[EDITOR'S NOTE: PART 3 OF 3. THIS DOCUMENT HAS BEEN SPLIT INTO MULTIPLE PARTS ON LEXIS TO ACCOMMODATE ITS LARGE SIZE. EACH PART CONTAINS THE SAME LEXIS CITE.]
Where allegations of juror misconduct are based solely on juror testimony as to 'internal' matters, which testimony would be inadmissible under Rule 606(b), a post-verdict evidentiary hearing is not required with respect to such allegations. See Tanner, 483 U.S. 107, 127, 97 L. Ed. 2d 90, 107 S. Ct. 2739; Gilsenan, 949 F.2d 90, 97; Nicholas, 759 F.2d 1073, 1081; see also United States v. O'Brien, 972 F.2d 12, 14 (1st Cir. 1992) ("Only communications between jurors and others which concern the case require further inquiry.").
It has consistently been held that premature deliberations or improper jury discussions do not constitute "extraneous" irregularities, and testimony regarding such deliberations or discussions may not be received from jurors. See United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990) ("evidence of premature deliberation" could not be the subject of post-verdict inquiry because "there was no allegation of extraneous prejudicial information being brought to the jury's attention; nor was there evidence of improper outside influence sufficient to warrant an inquiry"); Chiantese, 582 F.2d 974, 979 (juror's remark during trial that defense attorney was "stupid" and "a pain in the [sic ]" did not require evidentiary hearing because "there was no outside influence"); United States v. Williams-Davis, 821 F. Supp. 727, 741 (D.D.C. 1993) (juror discussions of case prior to deliberations did not require a hearing because such discussions were not extraneous influence under Rule 606(b)); United States v. Oshatz, 715 F. Supp. 74, 76 (S.D.N.Y. 1989) (Juror's testimony that other jurors "had made up their minds" after testimony of Government's chief witness was inadmissible as internal matter under Rule 606(b)); see also United States v. Casamayor, 837 F.2d 1509, 1515 (11th Cir. 1988) ("The alleged harassment or intimidation of one juror by another would not be competent evidence to impeach the verdict under Rule 606(b). . . ."), cert. denied sub nom. Barker v. United States, 488 U.S. 1017, 102 L. Ed. 2d 803, 109 S. Ct. 813 (1989).
Applying these principles to the facts at bar, none of the facts alleged in the Riepe Letter or the Riepe Notes would be admissible to impeach Bertoli's guilty verdict. Every allegation supposedly made by Juror Two in the Riepe Notes concerns internal matters about which jurors would be incompetent to testify pursuant to Rule 606(b). As stated, Bertoli relies solely on Juror Two's allegations as to comments made, and views held, by Juror Six prior to deliberations. See Riepe Notes at 2-3; 7 March 1994 Bertoli Brief at 16. Such comments and views do not constitute external influences under Rule 606(b). See Oshatz, 715 F. Supp. at 76. The testimony of Juror Two, or of any other juror, regarding such statements by Juror Six would be inadmissible to impeach the verdict. Id. Accordingly, neither a new trial nor an evidentiary hearing is warranted by Juror Two's allegations as set forth in the Riepe Notes.
Bertoli does not appear to argue a hearing is warranted by Juror Two's allegations that other jurors were sleeping and otherwise inattentive during trial. Riepe Notes at 2. To the extent he does, his argument fails on both factual and legal grounds. As a factual matter, any assertion that jurors were sleeping during testimony in Bertoli's trial is simply inaccurate. All parts of the jury box are in plain view of the court and the parties; any juror sleeping while testimony was being taken would have been conspicuous and noticed immediately. The court observed no jurors sleeping, either while testimony was being taken or at any other time during trial. Nor did the parties bring any such occurrence to the court's attention. Throughout trial, in fact, the jurors and alternates were observed to be alert and attentive. Any assertion to the contrary lacks credibility. See United States v. Hernandez, 921 F.2d 1569, 1577-78 (11th Cir.) (where trial judge found, in response to defense assertions of juror inattentiveness, that "no jurors had been asleep at trial," refusal to investigate issue further was well within discretion of trial court), cert. denied sub nom Tape v. United States, 500 U.S. 958, 111 S. Ct. 2271, 114 L. Ed. 2d 722 (1991); see United States v. Key, 717 F.2d 1206, 1209 (8th Cir. 1983) (same).
Any testimony, moreover, by Juror Two regarding sleeping jurors would be incompetent to impeach the verdict. A juror's testimony that other jurors were sleeping or inattentive during trial does not concern "extraneous" influences and is therefore inadmissible under Rule 606(b). See Tanner, 483 U.S. 107, 121, 97 L. Ed. 2d 90, 107 S. Ct. 2739 ("Under Rule 606(b), 'proof to the following effects is excludable . . .: that one or more jurors was inattentive during trial or deliberations, sleeping or thinking about other matters.'") (quoting 3 D. Lousell & C. Mueller, Federal Evidence § 287 at 121-25 (1979)); see also Nicholas, 759 F.2d at 1078 ("Questions concerning the competency of a jury ordinarily are not entertained once the jury has rendered its verdict.").
Only jurors could testify, based on personal knowledge, regarding the issues raised by Juror Two in the Riepe Letter and Riepe Notes. As stated, none of these issues concern "extraneous" influences within the meaning of Rule 606(b). Therefore, any testimony regarding the issues raised in the Riepe Letter and Riepe Notes would be inadmissible to impeach the verdict in this case.
See Tanner, 483 U.S. 107, 123, 97 L. Ed. 2d 90, 107 S. Ct. 2739. Under these facts, neither a new trial nor an evidentiary hearing is warranted by the Riepe Letter and Riepe Notes. Id.
2. Bertoli's Motion for New Trial Based on Allegations of Juror Misconduct During Voir Dire
By notice of motion, dated 7 March 1994, Bertoli again moved for a new trial based on allegations of juror misconduct (the "7 March 1994 Motion for New Trial"). The 7 March 1994 Motion for New Trial relies on Bertoli's allegations of misconduct during jury voir dire.
As an introduction to the conducting of voir dire in this case, it was explained to prospective jurors that they would be asked a series of questions by the court. Trial Transcript at 2. It was stressed that "during this selection process, there [were] only two things [they would] have to be concerned with: fairness and impartiality." Id. at 3. No objections were made to this instruction. Following the reading of the Redacted Second Superseding Indictment, prospective jurors were asked forty-three questions meant to insure fairness and impartiality in an empaneled juror. Jurors were also questioned individually on their background. Each prospective juror responded in a manner consistent with the court's direction, bringing to the court's attention only issues which the juror believed were relevant to his or her ability to serve as a fair, impartial and effective juror.
Bertoli contends Juror Six "made false and misleading statements to the court during voir dire. . . ." Levitt Aff., P 1. Bertoli makes specific reference to four questions asked prospective jurors on voir dire :
[Question] number two [("Question 2")]: do any of you know the defendant, his standby counsel, the Assistant United States Attorneys, anyone in the United States Attorney's Office, any prospective witnesses or members of their families, or have you had any dealings with these people or entities on that list of prospective witnesses.
[Question] number thirteen [("Question 13")]: do you have any opinions of accountants or auditors or individuals or entities involved in the securities business, the brokerage business or in the field of finance or investments which would prevent you from being fair and impartial in this case?
