1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-25-1996

United States v. Moskovits

Precedential or Non-Precedential:

Docket 94-1990,95-1048

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ________________________ 

 Nos. 94-1990 and 95-1048 

 ________________________ 

 UNITED STATES OF AMERICA 

 Plaintiff-Appellee 

 v. 

 ALEXANDER EUGENIO MOSKOVITS 

 Defendant-Appellant 

 _______________________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. Crim. No. 87-284-01 

 Argued October 11, 1995 

Before: STAPLETON, McKEE, and NORRIS, Circuit Judges 

 (Opinion filed June 25, 1996) 

 L. Barrett Boss (Argued) 

 Asbill, Junkin & Myers, Chtd. 

 1615 New Hampshire Avenue, N.W. 

 Washington, D.C. 20009-2550

 Attorney for Appellant

 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Assistant United States Attorney, 

 Chief of Appeals 

 Kristin R. Hayes (Argued) 

 Assistant United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 

 Attorneys for Appellees 

 ____________________________________________ 

 OPINION OF THE COURT 

 ____________________________________________ 
NORRIS, Circuit Judge: 

 In 1988, Alexander E. Moskovits was convicted by a jury 

of various narcotics offenses related to the possession and 

distribution of cocaine. He was sentenced by Judge Louis H. 

Pollak to fifteen years imprisonment. Judge Pollak later 

granted Moskovits's  2255 motion to vacate the conviction on the 

ground that Moskovits's trial counsel was ineffective, United 

States v. Moskovits, 844 F. Supp. 202 (E.D. Pa. 1993), and 

granted Moskovits's request to represent himself at the new 

trial. Moskovits was again convicted and sentenced by Judge 

Clarence C. Newcomer to a prison term of twenty years, five 

years longer than the sentence imposed by Judge Pollak. 

 On appeal, Moskovits contends that his conviction must 

be set aside on either of two grounds: (1) that his right to 

testify in his own defense was abridged by the conditions imposed 

on the format of his testimony, and (2) that he did not knowingly 

and intelligently waive his Sixth Amendment right to counsel. 

Moskovits also contends that, even if the conviction is affirmed, 

the case must be remanded for resentencing because his sentence 

was based on impermissible considerations. We affirm the 

conviction but remand for resentencing. 

 I 

 Moskovits contends that his conviction must be set 

aside because the district court imposed unreasonable conditions 

on his right to testify in his own defense. He argues that 

these conditions were so onerous that he had no choice but to 

forgo his right to testify. 

 We express no view on the propriety of the conditions 

imposed by Judge Newcomer because Moskovits, by electing not to 

testify, failed to preserve this issue for appeal. Because 

Moskovits did not testify, any possible harm flowing from the 

conditions imposed by Judge Newcomer is speculative and cannot be 

evaluated in relation to the record as a whole. Accordingly, we 

decline to set Moskovits's conviction aside on this ground. SeeLuce v. 

United States, 469 U.S. 38, 41-42 (1984) (defendant must 

testify in order to raise and preserve the claim of improper 

impeachment with a prior conviction); United States v. Romano, 

849 F.2d 812, 815-16 (3d Cir. 1988) (when defendant refuses to 

testify, the harm flowing from an in limine order is merely 

speculative and, thus, not a basis for reversing a conviction); 

United States v. Nivica, 887 F.2d 1110, 1116-17 (1st Cir. 1989), 

cert. denied, 494 U.S. 1005 (1990) (defendant who does not 

testify may not challenge ruling regarding the scope of 

permissible cross-examination). 

 II 

 Moskovits also seeks a new trial on the ground that the 

colloquy with the district court at the time he waived his right 

to counsel was thoroughly "deficient." In fact, as the 

government points out, Judge Pollak conducted a lengthy and 

detailed colloquy that was, in all respects but one, a model of 

thoroughness. Judge Pollak set out the dangers and difficulties 
of proceeding pro se, stating that it would be "an imprudent 

course" and that Moskovits would be doing himself "a very very 

grave disservice." App. at 41. Judge Pollak spelled out the 

cumbersome procedures Moskovits would have to follow to maintain 

the distinction between his roles as lawyer and defendant. He 

endorsed the Assistant United States Attorney's statement that 

Moskovits would lose the benefit of the advice of counsel 

regarding the most effective way to present his case to the 

jury. Judge Pollak also appointed stand-by counsel. 

