### 1996 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

6-25-1996 

# Unit ed S t a t es v

. M o sk o vit s

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 94-1990,95-1048

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1996

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. It h as be e n a c c e pt e d for inclusion in 1996 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. M osk o v its " (1996). 1996 D e cisio n s

. P ape r 162.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1996/162UNITED 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 Co urt for the Eastern District of Pennsylvani a D.C. Crim. No. 87-284-01

Argued October 11, 1995

Before: STAPLETON, McKEE, and NORRIS, Circuit Judg es

(Opinion filed June 25, 1996)

L. Barrett Boss (Argued) Asbill, Junkin & Myers, Cht d. 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 Att orney, Chief of Appeals Kristin R. Hayes (Argued)
Assistant United States Att orney 615 Chestnut Street, Suite 1250 Philadelphia, PA Attorneys for Appellee s

___________________________ _________________

OPINION OF THE COURT

_________________________________________ ___NORRIS, Circuit Judge:

In 1988, Alexander E. Moskovits was convic ted by a jury of various narcotics offenses related to the posses sion 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 ineffecti ve, United States v. Moskovits, 844 F. Supp. 202 (E.D. Pa. 199 3), 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 yea rs, five years longer than the sentence imposed by Judge Pol lak. On appeal, Moskovits contends that his con viction must be set aside on either of two grounds: (1) that his right to testify in his own defense was abridged by the cond itions imposed on the format of his testimony, and (2) that he did not knowingly and intelligently waive his Sixth Amendment right t o counsel. Moskovits also contends that, even if the convictio n is affirmed, the case must be remanded for resentencing because his sentence was based on impermissible considerations. We affi rm the conviction but remand for resentencing.

I
Moskovits contends that his conviction mus t be set aside because the district court imposed unreasonab le conditions on his right to testify in his own defense. He arg ues that
these conditions were so onerous that he had no cho ice but to forgo his right to testify. We express no view on the propriety of the conditions imposed by Judge Newcomer because Moskovits, by ele cting not to testify, failed to preserve this issue for appeal. Because Moskovits did not testify, any possible harm flowin g from the conditions imposed by Judge Newcomer is speculative and cannot be
evaluated in relation to the record as a whole. Ac cordingly, 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 i s merely speculative and, thus, not a basis for reversing a conviction); United States v. Nivica, 887 F.2d 1110, 1116-17 (1s t Cir. 1989), cert. denied, 494 U.S. 1005 (1990) (defendant who d oes not testify may not challenge ruling regarding the scop e of permissible cross-examination).

II Moskovits also seeks a new trial on the gr ound that the colloquy with the district court at the time he wai ved his right to counsel was thoroughly "deficient." In fact, as the government points out, Judge Pollak conducted a len gthy and detailed colloquy that was, in all respects but one , a model of thoroughness. Judge Pollak set out the dangers and difficultiesof 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 spell ed out the cumbersome procedures Moskovits would have to follo w to maintain the distinction between his roles as lawyer and def endant. He endorsed the Assistant United States Attorney's sta tement that
Moskovits would lose the benefit of the advice of c ounsel regarding the most effective way to present his cas e to the jury. Judge Pollak also appointed stand-by counsel

. Nonetheless, it is undisputed that punishment was n ot discussed at the waiver hearing. In particular, Judge Pollak did not inform Moskovits of the range of punishments he fac ed 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 est ablish that 'he knows what he is doing and his choice is made w ith eyes open.'" Faretta v. California, 422 U.S. 806, 835 (1 975). To ensure that a defendant "truly appreciates the 'dan gers and disadvantages of self-representation,' . . . '[a de fendant's] waiver must be made with an apprehension of the nat ure of the charges, the statutory offenses included within the m, [and] the range of allowable punishments thereunder.'" Unite d States v. Welty, 674 F.2d 185, 188 (3d Cir. 1981) (quoting Fa retta, 422 U.S. at 835, and Von Moltke v. Gillies, 332 U.S. 70 8, 724 (1948) (plurality)) (emphasis added); see also Singer v. C ourt of Common Pleas, 879 F.2d 1203, 1210 (3d Cir. 1989) (no waive r where court failed to inform defendant of range of punishment h e 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 possibi lity 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 o f the waiver hearing. The government frames its argument as fol lows: "[T]he record establishes that although not specifically a dvised 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 t he record of proceedings both before and after the waiver hearin g conducted by Judge Pollak. The government relies on United States v. McFadden, 630 F.2d 963 (3d Cir. 1980), cert. denied, 450 U.S. 104 3 (1981), for the proposition that if the defendant has otherwise been made aware of the range of punishment he faced, the cour t 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 clea r that the defendant was aware of the range of punishment he f aced when he waived his right to counsel. As this court said, " [t]he natureof the charges and the range of punishment had been pointed out

