United States v. Moskovits ( 1996 )


Menu:
  •                                                                                                                            Opinions of the United
    1996 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-25-1996
    United States v. Moskovits
    Precedential or Non-Precedential:
    Docket 94-1990,95-1048
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
    Recommended Citation
    "United States v. Moskovits" (1996). 1996 Decisions. Paper 162.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1996/162
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________________________
    Nos. 94-1990 and 95-1048
    ________________________
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    ALEXANDER EUGENIO MOSKOVITS
    Defendant-Appellant
    _______________________
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Crim. No. 87-284-01
    Argued October 11, 1995
    Before:   STAPLETON, McKEE, and NORRIS, Circuit Judges
    (Opinion filed June 25, 1996)
    L. Barrett Boss (Argued)
    Asbill, Junkin & Myers, Chtd.
    1615 New Hampshire Avenue, N.W.
    Washington, D.C. 20009-2550
    Attorney for Appellant
    Michael R. Stiles
    United States Attorney
    Walter S. Batty, Jr.
    Assistant United States Attorney,
    Chief of Appeals
    Kristin R. Hayes (Argued)
    Assistant United States Attorney
    615 Chestnut Street, Suite 1250
    Philadelphia, PA
    Attorneys for Appellees
    ____________________________________________
    OPINION OF THE COURT
    ____________________________________________
    NORRIS, Circuit Judge:
    In 1988, Alexander E. Moskovits was convicted by a jury
    of various narcotics offenses related to the possession and
    distribution of cocaine. He was sentenced by Judge Louis H.
    Pollak to fifteen years imprisonment. Judge Pollak later
    granted Moskovits's   2255 motion to vacate the conviction on the
    ground that Moskovits's trial counsel was ineffective, United
    States v. Moskovits, 
    844 F. Supp. 202
     (E.D. Pa. 1993), and
    granted Moskovits's request to represent himself at the new
    trial. Moskovits was again convicted and sentenced by Judge
    Clarence C. Newcomer to a prison term of twenty years, five
    years longer than the sentence imposed by Judge Pollak.
    On appeal, Moskovits contends that his conviction must
    be set aside on either of two grounds: (1) that his right to
    testify in his own defense was abridged by the conditions imposed
    on the format of his testimony, and (2) that he did not knowingly
    and intelligently waive his Sixth Amendment right to counsel.
    Moskovits also contends that, even if the conviction is affirmed,
    the case must be remanded for resentencing because his sentence
    was based on impermissible considerations. We affirm the
    conviction but remand for resentencing.
    I
    Moskovits contends that his conviction must be set
    aside because the district court imposed unreasonable conditions
    on his right to testify in his own defense. He argues that
    these conditions were so onerous that he had no choice but to
    forgo his right to testify.
    We express no view on the propriety of the conditions
    imposed by Judge Newcomer because Moskovits, by electing not to
    testify, failed to preserve this issue for appeal. Because
    Moskovits did not testify, any possible harm flowing from the
    conditions imposed by Judge Newcomer is speculative and cannot be
    evaluated in relation to the record as a whole. Accordingly, we
    decline to set Moskovits's conviction aside on this ground. SeeLuce v.
    United States, 
    469 U.S. 38
    , 41-42 (1984) (defendant must
    testify in order to raise and preserve the claim of improper
    impeachment with a prior conviction); United States v. Romano,
    
    849 F.2d 812
    , 815-16 (3d Cir. 1988) (when defendant refuses to
    testify, the harm flowing from an in limine order is merely
    speculative and, thus, not a basis for reversing a conviction);
    United States v. Nivica, 
    887 F.2d 1110
    , 1116-17 (1st Cir. 1989),
    cert. denied, 
    494 U.S. 1005
     (1990) (defendant who does not
    testify may not challenge ruling regarding the scope of
    permissible cross-examination).