Nonetheless, it is undisputed that punishment was not discussed 

at the waiver hearing. In particular, Judge Pollak did not 

inform Moskovits of the range of punishments he faced on retrial. 

 For a waiver of the right to counsel to be "knowing[] 

and intelligent[]," which it must be in order to be valid, the 

defendant "should be made aware of the dangers and disadvantages 

of self-representation, so that the record will establish that 

'he knows what he is doing and his choice is made with eyes 

open.'" Faretta v. California, 422 U.S. 806, 835 (1975). To 

ensure that a defendant "truly appreciates the 'dangers and 

disadvantages of self-representation,' . . . '[a defendant's] 

waiver must be made with an apprehension of the nature of the 

charges, the statutory offenses included within them, [and] the 

range of allowable punishments thereunder.'" United States v. 

Welty, 674 F.2d 185, 188 (3d Cir. 1981) (quoting Faretta, 422 

U.S. at 835, and Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) 

(plurality)) (emphasis added); see also Singer v. Court of Common 

Pleas, 879 F.2d 1203, 1210 (3d Cir. 1989) (no waiver where court 

failed to inform defendant of range of punishment he might be 

exposed to); McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir. 

1987) (same); Piankhy v. Cuyler, 703 F.2d 728, 731 (3d. Cir. 

1983) (same). 

 The government concedes that Moskovits was not advised 

during the waiver hearing that he faced the possibility of an 

increase in the fifteen-year sentence that had been originally 

imposed by Judge Pollak, but argues that his waiver of his right 

to counsel was knowing and intelligent because the record shows 

that he was aware of this possibility at the time of the waiver 

hearing. The government frames its argument as follows: "[T]he 

record establishes that although not specifically advised of the 

possibility of an increased sentence at the waiver hearing before 

Judge Pollak, Moskovits understood that possibility before the 

trial commenced before Judge Newcomer." Appellee's Brief at 16. 

In making this argument, the government relies on the record of 

proceedings both before and after the waiver hearing conducted by 

Judge Pollak. 

 The government relies on United States v. McFadden, 630 

F.2d 963 (3d Cir. 1980), cert. denied, 450 U.S. 1043 (1981), for 

the proposition that if the defendant has otherwise been made 

aware of the range of punishment he faced, the court is not 

required to notify him again at the time he waives his right to 

counsel. McFadden, however, is distinguishable on its facts in a 

material respect. In McFadden, the record was clear that the 

defendant was aware of the range of punishment he faced when he 

waived his right to counsel. As this court said, "[t]he nature 
of the charges and the range of punishment had been pointed out 

in McFadden's two initial appearances before a magistrate." Id.at 972. 

 Here the record is not at all clear that Moskovits had 

been made aware when he waived his right to counsel before Judge 

Pollak that the original 15-year sentence would not serve as a 

ceiling on the sentence he could receive in the event he was 

convicted again. The government cites the Pre-Sentence 

Investigation Reports (PIRs) that were prepared when Moskovits 

was originally sentenced and resentenced. In relying on these 

PIRs as evidence that Moskovits was aware that he faced the 

possibility of an increased sentence if found guilty a second 

time, the government assumes, implicitly, that Moskovits either 

read and understood the PIRs or that counsel then representing 

him explained to him that the maximum sentences set forth in the 

PIRs could be imposed in spite of the fact that Moskovits's 

sentence would then exceed the 15-year sentence originally 

imposed. The government cites no record support for either 

assumption, and we have found none. Thus there is no record 

support, as there was in McFadden, for imputing to Moskovits 

knowledge at the time he waived his right to counsel that the 

original 15-year sentence would not act as a ceiling on his 

punishment. Accordingly, we see no basis for inferring that 

Moskovits was aware from the mere existence of the PIRs that he 

was facing the possibility of an increased sentence if found 

guilty a second time, particularly given our mandate to "indulge 

in every reasonable presumption against waiver" of the right to 

counsel. Brewer v. Williams, 430 U.S. 387, 404 (1977). 

