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UNITED STATES v. BERTOLI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 30, 1994

UNITED STATES OF AMERICA, Plaintiff
v.
RICHARD O. BERTOLI, Defendant.

LECHNER

[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. *fn210" 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. *fn211"

 a. 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. *fn212"

 

. . .

 

[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. *fn213" Levitt Aff., P 5. During this investigation, Bertoli learned Juror Six was party to a lawsuit (the "MLBFS Suit") involving her husband ("WW") *fn214" 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.

 On 15 August 1991, Merrill Lynch Financial filed a complaint (the "MLBFS Complaint") in the Supreme Court of the State of New York, New York County, naming as defendants Shorlane-Benet Co., Inc. ("Shorlane"), WW and Juror Six. See MLBFS Complaint, attached as Exhibit A to the Levitt Aff., at 1. According to the MLBFS Complaint, Shorlane was a New York corporation and WW was its president. Id., PP 2-3.

 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); *fn215" 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. *fn216" In light of these facts, the "Merrill Lynch" named on the Witness List was Merrill Lynch Securities, the New York securities brokerage firm. *fn217" 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.

 In addition, the MLBFS Suit was not the type of "dealing" to which Question 2 referred. *fn218" As indicated, the MLBFS Suit involved a note and guaranty. See MLBFS Complaint. That suit had no relation to securities or to the trading thereof. Because it was clear the instant suit involved securities, and did not involve a note or mortgage, it was equally clear the MLBFS Suit could have no bearing on a juror's ability to decide the instant case fairly. As indicated, jurors were informed, prior to the conducting of voir dire, that the voir dire questions were concerned solely with fairness and impartiality. Trial Transcript at 3. Bertoli did not object to this statement or to the form of voir dire or ask for any follow-up inquiry. Under these circumstances, Juror Six was not required by Question 2 to reveal the existence of the MLBFS Suit. See Aponte-Suarez, 905 F.2d at 492 ("Jurors cannot be faulted for failing to disclose their previous service since they were never asked during the course of voir dire to make such a disclosure.").

 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.

 Id.

 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.

 Id. at 827

 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.

 As stated, Bertoli also argues Juror Six's failure to disclose the existence of the MLBFS Suit constituted a false answer to Question 13. This contention is also unpersuasive. Question 13, as stated, merely asked whether the prospective jurors had "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 [them] from being fair and impartial in this case." Trial Transcript at 80.

 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. *fn219" See McDonough, 464 U.S. at 556.

  Finally, Bertoli argues Juror Six should have disclosed her husband's relationship with Shorlane in response to Question 27. See 7 March 1994 Bertoli Brief at 7. The relevant portion of that question asks whether the prospective juror or a family member has "ever assisted in the formation of a corporation and, if so, is there anything about [that] which would prevent [the juror] from being fair and impartial in this case?" Trial Transcript at 82.

 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. *fn220"

 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.").

 Juror Six's statements during voir dire placed Bertoli on notice with respect to WW's relationship with his business. Because he failed to raise, or sought to explore, the issue of WW's relationship with Shorlane until after the verdict, Bertoli cannot now argue Juror Six was biased because of this relationship. See Aponte-Suarez, 905 F.2d at 492.

 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. *fn221" See McDonough, 464 U.S. at 556.

 3. Bertoli's Motion to Recuse Court from Sentencing

 a. Background

 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.

 On 3 November 1987, Bertoli addressed a letter to then Justice Thurgood Marshall of the United States Supreme Court. Amended Brief in Support of 2 November 1989 Recusal Motion, Ex. B (the "3 November 1987 Bertoli Letter") (collectively with the 2 November 1987 Bertoli Letter, the "November 1987 Letters"). The 3 November 1987 Bertoli Letter purported to be a "formal complaint and request to reprimand and take such other action including impeachment. . . ." Id. at 1. In the 3 November 1987 Bertoli Letter, Bertoli again expressed dissatisfaction with this court's handling of the 1987 Cannistraro Indictment.

 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.

 b. 28 U.S.C. § 455(a)

 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. *fn222" 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." *fn223" 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:

 

if they reveal an opinion that derives from an extrajudicial source, and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . . Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as Federal judges, sometimes display. A judge's ordinary efforts at courtroom administration -- even a stern and short-tempered judge's ordinary efforts at courtroom administration -- remain immune.

 Id. (emphasis added).

 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.

  The information obtained in the Eisenberg Interviews is consistent with that obtained in a Government tape recording of a telephone conversation between Cannistraro and Bertoli during Cannistraro's incarceration on the 1987 Cannistraro Indictment: *fn224"

  

BERTOLI: . . . my letter complaint on Lechner is in the mail today.

  

CANNISTRARO: Okay.

  

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). *fn225" 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:

  

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.

  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.

  As is apparent, the comments were made as part of a request that Bertoli cease his contentious conduct and cooperate. The comments were not an expression of a disposition toward Bertoli; a reasonable person could not conclude otherwise. See Jones, 899 F.2d at 1356; see also Liteky, U.S. , 1994 WL 64713 at *9 (" Ordinary efforts at courtroom administration," even those containing "expressions of impatience [or] dissatisfaction" do not require recusal.).

  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).

  Bertoli's characterization of the court's reference to "sharp dealing in the Caymans" as "expressing opinions regarding issues central to the case" is simply inaccurate. *fn226" 6 October 1993 Letter at 2. A review of the record reveals the comment about "sharp dealing" was not, as Bertoli suggests, a reference "to transfers of funds from [the] Caymans to Andorra." Id. The statement was made outside the presence of the jury, during a hearing on 22 July 1993. The Government informed the court that its motion for a letter rogatory had been delayed by Bertoli's Cayman Islands Ex Parte Injunction. *fn227" The court stated: "That was brought up by Mr. Sachs, that sharp dealing down in the Caymans." Trial Transcript at 4975. In context, the court's statement regarding "sharp dealing" did not refer to the alleged transfers of funds from the Caymans to Andorra. It referred to the ex parte injunction obtained by Bertoli without notice to either the court or the Government, after Sachs requested a stay in deciding certain motions.

  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.

  Bertoli next relies on the request, prior to charging the jury, that Bertoli's attorney justify certain comments made during summation the previous day. 6 October 1993 Letter at 3-4. Bertoli and his attorneys may disagree with the request, but such disagreement does not require recusal of the court. Bertoli cannot use the Federal recusal statute as a means to oppose every ruling or request of the court with which he does not agree; that sort of opposition is properly expressed on appeal. *fn228" See Liteky, U.S. at , 1994 WL 64713 at *9; Jones, 899 F.2d at 1356.

  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. *fn229" 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. *fn230"

   The fact that the Third Circuit reversed the Remand Order in part, and placed Bertoli under strict supervised release with electronic monitoring, does not show partiality on the part of the court. See Bertoli v. United States, No. 93-5511, slip order (3d Cir. 27 Aug. 1993) (the "27 Aug. 1993 Circuit Order"). The determination with respect to the Remand Order was made, as it must have been made, on the facts before the court at the time of sentencing. The fact that the Circuit did not agree entirely with this determination in no way leads to the conclusion that the Remand Order was motivated by prejudice. To conclude otherwise would require the recusal of a trial judge every time an order of that judge was not upheld on appeal.

  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. *fn231"

  4. Sentencing232

  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:

  

A person convicted of an offense committed while on [pretrial release] shall be sentenced in addition to the sentence prescribed for by the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony.

  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.

  a. Facts233

  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. *fn234"

  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.

   On 17 March 1975, by final consent judgment, the district court ordered that Bertoli and his "agents, servants, employees, attorneys and assigns"

  

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 the Superior Court found in the Rutherford Suit, Bertoli, with the knowledge he was being accused of fraud at Executive Securities and that he faced substantial liability if the fraud charges were proven, had fraudulently created Rutherford Construction Co. ("Rutherford"). See id. Rutherford was a partnership comprised of John Bertoli, as the general partner, and Bertoli's three minor children, as limited partners. Id. at 4-5. After forming Rutherford, Bertoli conveyed to the partnership personal and corporate assets. Id.

  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 direct or indirect interest of all their valuable assets.

  

When the divestitures were completed, [Bertoli's] stock holdings had not been outwardly altered. In actuality, however, they had been rendered worthless.

  

. . .

  

From the totality of the proof, therefore, I find that the transfers to [Rutherford] were made with the intent of defrauding the unmatured claims of shareholders and creditors of [Executive Securities]. They were fraudulent transfers. . . . Bertoli and John Bertoli together were perpetrators of the fraud and are equally culpable. John [Bertoli] is a mere figurehead for [Bertoli] in [Rutherford].

  Id. at 4, 17.

  ii. The Stock Manipulation Schemes

  In or about 1982 or 1983, Bertoli began working behind the scenes at Monarch. See 1993 Cannistraro Plea Allocution 22. From November 1982 to June 1983, Eisenberg permitted Bertoli to use Monarch's offices to "promote" and "arrange" securities transactions. Trial Transcript at 2256. As Eisenberg explained at trial: "He [Bertoli] used to come to my office, we used to talk. We were involved with various securities. . . . He introduced me to a few underwritings." Id. at 2268.

  In addition, Bertoli "used to sit in [Monarch's] office . . . when LCI, Toxic [Waste] and High Tech were trading." Id. In fact, Bertoli "introduced" Monarch to LCI, Toxic Waste and High Tech securities, whereupon Monarch came to underwrite IPOs for these securities. Bertoli hired the lawyer who represented Monarch in the LCI IPO, the Toxic Waste IPO and the High Tech IPO.

  Bertoli was the orchestrator of the LCI Scheme, the Toxic Waste Scheme and the High Tech Scheme (collectively, the "Stock Manipulation Schemes") at Monarch. Bertoli brought LCI, Toxic Waste and High Tech to Monarch, he directed how the IPOs for each of those companies were going to be structured and he was the person ultimately responsible for directing the Stock Manipulation Schemes.

  Bertoli introduced LCI to Monarch by representing to Eisenberg that he "was working as a consultant for some outfit in Washington, D.C., . . . some kind of liaison." Id. at 2270. Bertoli told Eisenberg he could introduce Eisenberg to an underwriter for LCI in the expectation that Monarch could underwrite the LCI IPO. Id. Bertoli "said that whatever [LCI] wanted him to do, he could set it up for them. He knew the company, he knew the underwriter, there would be no problem for him to get [Eisenberg] to do the deal." Id. Bertoli later introduced Monarch to Toxic Waste and High Tech.

  Bertoli determined that LCI securities would be sold in the form of units, and that the units would consist of one share of common stock and two warrants. Bertoli further determined each unit of LCI stock would be priced at $ 0.25 and that the warrants could be converted to a share of common stock at a price of $ 0.375 per share. Neither Eisenberg nor any other employee of Monarch took part in these decisions.

  As with the LCI IPO, Bertoli orchestrated the Toxic Waste IPO and the High Tech IPO. Bertoli determined the Toxic Waste IPO would be structured in a manner identical to the LCI IPO. Id. at 2275. Neither Eisenberg nor any other employee of Monarch participated in the structuring of the Toxic Waste IPO.

