in deciding
    whether to accede to a jury's request for a reading of
    testimony."    United States v. Zarintash, 
    736 F.2d 66
    , 69-70 (3d
    Cir. 1984) (emphasis added); United States v. Chrzanowski, 
    502 F.2d 573
    , 577 (3d Cir. 1974) (same); United States v. Rabb, 
    453 F.2d 1012
    , 1013 (3d Cir. 1971) (same); United States v.
    Chicarelli, 
    445 F.2d 1111
    , 1114-15 (3d Cir. 1971) (same).      The
    discretion is limited by two considerations, however:    (1) such
    requests may slow the trial where the requested testimony is
    lengthy; (2) when read only a portion of testimony, the jury may
    give undue weight to that portion.    Still, unless a trial court's
    refusal to read back testimony is supported by one of these two
    concerns, "a trial judge abuses his discretion" by denying the
    request.    
    Zarintash, 736 F.2d at 70
    (citing 
    Rabb, 453 F.2d at 1013-14
    ).
    We agree with Bertoli that the providing of written
    trial transcripts may pose dangers not present when the trial
    court reads portions of the transcripts to the jury.    For
    example, when the request is to have testimony read back, the
    court can ensure that all the jurors are present when the
    testimony is read.    In the privacy of the jury room, this cannot
    be done.    But on the other hand, reading back testimony poses
    dangers not present when the jury is provided transcripts.    For
    instance, an inattentive juror may be persuaded unduly by an
    attentive juror's version of the read-back testimony.     Moreover,
    a juror's mishearing of read-back testimony cannot be corrected
    by a second look.    All in all, we do not believe that the
    distinctions between reading testimony to the jury and providing
    the jury with copies of written testimony are sufficient so that
    we should apply different considerations when reviewing
    determinations by the court to supply them.9   Cf. 
    Zarintash, 736 F.2d at 70
    (implying that distinction between providing written
    transcripts and reading testimony is a distinction of form, not
    substance).   Therefore, we join the other courts that have
    considered this issue and hold that a trial court's decision
    whether or not to supply the jury with copies of written
    transcripts may be reversed only when it constitutes an abuse of
    discretion.   See,   e.g., United States v. Edwards, 
    968 F.2d 1148
    ,
    1152 (11th Cir. 1992) ("district court has broad discretion in
    determining whether to grant or deny a jury's request to read a
    portion of the trial transcript"), cert. denied, ____ U.S. ____,
    
    113 S. Ct. 1006
    (1993); United States v. Lujan, 
    936 F.2d 406
    , 411
    (9th Cir. 1991) (trial court's decision to provide trial
    transcript to jury reviewed for abuse of discretion); United
    States v. Betancourt, 
    838 F.2d 168
    , 175 (6th Cir.) ("the
    9
    . We are not to be understood to be holding that a court when
    presented with a request for written transcripts from a jury is
    obliged to require their preparation if they are not otherwise
    available. In this case daily transcripts were prepared.
    furnishing of transcripts to a jury is generally well within the
    district court's discretion"), cert. denied, 
    486 U.S. 1013
    , 
    108 S. Ct. 1748
    (1988); Government of Canal Zone v. Scott, 
    502 F.2d 566
    , 570 (5th Cir. 1974) (same).     Any other rule would constitute
    an unwarranted intrusion into the district court's discretion to
    adapt procedures to the situation in the case before it.     See,
    e.g., United States v. Angelo, 
    153 F.2d 247
    , 251-52 (3d Cir.
    1946) ("It would be both impossible and undesirable to delimit
    strictly the powers of the trial judge and to set detailed
    regulations for the conduct of every case.").
    Of course, in exercising its discretion to provide
    written transcripts of testimony, the trial court must be
    cognizant of dangers that may be present in the particular case.
    For instance, in their review of a transcript, jurors may seize
    upon an answer without focusing on limitations or qualifications
    developed during cross-examination.     If the request poses such a
    danger, the court should give the attorneys an opportunity to
    make sure that the transcript incorporates all appropriate and
    relevant aspects of the requested testimony.     Moreover, although
    it did not happen in this case, the district court generally
    should accompany the transcripts with a cautionary instruction to
    focus on the entire testimony and evidence.
    We further hold that in this case, the trial court did
    not abuse its discretion by providing the jury with the written
    transcripts. The jury requested the transcripts of 12 witnesses,
    so the danger of giving undue weight to particular testimony was
    minimized.    Moreover, Bertoli fails to specify a single example
    in the procedure the court followed that presented a
    particularized danger of prejudice.   Further, the district court
    adequately informed the jury that it was to consider the entire
    body of evidence submitted in the case, and not to emphasize
    unduly one piece of evidence over another.10   See app. at 223-24
    n.166.   See also 
    Betancourt, 838 F.2d at 175
    (no abuse of
    discretion where "the judge carefully informed the jury, in
    standard terms, that all of the evidence was to be weighed, and
    no undue credence was to be given to any single part of it").
    B.   Sentencing Issues
    Bertoli raises several issues concerning the propriety
    of his sentence which we will address in turn.   Initially we
    observe that because the obstruction of justice activities that
    are the subject of Count Six of the Indictment occurred in 1990,
    and because the conspiracy charged in Count Three occurred
    between 1983 and 1992, the sentence is governed by the United
    States Sentencing Guidelines, which apply to all federal crimes
    committed after November 1, 1987.   See United States v. Moscony,
    10
    .   The court informed the jury:
    All of the evidence, regardless of whether I've
    referred to it, regardless of whether counsel referred
    to it in their summations, must be considered by you.
    It makes no difference whether the evidence was offered
    by the [Government] or by [Bertoli]. It was all
    evidence and all of it should be considered by you to
    the extent it helps you decide the issues in this case.
    App. at 224 n.166.
    
    927 F.2d 742
    , 754 (3d Cir.), cert. denied,       U.S.     , 
    111 S. Ct. 2812
    (1991).
    1.   The district court's calculation of the sentence
    The district court calculated Bertoli's total offense
    level by applying the "grouping" provisions of the 1993
    Sentencing Guidelines.    See United States v. Riviere, 
    924 F.2d 1289
    , 1303 (3d Cir. 1991).   Section 3D1.1(a) directs the court to
    combine various counts of conviction into "distinct Groups of
    Closely Related Counts."11   The district court adopted the
    government's argument that the conduct charged in the two counts
    should be divided into three groups:    "Group [One] would consist
    of the three conspiracies to obstruct [F]ederal court proceedings
    as well as Count [Six].    Group [Two] would consist of the
    conspiracy to obstruct the [G]rand [J]ury [I]nvestigation.    Group
    11
    . Although Bertoli was convicted only on two counts, the
    guidelines mandate that the court consider a count charging a
    conspiracy to commit two crimes as a conspiracy to commit crime A
    and a conspiracy to commit crime B. The district court quoted
    the example given in the guidelines:
    Example: The defendant is convicted of two counts:
    conspiring to commit offenses A, B, and C, and
    committing offense A. Treat this as if the defendant
    was convicted of (1) committing offense A; (2)
    conspiracy to commit offense A; (3) conspiracy to
    commit offense B; and (4) conspiracy to commit offense
    C. Count (1) and count (2) are grouped together under
    §3D1.2(b). Group the remaining counts, including the
    various acts cited by the conspiracy count that would
    constitute behavior of a substantive nature, according
    to the rules in this section.
    U.S.S.G. § 3D1.2, Application Note 8.
    Three would consist of the conspiracy to obstruct the SEC
    Investigation".   App. at 412 (quoting government Sentencing
    Memorandum at 77) (alterations in original).   The grouping
    guideline then directed the court to compute the offense level
    for each group separately, based on the most serious of the
    counts comprising the group.12
    Because each group involved obstruction of justice, the
    district court applied section 2J1.2, the guideline covering that
    crime.   That guideline, however, contains a cross-reference, to
    be applied when a defendant's activity involved "obstructing the
    investigation or prosecution of a criminal offense."   Section
    2J1.2(c)(1).   In such a case, the court is to sentence the
    defendant as an accessory after the fact to the relevant criminal
    offenses, if that would result in a greater offense level.     In
    other words, if A's obstructionist activity consisted of lying
    under oath about whether B committed a bank robbery, A should be
    sentenced as an accessory after the fact to bank robbery.