 The government also cites a conference in Judge 

Newcomer's chambers six or seven days before the start of the 

retrial as evidence that Moskovits was aware at the waiver 

hearing before Judge Pollak five months earlier that he faced the 

possibility of a twenty-year sentence. The extract from the 

transcript of the in-chambers conference relied upon by the 

government reads as follows: 

 THE COURT: Okay. Now, my understanding of the law, and I 

 mention this at the outset so that everybody knows my view 

 of the law on this matter, and if you disagree with it that 

 you will then have an opportunity to furnish me with the 

 authority for your stance, is that this sentence having been 

 vacated and a new trial being granted, we are in an entirely 

 new ballgame. And this matter is like a new case coming 

 before me for trial for sentence with the power vested in 

 the presiding judge to determine, if appropriate, if there 

 should be a conviction the sentence that would be 

 applicable. 

 I understand this case preceded the guidelines, is that 

 right? 

 THE GOVERNMENT: That is correct, your Honor. 

 THE COURT: And therefore this case will not be sentenced 

 under the guidelines, is that correct? 
 THE GOVERNMENT: That would be -- 

 THE COURT: If there should be a conviction. All right. 

 Now, if anybody disagrees with that, please feel free to 

 tell me but give me your authority for it 

because I've satisfied myself from independent research 

here in chambers that that's the case. 

 MR. MOSKOVITS: Your Honor. 

 THE COURT: Yes, sir. 

 MR. MOSKOVITS: With all due respect. If I understand the 

 law correctly, there's two cases that come to mind. One of 

 them is not -- 

 THE COURT: If there are, you can do this in writing. 

 MR. MOSKOVITS: Oh, in writing? 

 THE COURT: Yes. 

 MR. MOSKOVITS: Thank you, sir. 

 THE COURT: I want -- for a matter that important, I would 

 much prefer to have you do it. It doesn't have to be fancy 

 and certainly not long, but I'd like specifically to have 

 your authority so that I can, you know, search it out carefully. 

 MR. MOSKOVITS: Thank you, your Honor. 

App. at 62-64. 

 While it is true that Judge Newcomer said he would have 

a free hand at sentencing because the retrial would be like a new 

case coming before him, he did not say anything about his 

authority to impose a sentence longer than fifteen years. 

Moreover, even if Moskovits's response to Judge Newcomer 

indicates "that Moskovits himself recognized the possibility of 

an increased sentence and had conducted legal research in an 

attempt to determine the limits of the court's authority," as 

the government argues, Appellee's Brief at 15, Moskovits's 

waiver of his right to counsel would still be defective. For a 

waiver of counsel to be valid, the defendant must be aware of the 

dangers of self-representation at the time of the waiver. Welty, 

674 F.2d at 188-89 ("to be valid [a defendant's] waiver must be 

made with an apprehension of . . . the range of allowable 

punishments") (quoting Von Moltke v. Gillies, 332 U.S. 708, 724 

(1948) (plurality)); McFadden, 630 F.2d at 979 n.10 (Adams, J., 

dissenting) ("Von Moltke makes clear [that] a defendant's waiver 

of the right to counsel is made knowingly only if he apprehends 

the charges and possible punishments at the time the waiver is 

made."). 

 On this point, the government's reliance on McFadden, 
630 F.2d at 963, is again misplaced. In McFadden, the record 

established that the defendant was aware at the time of the 

waiver hearing of the range of punishments he faced because he 

had been given this information during earlier appearances before 

a magistrate. Here, in contrast, the government is asking us to 

impute knowledge to Moskovits at the waiver hearing before Judge 

Pollak on the basis of a proceeding that took place five months 

after the hearing. In other words, the government is asking us 

to extend McFadden beyond its holding and infer that a defendant 

had knowledge at a waiver hearing on the basis of proceedings 

that occurred five months later. This we decline to do, lest we 

fail to "indulge every reasonable presumption against waiver of 

fundamental constitutional rights." Johnson v. Zerbst, 304 U.S. 

458, 464 (1938). 