    II
    Moskovits also seeks a new trial on the ground that the
    colloquy with the district court at the time he waived his right
    to counsel was thoroughly "deficient." In fact, as the
    government points out, Judge Pollak conducted a lengthy and
    detailed colloquy that was, in all respects but one, a model of
    thoroughness. Judge Pollak set out the dangers and difficulties
    of proceeding pro se, stating that it would be "an imprudent
    course" and that Moskovits would be doing himself "a very very
    grave disservice." App. at 41. Judge Pollak spelled out the
    cumbersome procedures Moskovits would have to follow to maintain
    the distinction between his roles as lawyer and defendant. He
    endorsed the Assistant United States Attorney's statement that
    Moskovits would lose the benefit of the advice of counsel
    regarding the most effective way to present his case to the
    jury. Judge Pollak also appointed stand-by counsel.
    Nonetheless, it is undisputed that punishment was not discussed
    at the waiver hearing. In particular, Judge Pollak did not
    inform Moskovits of the range of punishments he faced on retrial.
    For a waiver of the right to counsel to be "knowing[]
    and intelligent[]," which it must be in order to be valid, the
    defendant "should be made aware of the dangers and disadvantages
    of self-representation, so that the record will establish that
    'he knows what he is doing and his choice is made with eyes
    open.'" Faretta v. California, 
    422 U.S. 806
    , 835 (1975). To
    ensure that a defendant "truly appreciates the 'dangers and
    disadvantages of self-representation,' . . . '[a defendant's]
    waiver must be made with an apprehension of the nature of the
    charges, the statutory offenses included within them, [and] the
    range of allowable punishments thereunder.'" United States v.
    Welty, 
    674 F.2d 185
    , 188 (3d Cir. 1981) (quoting Faretta, 
    422 U.S. at 835
    , and Von Moltke v. Gillies, 
    332 U.S. 708
    , 724 (1948)
    (plurality)) (emphasis added); see also Singer v. Court of Common
    Pleas, 
    879 F.2d 1203
    , 1210 (3d Cir. 1989) (no waiver where court
    failed to inform defendant of range of punishment he might be
    exposed to); McMahon v. Fulcomer, 
    821 F.2d 934
    , 945 (3d Cir.
    1987) (same); Piankhy v. Cuyler, 
    703 F.2d 728
    , 731 (3d. Cir.
    1983) (same).
    The government concedes that Moskovits was not advised
    during the waiver hearing that he faced the possibility of an
    increase in the fifteen-year sentence that had been originally
    imposed by Judge Pollak, but argues that his waiver of his right
    to counsel was knowing and intelligent because the record shows
    that he was aware of this possibility at the time of the waiver
    hearing. The government frames its argument as follows: "[T]he
    record establishes that although not specifically advised of the
    possibility of an increased sentence at the waiver hearing before
    Judge Pollak, Moskovits understood that possibility before the
    trial commenced before Judge Newcomer." Appellee's Brief at 16.
    In making this argument, the government relies on the record of
    proceedings both before and after the waiver hearing conducted by
    Judge Pollak.
    The government relies on United States v. McFadden, 
    630 F.2d 963
     (3d Cir. 1980), cert. denied, 
    450 U.S. 1043
     (1981), for
    the proposition that if the defendant has otherwise been made
    aware of the range of punishment he faced, the court is not
    required to notify him again at the time he waives his right to
    counsel. McFadden, however, is distinguishable on its facts in a
    material respect. In McFadden, the record was clear that the
    defendant was aware of the range of punishment he faced when he
    waived his right to counsel. As this court said, "[t]he nature
    of the charges and the range of punishment had been pointed out
    in McFadden's two initial appearances before a magistrate." Id.at 972.
    Here the record is not at all clear that Moskovits had
    been made aware when he waived his right to counsel before Judge
    Pollak that the original 15-year sentence would not serve as a
    ceiling on the sentence he could receive in the event he was
    convicted again. The government cites the Pre-Sentence
    Investigation Reports (PIRs) that were prepared when Moskovits
    was originally sentenced and resentenced. In relying on these
    PIRs as evidence that Moskovits was aware that he faced the
    possibility of an increased sentence if found guilty a second
    time, the government assumes, implicitly, that Moskovits either
    read and understood the PIRs or that counsel then representing
    him explained to him that the maximum sentences set forth in the
    PIRs could be imposed in spite of the fact that Moskovits's
    sentence would then exceed the 15-year sentence originally
    imposed. The government cites no record support for either
    assumption, and we have found none. Thus there is no record
    support, as there was in McFadden, for imputing to Moskovits
    knowledge at the time he waived his right to counsel that the
    original 15-year sentence would not act as a ceiling on his
    punishment. Accordingly, we see no basis for inferring that
    Moskovits was aware from the mere existence of the PIRs that he
    was facing the possibility of an increased sentence if found
    guilty a second time, particularly given our mandate to "indulge
    in every reasonable presumption against waiver" of the right to
    counsel. Brewer v. Williams, 
    430 U.S. 387
    , 404 (1977).