    Section 2X3.1, the guideline for accessory after the fact,
    12
    .   Section 3D1.3 requires the court to:
    Determine the offense level applicable to each of the
    Groups as follows:
    (a) In the case of counts grouped together pursuant to
    § 3D1.2(a)-(c), the offense level applicable to a Group
    is the offense level, determined in accordance with
    Chapter Two and Parts A, B, and C of Chapter Three, for
    the most serious of the counts comprising the Group,
    i.e., the highest offense level of the counts in the
    Group.
    provides a base offense level of "6 levels lower than the offense
    level for the underlying offense."
    The court, finding that Bertoli conspired to obstruct
    the criminal proceedings against him, applied the cross-reference
    provision.     Because the underlying crimes involved fraud, the
    court was referred first to section 2X3.1 and then to section
    2F1.1, the guideline covering fraud and deceit.     Under the fraud
    guideline, the court began with a base offense level of 6.     But,
    following the table set forth in section 2F1.1(b)(1), the court
    increased the offense level by 14, because it found the loss to
    be between $5 and $10 million.13    Applying other subsections of
    the fraud guideline, the court increased the offense level still
    further.14    The total offense level for Group One was computed to
    be 25.
    The court similarly computed the offense levels for
    Groups Two and Three, also by applying the cross-reference
    provision of the obstruction of justice guideline.     The offense
    levels for each of those groups was 22.
    13
    . Section 2F1.1(b)(1) provides that "[i]f the loss exceeded
    $2,000", the court should increase the offense level as described
    in the table. Section (b)(1)(o) requires the court to increase
    the level by 14 if the loss was more than $5,000,000 but less
    than $10,000,000.
    14
    . Specifically, because the court found that the offense
    involved more than minimal planning, it increased the level by 2,
    pursuant to section 2F1.1(b)(2). And, because the court found
    that the offense involved a "violation of [a] judicial or
    administrative order", it increased the level by an additional 2
    points pursuant to subsection (b)(3). See also n.15, infra.
    Finally, the court applied section 3D1.4, which
    provides the following when separate groups are involved:
    [t]he combined offense level is determined by taking
    the offense level applicable to the Group with the
    highest level and increasing that offense level by the
    amount indicated in the following table:
    Number of Units       Increase in Offense Level
    1                        none
    1 1/2                    add 1 level
    2                        add 2 levels
    2 1/2-3                  add 3 levels
    3 1/2-5                  add 4 levels
    more than 5             add 5 levels
    In determining the number of Units for purposes of this
    section:
    (a) Count as one Unit the Group with the highest
    offense level. Count one additional Unit for each
    Group that is equally serious or from 1-4 levels less
    serious.
    Thus, the court began with the offense level applicable to Group
    One, and increased that level by 3, 1 level for Group One itself
    and 2 additional levels because the offense levels for Groups Two
    and Three were "from 1-4 levels less serious" than Group One.
    Accordingly, the district court arrived at a total offense level
    of 28.15
    15
    . In its Opinion, the district court provided the following
    explanation of its computation of the Total Offense Level:
    Total Offense Level
    The total offense level of 28 is calculated as follows:
    (1)        Group One Base Offense Level
    --         Applicable Guideline: § 2J1.2(c), which by cross-
    reference to § 2X3.1, requires the offense level to be
    calculated as if Bertoli was an accessory after the
    fact to the offenses being prosecuted in the Redacted
    2.   Proper applicable Guidelines Manual
    (..continued)
    Second Superseding Indictment because he conspired to
    obstruct the investigations and prosecutions of those
    offenses. This requires the use of § 2F1.1
    --        Base Level
    § 2F1.1(a)                           6
    --        Upward adjustment pursuant to
    § 2F1.1(b)(1)(o) for loss between
    $5 and $10 million                   14
    --        Upward adjustment pursuant to
    §2F1.1(b)(2) for more than
    minimal planning                     2
    --        Upward adjustment pursuant to
    §2F1.1(b)(3)(B) for violation of
    a judicial or administrative order 2
    ___        __
    SUBTOTAL                                 24
    --        Downward adjustment pursuant to
    § 2X3.1                              6
    _____
    BASE OFFENSE LEVEL                        18
    (2)       Upward adjustment pursuant to
    § 2J1.7 for committing an offense
    while on pretrial release            3
    (3)       Upward adjustment pursuant to
    § 3B1.1(a) for having an aggrava-
    ting role in the offense             4
    _____
    GROUP ONE OFFENSE LEVEL                             25
    (4)       Upward adjustment pursuant to
    § 3D1.4 for multiple offenses        3
    (taking into account
    Groups Two and Three)             _____
    TOTAL OFFENSE 
    LEVEL 28 Ohio App. at 444
    .
    Bertoli first contends that the district court's
    application of the cross reference in the 1993 Guideline for
    obstruction of justice violated his right to be free from ex post
    facto punishments, guaranteed by Article I, § 9 of the United
    States Constitution.    We exercise plenary review over the
    district court's conclusion.    United States v. 
    Moscony, 927 F.2d at 754
    n.17.
    Generally, the sentencing court must apply the
    Guidelines Manual in effect at the time of sentencing. 18 U.S.C.
    § 3553(a)(4),(5); U.S.S.G. § 1B1.11(a).    However, sometimes this
    rule gives way to constitutional considerations.    Specifically,
    "where such retroactivity results in harsher penalties, Ex Post
    Facto Clause problems arise, and courts must apply the earlier
    version."   United States v. Kopp, 
    951 F.2d 521
    , 526 (3d Cir.
    1991) (citing Miller v. Florida, 
    482 U.S. 423
    , 
    107 S. Ct. 2446
    (1987)); see also United States v. Seligsohn, 
    981 F.2d 1418
    , 1424
    (3d Cir. 1992); United States v. Pollen, 
    978 F.2d 78
    , 90 (3d Cir.
    1992), cert. denied, ____ U.S. ____, 
    113 S. Ct. 2332
    (1993);
    United States v. McAllister, 
    927 F.2d 136
    , 138 n.2 (3d Cir.),
    cert. denied,        U.S.      , 
    112 S. Ct. 111
    (1991).   Bertoli
    contends that the court should have used the 1989 Guidelines
    Manual to calculate the base offense level, because a substantive
    change to the commentary to the obstruction of justice guideline,
    resulting in more severe penalties, took effect after the crime
    of Count Six was completed.    We agree.
    The district court failed to consider this argument,
    because, in determining which Guideline Manual to apply, it
    grouped the conduct charged in Counts Three and Six, and treated
    it as one course of conduct.    Apparently, the district court
    believed that if the conduct is grouped together, there is no
    need to assess the counts independently to determine whether ex
    post facto clause considerations arise.     Thus, although finding
    that the conduct of Count Six occurred in 1990, the court
    nevertheless held that the crimes were completed in 1992, when
    the conspiracy's last overt act occurred.    The court reasoned
    that "the only other Guidelines Manual that could be used [other
    than the Manual in effect at the time of sentencing] is the 1
    November 1991 Manual . . . , which was the manual in effect on
    the date the Second Superseding Indictment was returned and the
    conspiracies to obstruct justice described in Count Three
    ceased."   App. at 405.16    Because there is no substantive
    difference between the 1991 and 1993 Guidelines Manuals, the
    court applied the 1993 Guidelines Manual.
    We expressly have disapproved the practice of combining
    different counts of the indictment when determining which
    Guidelines Manual applies.     See 
    Seligsohn, 981 F.2d at 1424
    .   In
    Seligsohn, some of the offenses concluded before November 1,
    1989, while others took place after that date.     On November 1,
    1989, amendments to the guidelines took effect "and provided for
    the imposition of heavier penalties than those previously in
    16
    . On appeal, the government does not endorse the district
    court's decision to combine Counts Three and Six for the purpose
    of determining which Manual applies. Rather, the government's
    sole argument is that the 1989 Manual is not more favorable to
    Bertoli than the 1993 Manual.
    effect."   
    Id. at 1424.
      The district court nevertheless applied
    the post-1989 Guidelines Manual to all the counts.    On appeal,
    the government supported the ruling based on a principle set
    forth in the Sentencing Guidelines called the one-book rule.     The
    one-book rule provides that "only one set of Guidelines should be
    used in calculating the applicable total 'as a cohesive and
    integrated whole.'"   