 The question we now consider is the appropriate remedy 

for the failure to inform Moskovits that he could receive a 

sentence longer than his originally imposed sentence of fifteen 

years. The Supreme Court has recognized that "[c]ases involving 

Sixth Amendment deprivations are subject to the general rule that 

remedies should be tailored to the injury suffered from the 

constitutional violation and should not unnecessarily infringe on 

competing interests," such as, "the necessity for preserving 

society's interest in the administration of criminal justice 

. . . . Our approach has thus been to identify and then 

neutralize the taint by tailoring relief appropriate in the 

circumstances to assure the defendant . . . a fair trial." 

United States v. Morrison, 449 U.S. 361, 364-65 (1980). 

 Although the record does not tell us that Moskovits was 

aware at the time of his waiver hearing that he could be 

sentenced to a term longer than fifteen years if found guilty a 

second time, Moskovits certainly knew that he could again receive 

a fifteen-year sentence if found guilty at the retrial. Indeed, 

Moskovits admits that he knew at the time he waived his right to 

counsel that he could again be sentenced to a fifteen-year term. 

Appellant's Brief at 6 ("the prior resentencing provided strong 

support for Mr. Moskovits's understanding that the recently 

vacated sentence would have served as a ceiling at any 

re-sentencing following a re-conviction"). As Moskovits's own 

attorney stressed at the waiver hearing, Moskovits was "ultra 

bright" and knowledgeable about the case. 

 Because Moskovits knew at his waiver hearing that he 

could be sentenced a second time to a fifteen-year term, the only 

prejudice he could conceivably suffer from the deprivation of his 

Sixth Amendment right is a sentence greater than fifteen years. 

Accordingly, the appropriate remedy for the deprivation is to 

affirm the conviction but impose a fifteen-year ceiling on 

Moskovits's sentence. Cf. Scott v. Illinois, 440 U.S. 367, 374 

(1979) (although the Sixth Amendment guarantees the right to 

counsel during a misdemeanor prosecution, failure to provide 

counsel is not unconstitutional as long as the defendant is not 

punished by imprisonment, even if imprisonment is authorized by 

statute); United States v. Reilley, 948 F.2d 648, 654 (10th Cir. 

1991) (striking down portion of sentence imposed on uncounseled 

misdemeanor defendant that involved conditionally suspended term 
of imprisonment but affirming portion of sentence involving a 

fine); United States v. White, 529 F.2d 1390, 1394 (8th Cir. 

1976) (upholding conviction but vacating suspended prison 

sentence imposed on misdemeanor defendant who did not waive right 

to counsel). 

 The twenty-year sentence imposed by Judge Newcomer is 

vacated and the case is remanded for resentencing. 

 III 

 We now turn to Moskovits's claims of error at the 

sentencing phase of the retrial. Judge Newcomer gave a number of 

reasons for the twenty-year sentence he imposed, among which were 

the serious nature of the crimes, Moskovits's prior involvement 

in the transportation and distribution of cocaine, Moskovits's 

poor prospects for rehabilitation, and Moskovits's lack of 

remorse and failure to accept responsibility for his crimes, as 

evidenced--among other things--by Moskovits's refusal to accept 

the government's plea offer. In addition, Judge Newcomer 

specifically cited his finding that Moskovits committed perjury 

at the evidentiary hearing on his  2255 petition as a 

justification for imposing a sentence that was greater than the 

fifteen-year sentence originally imposed. Moskovits argues that 

his case must be remanded for resentencing because Judge Newcomer 

(A) acted with actual vindictiveness when he imposed a harsher 

sentence after the retrial, (B) improperly punished Moskovits for 

refusing to plead guilty, and (C) erred when he found that 

Moskovits had committed perjury at the  2255 hearing before 

Judge Pollak and considered this finding at sentencing. We 

address each of these arguments in turn. 

 A 

 Moskovits does not attempt to invoke the presumption of 

vindictiveness that normally arises when a harsher sentence is 

imposed after a retrial. See North Carolina v. Pearce, 395 U.S. 