in McFadden's two initial appearances before a magi strate." Id.at 972.
Here the record is not at all clear that M oskovits 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 eve nt he was convicted again. The government cites the Pre-Sent ence Investigation Reports (PIRs) that were prepared whe n Moskovits was originally sentenced and resentenced. In relyi ng on these
PIRs as evidence that Moskovits was aware that he f aced the possibility of an increased sentence if found guilt y a second time, the government assumes, implicitly, that Mosk ovits either

read and understood the PIRs or that counsel then r epresenting him explained to him that the maximum sentences set forth in the PIRs could be imposed in spite of the fact that Mos kovits's sentence would then exceed the 15-year sentence ori ginally imposed. The government cites no record support fo r 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 counse l that the original 15-year sentence would not act as a ceilin g on his punishment. Accordingly, we see no basis for infer ring 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 mandat e to "indulge in every reasonable presumption against waiver" of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404 (19 77). The government also cites a conference in Judge Newcomer's chambers six or seven days before the st art of the
retrial as evidence that Moskovits was aware at the waiver hearing before Judge Pollak five months earlier tha t he faced the possibility of a twenty-year sentence. The extract from the transcript of the in-chambers conference relied upo n 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 kn ows 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 sentenc e having been vacated and a new trial being granted, we are i n an entirely new ballgame. And this matter is like a new ca se coming before me for trial for sentence with the power vested in the presiding judge to determine, if appropriat e, 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. A ll right. Now, if anybody disagrees with that, please fee l free to tell me but give me your authori ty for it because I've satisfied myself from independen t 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 und erstand the law correctly, there's two cases that come to m ind. One of
them is not --

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

MR. MOSKOVITS: Oh, in writing?

THE COURT: Yes.

MR. MOSKOVITS: Thank you, sir.

THE COURT: I want -- for a matter that importa nt, I would much prefer to have you do it. It doesn't have to be fancy and certainly not long, but I'd like specifical ly 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 abo ut his authority to impose a sentence longer than fifteen years. Moreover, even if Moskovits's response to Judge New comer indicates "that Moskovits himself recognized the po ssibility of an increased sentence and had conducted legal resea rch in an attempt to determine the limits of the court's auth ority," as the government argues, Appellee's Brief at 15, Mosk ovits's waiver of his right to counsel would still be defec tive. For a waiver of counsel to be valid, the defendant must b e aware of the dangers of self-representation at the time of the w aiver. Welty, 674 F.2d at 188-89 ("to be valid [a defendant's] wa iver must be made with an apprehension of . . . the range of all owable 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 defen dant's waiver of the right to counsel is made knowingly only if h e apprehends the charges and possible punishments at the time th e waiver is
made."). On this point, the government's reliance o n McFadden,630 F.2d at 963, is again misplaced. In McFadden, the record

established that the defendant was aware at the tim e of the waiver hearing of the range of punishments he faced because he had been given this information during earlier appe arances 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 tha t a defendant had knowledge at a waiver hearing on the basis of p roceedings
that occurred five months later. This we decline t o do, lest we fail to "indulge every reasonable presumption again st waiver of fundamental constitutional rights." Johnson v. Zer bst, 304 U.S. 458, 464 (1938). The question we now consider is the approp riate remedy
for the failure to inform Moskovits that he could r eceive a sentence longer than his originally imposed sentenc e of fifteen years. The Supreme Court has recognized that "[c]a ses involving Sixth Amendment deprivations are subject to the gen eral rule that remedies should be tailored to the injury suffered from the
constitutional violation and should not unnecessari ly infringe on competing interests," such as, "the necessity for p reserving society's interest in the administration of crimina l justice . . . . Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriat e in the
circumstances to assure the defendant . . . a fair trial." United States v. Morrison, 449 U.S. 361, 364-65 (19 80). Although the record does not tell us that Moskovits was aware at the time of his waiver hearing that he cou ld be sentenced to a term longer than fifteen years if fo und guilty a second time, Moskovits certainly knew that he could again receive a fifteen-year sentence if found guilty at the retr ial. Indeed,
Moskovits admits that he knew at the time he waived his right to counsel that he could again be sentenced to a fifte en-year term. Appellant's Brief at 6 ("the prior resentencing pro vided 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 Mosk ovits's own attorney stressed at the waiver hearing, Moskovits was "ultra bright" and knowledgeable about the case.
Because Moskovits knew at his waiver heari ng that he could be sentenced a second time to a fifteen-year term, the only prejudice he could conceivably suffer from the depr ivation of his Sixth Amendment right is a sentence greater than fi fteen years. Accordingly, the appropriate remedy for the depriva tion is to affirm the conviction but impose a fifteen-year cei ling 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 t o provide counsel is not unconstitutional as long as the defe ndant is not punished by imprisonment, even if imprisonment is a uthorized by statute); United States v. Reilley, 948 F.2d 648, 6 54 (10th Cir. 1991) (striking down portion of sentence imposed on uncounseled misdemeanor defendant that involved conditionally s uspended termof imprisonment but affirming portion of sentence i nvolving 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 n ot 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 ga ve a number of reasons for the twenty-year sentence he imposed, am ong 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 hi s crimes, as evidenced--among other things--by Moskovits's refus al to accept the government's plea offer. In addition, Judge Ne wcomer specifically cited his finding that Moskovits commi tted perjury at the evidentiary hearing on his  2255 petition as a justification for imposing a sentence that was grea ter than the fifteen-year sentence originally imposed. Moskovit s argues that his case must be remanded for resentencing because Judge Newcomer (A) acted with actual vindictiveness when he impose d a harsher sentence after the retrial, (B) improperly punished Moskovits for refusing to plead guilty, and (C) erred when he fou nd that Moskovits had committed perjury at the  2255 hearing before Judge Pollak and considered this finding at sentenc ing. We address each of these arguments in turn.