    The government also cites a conference in Judge
    Newcomer's chambers six or seven days before the start of the
    retrial as evidence that Moskovits was aware at the waiver
    hearing before Judge Pollak five months earlier that he faced the
    possibility of a twenty-year sentence. The extract from the
    transcript of the in-chambers conference relied upon by the
    government reads as follows:
    THE COURT: Okay. Now, my understanding of the law, and I
    mention this at the outset so that everybody knows my view
    of the law on this matter, and if you disagree with it that
    you will then have an opportunity to furnish me with the
    authority for your stance, is that this sentence having been
    vacated and a new trial being granted, we are in an entirely
    new ballgame. And this matter is like a new case coming
    before me for trial for sentence with the power vested in
    the presiding judge to determine, if appropriate, if there
    should be a conviction the sentence that would be
    applicable.
    I understand this case preceded the guidelines, is that
    right?
    THE GOVERNMENT: That is correct, your Honor.
    THE COURT: And therefore this case will not be sentenced
    under the guidelines, is that correct?
    THE GOVERNMENT:      That would be --
    THE COURT: If there should be a conviction. All right.
    Now, if anybody disagrees with that, please feel free to
    tell me but give me your authority for it
    because I've       satisfied myself from independent research
    here in chambers   that that's the case.
    MR. MOSKOVITS:      Your Honor.
    THE COURT:   Yes, sir.
    MR. MOSKOVITS: With all due respect. If I understand the
    law correctly, there's two cases that come to mind. One of
    them is not --
    THE COURT:   If there are, you can do this in writing.
    MR. MOSKOVITS: Oh, in writing?
    THE COURT:   Yes.
    MR. MOSKOVITS:      Thank you, sir.
    THE COURT: I want -- for a matter that important, I would
    much prefer to have you do it. It doesn't have to be fancy
    and certainly not long, but I'd like specifically to have
    your authority so that I can, you know, search it out carefully.
    MR. MOSKOVITS:      Thank you, your Honor.
    App. at 62-64.
    While it is true that Judge Newcomer said he would have
    a free hand at sentencing because the retrial would be like a new
    case coming before him, he did not say anything about his
    authority to impose a sentence longer than fifteen years.
    Moreover, even if Moskovits's response to Judge Newcomer
    indicates "that Moskovits himself recognized the possibility of
    an increased sentence and had conducted legal research in an
    attempt to determine the limits of the court's authority," as
    the government argues, Appellee's Brief at 15, Moskovits's
    waiver of his right to counsel would still be defective. For a
    waiver of counsel to be valid, the defendant must be aware of the
    dangers of self-representation at the time of the waiver. Welty,
    674 F.2d at 188-89 ("to be valid [a defendant's] waiver must be
    made with an apprehension of . . . the range of allowable
    punishments") (quoting Von Moltke v. Gillies, 
    332 U.S. 708
    , 724
    (1948) (plurality)); McFadden, 
    630 F.2d at
    979 n.10 (Adams, J.,
    dissenting) ("Von Moltke makes clear [that] a defendant's waiver
    of the right to counsel is made knowingly only if he apprehends
    the charges and possible punishments at the time the waiver is
    made.").
    On this point, the government's reliance on McFadden,
    
    630 F.2d at 963
    , is again misplaced. In McFadden, the record
    established that the defendant was aware at the time of the
    waiver hearing of the range of punishments he faced because he
    had been given this information during earlier appearances before
    a magistrate. Here, in contrast, the government is asking us to
    impute knowledge to Moskovits at the waiver hearing before Judge
    Pollak on the basis of a proceeding that took place five months
    after the hearing. In other words, the government is asking us
    to extend McFadden beyond its holding and infer that a defendant
    had knowledge at a waiver hearing on the basis of proceedings
    that occurred five months later. This we decline to do, lest we
    fail to "indulge every reasonable presumption against waiver of
    fundamental constitutional rights." Johnson v. Zerbst, 
    304 U.S. 458
    , 464 (1938).