711, 725-26 (1969). Nor could he. We have held that a harsher 

sentence imposed after a retrial is not presumed to be vindictive 

if it is imposed by a "judge who . . . ha[d] no material contact 

with the initial trial or sentence and 'provides an

on-the-record, wholly logical, non-vindictive reason for the 

harsher sentence.'" Rock v. Zimmerman, 959 F.2d 1237, 1257-58 (3d 

Cir. 1992) (en banc) (quoting Texas v. McCullough, 475 U.S. 134, 

140 (1986)). Judge Newcomer had no contact whatsoever with 

Moskovits's initial trial and set out, on the record, plausible 

reasons for the harsher sentence he imposed. 

 Moskovits instead argues that the harsher sentence 

imposed by Judge Newcomer resulted from actual vindictiveness. 

The only proof of Judge Newcomer's actual vindictiveness offered 

by Moskovits is Judge Newcomer's statement that if he "were to 

sentence Moskovits to the same sentence that he originally 

received, it would countenance frivolous Section 2255 claims and 

encourage defendants to file them in hopes of gaining a reduced 

sentence long after their time to file Rule 35 motions had 

expired." App. at 135. According to Moskovits, Judge Newcomer's 

characterization of his successful  2255 petition as "frivolous" 
reflects the actual vindictiveness with which he imposed 

sentence. We are, however, not persuaded that this statement 

alone is enough to establish actual vindictiveness, particularly 

in light of the numerous other, logical reasons Judge Newcomer 

stated for imposing the twenty-year sentence. 

 B 

 After Judge Pollak granted Moskovits a new trial, the 

government offered a plea bargain involving a sentence no greater 

than time served. Moskovits's rejection of this offer was a 

factor considered by Judge Newcomer when he imposed the 

twenty-year sentence. As Judge Newcomer explained, "[t]o me, 

[Moskovits's] refusal to accept the plea is further evidence of 

his lack of remorse and failure to take responsibility for his 

crimes." App. at 137. 

 We agree with Moskovits that Judge Newcomer erred when 

he considered as a sentencing factor Moskovits's decision to 

exercise his constitutional right to a trial by jury rather than 

accept the government's plea offer. United States v. Jackson, 390 

U.S. 570, 581-82 (1968) (invalidating death sentence under 

Federal Kidnapping Act because it could be imposed only upon a 

defendant who elected a jury trial, whereas the maximum penalty 

that could be imposed on a defendant waiving this right was life 

imprisonment); Corbitt v. New Jersey, 439 U.S. 212, 223 (1978) 

(upholding statute that allows judge to exercise leniency by 

choosing a lesser sentence for murder defendants who pleaded non 

vult); United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir. 

1993) (prosecutor may not refrain from filing a motion necessary 

for a downward departure because the defendant elected to go to 

trial), cert. denied, 114 S. Ct. 1076 (1994). 

 The government argues that Judge Newcomer's comment, 

quoted above, does not show that he was penalizing Moskovits for 

having elected to go to trial but rather merely expresses Judge 

Newcomer's view that Moskovits had been unwise to reject the plea 

offer. The government also asserts, without explanation, that 

Judge Newcomer was not punishing Moskovits for exercising his 

right to go to trial, but was merely withholding leniency. These 

arguments are implausible, however, in light of the fact that 

Judge Newcomer made his comment in the context of setting out his 

reasons for the harsher sentence he was imposing. 

 C 

 Moskovits argues that Judge Newcomer also committed 

error in basing his twenty-year sentence on a finding of fact 

that Moskovits committed perjury at the evidentiary hearing held 

on his  2255 petition. Judge Newcomer's finding of perjury was 

based upon his reading of the transcript of Moskovits's  2255 

testimony before Judge Pollak, considering the testimony of the 

government's witnesses, and concluding that the version of the 

facts to which Moskovits testified was contradicted by the 

verdicts of the juries at his original trial and retrial. As 

Judge Newcomer put it, "[t]he proof that Moskovits perjured 

himself lies in the fact that two juries listened to the 

identical evidence [that Moskovits denied at the  2255 hearing] 

and convicted him." App. at 132. 
 Moskovits argues that Judge Newcomer's finding of 

perjury was improper because it was not made independently of the 

juries' verdicts. Moskovits relies on United States v. Dunnigan, 

113 S. Ct. 1111 (1993), which holds that a district court that 

enhances a sentence because the defendant committed perjury must 

"review the evidence and make independent findings necessary to 

establish a willful impediment to or obstruction of justice." 