  Bertoli maintained similar control over the structuring of the High Tech IPO. Bertoli determined that each unit of High Tech stock would be priced at $ 0.50 and that a unit would consist of one share of common stock and four warrants. Id. at 2276-77. Bertoli further determined each warrant would be convertible to a share of common stock at a price of $ 0.75 per share. Eisenberg was not involved in the structuring of the High Tech IPO. *fn235"

  While involved with Monarch and before the IPOs, Bertoli conceived a plan to manipulate the prices of the securities of LCI, Toxic Waste and High Tech. The LCI Scheme, the Toxic Waste Scheme and the High Tech Scheme were "almost identical," each consisting of "boxing the stock and manipulating the price, [and] creating demand." Id. at 2338.

  Boxing the IPOs consisted of Bertoli and his partners allocating the units of the IPOs to a small number to "players that [Eisenberg and Bertoli] knew [they could] control." Id. at 2280. This meant those "players" agreed to help restrict the purchase and sale of the stocks in accordance with Bertoli's and Eisenberg's instructions, thus creating demand and ensuring the price of the stock would rise.

  The stock manipulations by Bertoli, Cannistraro, Eisenberg and their co-conspirators, for example, led to the price of LCI stock rising from $ .25 to $ 1.625, the price of High Tech stock rising from $ .50 to $ 3.25 and the price of Toxic Waste stock rising from $ .50 to $ 4.50 in a matter of months following the IPO's of each company. After the price had risen, Bertoli and his co-conspirators sold their shares at a profit. After the insiders had sold their shares, however, the stock prices dropped dramatically. As a result, the public investors who bought the stocks at the artificially increased prices and then held them for investment purposes lost significant amounts of money.

  After the price of the stock had risen to a certain level, outside buyers were brought in to purchase the stock. Cannistraro, who was an analyst at Wood Gundy, helped bring in outside buyers by writing favorable reports about the IPOs. Id. at 2281; see 1993 Cannistraro Plea Allocution at 25.

  Bertoli also performed as a "player" *fn236" for several accounts held in the names of his family members, but did not have accounts in his own name at Monarch. Bertoli stated to Eisenberg that he engaged in this practice to conceal his violation of the SEC Bar and to hide his assets from his bankruptcy proceedings. *fn237" Bertoli personally controlled trading in several Monarch accounts, comprising more than 253,000 units of LCI stock, more than 272,000 units of Toxic Waste stock and more than 300,000 units of High Tech stock.

  Bertoli also exercised control over the consummation of the Stock Manipulation Schemes. Bertoli determined, before trading began, that the price of the stocks would be $ 1.00 to $ 1.25 per share soon after the IPOs. Bertoli gradually but deliberately raised the prices of the stock through a series of fraudulent "up-tick" trades. By this technique, Bertoli was able to raise the prices of the stocks to $ 1.25 per share within the first few days of aftermarket trading without invoking the suspicion of securities regulators or law enforcement authorities.

  Bertoli made "the major decision" regarding the allocation of stocks to players. Eisenberg and Bertoli "talked to the players about their responsibilities' in the stock manipulation schemes. Id. at 2302, 2321. Bertoli alone, however, discussed the schemes with Cannistraro, Cooper and Lugo, and had similar discussions with Quinn and Coppa. In fact, Eisenberg, had to seek approval of major trades from Bertoli.

  Profits from the Stock Manipulation Schemes

  Both at trial and from the evidence submitted by the Government for purposes of sentencing, it was established that Bertoli, Eisenberg and Cannistraro profited in excess of $ 6,000,000 from the Stock Manipulation Schemes. Bertoli and his co-conspirators gained $ 462,820.00 from the LCI Scheme, $ 4,235,180.00 from the Toxic Waste Scheme and $ 1,768,727.50 from the High Tech Scheme. See Government Sentencing Exs. 9, 10 and 11. The profits from the Stock Manipulation Schemes were to be divided equally among Bertoli, Eisenberg and Cannistraro.

  The Cayman Accounts

  Bertoli, Cannistraro and Eisenberg each held accounts in various Cayman Islands banks (the "Cayman Accounts") in which they deposited profits generated from the Stock Manipulation Schemes. In addition, Bertoli, Cannistraro and Eisenberg had companies created in the Cayman Islands to which they transferred profits from the Stock Manipulation Schemes and through which they purchased stock. In particular, there were three sets of Cayman Islands companies (the "Paget Brown Companies") formed by Coleman of Paget Brown and owned by Bertoli, Cannistraro and Eisenberg: (1) Amersham Holdings Ltd. (owned by Bertoli), Galteco Ltd. (owned by Cannistraro) and Ochec Ltd. (owned by Eisenberg) (collectively, the "First set of Paget Brown Companies"); (2) Midco Ltd. (owned by Bertoli), Coastco Ltd. (owned by Cannistraro) and Whiteco Ltd. (owned by Eisenberg) (collectively, the "Second Set of Paget Brown Companies"); and (3) Beecham International Corp. ("Beecham") (owned by Bertoli), Centurion (owned by Cannistraro) and Eastern Funds Corp. ("Eastern") (owned by Eisenberg) (collectively, the "Third Set of Paget Brown Companies"). Until early 1990, Coleman managed the records and money of the Paget Brown Companies.

  iii. Obstruction of Justice

  The Government's investigation into the Stock Manipulation Schemes began approximately in 1982 and continued through 1992. It started with an administrative investigation by the SEC in 1982 which eventually led to the SEC Action in 1985. The SEC Action led to the Grand Jury Investigation which resulted in the criminal prosecutions of Cannistraro in 1987 and Bertoli in 1989.

  In total, Bertoli and his co-conspirators attempted to obstruct five separate proceedings: (1) the SEC Investigation; (2) the SEC Action; (3) the criminal investigation by the grand jury (the "Grand Jury Investigation"); (4) the 1987 Cannistraro Prosecution; and (5) the criminal prosecution of Bertoli (the "Bertoli Prosecution"), the instant case.

  (1) The SEC Investigation

  In approximately January 1983, the SEC began an investigation into, among other things, fraudulent or manipulative trading in LCI securities. In about March 1983, the investigation was expanded to include trading in Toxic Waste securities. During the summer of 1983, the SEC began subpoenaing documents and taking sworn testimony from individuals; this continued until about 1985.

  (2) The SEC Action

  As a result of its investigation, the SEC, in or about 1985, filed a civil lawsuit in the United States District Court for the Southern District of New York against Bertoli, Cannistraro, Eisenberg, Monarch and former Monarch broker, Cloyes. The complaint in the SEC Action alleged, inter alia, that Bertoli, along with the other defendants, had engaged in fraudulent activity in connection with trading in LCI and Toxic Waste securities and that Bertoli and Eisenberg had used various Cayman Islands banks to carry out illegal trading activities. The SEC Action is still pending; it was stayed.

  (3) The Grand Jury Investigation

  Beginning in April 1985, various United States grand juries (the "Grand Jury") began the Grand Jury Investigation into the trading of the securities of Astrosystems, Nature's Bounty, LCI, Toxic Waste, High Tech and Solar Age. The Grand Jury was pending between April 1985 and September 1989.

  (4) The 1987 Cannistraro Prosecution

  On or about 28 May 1987, the New Jersey grand jury returned a nine-count indictment against Cannistraro. The nine-count indictment charged Cannistraro with securities fraud, conspiracy, interstate transportation of money taken by fraud and obstruction of justice in relation to the LCI and Toxic Waste securities transactions. On 21 September 1987, Cannistraro pleaded guilty to all nine counts.

  (5) The Bertoli Prosecution

  As has been discussed, the current criminal action against Bertoli, Cannistraro and Eisenberg originated on 16 June 1989 when the Indictment was returned. On 29 September 1989, *fn238" the grand jury returned the six-count Superseding Indictment which charged that Bertoli, Cannistraro, Eisenberg and others conspired to and did conduct the affairs of Monarch through a pattern of racketeering activity consisting of acts of mail fraud, wire fraud and obstruction of justice. The conduct was in connection to the Stock Manipulation Schemes. The Superseding Indictment also sought forfeiture of the proceeds obtained by Bertoli, Cannistraro and Eisenberg as a result of the Stock Manipulation Schemes and deposited in the Cayman Accounts.

  The Overt Acts of the Conspiracy to Obstruct

  The conspiracies described in Count Three of the Redacted Second Superseding Indictment contain several overt acts of obstruction including lying, causing others to lie, destroying evidence, hiding evidence, hiding the proceeds of the Stock Manipulation Schemes, submitting fraudulent affidavits and inducing a potential witness to evade possible service of process. In general, it was charged the goal of the conspiracies was to avoid civil and criminal liability for the Stock Manipulation Schemes. During those investigations and prosecutions, Bertoli, Eisenberg and Cannistraro engaged in continuous, concerted conspiracies to obstruct those investigations and prosecutions.

  The Cooper Perjury

  At the direction of Bertoli and Eisenberg, G.K. Scott broker Cooper perjured himself during the SEC Investigation. Sometime in the early part of 1983, Cooper was contacted by the SEC about being interviewed in connection with its investigation of the Stock Manipulation Schemes. Prior to being interviewed, Cooper met with Bertoli and Eisenberg to discuss the SEC interview. In particular, the three discussed the LCI Report that was put out on G.K. Scott letterhead but written by Cannistraro. Bertoli and Eisenberg told Cooper to lie to the SEC and tell them Cooper had written the LCI Report. Cooper expressed his concern that he did not know everything about the report, but Bertoli and Eisenberg assured him that if he needed back-up for the report they would provide it to him.

  When Cooper was informally interviewed by the SEC in March 1983, he represented the following falsehoods to the SEC: (1) he wrote the LCI Report; (2) he first heard about LCI when he read about it in the Corporate Financing Week newsletter, and he took the projections in the LCI Report from that article and from discussions with an LCI officer; and (3) he met Bertoli at the race track, but had never done business with him and had not discussed LCI or the LCI Report with Bertoli. Cahill Sentencing Aff., P 2; see Handwritten Notes of Amato of the Informal Interview with Cooper, Government Sentencing Ex. 15; Trial Transcript at 4152-54.

   In mid-June 1983, Cooper received a subpoena from the SEC for documents and sworn testimony. Cooper immediately called Bertoli and Eisenberg. Cahill Sentencing Aff., P 3. Bertoli and Eisenberg met with Cooper several times to go over Cooper's testimony to the SEC. Bertoli told Cooper to stick with the story he had given to the SEC during the March meeting. Bertoli then went over, in great detail, the testimony Cooper was to give the SEC, reminding Cooper of the importance of being consistent with the statements made during the March meeting.

  At one of the meetings, Bertoli supplied Cooper with a worksheet containing the calculations for the projections in the LCI Report. Bertoli then reviewed those calculations with Cooper several times in preparation for Cooper's testimony. Cooper travelled to London, England in early August 1983 to go over his SEC testimony with Bertoli. On 29 August 1993, the day before Cooper was to testify, Cooper called Bertoli in Paris, France to discuss Cooper's testimony one last time.