[Question] number fourteen [("Question 14")]: have you or has any member of your family ever had difficulty in obtaining credit, obtaining a loan or [been] threatened with default on a loan and, if so, is there anything about that which would prevent you from being fair and impartial in this case?
[Question] number twenty-seven
[("Question 27")]: have you or has a family member ever assisted in the formation of a corporation and, if so, is there anything about [that] which would prevent you from being fair and impartial in this case?
Trial Transcript at 78, 80, 82. Juror Six did not give affirmative answers to any of these questions. Juror Six did, however, indicate during direct questioning by the court that her husband "owns his own business." Id. at 115. Bertoli did not question Juror Six further upon gaining this information. Nor did Bertoli object to the form of any of the questions or ask for any follow-up questions.
b. The Lawsuit against Juror Six
Bertoli asserts Juror Six, in failing to give affirmative responses to these questions, answered the questions untruthfully. Bertoli bases this assertion on his "investigation" of Juror Six made after his conviction.
Levitt Aff., P 5. During this investigation, Bertoli learned Juror Six was party to a lawsuit (the "MLBFS Suit") involving her husband ("WW")
and a company known as Merrill Lynch Business Financial Services ("Merrill Lynch Financial"), which is located in Chicago Illinois. The facts of that suit follow.
The MLBFS Complaint alleged that, commencing in March 1988, Shorlane opened a "Working Capital Management Account" with Merrill Lynch Financial "and was granted a line of credit, maturing on February 28, 1989, in the amount of $ 75,000." Id., P 5. In order to obtain this line of credit, Shorlane executed a Note and Security Agreement (the "MLBFS Note"), dated 2 March 1988. Id., P 6 and Ex. A. Pursuant to the MLBFS Note, Shorlane agreed to repay the line of credit by 28 February 1989, with interest at a per annum rate of two percent over the prime interest rate. Id., Ex. A. Shorlane's obligations under the MLBFS Note were personally guaranteed by WW (the "WW Guaranty"). Id., Ex. B.
By a "Spouse's Certificate," dated 2 March 1988 (the "Spouse's Certificate"), Juror Six consented to the WW Guaranty. Id., Ex. C. Pursuant to the Spouse's Certificate, Juror Six agreed that "all community property and property held with [WW] either as joint tenants or as tenants by the entirety shall be bound by and subject to [the WW Guaranty]." Id.
According to the MLBFS Complaint, the MLBFS Note was renewed twice, through 28 February 1991. Id., P 9. The MLBFS Complaint alleged that, during February 1991, Shorlane went out of business, resulting in its default on the MLBFS Note. Id., P 10. The MLBFS Complaint further alleged WW was in breach of the WW Guaranty since 28 February 1991. Id., P 12. The MLBFS Complaint demanded damages in the amount of the unpaid portion of the MLBFS Note from Shorlane and WW, jointly and severally. Id., P 17(a). The MLBFS Complaint further sought a declaration that "any property held by WW as joint tenant or tenant by the entirety with his wife [Juror Six] be subjected to the judgment." Id. The MLBFS Complaint demanded no damages from Juror Six.
By order, dated 15 May 1992, summary judgment was granted to Merrill Lynch Financial. See Levitt Aff., Ex. B. Subsequently, on 24 September 1992, judgment was entered against Shorlane and WW, jointly and severally, in the amount of $ 48,014.51 (the "MLBFS Judgment"). No judgment was entered against Juror Six. See MLBFS Judgment, attached as Exhibit C to the Levitt Aff., at 2. It appears Merrill Lynch Financial filed suit against WW in the Superior Court of New Jersey to collect the MLBFS Judgment (the "MLBFS New Jersey Suit"). See Levitt Aff., Ex. D. Juror Six was not named in the MLBFS New Jersey Suit. Id. By order, dated 10 May 1993, final judgment by default was entered against WW in the MLBFS New Jersey Suit. Id.
Bertoli asserts Juror Six was required to disclose the existence of the MLBFS Suit in response to Question 2, Question 13 and Question 14. 7 March 1994 Bertoli Brief at 5-6. Bertoli further asserts Juror Six was required by Question 27 to disclose her husband's relationship with Shorlane. Id. at 7. Based on Juror Six's failure to answer affirmatively any of these questions, Bertoli argues a new trial is warranted pursuant to Fed.R.Crim.P. 33.
c. Motion for a New Trial Based on Answers to Jury Voir Dire
As indicated, the decision whether to grant a new trial is committed to the sound discretion of the district court. See Console, 13 F.3d 641, 665. A new trial should be granted only where there is a reasonable probability of substantial prejudice to the defendant. See Bedford, 671 F.2d 758, 762.
The Supreme Court has established that in order to obtain a new trial based on a juror's answers at voir dire,
a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 78 L. Ed. 2d 663, 104 S. Ct. 845 (1984);
see Langford, 990 F.2d 65, 68; North, 285 U.S. App. D.C. 343, 910 F.2d 843, 904; United States v. Aguon, 851 F.2d 1158, 1170 (9th Cir. 1988); Casamayor, 837 F.2d at 1515.
Under this standard, an honest, though mistaken, answer is insufficient to require a new trial. See McDonough, 464 U.S. at 555 ("To invalidate the result of a 3-week trial because of a juror's mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give."); United States v. Colombo, 909 F.2d 711, 713 (2d Cir. 1990) ("Because the juror had no intention to withhold information or to be unresponsive to the Magistrate's voir dire, reversal of [the defendant's] conviction on this claim is unwarranted."); United States v. Fryar, 867 F.2d 850, 855 (5th Cir. 1989) (no new trial required where juror did not disclose prior crime because of good faith belief it constituted a traffic violation), cert. denied, 499 U.S. 981, 113 L. Ed. 2d 730, 111 S. Ct. 1635 (1991); Casamayor, 837 F.2d at 1515 (new trial not warranted where nondisclosures were attributed to "inattentiveness").
"[A] 'valid basis for a challenge for cause,' absent a showing of actual bias, is insufficient justification" for a new trial. North, 910 F.2d at 904; see Langford, 990 F.2d at 68 ("The proper focus when ruling on a motion for a new trial in this situation should be on the bias of the juror and the resulting prejudice to the litigant." (quoting McDonough, 464 U.S. at 557 (Brennan, J., concurring)); United States v. Patrick, 965 F.2d 1390, 1399 (6th Cir.) ("A prospective juror's failure to disclose material information is grounds for a new trial [only] if it demonstrates actual bias."), cert. denied sub nom. Gross v. United States, U.S. , 113 S. Ct. 376 (1992); United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st Cir.) ("A defendant seeking a new trial because of nondisclosure by a juror must demonstrate actual bias."), cert. denied, 498 U.S. 990 (1990); Casamayor, 837 F.2d at 1515 (second prong of McDonough standard not met because inaccurate answer "did not constitute actual bias").
Failure to Answer Questions Honestly
Bertoli argues, first, that Juror Six answered Question 2 falsely. Bertoli points specifically to that part of Question 2 which asked whether a prospective juror knew or "had any dealings with" any people or entities on the Witness List. Trial Transcript at 78. Bertoli argues that, because "Merrill Lynch" was included on the Witness List, Juror Six should have disclosed the existence of the MLBFS Suit in response to Question 2. 7 March 1994 Bertoli Brief at 6.
