1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-28-1994

USA v. Bertoli

Precedential or Non-Precedential:

Docket 94-5167

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Recommended Citation

"USA v. Bertoli" (1994). 1994 Decisions. Paper 172.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/172
 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 sixcount superseding indictment, charging Bertoli and two codefendants, 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 coconspirators 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 pretrial, 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 intrajury 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 crossreference 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 

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 crossreference 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 crossreference 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 resentencing 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-ofthe-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.