United States v. Harley ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-16-2002
USA v. Harley
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-1823
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"USA v. Harley" (2002). 2002 Decisions. Paper 400.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-1823/1916
UNITED STATES OF AMERICA
v.
RICHARD J. HARLEY,
Appellant 01-1823
UNITED STATES OF AMERICA
v.
JACQUELINE M. KUBE,
Appellant 01-1916
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action Nos. 96-cr-00286-2 & 96-cr-00286-3)
District Judge: Honorable Thomas I. Vanaski
Submitted Under Third Circuit LAR 34.1(a)
on March 22, 2002
Before: ROTH, NYGAARD
and AMBRO, Circuit Judges
(Opinion filed July 16, 2002 )
OPINION
ROTH, Circuit Judge.
Defendants Richard Harley and Jacqueline Kube were tried in the Middle District
of Pennsylvania for crimes arising out of a scheme to defraud patients and investors by
promoting an unsafe and untested therapy for AIDS/HIV. Harley was convicted on seven
counts of mail fraud, three counts of wire fraud, and three counts of violating the Food,
Drug and Cosmetic Act. Kube was convicted on one count of mail fraud. Harley
appeals his convictions on three bases: (1) that the trial court denied Harley’s
constitutional right to counsel, (2) that the trial court denied Harley the opportunity to
impeach testimony, and (3) that the delay between the declaration of a mistrial and the
order scheduling a new trial violated the Speedy Trial Act. Kube’s appeal asserted that
there was insufficient evidence to establish her specific intent under the mail fraud
statute. For the following reasons, we will affirm the judgment of the District Court.
Under his first assignment of error, Harley argues that he did not voluntarily waive
his right to counsel because the District Court failed to make a penetrating colloquy on
the dangers of pro se representation. Faretta v. California, 422 U.S. 806, 835 (1975).
Nevertheless, the right to counsel may be forfeited through extremely dilatory conduct.
United States v. Goldberg, 67 F.3d1092, 1101 (3d Cir. 1995).
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We agree with the District Court’s conclusion that Harley’s conduct was extremely
dilatory. Harley engaged new counsel on six occasions and repeatedly failed to satisfy his
fee obligations. The numerous motions to withdraw and requests for continuance
effectively constituted a forfeiture of the right to counsel.
Next, Harley argues that the District Court erred by denying him the opportunity to
impeach testimony. Specifically, Harley was not prevented from confronting a key
witness with evidence of that witness’s prior crimen falsi conviction. Relying on the
Rule 609(a)(2) of the Federal Rules of Evidence and United States v. Wong, 703 F2d 65
(3d Cir. 1983), Harley asserts that the District Court is prohibited from any exercise of
discretion where a party seeks to impeach testimony with a prior crimen falsi conviction.
Harley, however, failed to raise the prior crimen falsi conviction during his cross-
examination and re-cross examination of the witness. Clearly, Harley would have had
ample opportunity to impeach at that time if he had tried to do so. But it was only after
testimony had closed that Harley attempted to introduce evidence of the prior conviction.
The District Court properly exercised its discretion to insure that evidence was presented
in an organized manner. See Fed. R. Evid. 611(a).
Finally, Harley argues that a 144 day delay between the District Court’s declaration
of mistrial and scheduling of a retrial violated the seventy day limit of the Speedy Trial
Act. 18 U.S.C. 3161(e). However, a closer examination of the act reveals that the
seventy day limit begins running from the “action occasioning the retrial.” Id. The
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“action occasioning the retrial” is the order setting the case for retrial, not the declaration
of a mistrial. United States v. Crooks, 804 F.2d 1441, 1445 (9th Cir. 1986); United States
v. Gaffney, 689 F. Supp. 1578, 1579 (M.D. Fla. 1988). Therefore, the elapsed time from
May 22, 1998, the declaration of mistrial, to October 13, 1998, the date of the denial of
the motion for acquittal and of the order for retrial, is immaterial for the purposes of the
Speedy Trial Act’s seventy day limit.
Kube’s argument on appeal also lacks merit. The standard of review for a
challenge to the sufficiency of evidence is “whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United States v.
Price, 13 F.3d 711, 731 (3d Cir. 1994) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979), cert. denied, 514 U.S. 1023 (1995). The standard of review must be considered in
light of the essential elements of the crime. The court must determine that there is
sufficient evidence for a rational juror to conclude that Kube (1) knew the fraudulent
nature of the scheme to promote the unsafe and untested therapy, and (2) willfully
participated in the scheme. United States v. Pearlstein, 576 F.2d 531, 534 (3d Cir. 1978).
The record establishes in detail Kube’s participation in several efforts to solicit
investments. (App. 507 through 526; App. 576 through 582) Certainly, a rational juror
would be able to conclude beyond a reasonable doubt that Kube did so knowingly and
willfully.
For the reasons set forth above, we will affirm the judgements of conviction of
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both defendants.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge
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