A Moskovits does not attempt to invoke the p resumption of vindictiveness that normally arises when a harsher sentence is imposed after a retrial. See North Carolina v. Pea rce, 395 U.S. 711, 725-26 (1969). Nor could he. We have held th at a harsher sentence imposed after a retrial is not presumed to be vindictive if it is imposed by a "judge who . . . ha[d] no mat erial contact with the initial trial or sentence and 'provides an on-the-record, wholly logical, non-vindictive reaso n for the harsher sentence.'" Rock v. Zimmerman, 959 F.2d 123 7, 1257-58 (3d Cir. 1992) (en banc) (quoting Texas v. McCullough, 475 U.S. 134, 140 (1986)). Judge Newcomer had no contact whatsoe ver with Moskovits's initial trial and set out, on the recor d, plausible reasons for the harsher sentence he imposed. Moskovits instead argues that the harsher sentence imposed by Judge Newcomer resulted from actual vind ictiveness. The only proof of Judge Newcomer's actual vindictiv eness offered by Moskovits is Judge Newcomer's statement that if he "were to
sentence Moskovits to the same sentence that he ori ginally received, it would countenance frivolous Section 22 55 claims and encourage defendants to file them in hopes of gaini ng a reduced sentence long after their time to file Rule 35 moti ons had expired." App. at 135. According to Moskovits, Ju dge Newcomer's
characterization of his successful  2255 petition as "frivolous"reflects the actual vindictiveness with which he im posed

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 Jud ge 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 sente nce no greater than time served. Moskovits's rejection of this of fer 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 responsibil ity for his crimes." App. at 137. We agree with Moskovits that Judge Newcome r erred when he considered as a sentencing factor Moskovits's de cision to exercise his constitutional right to a trial by jur y rather than accept the government's plea offer. United States v . Jackson, 390 U.S. 570, 581-82 (1968) (invalidating death sentenc e under Federal Kidnapping Act because it could be imposed only upon a defendant who elected a jury trial, whereas the max imum penalty that could be imposed on a defendant waiving this r ight was life imprisonment); Corbitt v. New Jersey, 439 U.S. 212, 223 (1978) (upholding statute that allows judge to exercise le niency by choosing a lesser sentence for murder defendants wh o pleaded non vult); United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir. 1993) (prosecutor may not refrain from filing a mot ion necessary for a downward departure because the defendant elec ted 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 exp resses Judge
Newcomer's view that Moskovits had been unwise to r eject the plea offer. The government also asserts, without explan ation, that Judge Newcomer was not punishing Moskovits for exer cising his right to go to trial, but was merely withholding le niency. These arguments are implausible, however, in light of the fact that Judge Newcomer made his comment in the context of s etting 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 findi ng of fact that Moskovits committed perjury at the evidentiary hearing held
on his  2255 petition. Judge Newcomer's finding of perjur y was based upon his reading of the transcript of Moskovi ts's  2255 testimony before Judge Pollak, considering the test imony of the government's witnesses, and concluding that the ver sion of the
facts to which Moskovits testified was contradicted by the verdicts of the juries at his original trial and re trial. As Judge Newcomer put it, "[t]he proof that Moskovits perjured himself lies in the fact that two juries listened t o the identical evidence [that Moskovits denied at the  2255 hearing] and convicted him." App. at 132.Moskovits argues that Judge Newcomer's fin ding of