Bertoli's argument in this regard is unavailing. This case was dominated by the issue of securities fraud. Bertoli was indicted, largely, for actions taken while working behind the scenes at a securities brokerage firm.
In light of these facts, the "Merrill Lynch" named on the Witness List was Merrill Lynch Securities, the New York securities brokerage firm.
Merrill Lynch Financial, the entity which filed suit against Juror Six, is not a brokerage firm, but a credit and loan corporation. Merrill Lynch Financial was not even peripherally involved in this case. In light of these circumstances, it was not inaccurate, much more dishonest, for Juror Six to fail to discuss the MLBFS Suit in response to Question 2.
A decision instructive on this point is United States v. Nickell, 883 F.2d 824 (9th Cir. 1989). There, the defendant was tried and convicted of tampering with a consumer product. After his conviction, the defendant moved for a new trial based on a juror's allegedly false response to a voir dire question. The question at issue asked: "Have you . . . or anyone you know, been the victim of a product tampering incident?" Id. at 826. The juror answered: "No." Id.
After the verdict, it was discovered the juror "had been involved in a lawsuit against Pepperidge Farms concerning a contaminated product.
The lawsuit arose out of an incident that occurred more than a year and a half before this trial began, when [the juror] bit into a cracker and swallowed a foreign object in the cracker. In her deposition for that lawsuit, about ten months before trial in this case began, she testified that at the time she bit into the cracker, she "figured I was dead," and noted, "this was right after the cyanide poisonings in Auburn," the same poisonings involved in this case.
Notwithstanding the obvious relationship between the prior suit and the prosecution at bar, the Circuit held the juror's answer was not grounds for a new trial:
The district court correctly ruled that the juror's response in this case did not meet the first requirement of the McDonough test. We see no basis for a finding that the juror deliberately concealed information . . . . There is . . . a significant difference between a product contamination case, such as the suit [the juror] had been involved in earlier, and a product tampering case. [The juror] was asked only if she . . . had been involved in a product tampering case. It is difficult to understand what response by the juror would have been more appropriate than her denial.
The MLBFS Suit and the instant prosecution are far more divergent than the proceedings at issue in Nickell. The relevance of the MLBFS Suit was so far removed from the instant proceedings that its disclosure in response to Question 2 was not required. Juror Six's answer to Question 2 did not, therefore, constitute a dishonest answer to a voir dire question, so as to warrant a new trial. See Nickell, 883 F.2d at 827.
Nowhere in Question 13 is the disclosure of events or relationships required. The question merely requires the disclosure of opinions which the jurors might have. The MLBFS Suit does not constitute an "opinion," but an event. It would, therefore, have been inappropriate for Juror Six to disclose the existence of the MLBFS Suit in response to Question 13. See Nickell, 883 F.2d at 827.
Question 13, moreover, asks only for opinions regarding accountants, auditors, "or individuals or entities involved in the securities business, the brokerage business or in the field of finance or investments . . . ." Trial Transcript at 80. As stated, Merrill Lynch Financial is a credit and loan company; it is not an auditing, accounting, securities brokerage or investment firm. Because the MLBFS Suit did not involve an entity described in Question 13, it could not evidence an "opinion" disclosable in response to that question.
In addition, Question 13 asks only for opinions "which would prevent [a juror] from being fair and impartial in this case." Id. The facts adduced by Bertoli establish that Juror Six was only peripherally involved in the MLBFS Suit. See supra note 218. In light of her slight involvement, it is highly unlikely the MLBFS Suit affected Juror Six's opinion in a way which would prevent her from being fair and impartial. This conclusion is further supported by the complete lack of similarity between the parties and issues involved in the MLBFS Suit and those involved in the instant case. Juror Six's answer to Question 13 was not, therefore, dishonest and does not warrant a new trial. See McDonough, 464 U.S. at 556.
Bertoli's argument with respect to Question 14 also fails. As stated, that question asked, in relevant part, whether a prospective juror "ever had difficulty in obtaining credit, obtaining a loan or [been] threatened with default on a loan and, if so, is there anything about that which would prevent you from being fair and impartial in this case." Trial Transcript at 80. Bertoli argues the MLBFS Suit should have been disclosed in response to this question. 7 March 1994 Bertoli Brief at 6.
There is no indication Juror Six answered this question falsely. Specifically, there is no indication, either in the MLBFS Suit or elsewhere, that Juror Six or WW themselves were ever threatened with default on a loan. The MLBFS Suit evidences only that Shorlane, a corporation, was in default on the MLBFS Note; neither Juror Six nor WW was a party to that note. See MLBFS Complaint, P 10, Ex. A. WW was a guarantor of the MLBFS Note and was not himself in default on that note. Id., Ex. B. Juror Six, having merely executed the Spouse's Certificate, was even farther removed from Shorlane's default. Id., Ex. C. There is, therefore, no indication Juror Six or any of her family members were ever threatened with default on a note. Correspondingly, there is no indication Juror Six submitted a dishonest, or even inaccurate, answer to Question 14.
See McDonough, 464 U.S. at 556.
Contrary to Bertoli's suggestion, there is no indication Juror Six should have responded affirmatively to Question 27. At most, the facts adduced by Bertoli regarding the MLBFS Suit evidence that WW, Juror Six's husband, was president of a corporation. See MLBFS Complaint, P 3. These facts in no way suggest that WW, or Juror Six, ever assisted in the formation of a corporation or, more importantly, that Juror Six was not or could not be fair and impartial. Bertoli has not established, therefore, that Juror Six answered Question 27 dishonestly, or even inaccurately.
Juror Six, moreover, made no attempt to hide her husband's involvement with Shorlane. On direct questioning by the court, Juror Six stated her husband "owns his own business." Trial Transcript at 115. Bertoli's failure to pursue this issue, despite every opportunity to do so, cannot be equated with dishonesty on the part of Juror Six.
Each of the questions cited by Bertoli in support of his 7 March 1994 Motion for New Trial was answered accurately and honestly by Juror Six. Bertoli has, therefore, failed to demonstrate that Juror Six "failed to answer honestly a material question on voir dire. . . ." McDonough, 464 U.S. at 556. The 7 March Motion for New Trial must be denied on this basis alone.
Valid Basis for Challenge for Cause
As stated, in order to obtain a new trial based on Juror Six's responses to questions on voir dire, Bertoli must "further show that a correct response would have provided a valid basis for a challenge for cause." Id. Moreover, as indicated, the touchstone for this inquiry is whether the defendant has demonstrated "actual bias" on the part of the juror. Patrick, 965 F.2d at 1399; see Langford, 990 F.2d at 68; Sponte-Suarez, 905 F.2d at 492.
In the instant case, Bertoli has not demonstrated that disclosure of the MLBFS Suit and the surrounding facts would have established Juror Six's bias or otherwise provided a valid basis for a challenge for cause. Nor could he make such a showing. As indicated, the impartiality vel non of Juror Six was extensively explored by the court during the proceedings in this case. During this inquiry, Juror Six affirmed she was able to decide the case in a fair and impartial manner. The court's inquiry, as well as Juror Six's conduct during trial, resulted in the finding that Juror Six's affirmations of impartiality were credible and accurate. Trial Transcript at 6830 ("I am . . . satisfied beyond any doubt that [Juror Six] is a fair, impartial juror."). This finding may only be revisited upon "solid evidence of distinct bias." United States v. Angiulo, 897 F.2d 1169, 1183 (1st Cir.), cert. denied sub nom. Granito v. United States, 498 U.S. 845, 112 L. Ed. 2d 98, 111 S. Ct. 130 (1990).