    Id. (quoting government's
    Brief).   We
    rejected the proposition that the one-book rule overrides ex post
    facto concerns:
    That so-called rule is inconsistent with United States
    v. Kopp and other cases in this Court. Focusing on ex
    post facto considerations, those cases have prohibited
    the application of more stringent penalties than were
    authorized at the time of the offense. Consequently,
    we expressly disapprove of the 'one book' practice as
    in conflict with the Kopp opinion.
    
    Id. The fact
    that various counts of an indictment are grouped
    cannot override ex post facto concerns.   
    Id. Therefore, the
    trial court erred by failing independently to analyze which
    Guidelines Manual should have applied to the conduct charged in
    Count Three.   Our independent analysis of the question leads us
    to conclude that the 1989 guidelines apply to Bertoli's
    sentence.17
    17
    . A policy statement in the guidelines provides that "[t]he
    Guidelines Manual in effect on a particular date shall be applied
    in its entirety. The court shall not apply, for example, one
    guideline section from one edition of the Guidelines Manual and
    another guideline section from a different edition of the
    Guidelines Manual." U.S.S.G. § 1B1.11. In Seligsohn, we said
    that upon remand, "before grouping the various offenses to
    determine the score, the district court must first apply the
    applicable Guidelines for each 
    offense." 981 F.2d at 1426
    . We do
    not read this language to be in conflict with the policy
    statement. Rather, when ex post facto clause issues arise, while
    Section 2J1.2, the guideline for obstruction of
    justice, provides in both the 1989 and 1993 versions:
    §2J1.2.   Obstruction of Justice
    (a)   Base Offense Level:   12
    *   *   *
    (c)   Cross Reference
    (1)    If the offense involved
    obstructing the investigation or
    prosecution of a criminal
    offense, apply §2X3.1 (Accessory
    After the Fact) in respect to
    that criminal offense, if the
    resulting offense level is
    greater than that determined
    above.
    The district court found that Bertoli's obstructionist conduct
    involved attempting to conceal the predicate offenses to the
    racketeering acts with which he was charged.    See app. at 423.
    The court therefore applied the cross-reference provision of the
    guideline, which in turn directed it to the guideline for fraud.
    While the guideline provision itself is identical in
    both the 1989 and 1993 guidelines, the commentary was amended
    (..continued)
    the one-book rule cannot apply to compel application of the later
    Manual to all counts, it certainly can compel application of the
    earlier Manual. Furthermore, in this case the government does
    not argue that we should apply a Guideline Manual later than the
    1989 Guidelines Manual to either Group 2 or Group 3 if we apply
    the 1989 Manual to Group one. See 
    n.16, supra
    . Therefore the
    one-book rule should be applied here and the 1989 Guidelines
    Manual used as to all groups. We note that it is possible that
    changes in the guidelines after an offense might both help and
    hurt the defendant. In such a situation a defendant might not be
    able to object to the use of a Guideline Manual adopted after an
    offense on ex post facto grounds if overall the amendments
    favored him. But we are not concerned with that situation here.
    effective November 1, 1991.       The "Background" section of the
    commentary to the 1989 guidelines stated:       "Because the conduct
    covered by this guideline is frequently part of an effort to
    assist another person to escape punishment for a crime he has
    committed, an alternative reference to the guideline for
    accessory after the fact is made." (Emphasis added).       The amended
    commentary mandates application of the cross-reference provision
    whenever the defendant obstructed justice as "part of an effort
    to avoid punishment for an offense that the defendant has
    committed or to assist another person to escape punishment for an
    offense."     (Emphasis added).    Relying on caselaw interpreting the
    1989 guideline, Bertoli argues that the sentencing court was
    prohibited from using the cross-reference when the defendant's
    conduct was directed to avoid punishment to himself.      The
    government responds that the 1991 revision only clarified the
    guideline, and the particular circumstances referred to in the
    1989 commentary were not intended to be all-inclusive.
    We begin our analysis with several propositions.
    First, when a crime is covered by the Sentencing Guidelines, the
    sentence is computed based not only on the relevant guidelines,
    but also on the Sentencing Commission's policy statements and
    commentary.     See, e.g., Stinson v. United States, ____ U.S. ____,
    ____, 
    113 S. Ct. 1913
    , 1916 (1993); United States v. Hightower, 
    25 F.3d 182
    , 184 (3d Cir. 1994), petition for cert. filed Aug. 29,
    1994.   Second, although the principle has been disputed until
    only recently, it is now settled that the commentary to the
    guidelines is binding on federal courts as controlling law unless
    it either (1) violates the Constitution or a federal statute or
    (2) "is plainly erroneous or inconsistent with the [guideline]."
    Stinson, ____ U.S. at ____, 113 S.Ct. at 1919 (quoting Bowles v.
    Seminole Rock & Sand Co., 
    325 U.S. 410
    , 414, 
    65 S. Ct. 1215
    , 1217
    (1945)).18    Third, despite the fact that proposed amendments to
    the guidelines themselves must be submitted to Congress for
    review, see 28 U.S.C. § 994(p), "[a]mended commentary is binding
    on the federal courts even though it is not reviewed by
    Congress".    Stinson, ____ U.S. at ____, 113 S.Ct. at 1919
    (emphasis added).    Finally, "prior judicial constructions of a
    particular guideline cannot prevent the Commission from adopting
    a conflicting interpretation" that is consistent with the
    Constitution and federal law and when "the guideline . . . will
    bear the construction."     
    Id. at ,
    113 S.Ct. at 1919.
    Applying these principles to the issue before us, it
    becomes clear that commentary to the guidelines is to be treated
    (except in narrow instances) as law, that is, it must be read in
    conjunction with the guideline and policy statements as the law
    governing the case.     This means that, in the wake of Stinson,
    subsequent amendments to the commentary -- while binding on the
    court -- may, just like the guidelines themselves, present ex
    post facto problems when applied retrospectively.    See, e.g.,
    United States v. Diaz, 
    26 F.3d 1533
    , 1544 (11th Cir. 1994)
    18
    . In Stinson, the Supreme Court, after considering various
    analogies, concluded that "the guidelines are the equivalent of
    legislative rules adopted by federal agencies." 
    Id. at ,
    113
    S.Ct. at 1919.
    (sentence based on commentary enacted after conviction but prior
    to sentence may run afoul of ex post facto clause); United States
    v. Carroll, 
    6 F.3d 735
    , 747 n.9 (11th Cir. 1993) ("in light of
    the Supreme Court's decision in Stinson . . . , application of an
    intervening Guidelines interpretation by commentary promulgated
    after the offense could run afoul of the Ex Post Facto Clause")
    (citation omitted), cert. denied, ____ U.S. ____, 
    114 S. Ct. 1234
    (1994); United States v. Wilson, 
    993 F.2d 214
    , 216 (11th Cir.
    1993) (same).
    Of course, an amendment to the commentary does not
    necessarily substantively alter the guideline itself -- even when
    its application results in a sentence more severe than might
    otherwise have been imposed.     Rather, "amendments that clarify,
    rather than substantively change, the guidelines do not present
    ex post facto issues when they are applied retrospectively."
    United States v. Webster, 
    996 F.2d 209
    , 211 n.4 (9th Cir. 1993)
    (quoting United States v. Scarano, 
    975 F.2d 580
    , 587 (9th Cir.
    1992) (internal citations omitted)); see also U.S.S.G. § 1B1.11
    ("if a court applies an earlier edition of the Guidelines Manual,
    the court shall consider subsequent amendments, to the extent
    that such amendments are clarifying rather than substantive
    changes").    Because the commentary and the guideline both are
    binding, however, we must not be too quick to hold that an
    amendment to the commentary is merely a clarification.     Rather,
    our role is to look at the guidelines manual in effect at the
    time the crime was committed and ask whether, as matter of
    construction, the guideline and commentary in effect at that time
    is really consistent with the amended manual.   If the amended
    commentary "does not overrule prior constructions of the
    Guideline but instead confirms our reading of the Guideline",
    there is no ex post facto concern.   
    Diaz, 26 F.3d at 1545
    (citing
    
    Carroll, 6 F.3d at 746
    n.9).   If, though, the amended commentary
    does overrule prior judicial constructions of the guideline, ex
    post facto clause problems become more serious.
