United States v. Moskovits

Opinions of the United
1996 Decisions 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Precedential or Non-Precedential: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.