Bertoli has presented no evidence of actual bias in connection with his 7 March 1994 Motion for New Trial. The existence of the MLBFS Suit and the facts surrounding it, had they been disclosed during voir dire, would not have evidenced bias on the part of Juror Six. As indicated, Juror Six was only peripherally involved in the MLBFS Suit. She was not a party to the MLBFS Note or the WW Guaranty, the transactions constituting the focus of the MLBFS Suit. See MLBFS Complaint, Exs. A, B. Juror Six was not an officer of Shorlane, the principal defendant in the MLBFS Suit. Indeed, no judgment was entered against Juror Six in the MLBFS Suit, and Juror Six was not even named in the MLBFS New Jersey Suit. See MLBFS Judgment; Levitt Aff., Ex. D. Under these circumstances, it is highly unlikely the MLBFS Suit impacted significantly on Juror Six's opinions.
As the Government points out, any opinions held by Juror Six as a result of the MLBFS Suit would have inured to the benefit of Bertoli. Any predispositions held by Juror Six as a result of the MLBFS Suit would have been adverse to Merrill Lynch Financial and not in its favor. Similarly, any confusion between Merrill Lynch Financial and Merrill Lynch Securities on the part of Juror Six would have resulted in her unfavorable opinion toward Merrill Lynch Securities. As stated, employees of Merrill Lynch Securities were expected to testify on behalf of the Government and not on behalf of Bertoli. Accordingly, the MLBFS Suit would, at most, have caused Juror Six to doubt the testimony of the Government's witnesses and could in no way have prejudiced Bertoli. It is highly unlikely, in fact, that either party was prejudiced by the empaneling of Juror Six, for the only persons related to Merrill Lynch Securities who ultimately testified, the Broadcort Witnesses, did so only to authenticate documents and did not offer substantive testimony.
WW's relationship with Shorlane, which Bertoli argues should have been disclosed in response to Question 27, similarly provides no basis for a finding of bias on the part of Juror Six. As stated, there is no indication in the record that Juror Six maintained any relationship with Shorlane beyond her execution of the Spouse's Certificate. In any event, Bertoli has failed to explain how Juror Six's mere relationship with Shorlane would exhibit bias on her part or otherwise have caused her excusal for cause.
It does not, in fact, appear Juror Six's limited relationship with Shorlane adversely impacted on her ability to render a fair and impartial verdict. She would not, therefore, have been excused for cause had she revealed this relationship during voir dire.
As indicated, moreover, Juror Six did refer to her husband's relationship with Shorlane during voir dire. Responding to direct questioning by the court, Juror Six stated: "My husband . . . owns his own business." Trial Transcript at 115. In spite of the disclosure of this information, Bertoli failed to challenge Juror Six or even ask to explore more fully issues related to WW's ownership of the business. Instead, Bertoli sat through the voir dire of over thirty other prospective jurors without once revisiting Juror Six. Indeed, Bertoli sat through the entire trial without raising this issue and only now claims he was prejudiced by Juror Six's failure to disclose her husband's role in Shorlane. Bertoli had knowledge and opportunity sufficient to explore this issue nearly one year ago, and chose not to do so until after he was found guilty.
"A sentient defendant, knowledgeable of a possible claim of juror bias, waives the claim if he elects not to raise it promptly." Aponte-Suarez, 905 F.2d at 492; see United States v. Uribe, 890 F.2d 554, 560 (1st Cir. 1989); United States v. Ramsey, 726 F.2d 601, 604 (10th Cir. 1984); United States v. Dean, 667 F.2d 729, 730 (8th Cir.), cert. denied, 456 U.S. 1006, 73 L. Ed. 2d 1300, 102 S. Ct. 2296 (1982).
Any other rule would allow defendants to sandbag the court by remaining silent and gambling on a favorable verdict, knowing that if the verdict went against them, they could always obtain a new trial by later raising the issue of juror misconduct.
United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989); see United States v. Breit, 712 F.2d 81, 83 (4th Cir. 1983) ("A defendant who remains silent about known juror misconduct -- who, in effect, takes out an insurance policy against an unfavorable verdict -- is toying with the court.").
Bertoli has demonstrated no bias, actual or potential, on the part of Juror Six as a result of the MLBFS Suit or its surrounding facts. He has similarly failed to demonstrate that, had these facts been known during voir dire, there would have been a valid basis to challenge Juror Six for cause. Bertoli's failure to make these showings precludes the grant of his 7 March 1994 Motion for New Trial.
See McDonough, 464 U.S. at 556.
3. Bertoli's Motion to Recuse Court from Sentencing
By letter, dated 6 October 1993 (the "6 October 1993 Letter"), Bertoli again moved that the court recuse itself from sentencing in this matter (the "Sentencing Recusal Motion"). The Sentencing Recusal Motion is the most recent in a series of recusal motions made by Bertoli in this case:
On 2 November 1989, Bertoli filed a motion seeking the recusal of the court from presiding over his case (the "2 November 1989 Recusal Motion"). The 2 November 1989 Recusal Motion relied on two letters written by Bertoli which concerned the court.
On 2 November 1987, following the sentencing of Cannistraro in connection with the 1987 Cannistraro Indictment and prior to Bertoli's indictment, Bertoli addressed a letter to the court expressing dissatisfaction with the court's handling of Cannistraro's sentencing. Amended Brief in Support of 2 November 1989 Recusal Motion, Ex. A (the "2 November 1987 Bertoli Letter"). In the 2 November 1987 Bertoli Letter, Bertoli attacked the integrity of the court and cast aspersions on the court's "mannerisms" and views. Id. at 1. The 2 November 1987 Bertoli Letter concluded: "If you do not resign from the bench within thirty days, I will refer this matter to the Judiciary committee and bar association for action." Id. at 3.
By opinion, dated 22 March 1990, the 2 November 1989 Recusal Motion was denied. See Eisenberg, 734 F. Supp. 1137. Bertoli moved for reconsideration on 2 April 1990; this motion was denied by opinion dated 12 April 1990. See United States v. Eisenberg, 734 F. Supp. 1168 (D.N.J. 1990). Bertoli subsequently petitioned the Third Circuit for a writ of mandamus ordering recusal. On 18 May 1990, the Circuit filed an order denying Bertoli's petition for mandamus without requiring a response from the Government.
On 24 July 1990, Cannistraro moved for recusal of the court (the "24 July 1990 Recusal Motion"). By letter, dated 26 July 1990, Bertoli joined in the 24 July 1990 Recusal Motion. By letter opinion, dated 16 August 1990, the 24 July 1990 Recusal Motion was denied. See United States v. Eisenberg, F. Supp. , No. 89-218, slip op. (D.N.J. 16 Aug. 1990). The Third Circuit dismissed Bertoli's subsequent appeal.