    In this case, the 1989 commentary is clear: "Because
    the conduct covered by this guideline is frequently part of an
    effort to assist another person to escape punishment for a crime
    he has committed, an alternative reference to the guideline for
    accessory after the fact is made." (Emphasis added).   The
    government's argument that the commentary simply provides one
    example of when the cross-reference can be used is at odds with
    the plain meaning of the language.   The commentary does not
    purport to give an example; it explains how and when the cross-
    reference should be applied.   Thus, even though the guideline
    itself refers only to "obstructing the investigation or
    prosecution of a criminal offense", when that language is read in
    conjunction with the commentary, the court is told to use the
    cross-reference when the defendant's obstructionist activity was
    directed at assisting another person to escape punishment for a
    crime.
    Our reading is consistent with other courts'
    interpretations.   The several courts that have addressed the
    issue under the 1989 guidelines have reached a single conclusion
    -- that the cross-reference does not apply when a defendant's
    obstructionist activity is intended to protect only himself.     For
    instance, in United States v. Huppert, 
    917 F.2d 507
    (11th Cir.
    1990), the defendant had attempted to persuade two witnesses to
    his crimes to identify someone else to the grand jury.   The Court
    of Appeals for the Eleventh Circuit, after finding that the
    obstructionist act "is an act directed at protecting [the
    defendant] from being punished", cited the 1989 commentary and
    held that use of the cross-reference was improper.   
    Id. at 510-
    11.   Similarly, in United States v. Berkowitz, 
    712 F. Supp. 707
    ,
    709 (N.D. Ill. 1989), the defendant, while facing mail fraud and
    tax fraud charges in the Northern District of Illinois, was
    arrested and charged with stealing and destroying documents that
    he knew were material to that prosecution.   The government sought
    to use section 2J1.2's cross-reference, but the court declined.
    It reasoned:
    Applying §2X3.1 in the instant case would result in
    treating Berkowitz as an accessory to his own alleged
    tax fraud and mail fraud. The official comments to
    §2J1.2 indicate that such an application of §2X3.1 is
    not appropriate. Therein, the Commission explains that
    §2X3.1 is applied in obstruction of justice cases
    [b]ecause the conduct covered by the [obstruction of
    justice] guideline is frequently part of the effort to
    assist another person to escape punishment for a crime
    he committed. Since Berkowitz did not commit
    obstruction of justice to assist another person, §2X3.1
    is inapplicable.
    
    Id. at 709
    (quoting commentary) (alterations in original).     See
    also United States v. Pierson, 
    946 F.2d 1044
    , 1048 (4th Cir.
    1991) (applying identical reasoning to section 2J1.3(c), the
    guideline for perjury and subornation of perjury); cf. United
    States v. Curry, 
    977 F.2d 1042
    , 1059 (7th Cir. 1992) (rejecting
    the defendant's argument based on Huppert and Pierson because the
    defendant "was clearly trying to protect others, and not himself
    . . . "), cert. denied, ____ U.S. ____, 
    113 S. Ct. 1357
    (1993).19
    Thus, this is not a case where the commentary is in accord with
    prior constructions of the guideline.   See 
    Diaz, 26 F.3d at 1545
    .
    These interpretations of the 1989 guideline and
    commentary are hardly surprising.   After all, use of the cross-
    reference in this case (and in others like it) enabled the court
    to sentence Bertoli as an accessory after the fact to the crimes
    for which he was charged and acquitted as a principal.   While the
    "real offense" approach of the guidelines certainly permits the
    court to consider such facts in computing the sentence, see
    United States v. Ryan, 
    866 F.2d 604
    , 609 (3d Cir. 1989), such an
    interpretation is hardly the most obvious reading of the 1989
    guideline, particularly in light of the commentary.   Moreover, it
    is at least anomalous to hold -- in the absence of explicit
    direction such as that now provided in the amended commentary --
    that the defendant could be convicted as both a principal and an
    accessory after the fact to his or her own crime.   As the court
    reasoned in Huppert:
    We agree with the district court's conclusion that a
    sentencing court 'is permitted to look beyond the four
    corners of the charge to the underlying conduct.' That
    19
    . In United States v. Jamison, 
    996 F.2d 698
    (4th Cir. 1993),
    the court noted that "[i]n 1991, the Guidelines Commission
    amended the commentary on which both the Pierson and Huppert
    courts relied in a manner which casts doubt upon the continued
    validity of those decisions." 
    Id. at 701
    n.3. However, because
    the court distinguished those cases, it "reserve[d] for another
    day a decision on the impact of the amended commentary on our
    precedent." 
    Id. practice is
    clearly permissible under the guidelines.
    However, under the guidelines, relevant conduct is
    incorporated into the base offense level by a
    prescribed process. . . . Section 2J1.2(c)(1) provides
    a specific method by which a court may consider conduct
    outside the offense of conviction. That method is
    consistent with our understanding of the law of
    principals and accessories.
    
    Huppert, 917 F.2d at 511
    (citations omitted) (emphasis added).20
    In other words, the amended commentary (while certainly
    not violative of the Constitution or federal law) is in accord
    neither with the prior case law nor an obvious reading of the
    guideline.    Therefore, we hold that the 1991 amendment to the
    commentary is not a clarifying amendment but, rather, a
    substantive change.    This means that the district court should
    have applied the 1989 Guidelines Manual, and should not have used
    20
    . The government argues that our interpretation would lead to
    absurd results, because "low-level conspirators in this scheme .
    . . who assisted Bertoli in hiding his illegal millions, would be
    eligible to receive a base offense level as high as 20 . . .
    while Bertoli, the mastermind of the scheme, would be limited to
    a base offense level of 12." Appellee Br. at 39. Of course, 12
    is the base level for obstruction of justice without use of the
    cross reference. The government neglects to point out, however,
    that Bertoli would be chargeable and answerable for the entire
    underlying scheme, whereas the low-level conspirator may not be.
    See, e.g., United States v. Collado, 
    975 F.2d 985
    , 992 (3d Cir.
    1992) (liability of defendant for co-conspirator's conduct
    depends "upon the degree of the defendant's involvement in the
    conspiracy and, of course, reasonable foreseeability with
    respect to the conduct of others within the conspiracy"). The
    point of the cross-reference is to say to someone who, for
    example, lies for another: we're going to treat you as though
    you actually helped that person commit the crime you're now
    helping him get away with. In any event the cases and principles
    we cite compel our result.
    the cross-reference provision of the obstruction of justice
    guideline.21
    Because by using the 1993 Guidelines Manual, the trial
    court imposed a sentence in excess of what would have been
    permissible under the 1989 Manual, the sentence imposed violated
    Bertoli's right against ex post facto punishment.   The sentence
    21
    . We are aware that the Sentencing Commission has described
    the amendment as clarifying. United States Sentencing Commission
    1993 Guidelines Manual, app. C, page 233-34, § 401. But this
    circumstance does not change our result. In the first place, we
    have rejected the proposition that the Sentencing Commission's
    description of an amendment as "clarifying" is entitled to
    substantial weight. United States v. Menon, 
    24 F.3d 550
    , 567 (3d
    Cir. 1994). Moreover, the Commission's description comes in the
    face of a settled interpretation of the guideline and therefore
    is entitled to little weight. See United States v. 
    Menon, 24 F.3d at 567
    ("[W]e never have held that a 'clarifying' amendment
    can be used to interpret an earlier guideline when applying the
    amendment would punish the defendant more harshly than he would
    have been punished under the court's independent interpretation
    of the pre-amendment language." Rather, our own independent
    interpretation of the pre-amendment language is controlling.
    To analogize, in McNally v. United States, 
    483 U.S. 350
    , 
    107 S. Ct. 2875
    (1987), the Supreme Court held that a person
    could not be prosecuted under the mail fraud statute for fraud
    that only causes intangible loss, such as depriving the public of
    honest government. In 1988, Congress responded to the Court's
    decision by passing a statute that defines "scheme or artifice to
    defraud" as including "scheme[s] or artifice to deprive another
    of the intangible right of honest services." 18 U.S.C. § 1346.