  On 30 August 1983, Cooper gave sworn testimony to the SEC. Cooper again lied, this time under oath, about writing the LCI Report and about how he had met Bertoli. See Trial Transcript at 4154; Cahill Sentencing Aff., P 5. At the time of his sworn testimony, Cooper provided the SEC with the handwritten worksheet of calculations and testified he had created it and used it in preparing the LCI Report. The worksheet, however, had not been shown or discussed by Cooper during his March 1983 meeting with the SEC, despite the fact Cooper had been asked by the SEC to turn over all of his files relating to the preparation of the LCI Report. Trial Transcript at 4156; Cahill Sentencing Aff., P 5.

  The day after Cooper testified before the SEC, Bertoli called Cooper from London to find out how the testimony had gone. Cooper described to Bertoli the testimony he had given the SEC and Bertoli responded that it sounded good. Cahill Sentencing Aff., P 5. After Bertoli returned to the United States from London, he reviewed the transcript of the SEC proceedings and told Cooper he had done a good job. Id.

  Eisenberg Perjury

  With Bertoli's assistance and direction, Eisenberg also perjured himself during the SEC Investigation. Eisenberg was deposed by the SEC in March and August 1984. In preparation for his deposition, Eisenberg discussed his testimony with Bertoli. Bertoli had gathered the transcripts of the earlier SEC testimony of various witnesses for Eisenberg's review; the purpose was to prevent any inconsistencies between Eisenberg's story and the earlier testimony of other witnesses. Bertoli instructed Eisenberg to do whatever he had to do to "protect" Bertoli and Eisenberg. Accordingly, Eisenberg lied in his sworn testimony to the SEC. Specifically, he lied about the agreements with the players, the trading activity at Monarch in LCI and Toxic Waste securities and about his account at Butterfield in the Cayman Islands.

  Beyer Perjury

  Harold Beyer ("Beyer"), the nominee for Vickory, was also contacted by the SEC during the SEC Investigation. Vickory contacted Cannistraro and told him Beyer had been called by the SEC; Cannistraro told Vickory to make up a good story and stick to it. Trial Transcript at 3269-71; see 1993 Cannistraro Plea Allocution at 28-29. Cannistraro wanted Beyer to lie to the SEC and deny the existence of the nominee relationship. Cannistraro's instructions were carried out; Beyer lied during his sworn testimony to the SEC in June 1984.

  The Bakery Obstruction

  In 1983 and 1984, Monarch received subpoenas from a Federal grand jury in Chicago and the United States Justice Department requesting a limited number of Monarch records in connection with a proceeding unrelated to this case and unrelated to the trading in LCI, Toxic Waste and High Tech securities. In 1985, the Chicago Strike Force complained that Monarch had not submitted to it all the records responsive to the subpoenas. Eisenberg conveyed this information to Bertoli who told Eisenberg to pack up all of Monarch's records, including unresponsive documents concerning LCI, Toxic Waste and High Tech, and send them to Chicago. The intended purpose was the dual effect of confusing the authorities in Chicago and, if another agency or grand jury requested those records, Eisenberg could simply say all of Monarch's records were in Chicago. Eisenberg did as Bertoli told him and sent twenty boxes of unresponsive Monarch records to Chicago. At the time, Eisenberg believed he had sent all of the Monarch records from the late 1970's to early 1984 to Chicago.

  In August 1985, a New Jersey grand jury subpoenaed Monarch for its records concerning LCI and Toxic Waste trading (the "August 1985 Subpoena"). Upon receiving the subpoena, Eisenberg spoke to Bertoli. Bertoli told Eisenberg to respond to the subpoena by saying all of the records were in Chicago. At Eisenberg's instruction, the attorney representing Monarch wrote a letter stating all the Monarch records were in Chicago.

  The New Jersey U.S. Attorney complained to Eisenberg, however, that some of the records were not in Chicago. Eisenberg then discovered Monarch still had possession of eight to ten boxes of records that were responsive to the August 1985 Subpoena. Eisenberg called Bertoli and told him about finding boxes of records at Monarch. Bertoli told Eisenberg to get the records out of Monarch because the Government might come there with a search warrant. Eisenberg told Bertoli he was taking the records out of Monarch and storing them at his house on Long Island. Eisenberg did not inform the New Jersey U.S. Attorney or the New Jersey grand jury he had found boxes of responsive records at Monarch.

  The boxes of records remained at Eisenberg's house on Long Island when another subpoena was served on Monarch. During the 1987 Cannistraro Prosecution, Cannistraro stated he would object at trial to the introduction into evidence of numerous Monarch records on chain of custody and authenticity grounds. As a result, the New Jersey U.S. Attorney served a trial subpoena on Monarch for various original records concerning trading in LCI and Toxic Waste securities.

  When Eisenberg received the subpoena he spoke again to Bertoli who told him to remove the documents from his house. Eisenberg took the records to a bakery in Brooklyn which was owned by George Shapiro. Eisenberg then told the New Jersey U.S. Attorney the documents they wanted were in Chicago.

  The boxes of Monarch records were kept at the bakery for about one year. In August 1988, the grand jury issued another subpoena. In response, Eisenberg again stated the records were in Chicago. Thereafter, however, the FBI found the Monarch records at the bakery. When Eisenberg called Bertoli and told him the FBI had discovered the Monarch records, Bertoli said: "Well, Leo [Eisenberg], that's obstruction." Id. at 2512.

  The Key Perjury

  Key acted as Cannistraro's nominee on numerous occasions. In early 1983, Key was subpoenaed to appear before the Federal grand jury in New Jersey and to be interviewed by the Government. 1993 Cannistraro Plea Allocution at 30; see Trial Transcript at 3533. As Key testified at trial, he contacted Cannistraro who dictated the false story Key was to tell the authorities and the grand jury concerning Key's trading in the securities of Toxic Waste and High Tech. see Government Trial Exhibit 707(a)(1) (handwritten script of story Key should tell authorities). Key was told that if he lied, the investigation would go away.

  Key did as he was told and lied to the Government. Subsequently, Cannistraro paid Key's legal fees totalling $ 4,000.

  The Cannistraro Perjury

  Cannistraro met with Bertoli before Cannistraro's plea allocution in the 1987 Cannistraro Prosecution. 1993 Cannistraro Plea Allocution at 33. At that time, Bertoli told him to lie about particular subjects at the plea allocution. Bertoli also provided him with false answers to give in response to certain questions. Cannistraro followed Bertoli's directions and lied in his plea allocution in 1987. In part, the lies were intended to conceal the secret Cayman Accounts of Bertoli, Eisenberg and Cannistraro.

   In addition, in October 1987, Cannistraro filed a financial disclosure form that was to be used by the Probation Office to prepare Cannistraro's presentence report. On that form, Cannistraro failed to list the several million dollars he held in the Cayman Accounts at the time. Bertoli had told Cannistraro not to list those assets. The purpose of concealing that information was to keep secret the Cayman Accounts.

  Attempts to Conceal the Cayman Accounts

  After commencement of the SEC Action, Bertoli anticipated the SEC might be able to force him, Eisenberg and Cannistraro to consent to disclosure of records regarding the Cayman Accounts. In February 1986, Bertoli, Eisenberg and Cannistraro travelled to the Cayman Islands to seek legal advice from a Cayman Islands law firm as to how to prevent Cayman Islands banks from providing information to United States authorities. As a result of the meeting, the Cayman Islands attorneys sent letters to Euro Bank and Butterfield seeking the cooperation of the banks in blocking any attempts by the Government to obtain evidence of the Cayman Accounts.

  In mid-1986, in connection with the Grand Jury Investigation, the United States Department of Justice, by means of a Gentleman's Agreement request (the "Gentleman's Agreement Request"), *fn239" sought various documents from Euro Bank, Butterfield and Greenshields concerning the Cayman Accounts. In early January 1987, the Cayman Islands government granted the Gentleman's Agreement Request and advised Euro Bank, Butterfield and Greenshields they could turn over the documents sought by the Government.

  Immediately after the Gentleman's Agreement Request, Bertoli and Cannistraro travelled to the Cayman Islands. Bertoli told Eisenberg he and Cannistraro were going to the Cayman Islands to set up another block. When Bertoli returned, he informed Eisenberg everything had been "taken care of." Trial Transcript at 2528. Subsequent to the trip by Bertoli and Cannistraro, Euro Bank, Butterfield and Greenshields advised the Cayman Islands police they would not turn over the documents absent an order from a Cayman Islands court compelling them to do so. When it appeared these attempts were not enough to prevent the Government from obtaining evidence of the Cayman Accounts, Bertoli participated in and directed the following illegal acts.

  The Euro Bank Shreddings

  In 1986, the MLA Treaty between the United States and the Cayman Islands was signed by the Cayman Islands government and was expected to be signed by the United States. Foster, a Cayman Islands money manager, testified at trial that he had had discussions with Bertoli about the impending ratification of the MLA Treaty. Bertoli expressed concern that once the MLA Treaty was effective, the United States would be able to obtain records of the Cayman Accounts.

  In addition, Bertoli expected the 1987 Cannistraro Prosecution to lead to an action against himself. Bertoli told Eisenberg it was only a matter of time before the Government indicted Bertoli and Eisenberg. Bertoli, therefore, sought to prevent the Government from obtaining records of the Cayman Accounts.

  In order to prevent the Government from obtaining the records of the Cayman Accounts, Bertoli spoke to Ebanks at Euro Bank and arranged for Ebanks to provide Bertoli and Eisenberg with the records concerning their Euro Bank accounts. Bertoli explained to Eisenberg: "'George is a good friend of mine. He'll do anything I ask him because I take pretty good care of him.'" Id. at 2551. Bertoli and Eisenberg then travelled to the Cayman Islands and met Ebanks at Euro Bank. *fn240" Ebanks brought them to a file room, retrieved the records Bertoli requested (the "Euro Bank Records") and handed them to Bertoli and Eisenberg. When Eisenberg asked Ebanks whether the folders contained all of the records, Ebanks replied he had given them everything Euro Bank had.

  Bertoli and Eisenberg took the Euro Bank Records to another location in the Cayman Islands and shredded them. As Eisenberg testified at trial, after they had finished shredding the Euro Bank Records, Bertoli said: "'Now they'll never find the records. Let them come down, let them do what they want, they'll never have any records.' He used a famous expression that he always used to me. He said 'good show, Leo.'" Id. at 2553-54.

  On 9 June 1987, the date the Euro Bank Records were shredded, Ebanks received a $ 20,000 check from Foster. See id. at 4671. Bertoli directed that Foster make the payment to Ebanks. The check was issued as payment for Ebanks' assistance in destroying the Euro Bank Records.

  The Paget-Brown Shreddings

  In February 1987, about the time of the Gentleman's Agreement Request, and again in November 1987, Bertoli travelled to the Cayman Islands to obtain the records of some of the Paget Brown Companies so as to prevent the Government from getting them. In February 1987, Bertoli obtained the records of the First Set of Paget Brown Companies. Accordingly, when the Government later sought those records pursuant to the MLA Treaty Request, the records were not produced because Bertoli had them.