On 12 March 1991, Bertoli and Cannistraro again moved for the recusal of the court (the "12 March 1991 Recusal Motion"). The 12 March 1991 Recusal Motion was based on a purported "public opinion survey [which] was commissioned to ascertain what a citizen of New Jersey would feel concerning the court's impartiality knowing the background of this case." United States v. Eisenberg, 773 F. Supp. 662, 733 (D.N.J. 1991) (citing Brief of Cannistraro in Support of 12 March 1991 Recusal Motion at 14). By opinion, dated 26 July 1991, the 12 March 1991 Recusal Motion was denied. See Eisenberg, 773 F. Supp. at 734.
By letter, dated 17 December 1992, Bertoli requested, for a fourth time, the recusal of the court (the "17 December 1992 Recusal Motion"). The 17 December 1992 Recusal Motion was based on the court's 7 December 1992 letter to the parties, directing Defendants to enclose a cover letter when serving trial subpoenas duces tecum. At a pretrial hearing on 12 January 1993, the 17 December 1992 Recusal Motion was denied. Bertoli thereafter petitioned the Third Circuit for a writ of mandamus recusing the court. By order, dated 21 April 1993, the Third Circuit once again refused to grant Bertoli the requested writ of mandamus. On 27 May 1993, Bertoli petitioned the Supreme Court for certiorari on the recusal issue. On 4 October 1993, the Supreme Court denied certiorari. See Bertoli v. United States District Court for the District of New Jersey, 126 L. Ed. 2d 45, U.S. , 114 S. Ct. 77 (1993). As stated, the Sentencing Recusal Motion followed on 6 October 1993.
Section 455(a) of title 28 provides: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Under section 455(a), a court must consider sua sponte whether disqualification is warranted; no onus is placed on the parties to submit affidavits in support of disqualification, or even to move for disqualification.
See United States v. Schreiber, 599 F.2d 534, 539 (3d Cir.), cert. denied, 444 U.S. 843, 62 L. Ed. 2d 56, 100 S. Ct. 86 (1979).
"In determining whether recusal is required under this provision, [the court] must apply an objective standard." Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir. 1987). More specifically, "a judge must consider whether a reasonable person knowing all the circumstances would harbor doubts concerning the Judge's impartiality." Jones v. Pittsburgh National Corp., 899 F.2d 1350, 1356 (3d Cir. 1990); see Edelstein, 812 F.2d at 131; United States v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983).
Recusal under section 455(a) "must rest on the kind of objective facts that a reasonable person would use to evaluate whether an appearance of impropriety had been created, not on 'possilities' and unsubstantiated allegations." United States v. Martorano, 866 F.2d 62, 68 (3d Cir. 1989), cert. denied, 493 U.S. 1077, 107 L. Ed. 2d 1034, 110 S. Ct. 1128 (1990). "Disagreement with a judge's determinations certainly cannot be equated with the showing required to so reflect on his [or her] impartiality as to dictate recusal." Jones, 899 F.2d at 1356.
Generally, "only extrajudicial bias requires disqualification" under section 455(a). United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988); see Liteky v. United States, U.S. , No. 92-6921, 1994 WL 64713 at *9 (7 Mar. 1994) (Bias not derived from extrajudicial source will "rarely" require recusal under section 455(a), and whether bias is extrajudicial is "often determinative" of recusal inquiry.); Johnson v. Trueblood, 629 F.2d 287, 291 (3d Cir. 1980), cert. denied, 450 U.S. 999, 68 L. Ed. 2d 200, 101 S. Ct. 1704 (1981). "'Extrajudicial bias' refers to a bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceedings."
Sciarra, 851 F.2d at 634 n.28; see United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case."); Johnson, 629 F.2d at 291.
Where a "trial judge's . . . comments [are] linked to his [or her] evaluation of the case based on the pleadings and other materials outlining the nature of the case," such comments will not constitute extrajudicial bias. Johnson, 629 F.2d at 291. "Also not subject to deprecatory characterization as 'bias' or 'prejudice' are opinions held by judges as a result of what they learned in earlier proceedings [with the same defendant]. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant." Liteky, U.S. at , 1994 WL 64713 at *7; see United States v. Sinclair, 424 F. Supp. 715, 718 (D.Del. 1976) ("It is equally clear that a claim of prejudice based on judicial knowledge gained from prior hearings or other cases is not sufficient grounds for disqualification of a judge whether it be from prior judicial exposure to the defendant or prior judicial rulings adverse to the defendant in same or similar cases.").
As a consequence of the "extrajudicial source factor," "judicial rulings alone almost never constitute valid basis for a bias or partiality motion (under section 455(a)]. In and of themselves . . ., they cannot possibly show reliance upon an extrajudicial source, and can only in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved." Liteky, U.S. at , 1994 WL 64713 at *9; see Johnson, 629 F.2d at 291 ("The judge's rulings at trial do not constitute grounds for recusal because they can be corrected by reversal on appeal.").
"Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky, U.S. at , 1994 WL 64713 at *9. The Supreme Court has explained that judicial remarks during the course of trial may require recusal:
A criminal defendant's public allegations of misconduct on the part of the court will not support recusal from sentencing without some other "evidence from which it could be inferred that [the court] harbored ill will against [the defendant]. . . ." Martorano, 866 F.2d at 69. "By training and inclination, judges meet media criticism of their actions with robust insensitivity." Id. ; see In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D.Conn. 1983) ("It is clear that a judge is not disqualified under 28 U.S.C. § 455 (or under 28 U.S.C. § 144 for that matter) merely because a litigant sues or threatens to sue him. . . . Neither is a litigant's scurrilous attack on a presiding judge a valid ground for recusal. . . ."); United States v. Garrison, 340 F. Supp. 952, 957 (E.D.La. 1972) ("To allow prior derogatory remarks about a judge to cause the latter's compulsory recusal would enable any defendant to cause the recusal of any judge merely by making disparaging statements about him.").
c. Bertoli's Plan to Force Recusal
In support of the Sentencing Recusal Motion, Bertoli argues: "That the earlier, critical [November 1987 Letters stuck in the proverbial craw of the court is apparent." 6 October 1993 Letter at 2. As indicated in response to the 2 November 1989 Recusal Motion, the November 1987 Letters do no constitute a basis for the court's recusal. See Generally Eisenberg, 734 F. Supp. 1137.
It appears that the November 1987 Letters, the four other recusal motions, and indeed the Sentencing Recusal Motion itself, as the Government argues, are a part of a "plan to force the court's recusal" which was initiated before Bertoli's indictment. See Government's Memorandum in Response to Bertoli's 6 October 1993 Letter, dated 15 October 1993 (the "15 Oct. 1993 Government Brief") at 8-14.
As stated in the opinion denying the 2 November 1989 Recusal Motion: "At least by the time of the 1987 Cannistraro Indictment, it appears Bertoli was aware that he was a subject of a grand jury investigation which also concerned Eisenberg." Eisenberg, 734 F. Supp. at 1145. According to interviews of Eisenberg conducted in September 1991 and on 13 October 1993 (the "Eisenberg Interviews"), "after [the 1987 Cannistraro Indictment], . . . Bertoli told Eisenberg that Bertoli expected that he and Eisenberg would be the next to be indicted. Bertoli also told Eisenberg that he expected that the Honorable Alfred J. Lechner, Jr., who was presiding over the Cannistraro case, would also be assigned to hear their case." Affidavit of Michael J. Cahill, Special Agent of Federal Bureau of Investigation (the "Cahill Recusal Aff."), P 2.