Id. at 1117 (interpreting federal sentencing guidelines). In 

other words, the sentencing judge must have a basis for his 

finding of perjury that is "independent" of the jury verdict. 

 In response, the government asserts that Judge Newcomer 

independently considered the testimony of the witnesses for the 

prosecution at the retrial, recognized that the juries by their 

verdicts had found these witnesses' version of the facts to be 

true beyond a reasonable doubt, and concluded that Moskovits 

committed perjury when he testified at the  2255 hearing to a 

contradictory version of the facts. 

 We are satisfied that Judge Newcomer did not err when 

he made a finding that Moskovits committed perjury at the  2255 

hearing. Judge Newcomer explained on the record that there were 

"numerous occasions on both direct and cross-examination [when] 

Moskovits testified that he did not take the specific criminal 

actions which the Government's evidence established that he did 

take." App. at 132. Judge Newcomer specifically cited 

Moskovits's testimony that he did not receive phone calls from 

one of his alleged co-conspirators while he was in prison in 

Mexico, which was contradicted by the co-conspirator's testimony 

and phone bills; his testimony that there was an innocent 

explanation for his actions in connection with a package of 

cocaine, which was contradicted by the testimony of five 

government witnesses; his denial that he directed two 

co-conspirators to travel to South America and purchase cocaine 

there, which was contradicted by the co-conspirators' testimony; 

his disavowal of ownership of a machine gun, which was 

contradicted by the testimony of four government witnesses; and 

his assertion that eight tape recordings of telephone 

conversations with a co-conspirator did not relate to drug 

transactions, which was contradicted by the testimony of the 

co-conspirator and two other government witnesses. App. at 

132-34. 

 Although Judge Newcomer was not present at the hearing 

and thus not in a position to observe Moskovits's testimony, 

Dunnigan leaves open the possibility of finding all the elements 

of perjury -- falsity, materiality, and willfulness -- when there 

are "numerous witnesses who contradicted [the defendant] 

regarding so many facts on which [he] could not have been 

mistaken." Dunnigan, 113 S. Ct. at 1117. See also United States 

v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996) (upholding 

sentencing judge's finding of perjury under the Sentencing 

Guidelines, in part by reference to facts implicit in the jury's 

verdict). Moreover, because Judge Newcomer was sentencing 

Moskovits under the pre-Sentencing Guidelines regime, he had 

broad discretion to consider any and all information about 

Moskovits's relevant conduct and to determine what effect, if 
any, that information would have on the sentence. See United 

States v. Grayson, 438 U.S. 41, 51 (1977) (upholding sentencing 

enhancement in pre-Guidelines case on sentencing judge's view, 

based on government's rebuttal evidence and cross-examination, 

that the defendant committed perjury during trial); United States 

v. Tucker, 404 U.S. 443, 446 (1972) (in pre-Guidelines case, 

"before making [the sentencing] determination, a judge may 

appropriately conduct an inquiry broad in scope, largely 

unlimited either as to the kind of information he may consider, 

or the source from which it may come"). 

 The conviction is AFFIRMED. The twenty-year sentence 

imposed by Judge Newcomer is VACATED and the case is REMANDED for 

further proceedings consistent with this opinion. 

UNITED STATES OF AMERICA V. ALEXANDER EUGENIO MOSKOVITS 

NOS. 94-1990 AND 95-1048 

STAPLETON, J., concurring in part and dissenting in part: 

 I join sections I and III of the court's opinion, although I 

believe that a more detailed explanation is warranted regarding 

section III-B. I cannot join section II. 

 I. 

 In section II, the court concludes that Moskovits' waiver of 

his right to counsel cannot be said to be knowing and intelligent 

because the record fails to show that he was aware at the waiver 

hearing that his sentence after retrial could be greater than his 

vacated sentence. I agree that Moskovits could not knowingly and 

intelligently waive the right to counsel without knowing that he 

had something to lose in a retrial. Further, I agree that 

Moskovits was not advised at the waiver hearing that he could 

face a greater sentence after retrial. 