  In November 1987, Bertoli obtained the records of the Second Set of Paget Brown Companies and shredded them. Again, when the Government later sought those records pursuant to a MLA Treaty Request, the request was denied because Bertoli had destroyed the records.

  Hiding the Cayman Accounts and the Records of the Paget Brown Companies

  On 6 November 1989, the Government requested the issuance of a letter rogatory (the "1989 Proposed Letter Rogatory") from the Grand Court of the Cayman Islands. The 1989 Proposed Letter Rogatory requested documents and evidence concerning the Cayman Accounts for use at trial in the Bertoli Prosecution. In addition, the 1989 Proposed Letter Rogatory requested that both Coleman and Foster be deposed.

  After the Government requested the 1989 Proposed Letter Rogatory, Bertoli arranged to have the money in the Third Set of Paget Brown Companies transferred from the management of Coleman at Paget Brown to that of Foster. Bertoli then caused Foster to move the money from the Cayman Islands to Andorra. In addition, Bertoli had transferred to Foster most of the original documents showing Bertoli, Cannistraro and Eisenberg as the owners of the Third Set of Paget Brown Companies.

  In November 1989, Foster met with Bertoli to discuss moving the money and documents concerning the Third Set of Paget Brown Companies out of the Cayman Islands. Soon after that meeting, Foster received a call from Bertoli who wanted Foster to go to Andorra and open a bank account to which the money from the Third Set of Paget Brown Companies would be moved. Accordingly, in December 1989, Foster, Lugo and Jose Camprubi travelled to Andorra. There, they opened an account named Fosca, S.A. (the "Fosca Account") at the Banc Agricoli in Andorra. Foster confirmed with the Andorran bankers that Andorra had no treaties similar to the MLA Treaty and later relayed the substance of those discussions to Bertoli.

  Bertoli then met with Eisenberg to discuss moving the documents concerning the Third Set of Paget Brown Companies. Bertoli stated he felt more comfortable having Foster in possession of the documents because Foster was someone he trusted. Eisenberg agreed with Bertoli's advice.

   In 1990, the administration of the Third Set of Paget Brown Companies was transferred from Coleman at Paget Brown to Foster. When Foster obtained control of the money from the Third Set of Paget Brown Companies, which totalled approximately $ 8,700,000, he arranged to have the sum transferred by wire to the Fosca Account in Andorra.

  After the MLA Treaty became effective in March 1990, the Government withdrew its request for the 1989 Proposed Letter Rogatory and issued the MLA Treaty Request directly to the government of the Cayman Islands for the same evidence.

  In the fall of 1991, Bertoli met with Foster to discuss moving the records of the Third Set of Paget Brown Companies. Bertoli instructed Foster to take the documents to Andorra and leave them with an attorney there. The attorney was nominally representing Foster in a dispute over the handling of the Fosca Account and the attorney wanted the records documenting ownership to the money transferred to the Fosca Account from the Cayman Islands. Foster did as he was directed.

  Subsequently, Foster was served with a notice from the Cayman Islands police to produce the records of the Third Set of Paget Brown Companies. In response, Foster informed the police he did not have the documents. He subsequently told Bertoli of his response.

  Inducing Foster to Evade Possible Service of Process

  When Foster met with Bertoli in March 1991 to discuss moving the documents concerning the Third Set of Paget Brown Companies, the two also discussed the depositions that were going to be conducted by the Government pursuant to the April 1990 MLA Treaty Request (the "Government Cayman Depositions"). Bertoli told Foster that Government prosecutors were travelling to the Cayman Islands in May 1991 to take depositions. Bertoli then offered Foster $ 50,000 to leave the Cayman Islands for three months so that Foster would not be available at the time the Government Cayman Depositions were being taken. Foster asked for $ 75,000.

  In August 1991, the Government notified Bertoli, Cannistraro and Eisenberg of the individuals it wanted to depose during the depositions it planned to conduct in the Cayman Islands in September 1991. At the end of August, Foster left the Cayman Islands; he returned on 9 September 1991. When he returned, he had an urgent phone message awaiting him that he should contact Bertoli immediately at a location in the Cayman Islands. Foster phoned Bertoli who told him the Government was still conducting the Government Cayman Depositions and Foster was to leave the Cayman Islands at once.

  As instructed by Bertoli, Foster left the Cayman Islands that night and went to Jamaica. *fn241" Later, Foster received a note at his Jamaica hotel informing him the Government Cayman Depositions were completed. On 20 September 1991, Foster returned to the Cayman Islands, three days after the Government had completed its depositions.

  The Isaacson Affidavits

  After commencement of the Bertoli Prosecution in 1989, Bertoli, Cannistraro and Eisenberg continued their attempts to conceal their illegal activities.

  In December 1991, Bertoli filed a motion to dismiss the Superseding Indictment for pre-indictment delay. Bertoli argued he had been prejudiced by the delay because his friend and partner, Isaacson, had died on 15 January 1988. Bertoli was the executor of Isaacson's estate. Bertoli contended Isaacson would have been an exculpatory witness who would have aided in his defense. In support of his motion to dismiss, Bertoli submitted the three Isaacson Affidavits. See Appendix B to the Affidavit of Richard Bertoli In Support of the Motion to Dismiss for Pre-Indictment Delay, filed 9 December 1991.

  In the Isaacson Affidavits, it was stated that Isaacson and another individual were the owners of the Cayman Accounts, not Bertoli, Cannistraro and Eisenberg. The contents of the Isaacson Affidavits are false. Bertoli also submitted the Isaacson Affidavits in support of his motion for leave to take the Cayman Islands Depositions, his motion for the issuance of a letter rogatory and in support of his brief in opposition to a motion by the Government.

  At trial, Eisenberg testified he and Bertoli had the following conversation after Bertoli had presented two of the Isaacson Affidavits to Eisenberg:

  

A: The conversation was, I said to him "gee, according to this it looks like Jack [Isaacson] is taking the blame for all the accounts." He says, "that's correct." He says, "you know, they got to believe a man whose affidavit is in contemplation of his death. They have no other choice."

  

Q: How did you feel about . . . Isaacson [sic] taking the blame for you?

  

A: . . . . I felt pretty good.

  

Q: Why did you feel pretty good?

  

A: Because I was guilty of various crimes in this case and it would -- I felt if he's going to take the blame for everything . . . had got me and Richard [Bertoli], all of us, off the hook.

  Trial Transcript at 2567.

  b. Sentencing Computation

  As stated, Bertoli was convicted on Count Three and Count Six, which charged him with violations of 18 U.S.C. §§ 371 and 1503. Bertoli's violations of sections 371 and 1503 each carry a statutory maximum penalty of five years imprisonment. Because Bertoli committed each offense while on pretrial release, he is subject to an additional term of imprisonment of up to ten years on each count pursuant to 18 U.S.C. § 3147. *fn242" Accordingly, Bertoli faced a maximum of fifteen years on each count.

  i. Applicable Guidelines

  The United States Sentencing Guidelines (the "Guidelines") govern sentencing on all Federal crimes committed after 1 November 1987. The Guidelines govern sentencing for both Count Three and Count Six. The obstruction of justice charge described in Count Six occurred in or about March or April 1990, after the adoption of the Guidelines. The Guidelines also apply to Count Three which involves several conspiracies to obstruct justice, the first of which originated in 1983, and the last of which continued until at least at late as January 1992; there is no indication Bertoli ever withdrew from any of the conspiracies. See United States v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992) (where conspiracy charge straddles period before and after Guidelines were adopted, Guidelines apply); United States v. Moscony, 927 F.2d 742, 754 (3d Cir.) (same), cert. denied, 501 U.S. 1211, 111 S. Ct. 2812, 115 L. Ed. 2d 984 (1991); United States v. Rosa, 891 F.2d 1063, 1068-69 (3d Cir. 1989) (same).

  In the instant case, sentencing is properly pursuant to the Sentencing Guidelines Manual of 1 November 1993 (the "1993 Manual") because sentencing took place on 28 March 1994. Seligsohn, 981 F.2d at 1424; United States v. Cianscewski, 894 F.2d 74, 77 n.6 (3d Cir. 1990). Section 1B1.11 of the Guidelines states:

  

(a) The court shall use the Guidelines Manual in effect on the date that the defendant is sentenced.

  

(b)(1) If the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.

  

(b)(2) d The Guidelines Manual in effect on a particular date shall be applied in its entirety. The court shall not apply, for example, one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual.

  U.S.S.G. § 1B1.11.

  Accordingly, the 1993 Manual must be used to calculate Bertoli's sentence unless the use of that manual would violate the ex post facto clause of the Constitution. An ex post facto violation occurs only if the law on the date of sentencing is more detrimental to the defendant than it was at the time the offense is committed. See Seligsohn, 981 F.2d at 1424; United States v. Kopp, 951 F.2d 521, 526 (3d Cir. 1991), reh'g denied en banc, 1992 U.S. App. LEXIS 2334 (3d Cir. Feb. 18, 1992); Cianscewski, 894 F.2d at 77 n.6; see also United States v. Pollen, 978 F.2d 78, 90, reh'g denied en banc, 1992 U.S. App. LEXIS 29,864 (3d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 2332 (1993). If such is the case, the court must apply the more lenient sentencing law that was in effect at the time of the offense. Id.

  In the instant case, the only other Guidelines Manual that could be used is the 1 November 1991 Manual (the "1991 Manual"), which was the manual in effect on the date the Second Superseding Indictment was returned and the conspiracies to obstruct justice described in Count Three ceased. *fn243" Because there are no material differences between the 1991 Manual and the 1993 Manual as the Guidelines contained therein apply to Bertoli, the 1993 Manual applies in this case. See Seligsohn, 981 F.2d at 1424; Kopp, 951 F.2d at 526.

  ii. Grouping the Offenses

  Multiple Offenses

  Under section 1B1.2, "conviction on a count charging conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit." U.S.S.G. § 1B1.2(d).

  

For example, where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies, the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery, one count of conspiracy to commit the second robbery, and one count of conspiracy to commit the third robbery.

  U.S.S.G. § 1B1.2, Application Note 4; see United States v. Kimmons, 965 F.2d 1001, 1005-07 (11th Cir. 1992); see also United States v. Golden, 954 F.2d 1413, 1418 (7th Cir. 1992).

  In determining whether a conspiracy count gives rise to multiple offenses

  

particular care must be taken . . . because there are cases in which the verdict or plea does not establish which offenses was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiracy to commit that object offense.

  U.S.S.G. § 1B1.2, Application Note 5. Accordingly, it is the determination of the court whether the defendant should be sentenced for multiple conspiracies.

  Bertoli was convicted on Count Three and Count Six. Count Three charges Bertoli with engaging in conspiracies to obstruct five different proceedings -- the SEC Investigation, the SEC Action, the Grand Jury Investigation, the 1987 Cannistraro Prosecution and the Bertoli Prosecution. Accordingly, Count Three comprises five different offenses within the meaning of section 1B1.2(d). See Kimmons, 965 F.2d at 1005-07; Golden, 954 F.2d at 1418. Count Six charges Bertoli with obstructing the Bertoli Prosecution by moving money and documents concerning the Cayman Accounts to Andorra.