    Of course, simply by adopting this language, Congress could not
    have the law applied retroactively. Rather, applying the revised
    statute to conduct occurring after McNally but prior to the
    revision clearly would have violated the ex post facto clause.
    See, e.g., United States v. Schwartz, 
    924 F.2d 410
    , 418 (2d Cir.
    1991). Had Congress described the statute as "clarifying", it
    would have been of no moment. That description could not
    displace the fact that the Supreme Court had ruled on the meaning
    of the pre-revision language. In the instant case, the
    Commission's description comes in the face of a settled
    interpretation of the guideline provision. The use of the word
    "clarifying" cannot change this simple fact.
    therefore must be vacated and the matter remanded for re-
    sentencing under the 1989 Manual.22
    3.   Permissibility of the fine
    Bertoli next contends that the district court erred in
    departing upward from the guideline maximum fine of $125,000 to a
    fine of $7 million.    The district court arrived at this figure as
    the amount necessary to disgorge Bertoli of illegal profits he
    keeps hidden in foreign bank accounts.    Bertoli argues that the
    facts upon which the district court based its decision simply are
    not supported by the record.
    Generally a defendant must be sentenced within the
    applicable guideline range.    However, if the court "finds that
    there exists an aggravating or mitigating circumstance of a kind,
    or to a degree, not adequately taken into consideration by the
    Sentencing Commission in formulating the guidelines, that should
    result in a sentence different from that described", the court
    may depart from the guideline range accordingly.    18 U.S.C. §
    3553(b); United States v. Kikumura, 
    918 F.2d 1084
    , 1098 (3d Cir.
    1990).23   Conversely, if the Sentencing Commission adequately
    22
    . Because the district court was incorrect in its application
    of the cross-reference, the fraud guideline should not have been
    applied. Therefore, we need not address Bertoli's argument that
    the district court's calculation of the loss under the fraud
    guideline was erroneous.
    23
    . While this case involves a departure from the applicable
    fine range rather than the incarceration range, we previously
    have held that this is a distinction without a difference.
    United States v. Seale, 
    20 F.3d 1279
    , 1287 (3d Cir. 1994) (citing
    United States v. Graham, 
    946 F.2d 19
    , 21 (4th Cir. 1991)). Thus,
    took all the relevant factors into account in determining the
    sentence, the court may not depart.
    Our review over a district court's decision to depart
    upward is divided into three tiers.    First, we exercise plenary
    review over the district court's determination that the
    Sentencing Guidelines have not adequately taken a particular
    factor into account.   United States v. Uca, 
    867 F.2d 783
    , 786 (3d
    Cir. 1989).   "Of course, the circumstances relied upon must in
    fact exist in the case under consideration" in order to uphold
    the departure.   
    Kikumura, 918 F.2d at 1098
    .   In reviewing
    findings of fact, we employ the clearly erroneous standard of
    review.   Finally, we must determine whether the sentence imposed
    was reasonable, that is, whether the factors on which the court
    relied and the degree of the departure, were appropriate.     In
    this determination, "the district courts are entitled to exercise
    a substantial amount of discretion."    United States v. 
    Ryan, 866 F.2d at 610
    ; see also 
    Kikumura, 918 F.2d at 1098
    ("[a]t this
    stage of the inquiry, our review is deferential").    We will
    address these factors in turn.
    a.    Taken into Consideration by the Sentencing Commission
    Under the Sentencing Guidelines, the sentencing court
    "shall impose a fine in all cases, except where the defendant
    establishes that he is unable to pay and is not likely to become
    (..continued)
    we review both types of departures under the same analytical
    rubric.
    able to pay any fine."    U.S.S.G. § 5E1.2; United States v. Demes,
    
    941 F.2d 220
    , 223 (3d Cir.), cert. denied, ____ U.S. ____, 
    112 S. Ct. 399
    (1991).    The court is to consider an array of factors,
    including evidence of the defendant's ability to pay the fine,24
    any restitution or reparation that the defendant has made or is
    obligated to make, and "any other pertinent equitable
    considerations."    U.S.S.G. § 5E1.2(d).   "The amount of the fine
    should always be sufficient to ensure that the fine taken
    together with other sanctions imposed, is punitive."    U.S.S.G. §
    5E1.2(e).   The guideline provides a "fine table" which
    establishes a minimum and maximum fine based on the defendant's
    offense level.    For an offense level of 28 -- the offense level
    at which the district court arrived in this case -- the minimum
    fine is $12,500 and the maximum is $125,000.    U.S.S.G. §
    5E1.2(c)(3).
    The district court found that in establishing the
    guideline range, the Sentencing Commission did not adequately
    take into account facts fitting the circumstances of this case.
    In so holding, the district court relied on the commentary
    24
    . The court found that Bertoli was able to pay the fine, for
    the following reasons: (1) Bertoli did not submit a financial
    disclosure form to the probation department; (2) Bertoli's home
    conservatively is valued in excess of $1,000,000; (3) in October,
    1983, Bertoli stashed millions of dollars in secret bank accounts
    in the Cayman Islands and other off-shore accounts; (4) Bertoli
    moved millions of dollars out of the Cayman Accounts into
    accounts in Andorra; and (5) Bertoli is in control of those funds
    in Andorra. App. at 451-52. While Bertoli does challenge the
    district court's conclusions as to his control over the Andorra
    funds, he seems not specifically to challenge the district
    court's finding that he is able to pay the fine.
    itself, which expresses the Commission's views on just this
    subject:
    The Commission envisions that for most defendants, the
    maximum of the guideline fine range from subsection (c)
    will be at least twice the amount of gain or loss
    resulting from the offense. Where, however, two times
    either the amount of gain to the defendant or the
    amount of loss caused by the offense exceeds the
    maximum of the fine guideline, an upward departure from
    the fine guideline may be warranted.
    The Commission's views are dispositive on this point.     See
    
    Kikumura, 918 F.2d at 1104
    ("'In determining whether a
    circumstance was adequately taken into consideration [so as to
    preclude departure], the court shall consider only the sentencing
    guidelines, policy statements, and official commentary of the
    Sentencing Commission.'") (quoting 18 U.S.C. § 3553(b))
    (alterations in original).    Assuming the district court's
    findings are correct, this case involves precisely the type of
    situation warranting an upward departure contemplated by the
    Sentencing Commission.    The Commission contemplated the fine of
    $125,000 to be twice the amount of the gain, whereas the court
    found that Bertoli illegally profited and controls $7 million.
    Thus, the district court was correct in its conclusion that the
    facts it found warranted an upward departure.
    b.   The district court's factual findings
    We next address whether the district court's findings
    of fact are clearly erroneous.    As a preliminary matter, however,
    the record compels us to discuss the appropriate evidentiary
    standard.
    In making its findings, the district court employed a
    standard of proof of "at least a preponderance of the evidence."
    App. at 372.    The court determined that it could consider hearsay
    statements it regarded as having "some minimal indicium of
    reliability."    App. at 372 n.233 (quoting United States v.
    
    Kikumura, 918 F.2d at 1102
    (quotation omitted)).     In the court's
    view, two of the documents -- the Cahill Sentencing Affidavit and
    the 1993 Cannistraro Plea Allocution -- had "more than a 'minimal
    indicium of reliability'; they are strongly reliable sources."
    App. at 372 n.233.
    Generally, courts may use the preponderance of the
    evidence standard of proof in sentencing hearings.    McMillan v.
    Pennsylvania, 
    477 U.S. 79
    , 91, 
    106 S. Ct. 2411
    , 2419 (1987);
    
    Kikumura, 918 F.2d at 1099
    ; United States v. McDowell, 
    888 F.2d 285
    , 291 (3d Cir. 1989).    This is because after a jury finds a
    defendant guilty, the presumption of innocence no longer applies,
    and the protections that form a corollary to that presumption
    become less important.     See, generally, 
    Kikumura, 918 F.2d at 1099
    -1100.    See also 
    id. at 1100
    (federal rules of evidence
    inapplicable at sentencing); United States v. Baylin, 
    696 F.2d 1030
    , 1040 (3d Cir. 1982) (hearsay admissible at sentencing so
    long as it bears "some minimal indicium of reliability beyond
    mere allegation").
    In Kikumura, however, we distinguished between "run-of-
    the-mill sentencing cases" and those in which the proposed
    departure is so great that the sentencing hearing "functions as
    'a tail which wags the dog of the substantive offense.'"