    The question we now consider is the appropriate remedy
    for the failure to inform Moskovits that he could receive a
    sentence longer than his originally imposed sentence of fifteen
    years. The Supreme Court has recognized that "[c]ases involving
    Sixth Amendment deprivations are subject to the general rule that
    remedies should be tailored to the injury suffered from the
    constitutional violation and should not unnecessarily infringe on
    competing interests," such as, "the necessity for preserving
    society's interest in the administration of criminal justice
    . . . . Our approach has thus been to identify and then
    neutralize the taint by tailoring relief appropriate in the
    circumstances to assure the defendant . . . a fair trial."
    United States v. Morrison, 
    449 U.S. 361
    , 364-65 (1980).
    Although the record does not tell us that Moskovits was
    aware at the time of his waiver hearing that he could be
    sentenced to a term longer than fifteen years if found guilty a
    second time, Moskovits certainly knew that he could again receive
    a fifteen-year sentence if found guilty at the retrial. Indeed,
    Moskovits admits that he knew at the time he waived his right to
    counsel that he could again be sentenced to a fifteen-year term.
    Appellant's Brief at 6 ("the prior resentencing provided strong
    support for Mr. Moskovits's understanding that the recently
    vacated sentence would have served as a ceiling at any
    re-sentencing following a re-conviction"). As Moskovits's own
    attorney stressed at the waiver hearing, Moskovits was "ultra
    bright" and knowledgeable about the case.
    Because Moskovits knew at his waiver hearing that he
    could be sentenced a second time to a fifteen-year term, the only
    prejudice he could conceivably suffer from the deprivation of his
    Sixth Amendment right is a sentence greater than fifteen years.
    Accordingly, the appropriate remedy for the deprivation is to
    affirm the conviction but impose a fifteen-year ceiling on
    Moskovits's sentence. Cf. Scott v. Illinois, 
    440 U.S. 367
    , 374
    (1979) (although the Sixth Amendment guarantees the right to
    counsel during a misdemeanor prosecution, failure to provide
    counsel is not unconstitutional as long as the defendant is not
    punished by imprisonment, even if imprisonment is authorized by
    statute); United States v. Reilley, 
    948 F.2d 648
    , 654 (10th Cir.
    1991) (striking down portion of sentence imposed on uncounseled
    misdemeanor defendant that involved conditionally suspended term
    of imprisonment but affirming portion of sentence involving a
    fine); United States v. White, 
    529 F.2d 1390
    , 1394 (8th Cir.
    1976) (upholding conviction but vacating suspended prison
    sentence imposed on misdemeanor defendant who did not waive right
    to counsel).
    The twenty-year sentence imposed by Judge Newcomer is
    vacated and the case is remanded for resentencing.
    III
    We now turn to Moskovits's claims of error at the
    sentencing phase of the retrial. Judge Newcomer gave a number of
    reasons for the twenty-year sentence he imposed, among which were
    the serious nature of the crimes, Moskovits's prior involvement
    in the transportation and distribution of cocaine, Moskovits's
    poor prospects for rehabilitation, and Moskovits's lack of
    remorse and failure to accept responsibility for his crimes, as
    evidenced--among other things--by Moskovits's refusal to accept
    the government's plea offer. In addition, Judge Newcomer
    specifically cited his finding that Moskovits committed perjury
    at the evidentiary hearing on his   2255 petition as a
    justification for imposing a sentence that was greater than the
    fifteen-year sentence originally imposed. Moskovits argues that
    his case must be remanded for resentencing because Judge Newcomer
    (A) acted with actual vindictiveness when he imposed a harsher
    sentence after the retrial, (B) improperly punished Moskovits for
    refusing to plead guilty, and (C) erred when he found that
    Moskovits had committed perjury at the   2255 hearing before
    Judge Pollak and considered this finding at sentencing. We
    address each of these arguments in turn.