  Bertoli argues, as he does throughout the Bertoli Sentencing Memo, there was insufficient evidence produced at trial to demonstrate obstruction of five proceedings. Specifically, Bertoli contends (1) there is no proof the jury convicted him on every overt act described in Count Three and (2) the fact the jury acquitted him on Count Four, Count Five and Count Seven demonstrates there was inadequate proof of the conduct described in those counts. Bertoli Sentencing Memo at 24-26.

  An "'acquittal does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendants.'" United States v. Gonzalez, 733 F. Supp. 29, 31 (D.N.J. 1990). As stated by the Circuit in United States v. Pollard, 986 F.2d 44 (3d Cir.), cert. denied, U.S. , 113 S. Ct. 2457 (1993):

  

There is no statutory or constitutional requirement that a defendant be convicted of conduct that may be considered in sentencing. Indeed, the conduct need not even be shown beyond a reasonable doubt, but only be a preponderance of the evidence. . . . The Due Process Clause sets no limits on the relevant, proven conduct that a sentencing judge may consider when imposing sentence, and sentencing court possesses great discretion in the conduct it may consider. This is true even if the conduct was not proved at trial but came from a presentence report.

  Id. at 46-47 (emphasis in original) (citations omitted).

  As discussed, it has been established by at least a preponderance of the evidence that Bertoli was involved in obstructing all five proceedings described in Count Three. On the basis of the facts established at trial, this court, if sitting as the trier of fact, would have convicted Bertoli of conspiracy to commit each of the five offenses described in Count Three.

  Grouping

  Once it has been determined there are multiple offenses, it must then be determined whether to group those offenses and treat them as a single count or treat them separately as distinct offenses. Chapter Three, Part D of the Guidelines governs the treatment of multiple offenses. The Guidelines contained therein are a means of balancing two competing objectives. One objective is to ensure "incremental punishment for significant additional criminal conduct." U.S.S.G. Chapter 3, Part D, Introductory Comment. The competing objective is "to limit the significance of the formal charging decision . . . to prevent multiple punishment for substantial identical offense conduct." Id. Therefore,

  

convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the Guidelines. In essence, counts that are grouped together are treated as constituting a single offense for purposes of the Guidelines.

  Id.

  Section 3D1.1 sets forth the procedure for determining the offense level for multiple counts of conviction.

  

When a defendant has been convicted of more than one count, the court shall:

  

(1) Group the counts resulting in conviction into distinct Groups of Closely Related Counts ("Groups") by applying the rules specified in § 3D1.2.

  

(2) Determine the offense level applicable to each Group by applying the rules specified in § 3D1.3.

  

(3) Determine the combined offense level applicable to all Groups taken together by applying the rules specified in § 3D1.4.

  U.S.S.G. § 3D1.1(a).

  The first step in the instant case, therefore, is to determine whether the five conspiracy offenses in Count Three and the obstruction offense in Count Six should be considered as a "distinct group [] of closely related counts." See U.S.S.G. § 3D1.1(a)(1). The pertinent section of the Guidelines, section 3D1.2, provides: "All counts involving substantially the same harm should be grouped together into a single Group." U.S.S.G. § 3D1.2. The guideline describes when counts are considered to "involve substantially the same harm":

  

(a) When counts involve the same victim and the same act or transaction.

  

(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

  

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

  

(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior. *fn244"

  U.S.S.G. § 3D1.2.

  An application note for section 3D1.2 gives the following example of how to group conspiracy counts which describe several conspiracies:

  

Example : The defendant is convicted of two counts: conspiring to commit offenses A, B, and C, and committing offense A. Treat this as if the defendant was convicted of (1) committing offense A; (2) conspiracy to commit offense A; (3) conspiracy to commit offense B; and (4) conspiracy to commit offense C. Count (1) and count (2) are grouped together under § 3D1.2(b). Group the remaining counts, including the various acts cited by the conspiracy count that would constitute behavior of a substantive nature, according to the rules in this section.

  U.S.S.G. § 3D1.2, Application Note 8.

  The grouping analysis in the instant case must begin with a determination as to the number of groups of offenses that exist. See U.S.S.G. § 3D1.1(a)(1). A "group" consists of one or more offenses which should be lumped together pursuant to section 3D1.2. The question of whether to group particular offenses turns primarily on whether the acts of misconduct arose from the same transaction and affected the same victim. In this case, Bertoli was convicted of one count of conspiracy to obstruct justice in five separate proceedings and one count of obstructing justice.

  The Government argues

  

the five separate conspiracies to obstruct justice resulting from Bertoli's conviction on Count [Three], as well as his obstruction of justice conviction on Count [Six], should be separated into three different Groups. This is so because these obstructions of justice invaded three distinct societal interests -- the societal interests in the proper conduct of (1) the Federal district courts (the SEC [Action], [the 1987 Cannistraro Prosecution], and the [Bertoli Prosecution]) ["Group One"], (2) Federal grand juries (the Grand Jury Investigation in this case) ["Group Two"] and (3) Federal administrative agencies (the SEC Investigation) ["Group Three"]. Thus Group [One] would consist of the three conspiracies to obstruct Federal court proceedings as well as Count [Six]. Group [Two] would consist of the conspiracy to obstruct the Grand Jury Investigation. . . . Group [Three] would consist of the conspiracy to obstruct the SEC Investigation.

  Government Sentencing Memo at 77. In response, Bertoli argues all of the offenses should be grouped together and treated as one offense because "there is only one 'victim': society." Bertoli Sentencing Memo at 28.

  In resolving the issue of whether criminal conduct involves the same victim, there are two passages from the commentary to section 3D1.2 which provide some guidance. Application Note 2 states:

  

For offenses in which there are no identifiable victims . . ., the "victim" for purposes of subsection (a) and (b) is the societal interest harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related. . . .

  U.S.S.G. § 3D1.2, Application Note 2 (emphasis added). The second passage is contained in the Background section and states:

  

A primary consideration in this section is whether the offenses involve different victims. For example, a defendant may stab three prison guards in a single escape attempt. Some would argue that all counts arising out of a single transaction or occurrence should be grouped together even when there are distinct victims. Although such a proposal would require departure in many cases in order to capture adequately the criminal behavior. Cases involving injury to distinct victims are sufficiently comparable, whether the injuries are inflicted in distinct transactions, so that each such count should be treated separately rather than grouped together. Counts involving different victims (or societal harms in the case of "victimless" crimes) are grouped together only as provided in subsection (c) or (d).

  U.S.S.G. § 3D1.2, Background.

  Numerous courts have recognized that even where the Government or society is the only apparent victim of a crime, the interests represented by those entities may be so distinct as to constitute multiple victims. As explained by the court in United States v. Alter, 825 F. Supp. 550 (S.D.N.Y. 1993): "Even if the Court were find to that the Government is the sole victim, [where] different interests [are at issue] . . . grouping the offenses may be improper." Id. at 553; see, e.g., United States v. Gallo, 927 F.2d 815, 823-24 (5th Cir. 1991) (separate grouping for drug offense and money laundering counts because distinct societal interests invaded); United States v. Odofin, 929 F.2d 56, 61 (2d Cir.), cert. denied, 116 L. Ed. 2d 120, U.S. , 112 S. Ct. 154 (1991) (separate grouping for heroin importation and false passport counts); United States v. Egson, 897 F.2d 353, 354 (8th Cir. 1990) (separate grouping for drug count and food stamp abuse count); United States v. Kim, 896 F.2d 678, 687 (2d Cir. 1990) ("the interests protected by the immigration laws and the currency laws are so distinct that it is not realistic to consider both offenses to have as a common 'victim' the United States") ; United States v. Pope, 871 F.2d 506, 510 (5th Cir. 1989) (possession of unregistered silencer and unlawful possession of a pistol by a felon "involve two distinct harms and different societal interests"); see also United States v. Riviere, 924 F.2d 1289, 1304 (3d Cir. 1991) ("for victimless crimes in which society at large is the victim, 'the grouping decision must be based primarily upon the nature of the interest invaded by each offense'").

  Although it is well-established that different societal interests may be involved in victimless crimes, there appears to be only one case which specifically discusses whether different interests are affected by separate obstruction of justice offenses. *fn245" In United States v. Beard, 960 F.2d 965 (11th Cir. 1992), the defendant, a car dealer, was convicted of, among other things, two counts of obstruction of justice. The first obstruction occurred when the IRS began investigating a phony rebate scheme involving the defendant. Id. at 966. The defendant instructed his employee to lie to the IRS about the scheme. Id. The employee did as he was told but was himself later charged with income tax evasion. Id. The employee pleaded guilty to the charge but did not disclose the defendant's involvement in the scheme. Id.

  The second obstruction occurred two years later when the IRS served another of defendant's employees with a grand jury subpoena. Id. The defendant also told this other employee to lie to the grand jury about the defendant's participation in the phony rebate scheme. Id. That employee, however, did not lie to the grand jury but entered into an immunity agreement with the Government. Id. The defendant was convicted and the district court refused to group together the two obstruction counts. Id. The defendant appealed his sentence.

  On appeal, the Eleventh Circuit acknowledged that because the obstruction of justice counts "involved a "victimless" crime, . . . the harm to the societal interest must be considered." Id. at 968. The Circuit then held: "The defendant's conduct invades two distinct societal interests: the proper conduct of the district court and the Federal grand jury." Id. As an additional reason for not grouping together the two obstruction counts, the Circuit stated:

  

Counts should not be grouped together where they "represent additional conduct that is not otherwise accounted for by the guidelines." The [second] obstruction constitutes significant additional criminal conduct directed toward the grand jury which is sufficient to preclude grouping."

  Id. (citation omitted).

  Under the reasoning in Beard, Group One, Group Two and Group Three in the instant case should be viewed as distinct offenses which should not be grouped together for sentencing purposes. The three groups, which involve "victimless" crimes, do not affect the same governmental or societal interests. As in Beard, distinct societal interests were affected by the conspiracy to obstruct justice as described in Group One -- the SEC Action, the 1987 Cannistraro Prosecution, the Bertoli Prosecution and the substantive obstruction in Count Six, Group Two -- the SEC Investigation and Group Three -- the Grand Jury Investigation.

  Bertoli relies on two cases to counter the holding in Beard. See Bertoli Sentencing Memo at 29-33. First, he cites United States v. Berkowitz, 712 F. Supp. 707 (N.D.Ill. 1989), rev'd on other grounds, 927 F.2d 1376 (7th Cir. 1991). In Berkowitz, the defendant was convicted of (1) obstructing justice by stealing documents from the office of the United States Attorney, (2) obstructing justice by destroying those stolen documents and (3) stealing Government property. Id. at 708. The Government argued during sentencing in Berkowitz that the third count should not be grouped together with counts one and two because different interests were involved. Id. at 710. Specifically, the Government contended counts two and three affected "society at large" and the court system, while the U.S. Attorney was the victim of count three. Id. The sentencing court disagreed and grouped all three offenses together, stating:

  

With respect to all counts, the victim is society. The U.S. Attorney's Office, as a representative of society, cannot reasonably be construed as a victim separate from society with respect to any offense committed by [the defendant].