According to the Eisenberg Interviews:
Bertoli told Eisenberg that he considered Judge Lechner to be a tough sentencer, that he had a plan to ensure that Judge Lechner could not preside over their case, and that he would cause problems for Judge Lechner with his tactics.
After Cannistraro was sentenced on [2 November] 1987, Bertoli told Eisenberg that he had sent [the November 1987 Letters to Judge Lechner and to Washington and other places. Moreover, he told Eisenberg that these letters were highly critical of Judge Lechner, that they would antagonize him, and that they would ensure that Judge Lechner could not preside over their expected prosecutions. Bertoli also told Eisenberg that, after their expected indictment, Bertoli planned to say that as a result of these letters they could not receive a fair trial in front of Judge Lechner.
Cahill Recusal Aff., PP 2-3.
BERTOLI: . . . my letter complaint on Lechner is in the mail today.
BERTOLI: Ahh . . . the second the second paragraph I'll use (unintelligible). The second paragraph says Mr. [sic ] Lechner has displayed lack of judicial temperament and truly needs psychiatric help and analysis. He should love me for that.
Government's Brief in Opposition to the 2 November 1989 Recusal Motion, dated 17 November 1989 (the "17 Nov. 1989 Government Brief"), Ex. 1 (tape recording at approximately counter number 184).
The existence of Bertoli's plan is also shown by evidence of Bertoli's attempts to judge-shop on other occasions. In 1975, the SEC filed the 1975 SEC Proceeding against Bertoli in connection with his New York City brokerage firm, Executive Securities. See Eisenberg, 734 F. Supp. at 1146. The matter was assigned to Administrative Law Judge Ralph Tracy ("Judge Tracy"). By letter and affidavit, both dated 7 April 1976, Bertoli demanded Judge Tracy's recusal "based on bias and prejudice of said Judge." 17 Nov. 1989 Government Brief, Ex. 5. Bertoli warned Judge Tracey: "In the event of your failure to respond within ten days, I will have no choice but to move in the United States District Court for your removal." Id. By order, dated 16 April 1976, Judge Tracy denied Bertoli's motion for recusal. Id. The SEC found Bertoli's claims of bias against Judge Tracy to be "without substance." 18 SEC Docket 486, 491, Release No. 34-16220, 1979 WL 17048 at *4 (25 Sept. 1979).
Bertoli's proclivity for judge-shopping resurfaced during a 1976 to 1977 Federal grand jury investigation of Bertoli's role in the collapse of Executive Securities. Eisenberg, 734 F. Supp. at 1145. As appears from a series of letters between Bertoli and the United States Attorney's Office in 1976 and 1977, Bertoli was aware of the then pending grand jury investigation. See Eisenberg, 734 F. Supp. at 1145-46; 17 Nov. 1989 Government Brief, Ex. 3.
On 23 April 1977, Bertoli addressed a letter to then United States Attorney General Griffin Bell, President Jimmy Carter and other officials of the Government, "demanding that United States District Court Judges Fredrick Lacey [("Judge Lacey")] and Lawrence [(sic)] Stern [("Judge Stern"), both of the District of New Jersey,] be indicted." 17 Nov. 1989 Government Brief, Ex. 4. Bertoli made outrageous unsupported allegations about Judge Lacey and Judge Stern. Id. It turned out, however, that when Bertoli was indicted on 20 June 1977, as a result of a 'blind assignment,' neither Judge Lacey nor Judge Stern was assigned to Bertoli's case. See Eisenberg, 734 F. Supp. at 1147.
It appears Bertoli's actions in this case are another such attempt at judge-shopping. His transparent attempts to cause recusal through the November 1987 Letters were unsuccessful, and cannot constitute a basis for the court's recusal under section 455(a).
See Martorano, 866 F.2d at 69; In re Martin-Trigona, 573 F. Supp. at 1243; cf. Dalfonso, 707 F.2d at 761 ("This potential judge shopping problem was not lost upon the framers of the Federal recusal statute."). Accordingly, to the extent the Sentencing Recusal Motion is predicated on the November 1987 Letters, the motion is without merit.
d. Statements and Rulings of the Court
The Sentencing Recusal Motion is predicated primarily on several statements and rulings made prior to and during Bertoli's trial. Bertoli first points to the proceedings of 2 July 1993, and to the court's statement:
6 October 1993 Letter at 2 (quoting Trial Transcript at 2945). Bertoli argues that the court's "spontaneous exhumation" of the November 1987 Letters "demonstrates -- or at least creates the appearance of -- the court's continuing hostility toward Bertoli." 6 October Letter at 2.
These comments neither demonstrate a disposition of the court toward Bertoli nor compel recusal. Johnson, 629 F.2d at 291. As indicated, Bertoli wrote the November 1987 Letters in response to the court's 2 November 1989 sentencing of Cannistraro, and in anticipation of his trial before this court on a related indictment. Bertoli relied on the November 1987 Letters in his 2 November 1989 Recusal Motion. See supra at 346. Comments of the court referring to the November 1987 Letters, and to Bertoli's reliance thereon in the 2 November 1989 Recusal motion, were based upon "prior judicial exposure" to Bertoli, and do not evidence extrajudicial bias. Sinclair, 424 F. Supp. at 718; see Liteky, U.S. , 1994 WL 64713 at *9.
Perhaps more importantly, these comments do not in the least evidence "hostility toward Bertoli." 6 October 1993 Letter at 2. The comments to which Bertoli refers were not "spontaneous"; a cursory review of the record reveals Bertoli has removed these comments from their context in order to serve his argument for recusal. These comments were made during a conversation, outside the presence of the jury, concerning a 2 July 1993 letter from Bertoli objecting that the court had cut Bertoli off during his cross-examination of Eisenberg.
Bertoli was asked to point out the page and line in the trial transcript where the court had denied Bertoli the opportunity to cross-examine Eisenberg. When Bertoli was unable to produce the requested information, the court commented on his state of preparedness for trial:
I put this on the record a number of times. You are not prepared. You don't even have your questions ready, and you can't even give me the page and line with regard to this letter that you've written to me this morning.
Mr. Bertoli, I have bent over backwards to try to accommodate you. From day one in this case either you or your attorneys have been taunting me. You have been making up straw men and trying to knock them down. You've written bogus letters and say that's the reason I should recuse myself.
During the course of the trial you have been doing the same thing and you're doing it right now. You don't like something, you roll your eyes, you look at the floor and you won't respond to me.
The Government will move a document into evidence, another example. I'll look at you. You will affirmatively look away, I'll wait, you won't respond and I finally have to say "Mr. Bertoli." Then you'll respond to me.
The Government will make an objection, I'll look at you, you'll say nothing. We go to sidebar, more often than not the Government will say something, I'll look at you, you won't respond. You show displeasure.
I understand you're not happy being on trial here. I can't do anything about that, Mr. Bertoli, but I do need your cooperation.
Trial Transcript at 2945-46.
Taken in context, the remarks referred to by Bertoli were not, as Bertoli characterizes them, a "spontaneous exhumation of what [the court] perceived as a personal affront." 6 October 1993 Letter at 2. Rather, they were part of an assessment of Bertoli's conduct and preparedness during trial; the comments were based upon observations of such conduct and preparedness during the proceedings prior to and during the trial.