    A
    Moskovits does not attempt to invoke the presumption of
    vindictiveness that normally arises when a harsher sentence is
    imposed after a retrial. See North Carolina v. Pearce, 
    395 U.S. 711
    , 725-26 (1969). Nor could he. We have held that a harsher
    sentence imposed after a retrial is not presumed to be vindictive
    if it is imposed by a "judge who . . . ha[d] no material contact
    with the initial trial or sentence and 'provides an
    on-the-record, wholly logical, non-vindictive reason for the
    harsher sentence.'" Rock v. Zimmerman, 
    959 F.2d 1237
    , 1257-58 (3d
    Cir. 1992) (en banc) (quoting Texas v. McCullough, 
    475 U.S. 134
    ,
    140 (1986)). Judge Newcomer had no contact whatsoever with
    Moskovits's initial trial and set out, on the record, plausible
    reasons for the harsher sentence he imposed.
    Moskovits instead argues that the harsher sentence
    imposed by Judge Newcomer resulted from actual vindictiveness.
    The only proof of Judge Newcomer's actual vindictiveness offered
    by Moskovits is Judge Newcomer's statement that if he "were to
    sentence Moskovits to the same sentence that he originally
    received, it would countenance frivolous Section 2255 claims and
    encourage defendants to file them in hopes of gaining a reduced
    sentence long after their time to file Rule 35 motions had
    expired." App. at 135. According to Moskovits, Judge Newcomer's
    characterization of his successful   2255 petition as "frivolous"
    reflects the actual vindictiveness with which he imposed
    sentence. We are, however, not persuaded that this statement
    alone is enough to establish actual vindictiveness, particularly
    in light of the numerous other, logical reasons Judge Newcomer
    stated for imposing the twenty-year sentence.
    B
    After Judge Pollak granted Moskovits a new trial, the
    government offered a plea bargain involving a sentence no greater
    than time served. Moskovits's rejection of this offer was a
    factor considered by Judge Newcomer when he imposed the
    twenty-year sentence. As Judge Newcomer explained, "[t]o me,
    [Moskovits's] refusal to accept the plea is further evidence of
    his lack of remorse and failure to take responsibility for his
    crimes." App. at 137.
    We agree with Moskovits that Judge Newcomer erred when
    he considered as a sentencing factor Moskovits's decision to
    exercise his constitutional right to a trial by jury rather than
    accept the government's plea offer. United States v. Jackson, 
    390 U.S. 570
    , 581-82 (1968) (invalidating death sentence under
    Federal Kidnapping Act because it could be imposed only upon a
    defendant who elected a jury trial, whereas the maximum penalty
    that could be imposed on a defendant waiving this right was life
    imprisonment); Corbitt v. New Jersey, 
    439 U.S. 212
    , 223 (1978)
    (upholding statute that allows judge to exercise leniency by
    choosing a lesser sentence for murder defendants who pleaded non
    vult); United States v. Paramo, 
    998 F.2d 1212
    , 1219 (3d Cir.
    1993) (prosecutor may not refrain from filing a motion necessary
    for a downward departure because the defendant elected to go to
    trial), cert. denied, 
    114 S. Ct. 1076
     (1994).
    The government argues that Judge Newcomer's comment,
    quoted above, does not show that he was penalizing Moskovits for
    having elected to go to trial but rather merely expresses Judge
    Newcomer's view that Moskovits had been unwise to reject the plea
    offer. The government also asserts, without explanation, that
    Judge Newcomer was not punishing Moskovits for exercising his
    right to go to trial, but was merely withholding leniency. These
    arguments are implausible, however, in light of the fact that
    Judge Newcomer made his comment in the context of setting out his
    reasons for the harsher sentence he was imposing.
    C
    Moskovits argues that Judge Newcomer also committed
    error in basing his twenty-year sentence on a finding of fact
    that Moskovits committed perjury at the evidentiary hearing held
    on his   2255 petition. Judge Newcomer's finding of perjury was
    based upon his reading of the transcript of Moskovits's    2255
    testimony before Judge Pollak, considering the testimony of the
    government's witnesses, and concluding that the version of the
    facts to which Moskovits testified was contradicted by the
    verdicts of the juries at his original trial and retrial. As
    Judge Newcomer put it, "[t]he proof that Moskovits perjured
    himself lies in the fact that two juries listened to the
    identical evidence [that Moskovits denied at the   2255 hearing]
    and convicted him." App. at 132.