perjury was improper because it was not made indepe ndently of the juries' verdicts. Moskovits relies on United State s 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 guidel ines). In other words, the sentencing judge must have a basis for his finding of perjury that is "independent" of the jur y verdict. In response, the government asserts that J udge Newcomer independently considered the testimony of the witne sses for the prosecution at the retrial, recognized that the jur ies 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 n ot err when he made a finding that Moskovits committed perjury at the  2255 hearing. Judge Newcomer explained on the record th at there were
"numerous occasions on both direct and cross-examin ation [when] Moskovits testified that he did not take the specif ic criminal
actions which the Government's evidence established that he did take." App. at 132. Judge Newcomer specifically c ited 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-conspirato r's testimony and phone bills; his testimony that there was an in nocent explanation for his actions in connection with a pa ckage of cocaine, which was contradicted by the testimony of five government witnesses; his denial that he directed t wo co-conspirators to travel to South America and purc hase cocaine there, which was contradicted by the co-conspirator s' testimony; his disavowal of ownership of a machine gun, which was contradicted by the testimony of four government wi tnesses; and his assertion that eight tape recordings of telepho ne conversations with a co-conspirator did not relate to drug transactions, which was contradicted by the testimo ny 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 t estimony, Dunnigan leaves open the possibility of finding all the elements of perjury -- falsity, materiality, and willfulness -- when there are "numerous witnesses who contradicted [the defen dant] regarding so many facts on which [he] could not hav e been mistaken." Dunnigan, 113 S. Ct. at 1117. See also United States v. Boggi, 74 F.3d 470, 478-79 (3d Cir. 1996) (uphol ding sentencing judge's finding of perjury under the Sen tencing Guidelines, in part by reference to facts implicit in the jury's verdict). Moreover, because Judge Newcomer was sen tencing Moskovits under the pre-Sentencing Guidelines regim e, he had broad discretion to consider any and all informatio n about
Moskovits's relevant conduct and to determine what effect, ifany, that information would have on the sentence. See United

States v. Grayson, 438 U.S. 41, 51 (1977) (upholdin g sentencing enhancement in pre-Guidelines case on sentencing ju dge's view, based on government's rebuttal evidence and cross-e xamination, that the defendant committed perjury during trial); United States v. Tucker, 404 U.S. 443, 446 (1972) (in pre-Guideli nes case, "before making [the sentencing] determination, a ju dge may appropriately conduct an inquiry broad in scope, la rgely
unlimited either as to the kind of information he m ay consider, or the source from which it may come"). The conviction is AFFIRMED. The twenty-ye ar sentence imposed by Judge Newcomer is VACATED and the case i s REMANDED for further proceedings consistent with this opinion.

UNITED STATES OF AMERICA V. ALEXANDER EUGENIO MOSKO VITS
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 opinio n, although I believe that a more detailed explanation is warrant ed regarding section III-B. I cannot join section II.

I. In section II, the court concludes that Moskovi ts' waiver of his right to counsel cannot be said to be knowing a nd intelligent
because the record fails to show that he was aware at the waiver hearing that his sentence after retrial could be gr eater than his vacated sentence. I agree that Moskovits could not knowingly and intelligently waive the right to counsel without kn owing that he had something to lose in a retrial. Further, I agr ee that Moskovits was not advised at the waiver hearing tha t he could face a greater sentence after retrial. The record does affirmatively establish, however, t hat this
advice would not have altered Moskovits' decision t o represent himself and, accordingly, that the failure to give it had no effect on the subsequent course of events. Under t hese circumstances, I find no basis for disturbing Mosko vits'
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-representa tion. Moskovits acknowledges that Judge Pollak "touched a ll the bases" save the one he now stresses. Only after Moskovits insisted that he understood the advantages of counsel and the dis advantages of self-representation did Judge Pollak agree to let M oskovits take the lead role in his own defense. In order to prov ide assistance to Moskovits, however, and to protect against preju dice to him in the event he should thereafter have a change of hea rt, Judge Pollak appointed two back-up counsel who would be p repared 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 rec eive a higher sentence and he chose once again to reject represen tation and opt for self-representation. Given that Moskovits had and rejected the option of effective professional representation afterlearning what he had at stake, it involves no specu lation to