  Id.

  There are two factors distinguishing the instant case from Berkowitz. First, in Berkowitz, the defendant attempted to obstruct the same criminal proceeding. 712 F. Supp. at 708. Second, the Government in Berkowitz did not attempt to argue that different interestswere involved in the two obstruction of justice charges. Rather it argued both obstruction charges harmed "society." The only distinction drawn by the Government in that case was between itself and society for purposes of distinguishing the obstruction counts from the theft count; that is the distinction rejected by the court. Therefore, the court never addressed the issue of whether obstruction of justice can harm different societal or governmental interests.

  The second case upon which Bertoli relies is Riviere. See Bertoli Sentencing Memo at 30-33. In Riviere, the defendant pleaded guilty to (1) possession of a firearm by a felon, (2) delivery of firearms to common/contract carrier and (3) possession of an altered firearm. 924 F.2d at 1292 & n.3. Because there was no individual victim for the firearms offenses, the Circuit considered whether different societal interests were impacted. Id. at 1305. The Government argued that the three offenses should not be grouped because each offense required proof of different elements and because the Guidelines did not specifically list firearms offenses as offenses to be grouped. Id. at 1305- 06. The Circuit rejected both arguments. Id.

  The holding in Riviere is not helpful to Bertoli. First, the case did not involve obstruction of justice counts. Second, the Government in that case did not argue that different societal interests were at stake for the different offenses. *fn246"

  Under the holding in Beard, the offense conduct in this case is appropriately grouped into Group One, Group Two and Group Three. Furthermore, such grouping is appropriate under the Guidelines. Bertoli conspired to obstruct five separate legal proceedings which affected three distinct legal interests. That conduct, together with the substantive obstruction offense, cannot be "treated as constituting a single offense for purposes of the Guidelines." To the contrary, treating all five conspiracy offenses together with the obstruction of justice in Count Six as a single offense would fail to enhance Bertoli's sentence for additional conduct that is not otherwise accounted for in the Guidelines. See U.S.S.G. Ch. 3, Part D, Introductory Commentary.

  Otherwise, if the societal interests affected by the obstructions of justice in the different legal proceedings are not taken into consideration, it would make no difference whether a defendant obstructed one proceeding or one hundred different proceedings because all of the counts would be grouped together and the defendant would be sentenced on the basis of a single offense.

  iii. Calculating the Offense Level

  Once the offenses have been grouped, the second step is to "determine the offense level applicable to each Group by applying the rules specified in § 3D1.3" U.S.S.G. § 3D1.1(a)(2). Section 3D1.3 provides in pertinent part:

  

Determine the offense level applicable to each of the Groups as follows:

  

(a) In the case of counts grouped together pursuant to § 3D1.2(a) -(c), the offense level applicable to a Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of Chapter Three, for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group.

  U.S.S.G. § 3D1.3(a). Accordingly, the Guidelines must be applied to Group One, Group Two and Group Three.

  Group One

  The Guidelines generally instruct that sentences be calculated in the following manner:

  

(1) Determine the applicable offense guideline from Chapter Two. . . .

  

(2) Determine the base offense level and apply an appropriate specific offense characteristics contained in the particular guideline in Chapter Two in the order listed.

  

(3) Apply the adjustments as appropriate related to the victim, role and obstruction of justice from Parts A, B and C of Chapter 3.

  United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993) (citing U.S.S.G. § 1B1.1); see McNeil, 887 F.2d at 455.

  Sections 2J1.2 and 2X3.1

  The Guideline for obstruction of justice is section 2J1.2, which provides a base level of twelve. U.S.S.G. § 2J1.2(a). Section 2J1.2 further provides:

  (b) Specific Offense Characteristics

  

(1) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.

  

(2) If the offense level resulted in substantial interference with the administration of justice, increase by 3 levels.

  (c) Cross Reference

  

(1) If the offense involved obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.

  U.S.S.G. § 2J1.2. In turn, section 2X3.1 reads:

  

Base Offense Level: 6 levels lower than the offense level for the underlying offense but in no event less than 4, or more than 30. . . .

  U.S.S.G. § 2X3.1(a).

  Section 2J3.2 requires several steps to be taken in calculating the offense level for obstruction of justice. First, the offense level must be calculated using subsections (a) and (b) (the "First Method"). Then, if the defendant was convicted of obstructing the investigation or prosecution of a criminal offense, it must be determined whether the cross-reference to section 2X3.1 should be used. To make that determination, the offense level must be calculated pursuant to section 2X3.1 (the "Second Method"). Finally, it must be determined whether the First Method or the Second Method generates the greater offense level; the method which results in the higher offense level is the one used. U.S.S.G.§ 2J1.2(c).

  Under the First Method, which references subsections (a) and (b) of section 2J1.2, the offense level is fifteen. That number is achieved by using the base offense level of twelve and making a three point adjustment, pursuant to section 2J1.2(b) (2), for Bertoli's substantial interference with the administration of justice.

  A greater offense level is achieved using the Second Method which incorporates the cross-reference to section 2X3.1. Section 2X3.1 provides that the offense level may be calculated on the basis of the criminal offense underlying the investigation or prosecution that was obstructed by the offense of conviction. The use of the cross-reference section does not require that the defendant be convicted of the underlying offense. See United States v. Salinas, 956 F.2d 80, 83 (5th Cir. 1992); see also United States v. Nelson, 919 F.2d 1381, 1382-83 (9th Cir. 1990). Nor does it require that the defendant have been charged and convicted as an accessory after the fact. Id.

  Because use of the Second Method and the cross-reference section requires that the underlying conduct be the basis for calculating the sentence, it must be determined which Guidelines apply to the underlying conduct in the instant case. The criminal conduct Bertoli attempted to conceal with his acts of obstruction involved racketeering and racketeering conspiracy, the predicate offenses of which were premised on the Stock Manipulation Schemes. The Guideline applicable to the underlying Stock Manipulation Schemes is section 2F1.1 which applies to offenses involving fraud. *fn247"

  The Second Method, pursuant to section 2X3.1, requires that the offense level be calculated under section 2F1.1 and compared to the offense level achieved using the First Method. Using the Second Method, an offense level of twenty-four is calculated. Accordingly, the Second Method is to be used as it yields a higher offense level than the First Method. See U.S.S.G.§ 2J1.2(c).

  Bertoli, however, argues section 2X3.1 cannot be applied in the instant case because section 2X3.1 is applicable only where the defendant who is convicted of obstructing justice is convicted of obstructing proceedings in which he or she is not the principal offender. See Bertoli Sentencing Memo at 2-5. *fn248" Bertoli relies primarily on the holdings in United States v. Huppert, 917 F.2d 507, 510-11 (11th Cir. 1990) and United States v. Pierson, 946 F.2d 1044, 1047-49 (4th Cir. 1991).

  In Huppert, the defendant was convicted of two counts of obstructing justice in connection with the investigation of a money-laundering scheme in which the defendant was engaged. 917 F.2d 507. The defendant was sentenced pursuant to section 2J1.2(c) and its cross-reference to section 2X3.1. The Eleventh Circuit concluded the defendant could not be sentenced as an accessory after the fact because he was protecting himself, not others, and it was clear he was a principal in the money laundering scheme. Id. at 510-11.

  The holding in Huppert looked to the background commentary for section 2J1.2 in the then applicable Guidelines which provided:

  

Because the conduct covered by this guideline is frequently part of an effort to assist another person to escape punishment for a crime he has committed, an alternative reference to the guideline for accessory after the fact is made.

  U.S.S.G. § 2J1.2, Background (1 November 1989 Manual). This language was interpreted to preclude the application of the cross-reference provision to individuals who were participants in the underlying offense and obstructed justice to protect themselves, as opposed to protecting others. See Huppert, 917 F.2d at 510-11; see also Pierson, 946 F.2d at 1047-49.

  In the 1 November 1991 Manual, however, the background commentary was amended to clarify the use of the cross-reference section. As amended, the background commentary reads:

  

Because the conduct covered by the guideline is frequently part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense, a cross reference to § 2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person.

  U.S.S.G. § 2J1.2, Background (1 November 1991 Manual); see United States v. Jamison, 996 F.2d 698, 701 n.3 (4th Cir. 1993) ("In 1991, the Guidelines Commission amended the commentary on which both the Pierson and Huppert courts relied in a manner which casts doubt upon the continued validity of those decisions."). This amended commentary remained unchanged in the subsequent editions of the Guidelines, including the 1993 Manual, which applies in this case.

  Bertoli argues that the holdings in Huppert and Pierson apply to him because, until the amendment of the background commentary in the 1991 Guidelines, section 2X3.1 would not have applied where a defendant obstructed justice in a proceeding against himself. Bertoli Sentencing Memo at 2-3.

  It is not necessary to reach the question of whether the 1991 amendment to the background commentary was a clarifying amendment because, as discussed, to the extent the 1993 Guidelines are not applicable to this case, the 1991 Manual is the only other Guidelines Manual which could apply. The conspiracies alleged in Count Three continued until 29 January 1992, at which time the 1991 Guidelines were in effect.

  

When a conspiracy begins during a period where the application of certain Guidelines would be controlling and extends into a period when another Guideline would be appropriate, there is no violation of the ex post facto clause in applying the Guidelines in effect at the time of the last act of the conspiracy.

  United States v. Stanberry, 963 F.2d 1323, 1326-27 (10th Cir. 1992); see also Seligsohn, 981 F.2d at 1425; Moscony, 927 F.2d at 754; Rosa, 891 F.2d at 1068-69.

  Accordingly, the cross-reference to section 2X3.1 is applicable in this case.

  Section 2F1.1

  Section 2F1.1(a) provides a base level of six. Subsection (b) then provides various specific offense characteristics which may enhance the base level.

  Amount of Loss

  The first relevant offense characteristic is in section 2F1.1(b) (1), which provides for an increase in the base offense level depending on the loss resulting from the fraudulent conduct. Both the Presentence Report and the Government Sentencing Memo conclude that a fourteen level increase under section 2F1.1(b) (1)(o) is warranted because the loss involved as a result of the Stock Manipulation Schemes was greater than $ 5,000,000. See Presentence Report at 32; Government Sentencing Memo at 88. The loss was measured by taking into consideration the gain to Bertoli and his co-conspirators as a result of the Stock Manipulation Schemes, which has been calculated at more than $ 6,000,000. See id.

  Bertoli argues that the adjustment is improper because (1) "there was no victim and there was no loss" as a result of the Stock Manipulation Schemes, see Bertoli 1 Dec. 1993 Letter at 3-5, and (2) Bertoli neither knew nor reasonably should have known the amount of the fraud. See Bertoli Sentencing Memo at 10-12.

   The Application Notes to section 2F1.1, however, states:

  

For the purposes of subsection (b)(1), the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information. This estimate, for example, may be based on the approximate number of victims and an estimate of the average loss to each victim, or on more general factors, such as the nature and duration of the fraud and the revenues generated by similar operations. The offender's gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss.