Bertoli next points to several comments, made at various stages of the proceedings, which Bertoli contends evidence "animosity toward Bertoli and his counsel:"
Certain of these statements took the form of the court's sharp and unfair criticism of Bertoli's examination of witnesses (i.e. Trial Transcript 2916: "You've done everything possible to confuse and obstruct."). Others took the form of expressing opinions regarding issues central to the case (e.g. Trial Transcript 4975, referring to transfers of funds from Caymans to Andorra: "That was brought up by Mr. Sachs, that sharp dealing in the Caymans."). Others reflected the court's belief that any application for [sic ] Bertoli for a mistrial was somehow false and contrived (e.g., the court's dismissive rejection of Bertoli's stated concern that jurors could hear the court's challenge to Bertoli during a bench conference to testify in his own behalf (Trial Transcript 3154-57.)).
6 October 1993 Letter at 2.
Each of the statements referred to by Bertoli was based upon observations of the conduct of Bertoli and his attorneys at various stages of the proceedings. Because these statements were based on the court's exposure, in its judicial capacity, to the conduct of Bertoli and his attorneys during the proceedings, they do not evidence extrajudicial bias, and do not constitute a basis for recusal. See Liteky, U.S. , 1994 WL 64713 at *9; Sciarra, 851 F.2d at 634 n.28.
The statements referred to by Bertoli do not, moreover, evidence any animosity toward Bertoli. The first statement referred to by Bertoli, "You've done everything possible to obstruct," was made in reference to the Government's objection to Bertoli's lengthy, unfocused and often irrelevant cross-examination of Eisenberg. After an extensive discussion on the issue at sidebar, the Government's objection was sustained. It was stated:
Mr. Bertoli, your cross-examination for the past three days has done anything but get to the issues. You've gone all over the block. You've done everything you can to confuse and obstruct. You've gone over the same area four or five times. I'm telling you under [Rules] 611 and 403, I'm on the verge of shutting you down.
The objection of the Government is sustained. You better start honing in with regard to your cross-examination.
Trial Transcript at 2916.
Viewed in context, these comments were a description of Bertoli's cross-examination tactics, and a warning that such tactics were in violation of the Federal Rules of Evidence and would not be tolerated. See Liteky, U.S. , 1994 WL 64713 at *9 (efforts at courtroom administration do not constitute grounds for recusal).
The third instance of "animosity" cited by Bertoli is the denial of Bertoli's 6 July Motion for Mistrial based on his contention that the jury could hear sidebar comments. See 6 October 1993 Letter at 2; Trial Transcript at 3156-57. The court's denial of Bertoli's 6 July Motion for Mistrial, constituting as it does a ruling of the court, does not provide a basis for recusal. See Liteky, U.S. at , 1994 WL 64713 at *9; Johnson, 629 F.2d at 291 (" The judge's rulings at trial do not constitute grounds for recusal because they can be corrected by reversal on appeal."). Bertoli's disagreement with this ruling "certainly cannot be equated with the showing required to so reflect on [the court's] impartiality as to dictate recusal." Jones, 899 F.2d at 1356. Moreover, as indicated, Bertoli's 6 July Motion for Mistrial was in fact meritless, and was properly denied. See supra, at 163.
Bertoli next refers to an admonishment for addressing the court with a pejorative term. 6 October 1993 Letter at 3. The court stated:
Mr. Bertoli, I don't like your wise comments. You're out of place. You're totally out of place, you're unprofessional. Now, please give me an estimate and don't give me another wisecrack like that again. Answer me please.
Trial Transcript at 2096-97. There was neither "a tirade," nor was there a "blow up at Bertoli," as Bertoli suggests. See 6 October 1993 Letter at 2, 3. On the contrary, there was a measured response to a wholly inappropriate, sarcastic comment from Bertoli. Bertoli was simply directed to answer the question posed to him. There was no further discussion on the subject. The comment, based on the court's observations of Bertoli at the moment, including the tone of voice, sarcasm and physical expression surrounding the comment, do not evidence extrajudicial bias. See Liteky, U.S. at , 1994 WL 64713 at *9. This response to Bertoli's sarcasm does not provide a basis for recusal. See Sciarra, 851 F.2d at 634 n.28.
Bertoli next refers to another reference to the actions of Bertoli and his attorneys in obtaining an ex parte injunction in the Cayman Islands. The court stated:
Because you and your client snuck down there after you misled me, an affirmative misleading of the court by your attorney[,] that's how all this arose. It was sneaky and underhanded and this case still may be referred to the Ethics Committee for Mr. Sachs.
Trial Transcript at 4977. Again, Bertoli does not explain the manner in which these comments evidence, or could be perceived to evidence, partiality. These comments simply referred to unsavory and highly questionable tactics by Sachs. No reasonable person knowing the sharp and misleading tactics employed by Sachs would be led to the position taken by Bertoli.
The comment concerning the "underhanded" tactics was, moreover, based upon observations of the conduct of Bertoli and his attorneys during the course of the proceedings. See Sciarra, 851 F.2d at 634 n.28. Accordingly, this comment does not evidence extrajudicial bias and does not form the basis for recusal. See Liteky, U.S. at , 1994 WL 64713 at *9.
Finally, Bertoli argues the "hostility by the court toward the defense was further evidenced by the court's determination to remand Bertoli following the jury's verdict. . . ." 6 October 1993 Letter at 4. This determination fails to provide a basis for recusal for several reasons. First, the determination to remand Bertoli (the "Remand Order") was a ruling of the court, and as such does not provide a basis for recusal.
See Liteky, U.S. at , 1994 WL 64713 at *9; Johnson, 629 F.2d at 291. Bertoli's reliance on the Remand Order in requesting recusal is yet another example of his continued attempts to misuse the recusal statute to oppose every ruling of the court with which he does not agree. As stated, a motion for recusal is not the proper avenue by which to express such disagreement. See Jones, 899 F.2d at 1356.
The Remand Order, moreover, was based on evidence and conduct observed by the court during the proceedings in Bertoli's case. As further detailed below, such evidence and conduct was what led the court to believe Bertoli posed a substantial risk of flight, and accordingly to issue the Remand Order. The Remand Order therefore does not evidence extrajudicial bias, and does not provide a basis for recusal. See Sciarra, 851 F.2d at 634 & n.28.
No reasonable person viewing the facts of Bertoli's case would be led by the Remand Order to question the impartiality of the court. The court had the opportunity to view for four years the conduct of Bertoli and the evidence concerning the likelihood of his fleeing custody. The court observed that Bertoli was "thoroughly familiar and experienced in international monetary transactions." Trial Transcript at 6942. It was further observed Bertoli "has contacts in various countries." Id. Bertoli's weak roots in the community and previous convictions were also noted. Id. Furthermore, Bertoli had been convicted of engaging in criminal conduct while released on bail in this case. See Count Three, P 27; see also infra at 468. Based on this analysis of the evidence in the record and the conduct of Bertoli as observed during trial, it was determined that Bertoli was likely to flee custody; accordingly, the Remand Order was issued.
None of the statements or rulings referenced in the 6 October 1993 Letter provide a basis for the recusal of the court under section 455(a). Quite to the contrary, over the four years during which Bertoli has been before this court, he has been treated with unfailing patience, professionalism and courtesy.