conclude that Moskovits would have chosen self-repr esentation following a flawless waiver hearing and that the de ficiency to which he now points had no effect on these proceedi ngs. Limiting
Moskovits' sentence under these circumstances would constitute a windfall, pure and simple. I am mindful that "[s]ome constitutional violati ons . . . by their very nature cast so much doubt on th e fairness of the trial process that, as a matter of law, they ca n 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 cas es, unguided speculation." Id. (quoting Holloway v. Arkansas, 4 35 U.S. 475, 491 (1978). Accordingly, this court has refused to speculate on whether representation throughout trial for a crimi nal defendant would have produced a result different from that ac hieved by the defendant without representation. It is simply imp ossible to tell what a skilled and fully informed counsel woul d 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 conv iction should
not be overturned if there is no causal connection between the judgment and the alleged constitutional error. Eve n 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 undertak e with some confidence its relatively narrow task of assessing the likelihood that the error materially affected" the outcome. S atterwhite, 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' con viction involves no speculation. On the contrary, the reco rd establishes with certainty that the district court's failure to advise Moskovits at the waiver hearing of the range of pen alties he faced did not affect Moskovits' decision to represe nt himself, and hence did not in any way affect the subsequent course of

events.

II. In part III-B, the court concludes that the dist rict court did not err when it sentenced Moskovits in part bas ed on its finding that Moskovits committed perjury at the hab eas hearing.
While I believe that the court's discussion is full y consistent with my interpretation of United States v. Dunnigan , 113 S. Ct. 1111 (1993), in my view, a more detailed explanatio n is

warranted. Dunnigan stands for two propositions. First, in order for a district court to enhance a sentence for perjury pu rsuant 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 perjur y (willfulness, falsity, and materiality) is present. The district court cannot assume that a defendant has perjured h erself merely because she has testified at trial and was found gu ilty. Becausethe sentencing court must make affirmative findings with respect

to each element of perjury, its conclusion is "inde pendent" of the jury verdict. Id. Second, when a court enhanc es the
sentence of a defendant who testified at trial in a ccordance with this procedure, the court does not violate the defe ndant's right to testify at trial on her own behalf. Dunnigan, 1 13 S. Ct. at

1117-19. It is important to realize that while a court, u nder Dunnigan, must make "independent findings" with res pect 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 cri minal jury, e.g., Appley v. West, 832 F.2d 1021, 1025-26 (7th C ir. 1987), "a guilty verdict, not set aside, binds the sentencing court to accept the facts necessarily implicit in the verdic t." 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 else where 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 hab eas 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 susta in that heavy burden, Moskovits resorted to perjury. Moskovits' perjury consists of his repeated deni al of his involvement in specific events which occurre d during the course of the conspiracy." (A. 131-2.) This finding encompasses all of the el ements of perjury. Compare Boggi, 74 F.3d at 479 (holding th at the following finding encompassed all of the elements o f perjury: "I don't see how, in view of his flat denials and the jury's conviction, that you can find otherwise than that h e testified falsely on the stand."). The district court's conclusion by a preponderan ce of the evidence that all of the elements of perjury are pr esent 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 th e cocaine distributions alleged in the indictment. This is e vident from the transcript of the hearing. The jury convicted Moskovits of distributing cocaine as alleged in the indictment a nd it necessarily resolved this factual issue when it con victed him. The district court was bound by this determination and had no choice but to conclude that Moskovits' testimony th at he was not involved in the alleged cocaine distributions was f alse. That Moskovits may have been able to convince the jury o therwise hadhe 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 testifyi ng Moskovits could have convinced the jury that he was innocent. As the district court observed, Moskovits had a "heavy bur den" of trying to "convince the court . . . that the jury's verdic t [in the first trial] was suspect" and he "resorted to perju ry" in order to carry that burden. Finally, regarding willfulness, given Moskovits' testimony "regarding so many facts on which []he could not ha ve been mistaken, there is ample support for the District C ourt's finding [of willfulness]." Dunnigan, 113 S. Ct. at 1117. The district court could make this determination by a prepondera nce of the evidence based on the transcript of the hearing alo ne. Moreover, the inference of willfulness was more compelling be cause 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 explanatio n suggesting that his testimony was not willful. On the contrar y, he did not
waiver from the version of events he recounted at t he habeas hearing.

III. I agree with the court that it was error for the district court to consider Moskovits' rejection of the gover nment's plea offer as an aggravating factor in determining the a ppropriate sentence. Accordingly, I would reverse and remand for resentencing. I would not, however, limit the dist rict court's discretion to a sentence of fifteen years or less.