  U.S.S.G. § 2F1.1, Application Note 8 (emphasis added).

  "Loss" for purposes of section 2F1.1 is to be determined on a case by case basis. See United States v. Badaracco, 954 F.2d 928, 937, reh'g denied en banc, 1992 U.S. App. LEXIS 2332 (3d Cir. 1992). As the Circuit stated in Badaracco : "Although section 2F1.1 is applicable to a wide variety of fraud schemes, the sentencing judge is entitled, probably compelled, to evaluate the size of the loss based on the particular offense." Id.

  " Fraud 'loss' is, in the first instance, the amount of money the victims have actually lost (estimated at the time of sentencing)." Kopp, 951 F.2d at 536; see United States v. Katora, 981 F.2d 1398, 1406 (3d Cir. 1992); Badaracco, 954 F.2d at 936-37. An adjustment for loss, however, is not precluded where that measurement is difficult or impossible. In that situation, the alternative measure of the offender's gain is appropriate. See U.S.S.G. § 2F1.1, Application Note 8; Badaracco, 954 F.2d at 937; United States v. Cherif, 943 F.2d 692 (7th Cir. 1991), cert. denied, 118 L. Ed. 2d 211, U.S. , 112 S. Ct. 1564 (1992).

  In Cherif, the district court's decision to increase the offense level by reference to the gain realized from the offenders was affirmed. 943 F.2d at 702. The Seventh Circuit stated:

  

Even though the loss here might only have been to the bank and its customers, it was appropriate to use [the defendant's] gain as a measure for that loss. There was a loss to the bank and its customers but that loss is difficult to quantify. The whole point of § 2F1.2 is to allow the court to place a monetary value on losses that are hard to identify. [The defendant's] scheme was designed to make money (for himself and his friends) trading stocks. To disregard the gains [the defendant] made from his scheme would be to disregard an essential part of his scheme and understate the seriousness of [the defendant's] crime.

  Id. at 702-03.

  Measuring loss by reference to the offender's gain is a measure which has been used in the Third Circuit. In Badaracco, a bank president pleaded guilty to bank fraud. 954 F.2d 928. At sentencing, the loss was calculated for purposes of section 2F1.1(b) (1) by referring to the amount of contracts awarded to the defendant's companies by the developers. See id. at 930-33. The sentence was affirmed by the Circuit on appeal, which in so doing, limited the scope of its previous opinion in Kopp. Badaracco, 954 F.2d at 933.

  Contrary to Bertoli's argument, the Stock Manipulation Schemes in the instant case had victims. When legitimate investors purchased stock in LCI, Toxic Waste and High Tech in 1983, they did so without knowing the trading activity was not "real" and the stock prices were not reflective of the unimpeded interaction of real supply and demand. Accordingly, the victims of the Stock Manipulation Schemes were the investors who purchased the stock on the public market, as well as the entire marketplace.

  As discussed, the stock manipulations by Bertoli, Cannistraro, Eisenberg and their co-conspirators led to the price of the stock rising dramatically as a result of the restrictions Bertoli placed on the market through the players. Once the price had risen significantly, Bertoli and the other insiders sold their shares at a profit. Soon thereafter, the stock prices tumbled dramatically. As a result, the public investors who bought the stocks at the artificially increased prices and then held them for investment purposes lost significant amounts of money.

   The Government states it has identified forty brokers and investors throughout the United States and Canada who bought the stocks at the artificially high prices and later sold the stock at a substantial loss. Government Sentencing Memo at 94. The Government believes those forty brokers and investors are "just the tip of the iceberg." Id. It appears, however, that it would be impossible to precisely quantify the total loss to the investing public resulting from the Stock Manipulation Schemes.

  The instant case, therefore, is not one controlled by the holding in Kopp where the actual loss could be measured. Rather, it is more akin to Badaracco and Cherif were it was difficult or impossible to measure the loss.

  Bertoli's argument there is no evidence he was aware or should have been aware of any loss to investors is without merit. The evidence demonstrates by at least a preponderance of the evidence that Bertoli orchestrated the Stock Manipulation Schemes. Bertoli introduced LCI, Toxic Waste and High Tech to Monarch, he came up with the idea of the IPOs, he directed the actions of the players and he controlled the accounts set up to hold the profits of himself, Cannistraro and Eisenberg resulting from the Stock Manipulation Schemes. The contention that Bertoli did not know and could not have known the amount of the loss because he was unaware of the fraud or profits generated by the fraud is not credible. *fn249"

  The amount of the gain in excess of $ 6,000,000 achieved by Bertoli, Cannistraro and Eisenberg as a result of the Stock Manipulation Schemes, has been established by a preponderance of the evidence.

  Amount of Planning

  Section 2F1.1(b)(2) provides for a two level increase where the "offense involved . . . more than minimal planning." U.S.S.G. § 2F1.1(b)(2). "More than minimal planning" is defined in the application notes to section 1B1.1 as:

  

More planning than is typical for commission of the offense in a simple form. "More than minimal planning" also exists if significant affirmative steps were taken to conceal the offense, other than conduct to which § 3C1.1 (Obstructing or Impeding the Administration of Justice) applies.

  U.S.S.G. § 1B1.1, Application Note 1(f).

  The Guidelines explain the purpose of the increase as follows:

  

The extent to which an offense is planned or sophisticated is important in assessing its potential harmfulness of the offender, independent of the actual harm. A complex scheme or repeated incidents of fraud are indicative of an intention and potential to do considerable harm. . . .

  U.S.S.G. 2F1.1., Background Notes; see United States v. Astorri, 923 F.2d 1052, 1057-58 (3d Cir. 1991); Cianscewski, 894 F.2d at 81-83.

  The Stock Manipulation Schemes clearly involved more than minimal planning. They consisted of manipulating the market for the stock of three different companies, eliciting the participation of numerous "players," juggling the profits from the fraudulent trading among different international accounts and the trading schemes continued for several months. Bertoli, moreover, does not oppose the application of the adjustment in section 2F1.1(b)(2).

  Violation of Judicial or Administrative Order

  Section 2F1.1 also provides for a two level increase if the fraudulent conduct involved

  

violation of any judicial or administrative order, injunction or decree, or process not addressed elsewhere in the guidelines. . . .

  U.S.S.G. § 2F1.1(b)(3)(B). As discussed, on 25 September 1975, the SEC issued an order barring Bertoli from associating with any broker or dealer. This bar resulted from Bertoli's fraudulent activities at Executive.

  Bertoli argues the adjustment pursuant to section 2F1.1(b)(3)(B) should not be made (1) because "it had nothing to do with the offense of conviction -- obstruction of justice" and (2) it has not been proven Bertoli violated the SEC Bar. Bertoli Sentencing Memo at 13-14. Both arguments are without merit.

  As discussed, the cross-reference to section 2X3.1 provides that a sentence shall be calculated on the basis of the criminal offense the convicted offense was meant to obstruct. In the instant case, Bertoli intended to obstruct proceedings with regard to the Stock Manipulation Schemes. Bertoli, in orchestrating and directing the Stock Manipulation Schemes at Monarch, violated the SEC Bar. Clearly, the SEC Bar is related to the Stock Manipulation Schemes.

  As explained at trial by the Assistant Director of the SEC's Division of Market Regulation, when someone is "barred from associating with a broker or dealer" that person

  

can't be an employee of the broker-dealer, he [or she] can't sell securities for the broker-dealer, he [or she] can't trade securities for the broker-dealer, he [or she] can't be an officer, director, owner of a broker-dealer.

  Trial Transcript at 610.

  It has been established that Bertoli (1) directed the trading of securities in the Monarch trading account, (2) brought business to Monarch, (3) acted, essentially, as a Monarch broker when he traded the securities in the brokerage accounts of his wife, three children and others at Monarch, (4) used Monarch's offices to conduct his business of bringing companies public, (5) determined the accounts to which Monarch would sell various securities and (6) directed the activities of Monarch employees. Each of those activities violated the SEC Bar. *fn250"

  The foregoing calculations result in a sub-total of twenty-four. A downward adjustment of six levels is required pursuant to section 2X3.1. This results in a base offense level of eighteen.

  Sections 2J1.7 and 3B1.1251

  Section 2J1.7

  On 6 November 1989, Bertoli was arraigned on the Superseding Indictment and released on bail. As discussed, in or about April 1990, while he was on pre-trial release, Bertoli engaged in the obstruction of justice conduct described in Count Six and that portion of Count Three which describes a conspiracy to obstruct justice in Bertoli's Prosecution. Because Bertoli committed the crimes described in Count Three and Count Six while he was on pretrial release, his sentence is subject to a three point enhancement under section 2J1.7, which provides:

  

If an enhancement under 18 U.S.C. § 3147 applies, add 3 levels to the offense level for the offense committed while on release as if this section were a specific offense characteristic contained in the offense guideline for the offense committed while on release.

  U.S.S.G. § 2J1.7; see Di Pasquale, 864 F.2d at 279-80.

  Section 3147 does not establish a criminal offense but "was intended only to enhance the punishments for other offenses." Di Pasquale, 864 F.2d at 279-80. The purpose of the provision is to

  

"deter those who would pose a risk to community safety by committing another offense when released under the provisions of this title. . . . This section enforces the self-evident requirement that any release ordered by the courts include a condition that the defendant not commit another crime while on release. Given the problem of crime committed by those on pretrial release this requirement needs enforcement. Accordingly, this section prescribes a penalty in addition to any sentence ordered for the offense for which the defendant was on release. . . ."

  Id. at 280 (quoting S.Rep. No. 225 at 25, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3217) (emphasis in original).

  The Third Circuit has expressly refused to

  

require that [notice to the person released on bail of the penalties applicable to a violation of the conditions] be a prerequisite to punishment for violation of the statute. Moreover, we fail to see how such a reading could be consistent with Congress' intent. . . . In statements concerning the effect of § 3142(h)'s notice requirement on other provisions of the Bail Act, the Senate Report noted that "failure to render such advice is not a bar or defense to prosecution for bail jumping under § 3146 . . . [or] to a prosecution under the [] sections of title 18 designed to protect witnesses, victims and informants." Rather, "the purpose of such advice is solely to impress upon the person the seriousness of failing to appear when required." *fn252"

  Di Pasquale, 864 F.2d at 281 (quoting S.Rep. No. 225 at 25) (emphasis in original).

  Because Bertoli committed crimes in both Count Three and Count Six while he was on pretrial release, he is subject to the three level adjustment pursuant to section 2J1.7.

  Section 3B1.1

  Pursuant to section 3B1.1, a court may increase the offense level for the defendant's aggravating role in the offense conduct. Section 3B1.1 provides:

  

Based on the defendant's role in the offense, increase the offense level as follows:

  

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

  U.S.S.G. § 3B1.1(a); see Katora, 981 F.2d at 1402; United States v. Fuentes, 954 F.2d 151, 153 (3d Cir.), cert. denied, U.S. , 112 S. Ct. 2950 (1992); United States v. Bierley, 922 F.2d 1061, 1065 (3d Cir. 1990).