    Moskovits argues that Judge Newcomer's finding of
    perjury was improper because it was not made independently of the
    juries' verdicts. Moskovits relies on United States v. Dunnigan,
    
    113 S. Ct. 1111
     (1993), which holds that a district court that
    enhances a sentence because the defendant committed perjury must
    "review the evidence and make independent findings necessary to
    establish a willful impediment to or obstruction of justice."
    
    Id. at 1117
     (interpreting federal sentencing guidelines). In
    other words, the sentencing judge must have a basis for his
    finding of perjury that is "independent" of the jury verdict.
    In response, the government asserts that Judge Newcomer
    independently considered the testimony of the witnesses for the
    prosecution at the retrial, recognized that the juries by their
    verdicts had found these witnesses' version of the facts to be
    true beyond a reasonable doubt, and concluded that Moskovits
    committed perjury when he testified at the   2255 hearing to a
    contradictory version of the facts.
    We are satisfied that Judge Newcomer did not err when
    he made a finding that Moskovits committed perjury at the   2255
    hearing. Judge Newcomer explained on the record that there were
    "numerous occasions on both direct and cross-examination [when]
    Moskovits testified that he did not take the specific criminal
    actions which the Government's evidence established that he did
    take." App. at 132. Judge Newcomer specifically cited
    Moskovits's testimony that he did not receive phone calls from
    one of his alleged co-conspirators while he was in prison in
    Mexico, which was contradicted by the co-conspirator's testimony
    and phone bills; his testimony that there was an innocent
    explanation for his actions in connection with a package of
    cocaine, which was contradicted by the testimony of five
    government witnesses; his denial that he directed two
    co-conspirators to travel to South America and purchase cocaine
    there, which was contradicted by the co-conspirators' testimony;
    his disavowal of ownership of a machine gun, which was
    contradicted by the testimony of four government witnesses; and
    his assertion that eight tape recordings of telephone
    conversations with a co-conspirator did not relate to drug
    transactions, which was contradicted by the testimony of the
    co-conspirator and two other government witnesses. App. at
    132-34.
    Although Judge Newcomer was not present at the hearing
    and thus not in a position to observe Moskovits's testimony,
    Dunnigan leaves open the possibility of finding all the elements
    of perjury -- falsity, materiality, and willfulness -- when there
    are "numerous witnesses who contradicted [the defendant]
    regarding so many facts on which [he] could not have been
    mistaken." Dunnigan, 
    113 S. Ct. at 1117
    . See also United States
    v. Boggi, 
    74 F.3d 470
    , 478-79 (3d Cir. 1996) (upholding
    sentencing judge's finding of perjury under the Sentencing
    Guidelines, in part by reference to facts implicit in the jury's
    verdict). Moreover, because Judge Newcomer was sentencing
    Moskovits under the pre-Sentencing Guidelines regime, he had
    broad discretion to consider any and all information about
    Moskovits's relevant conduct and to determine what effect, if
    any, that information would have on the sentence. See United
    States v. Grayson, 
    438 U.S. 41
    , 51 (1977) (upholding sentencing
    enhancement in pre-Guidelines case on sentencing judge's view,
    based on government's rebuttal evidence and cross-examination,
    that the defendant committed perjury during trial); United States
    v. Tucker, 
    404 U.S. 443
    , 446 (1972) (in pre-Guidelines case,
    "before making [the sentencing] determination, a judge may
    appropriately conduct an inquiry broad in scope, largely
    unlimited either as to the kind of information he may consider,
    or the source from which it may come").
    The conviction is AFFIRMED. The twenty-year sentence
    imposed by Judge Newcomer is VACATED and the case is REMANDED for
    further proceedings consistent with this opinion.
    UNITED STATES OF AMERICA V. ALEXANDER EUGENIO MOSKOVITS
    NOS. 94-1990 AND 95-1048
    STAPLETON, J., concurring in part and dissenting in part:
    I join sections I and III of the court's opinion, although I
    believe that a more detailed explanation is warranted regarding
    section III-B. I cannot join section II.
    I.
    In section II, the court concludes that Moskovits' waiver of
    his right to counsel cannot be said to be knowing and intelligent
    because the record fails to show that he was aware at the waiver
    hearing that his sentence after retrial could be greater than his
    vacated sentence. I agree that Moskovits could not knowingly and
    intelligently waive the right to counsel without knowing that he
    had something to lose in a retrial. Further, I agree that
    Moskovits was not advised at the waiver hearing that he could
    face a greater sentence after retrial.