    
    Kikumura, 918 F.2d at 1100-01
    (quoting 
    McMillan, 477 U.S. at 88
    ,
    106 S.Ct. at 2417).   In Kikumura itself, the sentencing court
    departed from the guideline maximum of 33 months to 30 years.         We
    held that in such an extreme context, "a court cannot reflexively
    apply the truncated procedures that are perfectly adequate for
    all of the more mundane, familiar sentencing determinations."
    
    Id. at 1101.
      Rather, we held that facts supporting the departure
    must be found by clear and convincing evidence.    Hearsay, we
    said, only may be admitted in such cases when the court examines
    the "totality of the circumstances, including other corroborating
    evidence, and determines whether the hearsay declarations are
    reasonably trustworthy."   
    Id. at 1103.
    We recently applied this heightened evidentiary
    standard to a district court's upward departure in determining
    the amount of a fine.    
    Seale, 20 F.3d at 1288
    .   There, the
    district court increased the defendant's fine from the guideline
    maximum of $250,000 to the statutory maximum of $1,750,000.      We
    held that this seven-fold increase was just the sort of "extreme
    context" that warranted use of the higher standard of proof.
    Such a context, we concluded, "requires that the district court
    use a clear and convincing standard of proof when finding
    supporting facts."    
    Id. at 1288
    (citing 
    Kikumura, 918 F.2d at 1100-1102
    and United States v. Townley, 
    929 F.2d 365
    (8th Cir.
    1991)); see also United States v. St. Julian, 
    922 F.2d 563
    , 569
    n.1 (10th Cir. 1990) ("If the difference between the guideline
    range and the departure sentence is great, the trial court should
    consider the implications of that disparity in determining the
    appropriate standard of proof for the facts considered in
    sentencing.").
    In this case, the court departed upward by a factor in
    excess of 50.    This is clearly the type of "extreme context" that
    requires more than the bare minimum of procedural protections.
    We hold, then, that factual conclusions justifying the departure
    must be supported by clear and convincing evidence and that, in
    order to be admissible, hearsay declarations must be reasonably
    trustworthy in light of the totality of the circumstances,
    including other corroborating evidence.
    Accordingly we address whether the district court's
    findings are clearly erroneous in light of this evidentiary
    standard.    The court found made the following findings.    Bertoli,
    Cannistraro and Eisenberg each had companies created for them in
    the Cayman Islands by Sidney Coleman of Paget Brown & Co., to
    which they transferred profits obtained through the stock
    manipulation schemes.    In November 1989, the United States
    govenment requested from the Grand Court of the Cayman Islands
    documents and evidence concerning these accounts for use in the
    prosecution against Bertoli.    Soon thereafter, Bertoli began
    meeting with an Ernest Foster to discuss how to move the money
    and documents concerning the three companies from the Cayman
    Islands and therefore out of the government's reach.    In the wake
    of these discussions, Foster and two other persons travelled to
    the Principality of Andorra and opened an account with an
    Andorran bank in the name of Fosca, S.A.    In response to
    Bertoli's request, Foster ensured that Andorra had no treaty with
    the United States that would enable the latter to have access to
    the accounts.   Bertoli then met with Eisenberg and the two
    decided to move documents concerning the companies to Foster's
    control.   In 1990, the administration of the companies was
    transferred from Coleman to Foster.     The total amount of the
    funds over which Foster obtained control was $8,700,000.      Of that
    amount, $5,086,593.94 was from Cannistraro's company,
    $3,132,956.09 from Eisenberg's company, and $471,580.61 from
    Bertoli's company.   Foster arranged to have the funds transferred
    to the Fosca account.   The next year, at Bertoli's request,
    Foster took the relevant documents to Andorra and left them with
    an attorney.
    The court further found that despite Eisenberg's and
    Cannistraro's respective plea agreements to forfeit their
    interests in the Andorran companies to the government, the
    government to date had collected only $789,083.89.      Finally, the
    court noted that, according to the presentence report, Bertoli
    does not deny having control over substantial funds.25     The court
    inferred from these facts that "as demonstrated by the
    Government, Bertoli retains control of the millions of dollars,
    forfeited to it by Eisenberg and Cannistraro, but removed by
    Bertoli to Andorra beyond its reach."    App. at 451.   Therefore,
    25
    . Actually, the court's opinion states that Bertoli "takes no
    position regarding the Government's claim that 'Bertoli has
    access to millions of dollars in foreign bank accounts.'" App.
    at 451 (quoting December 1, 1993 letter from Bertoli). According
    to the government's brief and the presentence report, however,
    Bertoli only declined to deny having access to substantial funds.
    the court concluded, "[a]n upward departure is necessary in
    calculating the appropriate fine for Bertoli because the fine
    indicated by the Guidelines is inadequate to 'disgorge' the gain
    of Bertoli's criminal activities."    
    Id. Our review
    of the record compels us to conclude that
    the court's findings are not supported by the record and
    therefore are clearly erroneous.   The evidence supporting the
    proposition that Bertoli controls the entire millions of dollars
    consists solely of Foster's trial testimony.     And his testimony
    simply cannot be read fairly to confirm the court's findings.
    Foster did testify that he received control of the funds, that he
    set up an account in Andorra, and even that he ensured that the
    United States "didn't have any treaties with or any previous
    precedent of going in and obtaining documents or information
    concerning bank accounts."   App. at 35.    But nothing he says
    indicates that Bertoli received control of the entire money or
    that Bertoli retains control of the funds.     While he testified
    that his contacts were with Bertoli rather than with Eisenberg or
    Cannistraro, he does not even purport to express the view that
    Bertoli was acting unilaterally.     Apparently, the court to reach
    its conclusions extrapolated from the fact that the government
    has obtained only partial payments from the two co-conspirators,
    and that Bertoli did not deny having control over substantial
    sums of money.   "A substantial amount of money" is not always
    equivalent to many millions, though.    And the court's assumption
    that because the government only collected part of Eisenberg's
    and Cannistraro's profits, Bertoli must control the rest is
    completely speculative.    While such speculation may have survived
    scrutiny under the preponderance of the evidence standard, it
    certainly cannot withstand scrutiny under the clear and
    convincing evidence standard.26    Accordingly, the district
    court's finding is clearly erroneous and must be vacated and the
    case must be remanded for recalculation of the fine.27    Because
    of this finding, we need not reach the third tier of a review of
    an upward departure, whether the extent of the departure was
    reasonable.
    4.     Reassignment to a different judge
    Finally, Bertoli argues that in the event of a remand,
    the case should be reassigned to a different judge, "because of
    the district judge's extreme animus towards Mr. Bertoli."
    Appellant Br. at ii.    The government argues in response that
    Bertoli wants Judge Lechner recused solely because of his
    reputation as a "harsh" sentencer, and that "Bertoli's blatant
    attempt at judge-shopping should be rejected by this court."
    This is not the first time Bertoli has sought Judge
    Lechner's recusal.    On November 2, 1989, Bertoli filed his first
    recusal motion.    Judge Lechner denied this motion on March 22,
    26
    . Although, as noted above, the district court found that the
    Cahill sentencing affidavit and the Cannistraro plea allocution
    were highly reliable, there is no indication that those documents
    were relevant to the district court's finding that Bertoli
    controls $7 million.
    27
    . Of course, since, as detailed above, the district court's
    calculation of the offense level was erroneous, the guideline
    range for the fine may well be different next time around.
    1990, see United States v. Eisenberg, 
    734 F. Supp. 1137
    , 1167
    (D.N.J. 1990), and denied it again on April 12, 1990, on a motion
    for reconsideration,   see United States v. Eisenberg, 734 F.
    Supp. 1168 (D.N.J. 1990).   We then denied Bertoli's petition for
    a writ of mandamus on May 18, 1990, seeking Judge Lechner's
    disqualification.
    On July 26, 1990, Bertoli joined in a recusal motion
    made by his co-defendant Cannistraro.    Judge Lechner denied the
    motion on August 16, 1990, and we dismissed Bertoli's subsequent
    appeal.   On July 26, 1991, Judge Lechner denied another motion
    for recusal filed on March 12, 1991.    See United States v.