The record does affirmatively establish, however, that this 

advice would not have altered Moskovits' decision to represent 

himself and, accordingly, that the failure to give it had no 

effect on the subsequent course of events. Under these 

circumstances, I find no basis for disturbing Moskovits' 

conviction. 

 When Moskovits indicated a desire to represent himself, 

Judge Pollak spoke at length and in depth with him about his 

right to counsel and the dangers of self-representation. 

Moskovits acknowledges that Judge Pollak "touched all the bases" 

save the one he now stresses. Only after Moskovits insisted that 

he understood the advantages of counsel and the disadvantages of 

self-representation did Judge Pollak agree to let Moskovits take 

the lead role in his own defense. In order to provide assistance 

to Moskovits, however, and to protect against prejudice to him in 

the event he should thereafter have a change of heart, Judge 

Pollak appointed two back-up counsel who would be prepared to 

consult and to take over at any point. This is of crucial 

importance to the issue before us because Moskovits was expressly 

advised a week before the retrial that he could receive a higher 

sentence and he chose once again to reject representation and opt 

for self-representation. Given that Moskovits had and rejected 

the option of effective professional representation after 
learning what he had at stake, it involves no speculation to 

conclude that Moskovits would have chosen self-representation 

following a flawless waiver hearing and that the deficiency to 

which he now points had no effect on these proceedings. Limiting 

Moskovits' sentence under these circumstances would constitute a 

windfall, pure and simple. 

 I am mindful that "[s]ome constitutional violations 

. . . by their very nature cast so much doubt on the fairness of 

the trial process that, as a matter of law, they can never be 

considered harmless." Satterwhite v. Texas, 486 U.S. 249, 256 

(1988). Such is the case where "any inquiry into a claim of 

harmless error . . . would require, unlike most cases, unguided 

speculation." Id. (quoting Holloway v. Arkansas, 435 U.S. 475, 

491 (1978). Accordingly, this court has refused to speculate on 

whether representation throughout trial for a criminal defendant 

would have produced a result different from that achieved by the 

defendant without representation. It is simply impossible to 

tell what a skilled and fully informed counsel would have been 

able to accomplish during the representation. See United States 

v. Welty, 674 F.2d 185, 194 n.6 (3d Cir. 1982). On the other 

hand, the general rule remains that a criminal conviction should 

not be overturned if there is no causal connection between the 

judgment and the alleged constitutional error. Even where the 

Sixth Amendment right to counsel has been infringed, an 

affirmance is in order if the "scope [of the error] is readily 

identifiable" and "the reviewing court can undertake with some 

confidence its relatively narrow task of assessing the likelihood 

that the error materially affected" the outcome. Satterwhite, 

486 U.S. at 256 (quoting Holloway, 435 U.S. at 490). 

 Determining that there was no causal connection here between 

the alleged constitutional error and Moskovits' conviction 

involves no speculation. On the contrary, the record establishes 

with certainty that the district court's failure to advise 

Moskovits at the waiver hearing of the range of penalties he 

faced did not affect Moskovits' decision to represent himself, 

and hence did not in any way affect the subsequent course of 

events. 

 II. 

 In part III-B, the court concludes that the district court 

did not err when it sentenced Moskovits in part based on its 

finding that Moskovits committed perjury at the habeas hearing. 

While I believe that the court's discussion is fully consistent 

with my interpretation of United States v. Dunnigan, 113 S. Ct. 

1111 (1993), in my view, a more detailed explanation is 

warranted. 

 Dunnigan stands for two propositions. First, in order for a 

district court to enhance a sentence for perjury pursuant to 

United States Sentencing Guidelines ("U.S.S.G.")  3C1.1, the 

district court must review the record and find by a preponderance 

of the evidence that each of the elements of perjury 

(willfulness, falsity, and materiality) is present. The district 

court cannot assume that a defendant has perjured herself merely 

because she has testified at trial and was found guilty. Because 
the sentencing court must make affirmative findings with respect 

to each element of perjury, its conclusion is "independent" of 

the jury verdict. Id. Second, when a court enhances the 

sentence of a defendant who testified at trial in accordance with 

this procedure, the court does not violate the defendant's right 

to testify at trial on her own behalf. Dunnigan, 113 S. Ct. at 

1117-19. 