    The record does affirmatively establish, however, that this
    advice would not have altered Moskovits' decision to represent
    himself and, accordingly, that the failure to give it had no
    effect on the subsequent course of events. Under these
    circumstances, I find no basis for disturbing Moskovits'
    conviction.
    When Moskovits indicated a desire to represent himself,
    Judge Pollak spoke at length and in depth with him about his
    right to counsel and the dangers of self-representation.
    Moskovits acknowledges that Judge Pollak "touched all the bases"
    save the one he now stresses. Only after Moskovits insisted that
    he understood the advantages of counsel and the disadvantages of
    self-representation did Judge Pollak agree to let Moskovits take
    the lead role in his own defense. In order to provide assistance
    to Moskovits, however, and to protect against prejudice to him in
    the event he should thereafter have a change of heart, Judge
    Pollak appointed two back-up counsel who would be prepared to
    consult and to take over at any point. This is of crucial
    importance to the issue before us because Moskovits was expressly
    advised a week before the retrial that he could receive a higher
    sentence and he chose once again to reject representation and opt
    for self-representation. Given that Moskovits had and rejected
    the option of effective professional representation after
    learning what he had at stake, it involves no speculation to
    conclude that Moskovits would have chosen self-representation
    following a flawless waiver hearing and that the deficiency to
    which he now points had no effect on these proceedings. Limiting
    Moskovits' sentence under these circumstances would constitute a
    windfall, pure and simple.
    I am mindful that "[s]ome constitutional violations
    . . . by their very nature cast so much doubt on the fairness of
    the trial process that, as a matter of law, they can never be
    considered harmless." Satterwhite v. Texas, 
    486 U.S. 249
    , 256
    (1988). Such is the case where "any inquiry into a claim of
    harmless error . . . would require, unlike most cases, unguided
    speculation." 
    Id.
     (quoting Holloway v. Arkansas, 
    435 U.S. 475
    ,
    491 (1978). Accordingly, this court has refused to speculate on
    whether representation throughout trial for a criminal defendant
    would have produced a result different from that achieved by the
    defendant without representation. It is simply impossible to
    tell what a skilled and fully informed counsel would have been
    able to accomplish during the representation. See United States
    v. Welty, 
    674 F.2d 185
    , 194 n.6 (3d Cir. 1982). On the other
    hand, the general rule remains that a criminal conviction should
    not be overturned if there is no causal connection between the
    judgment and the alleged constitutional error. Even where the
    Sixth Amendment right to counsel has been infringed, an
    affirmance is in order if the "scope [of the error] is readily
    identifiable" and "the reviewing court can undertake with some
    confidence its relatively narrow task of assessing the likelihood
    that the error materially affected" the outcome. Satterwhite,
    
    486 U.S. at 256
     (quoting Holloway, 
    435 U.S. at 490
    ).
    Determining that there was no causal connection here between
    the alleged constitutional error and Moskovits' conviction
    involves no speculation. On the contrary, the record establishes
    with certainty that the district court's failure to advise
    Moskovits at the waiver hearing of the range of penalties he
    faced did not affect Moskovits' decision to represent himself,
    and hence did not in any way affect the subsequent course of
    events.
    II.
    In part III-B, the court concludes that the district court
    did not err when it sentenced Moskovits in part based on its
    finding that Moskovits committed perjury at the habeas hearing.
    While I believe that the court's discussion is fully consistent
    with my interpretation of United States v. Dunnigan, 
    113 S. Ct. 1111
     (1993), in my view, a more detailed explanation is
    warranted.
    Dunnigan stands for two propositions. First, in order for a
    district court to enhance a sentence for perjury pursuant to
    United States Sentencing Guidelines ("U.S.S.G.")   3C1.1, the
    district court must review the record and find by a preponderance
    of the evidence that each of the elements of perjury
    (willfulness, falsity, and materiality) is present. The district
    court cannot assume that a defendant has perjured herself merely
    because she has testified at trial and was found guilty. Because
    the sentencing court must make affirmative findings with respect
    to each element of perjury, its conclusion is "independent" of
    the jury verdict. 
