2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2010

In Re: Jay Berger

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4153

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Recommended Citation

"In Re: Jay Berger " (2010). 2010 Decisions. Paper 104.

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ALD-056 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-4153

____________

IN RE: JAY BERGER,

Petitioner

__________________________________

On a Petition for Writ of Mandamus from

United States District Court

for the Eastern District of Pennsylvania

(Related to D.C. Crim. No. 07-cr-00155 )

__________________________________

Submitted Pursuant to Fed. R. App. Pro. 21

December 2, 2010

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Filed December 13, 2010)

____________

OPINION OF THE COURT

____________

PER CURIAM.

Petitioner Jay Berger pleaded guilty in United States District Court for the Eastern 

District of Pennsylvania to a one-count Information charging him with mail fraud 

affecting a financial institution in violation of 18 U.S.C. § 1341. The government alleged 

that Berger fraudulently handled settlements for mortgage refinancing, causing losses to 

financial institutions and finance companies, homeowners and title insurance companies. 
2

In April, 2008 and just prior to sentencing, Berger’s case was “reassigned at random 

pursuant to Local Rule 3(a) of the Local Rules of Criminal Procedure” by Chief Judge 

Harvey Bartle III from District Judge Marvin Katz to District Judge Michael Baylson. 

On June 26, 2008, Judge Baylson sentenced Berger to a term of imprisonment of 

78 months, to be followed by 5 years of supervised release, and he was ordered to make 

restitution. Judge Baylson did not think that Berger showed true remorse. He stated:

[T]he evidence seems to be fairly strong that he was just trying to make a 

better deal for a long period of time, without recognizing and coming to 

terms with his criminality and providing restitution and recovery to his 

victims. And that’s something that appears to have come belatedly. His 

conduct in filing for bankruptcy ... three times, for someone who’s legally 

trained, with this kind of experience in the mortgage industry, the real 

estate industry, to me shows that he was trying to game the system and use 

it for his personal advantage. And now he’s coming in here and expecting 

sympathy and remorse, and I’m not going to buy it. This is a case, frankly, 

Mr. Berger, that, in some respects, calls for a sentence above the Guideline 

range, but I’m not going to do that because the Guidelines are a test of what 

is given to similar defendants in similar situations. You don’t have any 

criminal record. I didn’t give you any advanced notice that I was going to 

go above the Guidelines, so I’m not going to do it. But I just don’t find any 

reason to go below the Guidelines. 

(N.T., 6/2/08, at 65-66.)

Berger executed a waiver of all appeals in pleading guilty before Judge Katz. 

Nevertheless, he obtained new counsel and appealed his sentence, see C.A. No. 08-2763. 

The government filed a motion to enforce the appellate waiver and for summary 

affirmance. In his counseled response to the government’s motion, Berger argued that a 

78-month sentence for a 56 year-old first time offender amounted to a miscarriage of 
3

justice. We rejected this argument, granted the government’s motion, and dismissed the 

appeal.

Berger then filed a motion pro se to disqualify Judge Baylson under 28 U.S.C. § 

455(b) and § 144 on the ground that he prosecuted white collar crime as the former 

United States Attorney in the Eastern District, and allegedly expressed bias at the 

sentencing hearing. Berger also filed a motion pro se to vacate sentence pursuant to 28 

U.S.C. § 2255, in which he claimed that his plea was not knowing and voluntary and his 

counsel was ineffective for advising him to plead guilty. Judge Baylson denied the 

disqualification motion, and the government moved to dismiss the section 2255 motion 

and to enforce the collateral appellate waiver. In an order entered on May 19, 2010, 

Judge Baylson granted the government’s motion to enforce the waiver and declined to 

issue a certificate of appealability.

Berger appealed and applied for a certificate of appealability in this Court. On 

November 4, 2010, we denied the request for a certificate of appealability, stating: 

“Appellant knowingly and voluntarily waived his right to collaterally attack his 

conviction and sentence, and he has not established that enforcing the waiver would work 

a miscarriage of justice.” United States v. Berger, C.A. No. 10-2565 (3d Cir. November 

4, 2010) (Order).

Meanwhile, on October 26, 2010, Berger filed a petition for writ of mandamus in 

this Court, seeking the recusal or disqualification of Judge Baylson. He contends that the 

reassignment of his criminal case to Judge Baylson was improper and tainted, and he 
4

bases this allegation on Judge Baylson’s statement in his May 19, 2010 Order that the 

case was reassigned because Judge Katz retired from duty. In fact, Berger asserts, Judge 

Katz did not retire. Moreover, Judge Baylson failed to rule upon his motion for 

appointment of counsel prior to enforcing the waiver.1 In a separate motion Berger has 

argued that he has shown good cause for discovery on his claim of judicial bias under 

Bracy v. Gramley, 520 U.S. 899 (1997), and Rule 6(a) of the Rules Governing Section 

2255 Motions.

We will deny the petition for writ of mandamus. Our jurisdiction derives from 28 

U.S.C. § 1651, which grants us the power to “issue all writs necessary or appropriate in 

aid of (our) . . . jurisdiction and agreeable to the usages and principles of law.” But a writ 

of mandamus is an extreme remedy that is invoked only in extraordinary situations. See

Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). To justify the use of this 

extraordinary remedy, a petitioner must show both a clear and indisputable right to the 

writ and that he has no other adequate means to obtain the relief desired. See Haines v. 

Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992). In addition, “the issuing court, in the 

exercise of its discretion, must be satisfied that the writ is appropriate under the 

circumstances.” In re: Pressman-Gutman Co., Inc., 459 F.3d 383, 399 (3d Cir. 2006) 

(internal quotations removed).

 

1 Berger also contends that Judge Baylson did not rule on a motion for reconsideration, 

for injunctive relief and for a writ of mandamus, but the district court docket reflects that 

this motion was denied on November 3, 2010.
5

Even if we assume that Berger has no other adequate means to disqualify Judge 

Baylson from his criminal case, see, e.g., Will v. United States, 389 U.S. 90, 95-96 

(1967) (mandamus may be used in federal courts to confine inferior court to lawful 

exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a 

duty to do so), a potentially difficult question that would require us to address whether 

Berger waived mandamus review of a claim of judicial bias and whether any such waiver 

is enforceable,

2

he plainly has not shown that he has a clear and indisputable right to the 

writ or that we should exercise our discretion in his favor. 

Section 455(a) of title 28 provides that: “[a]ny justice, judge, or magistrate judge 

of the United States shall disqualify himself in any proceeding in which his impartiality 

might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455(b)(1) provides that a 

judge shall also disqualify himself where “he has a personal bias or prejudice concerning 

a party, or personal knowledge of disputed evidentiary facts concerning the 

proceeding[.]” 28 U.S.C. § 455. Berger must show that section 455(b) clearly and 

indisputably, see Haines, 975 F.2d at 89, requires Judge Baylson’s disqualification. If 

not, we are not required to issue a writ of mandamus directing him to recuse himself. In 

re: School Asbestos Litigation, 977 F.2d 764, 778 (3d Cir. 1992).

 

2 With certain exceptions not relevant here, Berger waived his right to attack his 

conviction and sentence and “any other matter relating to this prosecution, whether such 

right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 

U.S.C. § 2255, or any other provision of law,” Plea Agreement, at ¶ 11 (emphasis added). 

During plea proceedings, Judge Katz reviewed the appeal waiver provision with Berger, 

who is a lawyer, and Berger knowingly and voluntarily agreed to the waiver and did not 

reserve any issues. 
6

We are satisfied that Berger’s allegations against Judge Baylson do not provide a 

basis for disqualification either because Judge Baylson’s impartiality might reasonably be 

questioned or because he is biased. Berger’s allegations do not call into question Judge 

Baylson’s ability to impartially determine the issues raised in Berger’s prosecution. 

Judge Baylson was not responsible for the reassignment of Berger’s case, and thus his 

statement about Judge Katz’s retirement status is not relevant.3 Moreover, the statutory 

maximum for Berger’s crime was 30 years’ imprisonment. With a total offense level of 

26 and a Category I criminal history, his advisory Guidelines range was 63-78 months. 

Judge Baylson’s sentence of 78 months was within the advisory Guidelines range and 

well below the statutory maximum. Judge Baylson did not depart upward from the 

advisory Guidelines even though he may not have been satisfied with Berger’s level of 

remorse. There is no evidence of bias in these circumstances. See Liteky v. United 

States, 510 U.S. 540, 550-51 (1994) (judge is not recusable for bias or prejudice where 

his knowledge and negative opinion were acquired during the course of proceedings). 

See also Securacomm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir. 

2000) (party’s displeasure with legal rulings does not form an adequate basis for recusal). 

With respect to 28 U.S.C. § 144, Berger’s “declaration,” or affidavit, does not show bias 

that is personal in nature, see United States v. Thompson, 483 F.2d 527, 528 (3d Cir. 

1973).

 

3 We note that Judge Katz passed away on October 12, 2010.
7

Last, because Berger challenged the validity of the appellate waiver on direct 

appeal with the assistance of counsel, we see no abuse of discretion or error of law in 

Judge Baylson’s decision not to appoint counsel for Berger prior to enforcing the waiver 

in the section 2255 proceedings.

For the foregoing reasons, we will deny the petition for writ of mandamus. Berger 

has not shown good cause for discovery, see Bracy, 520 U.S. at 908-09, and thus his 

motion for discovery also is denied.