 It is important to realize that while a court, under 

Dunnigan, must make "independent findings" with respect to each 

perjury element, this does not mean that the jury's verdict may 

not play a role in this fact finding process. Just as a jury 

verdict has issue preclusive effects in subsequent proceedings 

with respect to facts necessarily resolved by a criminal jury, 

e.g., Appley v. West, 832 F.2d 1021, 1025-26 (7th Cir. 1987), "a 

guilty verdict, not set aside, binds the sentencing court to 

accept the facts necessarily implicit in the verdict." United 

States v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996) (quoting from 

United States v. Weston, 960 F.2d 212, 218 (1st Cir. 1992)). 

Thus, if a defendant has testified that he was elsewhere at the 

time of a robbery, and the jury finds him guilty of that robbery, 

the jury's verdict provides a sufficient basis for a finding by 

the court that the defendant's testimony was false. If the 

record also provides support for findings that this false 

statement was material and willful and the court so finds, an 

enhancement under  3C1.1 is clearly appropriate. 

 The district court here found by a preponderance of the 

evidence that Moskovits perjured himself at the habeas hearing: 

 To obtain a new trial, Moskovits had to convince the 

 court . . . that his testimony was such that it 

 rendered the jury's verdict suspect. [T]o sustain that 

 heavy burden, Moskovits resorted to perjury. 

 Moskovits' perjury consists of his repeated denial of 

 his involvement in specific events which occurred 

 during the course of the conspiracy." 

(A. 131-2.) This finding encompasses all of the elements of 

perjury. Compare Boggi, 74 F.3d at 479 (holding that the 

following finding encompassed all of the elements of perjury: "I 

don't see how, in view of his flat denials and the jury's 

conviction, that you can find otherwise than that he testified 

falsely on the stand."). 

 The district court's conclusion by a preponderance of the 

evidence that all of the elements of perjury are present is well 

supported by the record even though Judge Newcomer was not 

present at the habeas hearing. Regarding falsity, Moskovits 

testified repeatedly that he was not involved in the cocaine 

distributions alleged in the indictment. This is evident from 

the transcript of the hearing. The jury convicted Moskovits of 

distributing cocaine as alleged in the indictment and it 

necessarily resolved this factual issue when it convicted him. 

The district court was bound by this determination and had no 

choice but to conclude that Moskovits' testimony that he was not 

involved in the alleged cocaine distributions was false. That 

Moskovits may have been able to convince the jury otherwise had 
he testified at trial is irrelevant. 

 Moreover, it is indisputable that this testimony was 

material. The purpose of the habeas hearing was to determine if 

there was a reasonable probability that by testifying Moskovits 

could have convinced the jury that he was innocent. As the 

district court observed, Moskovits had a "heavy burden" of trying 

to "convince the court . . . that the jury's verdict [in the 

first trial] was suspect" and he "resorted to perjury" in order 

to carry that burden. 

 Finally, regarding willfulness, given Moskovits' testimony 

"regarding so many facts on which []he could not have been 

mistaken, there is ample support for the District Court's finding 

[of willfulness]." Dunnigan, 113 S. Ct. at 1117. The district 

court could make this determination by a preponderance of the 

evidence based on the transcript of the hearing alone. Moreover, 

the inference of willfulness was more compelling because 

Moskovits did not offer any alternative explanation. In response 

to the government's argument in favor of a heavier sentence 

reflecting perjury, Moskovits offered no explanation suggesting 

that his testimony was not willful. On the contrary, he did not 

waiver from the version of events he recounted at the habeas 

hearing. 

 III. 

 I agree with the court that it was error for the district 

court to consider Moskovits' rejection of the government's plea 

offer as an aggravating factor in determining the appropriate 

sentence. Accordingly, I would reverse and remand for 

resentencing. I would not, however, limit the district court's 

discretion to a sentence of fifteen years or less.