    Eisenberg, 
    773 F. Supp. 662
    , 733 (D.N.J. 1991).    Bertoli's
    December 17, 1992 recusal motion was denied on January 12, 1993.
    On April 23, 1993 we declined to grant Bertoli's petition for a
    writ of mandamus.    Bertoli's petition for a writ of certiorari to
    the United States Supreme Court was denied on October 4, 1993,
    see Bertoli v. United States District Court for the District of
    New Jersey, ____ U.S. ____, 
    114 S. Ct. 77
    (1993).    Finally,
    Bertoli moved to recuse Judge Lechner from the sentencing but
    Judge Lechner denied that motion on March 28, 1993.
    Our authority to reassign a case on remand stems from
    two sources.   The first stems from the federal recusal statute,
    28 U.S.C. § 455.    Second, our statutory authorization pursuant to
    28 U.S.C. § 2106, to "require such further proceedings to be had
    as may be just under the circumstances" gives us the "ability to
    assign a case to a different judge on remand."     Liteky v. United
    States, ____ U.S. ____, 
    114 S. Ct. 1147
    , 1156-57 (1994).
    Bertoli conflates the two provisions in a single
    argument -- that Judge Lechner's apparent repeated hostility to
    him renders the judge unable to preside over a fair trial, and at
    any rate creates a belief of bias and partiality in the mind of
    the objective observer.    We will address the bases for recusal
    separately.
    Pursuant to 28 U.S.C. § 455(a) a federal judge must
    "disqualify himself in any proceeding in which his impartiality
    might reasonably be questioned."     See Liteky, ____ U.S. at ____,
    114 S.Ct. at 1150.     Section 455(b)(1) requires disqualification
    where the judge "has a personal bias or prejudice concerning a
    party."   The Supreme Court recently held that subsection (b)'s
    "extrajudicial source" doctrine also applies to subsection (a).
    Liteky, ____ U.S. at ____, 114 S.Ct. at 1157.     Under that
    doctrine, bias, in order to form the basis for recusal, must stem
    from a source outside of the official proceedings.     Because the
    focus is on the source of the judge's views and actions,
    "judicial rulings alone almost never constitute a valid basis for
    a bias or partiality motion" because they almost never arise from
    an extrajudicial source.    
    Id. at ,
    114 S.Ct. at 1157 (citing
    United States v. Grinnell Corp., 
    384 U.S. 563
    , 583, 
    86 S. Ct. 1698
    , 1710 (1966)).     Similarly, and for the same reason,
    "judicial remarks during the course of a trial that are critical
    or disapproving of, or even hostile to, counsel, the parties, or
    their cases, ordinarily do not support a bias or partiality
    challenge."   
    Id. at ,
    114 S.Ct. at 1157.
    Despite finding an extra-judicial source requirement
    under section 455(a), the Liteky Court held that opinions formed
    during a judicial proceeding may in certain instances give rise
    to a duty to recuse.      The court reasoned that if during "a
    lengthy trial . . . the presiding judge for the first time learns
    of an obscure religious sect, and acquires a passionate hatred
    for all its adherents," the fact that the beliefs arose through a
    judicial proceeding is of no consequence.      
    Id. at ,
    114 S.Ct.
    at 1154.   The duty to recuse would arise.     This is because the
    words "extrajudicial bias" really are intended to convey the
    notion of a "wrongful or inappropriate" bias, regardless of
    whether the improper bias arises from evidence adduced at trial
    or from some extraneous source.      "A favorable or unfavorable
    predisposition can . . . deserve to be characterized as 'bias' or
    'prejudice' because, even though it springs from the facts
    adduced or the events occurring at trial, it is so extreme as to
    display clear inability to render fair judgment."       
    Id. at ,
    114 S.Ct. at 1155.      In order for such bias to create a duty to
    recuse, however, the court's actions must "reveal such a high
    degree of favoritism or antagonism as to make fair judgment
    impossible."   
    Id. at ,
    114 S.Ct. at 1157.   Of course, section
    455(a), by providing for recusal when a judge's impartiality may
    "reasonably be questioned" still mandates an objective rather
    than a subjective inquiry.      See 
    id. at ,
    114 S.Ct. at 1156
    n.2 ("The judge does not have to be subjectively biased or
    prejudiced, so long as he appears to be so.") (emphasis in
    original); Alexander v. Primerica Holdings, Inc., 
    10 F.3d 155
    ,
    162 (3d Cir. 1993) ("[T]he public's confidence in the judiciary,
    which may be irreparably harmed if a case is allowed to proceed
    before a judge who appears to be tainted", requires that "justice
    must satisfy the appearance of justice.") (quoting In re Asbestos
    Litig., 
    977 F.2d 764
    , 776 (3d Cir. 1992)).
    Bertoli makes no allegation that Judge Lechner derived
    his bias from an extrajudicial source.   Rather, all the incidents
    he cites in his brief involve rulings and statements made by the
    judge during the proceedings.   Thus, these incidents will not
    support recusal unless, looked at objectively, "they display a
    deep-seated favoritism or antagonism that would make fair
    judgment impossible."
    We previously have commented on the antagonisms between
    Judge Lechner and Bertoli and his various attorneys.   When
    deciding a prior interlocutory appeal on May 7, 1993, we said:
    Perhaps understandably, the record in this case hints
    at some animus between the court and Bertoli and
    Bertoli's counsel. Bertoli has sought recusal on
    several occasions. He has called into question the
    district judge's ability to adjudicate fairly his
    pretrial motions. Some of the exchanges at the
    hearings the district court has already held indicate
    that this case has been contentious.
    United States v. Bertoli, 
    994 F.2d 1002
    , 1025 (3d Cir.), cert.
    denied,      U.S.   , 
    114 S. Ct. 77
    (1993).   We cautioned counsel
    and the court to "strive to avoid even the hint of rancor."    
    Id. at 1027.
      It is unfortunate that the rancor nevertheless
    continued.
    But yet we do not believe the record indicates the type
    of bias that would warrant Judge Lechner's recusal from this
    case.     The essence of Bertoli's argument is that Judge Lechner
    took every occasion to express dissatisfaction with him and his
    counsel, and increased Bertoli's sentence at every opportunity.
    A number of Bertoli's objections involve the judge's legal
    rulings and factual findings.28    As noted above, such decisions
    rarely form the basis for recusal, especially since such
    decisions properly can be reviewed upon appeal.       It is true that
    Judge Lechner sentenced Bertoli severely.     But Bertoli was
    accused and convicted of serious crimes.     The judge's "knowledge
    and the opinion it produced were properly and necessarily
    acquired in the course of the proceedings, and are indeed
    sometimes . . . necessary to completion of the judge's task."
    Liteky,       U.S. at     , 114 S.Ct. at 1155.    We do not believe
    that a reasonable person, looking at the rulings objectively,
    would conclude that the court was partial.       Other objections
    involve the judge's disposition towards Bertoli.29      However, the
    28
    .   For instance, Bertoli points out that:
    -- The judge believed Juror Six over Juror Thirteen;
    -- After the verdict, the judge remanded Bertoli rather
    than keeping him free on bail;
    -- The judge's credibility and legal determinations at
    sentencing generally resulted in increases in the offense level;
    -- The judge adopted the government's arguments about
    how to group the offenses for sentencing purposes.
    29
    .   For instance:
    -- The judge criticized Mr. Bertoli in front of the
    jury;
    judge's comments, while perhaps reflecting impatience and
    frustration, appear to have been directed solely at the manner in
    which Bertoli tried his case.   In fact, "[i]f the judge did not
    form judgments of the actors in those court-house dramas called
    trials, he could never render decisions."    
    Id. at ,
    114 S.Ct.
    at 1155 (quoting In re J.P. Linahan, Inc., 
    138 F.2d 650
    , 654 (2d
    Cir. 1943)); see also Liteky,      U.S. at    , 114 S.Ct. at 1157
    ("A judge's ordinary efforts at courtroom administration -- even
    a stern and short-tempered judge's ordinary efforts at courtroom
    administration -- remain immune.").
    Thus, this case is distinguishable from other occasions
    where we have required recusal.   In Primerica Holdings, Inc., the
    record reflected that the district judge accused the petitioners
    (..continued)
    -- In denying Bertoli's motion for a mistrial, the
    judge described the motion as "ridiculous, absurd and baseless."