    Id.
     Second, when a court enhances the
    sentence of a defendant who testified at trial in accordance with
    this procedure, the court does not violate the defendant's right
    to testify at trial on her own behalf. Dunnigan, 
    113 S. Ct. at 1117-19
    .
    It is important to realize that while a court, under
    Dunnigan, must make "independent findings" with respect to each
    perjury element, this does not mean that the jury's verdict may
    not play a role in this fact finding process. Just as a jury
    verdict has issue preclusive effects in subsequent proceedings
    with respect to facts necessarily resolved by a criminal jury,
    e.g., Appley v. West, 
    832 F.2d 1021
    , 1025-26 (7th Cir. 1987), "a
    guilty verdict, not set aside, binds the sentencing court to
    accept the facts necessarily implicit in the verdict." United
    States v. Boggi, 
    74 F.3d 470
    , 478-79 (3d Cir. 1996) (quoting from
    United States v. Weston, 
    960 F.2d 212
    , 218 (1st Cir. 1992)).
    Thus, if a defendant has testified that he was elsewhere at the
    time of a robbery, and the jury finds him guilty of that robbery,
    the jury's verdict provides a sufficient basis for a finding by
    the court that the defendant's testimony was false. If the
    record also provides support for findings that this false
    statement was material and willful and the court so finds, an
    enhancement under   3C1.1 is clearly appropriate.
    The district court here found by a preponderance of the
    evidence that Moskovits perjured himself at the habeas hearing:
    To obtain a new trial, Moskovits had to convince the
    court . . . that his testimony was such that it
    rendered the jury's verdict suspect. [T]o sustain that
    heavy burden, Moskovits resorted to perjury.
    Moskovits' perjury consists of his repeated denial of
    his involvement in specific events which occurred
    during the course of the conspiracy."
    (A. 131-2.) This finding encompasses all of the elements of
    perjury. Compare Boggi, 
    74 F.3d at 479
     (holding that the
    following finding encompassed all of the elements of perjury: "I
    don't see how, in view of his flat denials and the jury's
    conviction, that you can find otherwise than that he testified
    falsely on the stand.").
    The district court's conclusion by a preponderance of the
    evidence that all of the elements of perjury are present is well
    supported by the record even though Judge Newcomer was not
    present at the habeas hearing. Regarding falsity, Moskovits
    testified repeatedly that he was not involved in the cocaine
    distributions alleged in the indictment. This is evident from
    the transcript of the hearing. The jury convicted Moskovits of
    distributing cocaine as alleged in the indictment and it
    necessarily resolved this factual issue when it convicted him.
    The district court was bound by this determination and had no
    choice but to conclude that Moskovits' testimony that he was not
    involved in the alleged cocaine distributions was false. That
    Moskovits may have been able to convince the jury otherwise had
    he testified at trial is irrelevant.
    Moreover, it is indisputable that this testimony was
    material. The purpose of the habeas hearing was to determine if
    there was a reasonable probability that by testifying Moskovits
    could have convinced the jury that he was innocent.   As the
    district court observed, Moskovits had a "heavy burden" of trying
    to "convince the court . . . that the jury's verdict [in the
    first trial] was suspect" and he "resorted to perjury" in order
    to carry that burden.
    Finally, regarding willfulness, given Moskovits' testimony
    "regarding so many facts on which []he could not have been
    mistaken, there is ample support for the District Court's finding
    [of willfulness]." Dunnigan, 
    113 S. Ct. at 1117
    . The district
    court could make this determination by a preponderance of the
    evidence based on the transcript of the hearing alone. Moreover,
    the inference of willfulness was more compelling because
    Moskovits did not offer any alternative explanation. In response
    to the government's argument in favor of a heavier sentence
    reflecting perjury, Moskovits offered no explanation suggesting
    that his testimony was not willful. On the contrary, he did not
    waiver from the version of events he recounted at the habeas
    hearing.
    III.
    I agree with the court that it was error for the district
    court to consider Moskovits' rejection of the government's plea
    offer as an aggravating factor in determining the appropriate
    sentence. Accordingly, I would reverse and remand for
    resentencing. I would not, however, limit the district court's
    discretion to a sentence of fifteen years or less.