Bertoli's effort to recuse this court has been before this court four other times and before the Third Circuit three times. In every such instance, this court and the Circuit refused to order recusal. All parties have relied on and operated under the Circuit's consistent refusal to order recusal. Nothing submitted by Bertoli in connection with the Sentencing Recusal Motion sheds doubt on the prior refusals of this court and the Circuit to grant recusal. Accordingly, the Sentencing Recusal Motion is denied.
On 24 August 1993, after ten days of deliberations, the jury returned a verdict finding Bertoli guilty on Count Three, which charged a violation of 18 U.S.C. § 317 (conspiracy), and Count Six, which charged a violation of 18 U.S.C. § 1503 (obstruction of justice). Count Three charged Bertoli with conspiracy to obstruct justice in a total of five proceedings beginning as early as 8 March 1983 and continuing through 17 January 1992. Count Six charged that Bertoli and Eisenberg knowingly obstructed the investigation and prosecution of the present criminal action against Bertoli by causing the transfer of racketeering proceeds and related documents from the Cayman Islands to the Principality of Andorra in Europe.
Each of sections 317 and 1503 carries a maximum sentence of five years. In addition, Bertoli committed the offense described in Count Three and Count Six while on pretrial release in the instant case. Accordingly, Bertoli is subject to an additional ten-year period of incarceration pursuant to 18 U.S.C. § 3147, which provides in pertinent part:
18 U.S.C. § 3147 (emphasis added); see United States v. Di Pasquale, 864 F.2d 271, 279-80 (3d Cir. 1988), cert. denied sub nom., Di Norscio v. United States, 492 U.S. 906 (1989).
On 28 March 1994, Bertoli was sentenced to two one-hundred-month sentences to run concurrently. See Transcript of Proceedings, dated 28 March 1994 (the "Sentencing Hearing Transcript"), at 12. Specifically, on Count Three, Bertoli was sentenced to sixty months for his violation of 18 U.S.C. § 371 and forty months, to run consecutively, for the violation of 18 U.S.C. § 3147 in connection with that count. On Count Six, he was sentenced sixty months for the violation 18 U.S.C. § 1503 and forty months, to run consecutively, for an additional violation of 18 U.S.C. § 3147 in connection with that count. Upon his release from prison, Bertoli is subject to three years of supervised release. Bertoli was also assessed a $ 7,000,000 fine.
The following facts, which provide the basis for sentencing, have been established at trial and during sentencing, by at least a preponderance of the evidence.
i. Bertoli's Activities at Executive Securities
Prior to 1977, Bertoli was president and chief executive officer of Executive Securities. On 14 February 1975, the SEC filed an action against Bertoli and Executive Securities in the United States District Court for the Southern District of New York, seeking preliminary and permanent injunctive relief (the "1975 SEC Action"). See SEC v. Executive Securities Corp., 75 Civ. 733, Final Judgment of Permanent Injunction by Consent, dated 17 March 1975 (the "1975 Injunction"), Government Sentencing Ex. 1, at 1. The action alleged Bertoli and others at Executive Securities had engaged in fraudulent securities trading and bookkeeping activities. Upon the joint application by the SIPC and the SEC, Executive Securities "was placed in liquidation" and a trustee was appointed by the United States District Court for the Southern District of New York. Trial Transcript at 676-677.
be and hereby are permanently enjoined from directly or indirectly failing to make, keep and preserve accurate and current such accounts, ledgers, papers, books and other records as required by section 17(a) of the Securities Exchange Act . . . and [Rules 17a-3 and 17a-4] thereunder.
SEC Bar at 2. The district court further ordered that Bertoli was "permanently enjoined from aiding and abetting violations of section 17(a) . . . and Rules [17a-3 and 17a-4] with respect to Executive Securities . . . or any other broker-dealer with respect to which . . . Bertoli may become a principal or controlling person." Id. Bertoli consented to the entry of the 1975 Injunction but did not admit or deny any of the substantive allegations of the 1975 SEC Action. Id. at 3.
In July 1975, also in connection with Bertoli's fraudulent activities at Executive Securities, the SEC brought the 1975 SEC Proceedings against Bertoli. During the 1975 SEC Proceedings, the SEC found, by clear and convincing evidence, that, during the period from October 1975 to February 1975, Bertoli had "engaged in a scheme to defraud by failing to deliver stock of Centronics Data Computer Corp. to customers who had paid for the stock." In the Matter of Richard O. Bertoli and Arnold L. Freilich, 18 SEC Docket 486, 487 (25 Sept. 1979). The 1975 SEC Proceedings resulted in the SEC Bar on 25 September 1979. Id. at 492. Pursuant to the SEC Bar, Bertoli was "barred from association with any broker or dealer." Id. Specifically, the order entered stated:
ORDERED, that Richard O. Bertoli and Arnold L. Freilich be, and they hereby are barred from associating with any broker or dealer.
SEC Bar, Government Sentencing Ex. 2.
In a related action in 1977, Bertoli was named in a seventy-seven count indictment charging him with conspiracy, mail fraud, securities fraud, maintenance of false records and submission of false records to the SEC -- the 1977 Indictment. See Government Sentencing Exs. 4, 5. Bertoli pleaded nolo contendere to the 1977 Indictment. Government Sentencing Ex. 4. By judgment order, dated 27 July 1978, Bertoli was sentenced to probation for a period of five years from that date (the "1977 Probation Order"). Id. Bertoli was also fined $ 10,000 and required to perform six hours of community service per week during the period of his probation. Id.
In 1977, in yet another related action, Executive Securities, by its trustee in liquidation, instituted the SIPC Suit against Bertoli, Executive Securities Corp. v. Bertoli, 77 Civ. 714 (S.D.N.Y.), claiming approximately $ 2.9 million in damages. See Trial Transcript at 675. The $ 2.9 million represented money that Executive Securities and its customers had lost as a result of Bertoli's fraudulent trading activities at Executive Securities. The SIPC joined the SIPC Suit as a plaintiff in 1982. Id. at 679. The SIPC Suit has been stayed by Bertoli's filing of the Bankruptcy Petition on or about 11 October 1983.
As a result of the action being stayed, the SIPC, which insures customers of brokerage houses, was required to pay out more than $ 2 million to the customers of Executive Securities who had been defrauded by Bertoli and others at Executive Securities. Id. at 677. The brokerage firms which had been defrauded sustained unreimbursed losses of about $ 1,000,000.
At some point after the legal troubles at Executive Securities began in the mid 1970's, Bertoli attempted to convey to his brother John Bertoli ("John Bertoli") and his own minor children, personal and corporate assets. This was an attempt by Bertoli to remove those assets from the reach of his Executive Securities creditors. In an action (the "Rutherford Suit") filed in the Superior Court of New Jersey (the "Superior Court"), the appointed trustee of Executive Securities sought to have the transfers declared fraudulent. See Executive Securities Corp. v. Richard O. Bertoli, No. C-5-88-79, slip op. (Ch.Div. 23 Feb. 1983) (the "Rutherford Opinion"), Government Sentencing Ex. 8.
As a result of the Rutherford Suit, the Superior Court appointed a trustee to take over Rutherford's assets and entered a judgment barring Bertoli and John Bertoli from disposing of the assets and interfering with the operations of the trustee. Id. at 17. As stated by the Superior Court:
None of the transfers consisted of a directed property transfer which would have been easily detected. Instead, defendants systematically stripped a number of entities in which [Bertoli] had a substantial ...