    He further said
    You have been conducting yourself throughout this
    trial trying to create error, trying to create a
    record. This is another example of it. This is
    an absurd motion, it's just another in the line of
    your baseless motions. That's denied. Now please
    sit down. Mr. Bertoli, your smirks, your
    laughing, your rolling your eyes, your sneering
    can't be tolerated any more. If you do it again
    in front of the jury, I'll have to comment in
    front of the jury. You're out of bounds and
    unprofessional. You're not conducting yourself
    the way you should. You're not acting like an
    attorney. Your cross-examination was anything but
    an attorney's cross-examination. Now, please stop
    it and please sit down and remain there. App. at
    670-71.
    -- The judge told Bertoli that "[f]rom day one in this
    case either you or your attorneys have been taunting me."
    themselves of acting in bad faith, and by responding in detail to
    a petition for a writ of mandamus, had taken a personal interest
    in the case.   In Haines v. Liggett Group Inc., 
    975 F.2d 81
    , 98
    (3d Cir. 1992), statements in a pre-trial opinion by the judge
    appeared to pre-judge important and disputed issues in the case;
    see also In re Asbestos 
    Litig., 977 F.2d at 778-85
    (judge's
    attendance at conference at plaintiff's expense constituted
    appearance of partiality).
    We are all the more wary of reassigning this case,
    because the record reflects that Bertoli engaged in a concerted
    campaign to have Judge Lechner removed from the case.      On
    November 2, 1987, Bertoli wrote a letter to Judge Lechner
    criticizing the judge's handling of Cannistraro's sentencing in
    an earlier case.   He threatened that "[i]f you do not resign from
    the bench within thirty days, I will refer this matter to the
    Judiciary committee and bar association for action."    App. at
    346.   The next day, Bertoli wrote to then-Justice Thurgood
    Marshall of the United States Supreme Court purporting to make a
    "formal complaint and request to reprimand and take such other
    action including impeachment. . . ."   App. at 346-47 (quoting
    letter).   Then, Bertoli boasted to others that he was trying to
    antagonize the judge.   See app. at 354-55.   Moreover, these
    actions occurred at a time when "it appear[ed] Bertoli was aware
    that he was a subject of a grand jury investigation which also
    concerned Eisenberg."   
    Eisenberg, 734 F. Supp. at 1145
    .    We
    always should be "keenly aware of the impact [decisions mandating
    recusal] might have on the conduct of all disputed matters and
    cases that district court judges try."   Primerica Holdings, 
    Inc., 10 F.3d at 166
    .   This principle is especially important in this
    case, lest we encourage tactics designed to force recusal.
    Nor will we exercise our supervisory powers to reassign
    the case upon remand.   Although in Liteky, the Supreme Court
    declined to address whether the "extrajudicial source" doctrine
    applies to a Court of Appeals' supervisory powers to reassign a
    case upon remand, we previously have reviewed such requests under
    an "appearance of impartiality" standard.    Primerica Holdings,
    
    Inc., 10 F.3d at 167
    ; Blasband v. Rales, 
    979 F.2d 324
    , 328 (3d
    Cir. 1992); 
    Haines, 975 F.2d at 98
    .   We need not address the
    extent to which the standards set forth in Liteky apply to this
    supervisory power, because we simply do not believe the district
    court has exhibited an appearance of partiality.
    III.   CONCLUSION
    For all the reasons detailed above, we will affirm the
    judgment of conviction on March 30, 1994.    However, we will
    vacate the sentence and will remand to the district court for
    resentencing in accordance with this opinion.
    USA v. Bertoli
    No. 94-5167
    ROTH, Circuit Judge, concurring:
    I join the opinion in Parts I, II.A.1, and 2,
    II.B, and III.   I concur with the result that the majority
    reaches in Part II.A.3.   I write separately, however, to express
    my concern on the issue of providing written transcripts to the
    jury.   I recognize that other circuits have afforded trial courts
    great discretion in determining whether or not to allow copies of
    written transcripts to go to the jury.      In view of this
    precedent, I agree that the trial court in this case did not
    abuse its discretion.
    I approve the cautionary language that the
    majority suggests to prevent the jury from focusing improperly on
    one portion of the testimony contained in a transcript.       However,
    I would prefer to go further.   I would exercise our court's
    inherent supervisory power to bar trial courts from permitting
    the jury to obtain copies of written transcripts of trial
    testimony unless the district judge ensured that:      (1) no party
    was likely to be unduly prejudiced, and (2) the transcript or
    particular portion thereof was not likely to be improperly used
    by the jury.30   In this regard, the trial court should afford
    30
    .    Although it is not to be invoked lightly, we have
    exercised our supervisory power to resolve various procedural and
    counsel for each party the opportunity to express counsel's
    opinion as to the likelihood of prejudice and improper use.
    The Uniform Rules of Criminal Procedure (1987)
    provide support for the limitation that I would propose to place
    on a trial court's discretion to send written transcripts to the
    jury.   In particular, Rule 533 provides that:
    "If the jury, after retiring for
    deliberations, requests a review of any
    evidence, the court, after notice to the
    parties, shall recall the jury to the
    courtroom. If the jury's request is
    reasonable, the court shall have any
    requested portion of the testimony read or
    played back to the jury and permit the jury
    to reexamine any requested exhibit received
    in evidence. The court need not submit
    evidence to the jury for review beyond that
    specifically requested by the jury, but the
    court also may have the jury review other
    evidence relating to the same factual issue
    in order to avoid undue emphasis on the
    evidence requested. If it is likely that the
    jury cannot otherwise adequately consider any
    evidence reviewed, the court may permit the
    jury to take the evidence, including any part
    of a deposition or of a prepared transcript
    or recording of the testimony, to the jury
    room if it appears:
    (..continued)
    substantive matters and to provide guidance to the district
    courts. See, e.g., Pansy v. Borough of Stroudsburg, 
    23 F.3d 772
    ,
    786 and n.16 (3d Cir. 1994) (invoking inherent supervisory power
    to require a showing of good cause whenever order of
    confidentiality is granted); Sowell v. Butcher & Singer, Inc.,
    
    926 F.2d 289
    , 295 (3d Cir. 1991) (invoked supervisory power to
    require district courts, when granting motion for directed
    verdict, to set forth explanation sufficient to permit this Court
    to understand legal premise upon which decision was based); see
    also Murray M. Schwartz, The Exercise of Supervisory Power By the
    Third Circuit Court of Appeals, 27 Vill. L. Rev. 506, 510-11
    (1982).
    (1) no party will be unduly prejudiced;
    and
    (2) the evidence is not likely to be
    improperly used by the jury.
    (emphasis added).31
    I believe that the exercise of our supervisory
    power in this manner would best protect the parties from the the
    problems which are inherent in permitting trial transcripts to go
    to the jury room.     At the same time we would afford a district
    court the discretion to provide the jury with transcripts when
    31
    . It is worthy of note, however, that the American Bar
    Association's related Standard 15-4.2 of its Standards for
    Criminal Justice (1991) does not make any reference to the
    practice of permitting transcripts of testimony to go into the
    jury room:
    Jury request to review evidence.
    (a) If the jury, after retiring for
    deliberation, requests a review of certain
    testimony or other evidence, they shall be
    conducted to the courtroom. Whenever the
    jury's request is reasonable, the court,
    after notice to the prosecutor and counsel
    for the defense, shall have the requested
    parts of the testimony read to the jury and
    shall permit the jury to reexamine the
    requested materials admitted into evidence.
    (b) The court need not submit evidence
    to the jury for review beyond that
    specifically requested by the jury, but in
    its discretion the court may also have the
    jury review other evidence relating to the
    same factual issue so as not to give undue
    prominence to the evidence requested.
    (emphasis added). I read the failure of this standard to discuss
    the practice of sending transcripts to the jury as a reluctance
    on the part of the ABA to encourage courts to engage in such a
    practice on a regular basis.
    the court determines that such a practice is necessary and not
    likely to be prejudicial to the parties.   Although such a rule
    might indeed constitute an "intrusion into the district court's
    discretion to adapt procedures to the situation in the case
    before it," see Majority Opinion at 35, because of the magnitude
    of my concerns, I consider such an intrusion to be warranted.