  Adjustments authorized by section 3B1.1 "'are directed to the relative culpability of participants in group conduct.'" Fuentes, 954 F.2d at 153. Section 3B1.1 "increases the sentence for the more culpable participants in a criminal conspiracy in proportion to the participants' role and the extensiveness of the crime." Katora, 981 F.2d at 1405 n.10. The Application Notes define the term "participant" as "a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1(a), Application Note 1.

  The Third Circuit has set forth the following factors to be considered in determining whether the adjustment in section 3B1.1 should be applied:

  

The exercise of decisionmaking authority, the nature of the participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

  United States v. Ortiz, 878 F.2d 125, 127 (3d Cir. 1989); see United States v. Phillips, 959 F.2d 1187, 1191, reh'g denied en banc, 1992 U.S. App. LEXIS 10,402 (3d Cir.), cert. denied, U.S. , 113 S. Ct. 497 (1992).

   Bertoli argues there is inadequate proof of his aggravating role in the scheme to conceal the Stock Manipulation Schemes from the authorities. *fn253" Bertoli Sentencing Memo at 20-21. As discussed, it has been established by at least a preponderance of the evidence that Bertoli was the organizer and leader of the transfer of illegally obtained funds from the Cayman Accounts to Andorra and that he controlled and supervised the obstructionist activities of at least Eisenberg, Cannistraro, Foster, Ebanks, Lugo and himself in conspiring to obstruct the proceedings in Group One. *fn254"

  Second Step in Grouping Analysis

  The second step in the grouping analysis is to determine the offense level for the conspiracy to obstruct the Grand Jury Investigation in Group Two and the offense level for the conspiracy to obstruct the SEC Investigation in Group Three.

  Group Two

  The offenses that were investigated by the grand jury were the Stock Manipulation Schemes underlying the Redacted Second Superseding Indictment in this case, as well as the obstruction of justice charges contained therein. The base offense level calculations for the conspiracy to obstruct the Grand Jury Investigation are the same as the calculations for Group One, discussed above, which resulted in a base offense level of eighteen. *fn255"

  The base level would then be increased by four levels because Bertoli organized and led the scheme to obstruct justice and the scheme to obstruct the Grand Jury Investigation involved five or more participants (Bertoli, Eisenberg, Cannistraro, Ebanks and Foster). Accordingly, the total offense level for Group Two is twenty two. Because the conspiracy to obstruct the Grand Jury Investigation did not occur while Bertoli was on pretrial release, the three level adjustment pursuant to section 2J1.7 is not applicable.

  Group Three

  The offenses investigated by the SEC were the Stock Manipulation Schemes involving LCI and Toxic Waste securities. The base offense level calculations for the conspiracy to obstruct the SEC Investigation in Group Three would be the same as the calculations for Group One and Group Two. *fn256" Because Bertoli organized and led the scheme to obstruct the SEC Investigation and the scheme involved five or more participants (Bertoli, Eisenberg, Cannistraro, Cooper and Foster), an upward adjustment of four levels is warranted under section 3B1.1(a). However, because the conspiracy to obstruct the SEC Investigation did not occur while Bertoli was on pre-trial release, the three level increase under section 2J1.7 is not applicable. Accordingly, the offense level for Group Three is twenty-two.

  The Combined Offense Level

  Section 3D1.4 states:

  

The combined offense level is determined by taking the offense level applicable to the Group with the highest level and increasing that offense level by the amount indicated in the following table:

   Number of Units Increase in Offense Level 1 none 1 1/2 add 1 level 2 add 2 levels 2 1/2 - 3 add 3 levels 3 1/2 - 5 add 4 levels more than 5 add 5 levels

  In determining the number of Units for purposes of this section:

  (a) Count as one Unit the Group with the highest offense level. Count one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious.

  U.S.S.G. § 3D1.4(a) In the instant case, Group One, with an offense level of twenty-five, is the group with the highest offense level; it is counted as one unit. Because Group Two and Group Three are only three levels less serious than Group One, under the grouping rules they count as two additional units. Because there are a total of three units, section 3D1.4 provides that three levels be added to the group with the highest offense level -- Group One. When three levels are added to Group One, it yields a total offense level of twenty-eight. Total Offense Level The total offense level of 28 is calculated as follows: (1) Base Offense Level -- Applicable Guideline: § 2J1.2(c), which by cross- reference to § 2X3.1, requires the offense level to be calculated as if Bertoli was an accessory after the fact to the offenses being prosecuted in the Redacted Second Superseding Indictment because he conspired to obstruct the investigations and prosecutions of those offenses. This requires the use of § 2F1.1 -- Base Level § 2F1.1(a) 6 -- Upward adjustment pursuant to § 2F1.1(b)(1)(O) for loss between $ 5 and $ 10 million 14 -- Upward adjustment pursuant to § 2F1.1(b)(2) for more than minimal planning 2 -- Upward adjustment pursuant to § 2F1.1(b)(3)(B) for violation of a judicial or administrative order 2 SUBTOTAL 24 -- Downward adjustment pursuant to § 2X3.1 6 BASE OFFENSE LEVEL 18 (2) Upward adjustment pursuant to § 2J1.7 for committing an offense while on pretrial release 3 (3) Upward adjustment pursuant to § 3B1.1(a) for having an aggravating role in the offense 4 GROUP ONE OFFENSE LEVEL 25 (4) Upward adjustment pursuant to § 3D1.4 for multiple offenses 3 TOTAL OFFENSE LEVEL 28

  iv. Criminal History Category

  The Presentence Report indicates that Bertoli's criminal history should be category II. This was calculated by allotting (1) one point for Bertoli's conviction under the 1977 Indictment, see U.S.S.G. § 4A1.1(c), and (2) two points for his committing offenses in the instant case while on probation from that conviction. See U.S.S.G. § 2A1.1(d).

  Bertoli argues this conclusion is erroneous. Specifically, he contends:

  

It appears that the Probation Department made the adjustment based on the claim within the conspiracy count [Count Three] that Bertoli told . . . Cooper to lie to the SEC in a conversation which allegedly occurred prior to June 27, 1983. See Second Superseding Indictment, Count Three, Overt Acts, PP 1-2. This overt act, however, was not separately charged as a substantive count. We dispute this claim as factually unsupportable [sic] and assert that the Government cannot sustain its burden of proving that this conduct was a basis upon which the jury convicted Bertoli of the Count Three conspiracy.

  Bertoli 1 Dec. 1993 Letter at 7.

  As discussed, it has been established by a preponderance of the evidence that, in the early spring to 1983, Bertoli instructed Cooper to lie to the SEC during the SEC Investigation. The initial meeting among Bertoli, Eisenberg and Cooper, at which Cooper was instructed to lie and told the specific falsehoods to relay to the SEC, occurred in March 1983, months before his five-year probation came to an end. Both Eisenberg and Amato, an SEC staff attorney, testified about Cooper lying to the SEC in March of 1983. In addition, the Cahill Sentencing Aff., submitted in support of the Government Sentencing Memo, relayed the contents of a conversation between Cooper and Special Agent Cahill. In that conversation, Cooper told Special Agent Cahill that he had lied to the SEC at the direction of Bertoli in March 1983 during the informal interview. Cahill Sentencing Aff., P4.

  With a total offense level of twenty-eight and a criminal history II, the sentencing range under the Guidelines is 87 to 108 months. *fn257"

  v. Monetary Penalties

  The provisions of the United States Code concerning fines are set forth at 18 U.S.C. §§ 3751, et seq. Section 3751 provides in pertinent part:

  

(b) Fines for Individuals -- An individual who has been found guilty of an offense may be fined not more than the greatest of --

  

(1) the amount specified in the law setting forth the offense; *fn258"

  

(2) the applicable amount under subsection (d) of this section; [or]

  

(3) for a felony, not more than $ 250,000. . . .

  

(d) Alternative Fine Based on Gain or Loss -

  

- If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of the fine under this subsection would unduly complicate or prolong the sentencing process.

  18 U.S.C. § 3751(b) and (d).

  The factors to be considered in imposing a fine are set forth in section 3572, which provides in pertinent part:

  

In determining whether to impose a fine, and the amount, time for payment, and method of payment of a fine, the court shall consider, in addition to the factors set forth in section 3553(a) --

  

(1) the defendant's income, earning capacity, and financial resources;

  

(2) the burden that the fine will impose upon the defendant, or any other person who is financially dependent on the defendant, or any other person . . . that would be responsible for the welfare of any person financially dependent on the defendant, relative to the burden that alternative punishment would impose;

  

(3) any pecuniary loss inflicted upon others as a result of the offense;

  

(4) whether restitution is ordered or made and the amount of such restitution;

  

(5) the need to deprive the defendant of illegally obtained gains from the offense. . . .

  18 U.S.C. § 3572(a).

  The fine provisions of the Guidelines are set forth in section 5E1.2, which provides in pertinent part:

  

(a) The court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.

  

(b) The fine imposed shall be within the range specified in subsection (c) below. . . .

  U.S.S.G. § 5E1.2(a) and (b). Subsection (c) thus provides that the maximum fine for Bertoli's offense level twenty-eight is $ 125,000. U.S.S.G. § 5E1.2(c)(3).

  The Guidelines have recognized, however, that, under certain circumstances, an upward departure from the fine guideline range is warranted. Specifically, one of the application notes indicates an upward departure from the Guidelines to ensure the fine is punitive and to prevent the defendant from profiting from his crimes. U.S.S.G. § 5E1.2(c)(3), Application Note 4; see United States v. Wilder, 15 F.3d 1292, No. 92-4790, 1994 WL 52627, at *6 (5th Cir. 22 Feb. 1994). Application Note 4 further provides that an upward departure may be warranted "where . . . two times . . . the amount of gain to the defendant . . . exceeds the maximum of the fine guideline" or "where a sentence within the applicable fine guideline range would not be sufficient to ensure both the disgorgement of any gain from the offense that otherwise would not be disgorged . . . and an adequate punitive fine." Id.

  In Wilder, the Circuit affirmed the decision by the district court to upwardly depart from the Guidelines with respect to the fine assessed the defendant. 1994 WL 52627, at **6-7. In that case,

  

the district court based its decision to upwardly depart on two grounds: first that the enhanced fine was necessary to ensure that [the defendant] disgorged any gain from his criminal activities and, second, that the enhanced fine was permitted by [section] 3571(d) because [the defendant's] criminal acts resulted in pecuniary losses to other persons exceeding five million dollars. The district court's findings that [the defendant] derived at least two million dollars in gross gains and caused at least two million dollars in gross losses is not clearly erroneous. For example, the parties stipulated to the fact that the losses caused by [the defendant's] scheme exceeded five million dollars.

   Id. at 7. The Circuit affirmed the decision, finding the district court had not abused its discretion in departing from the Guidelines.

  In the instant case, Count Three and Count Six charge, inter alia, that Bertoli moved the illicit proceeds of the Stock Manipulation Schemes to Andorra in an effort to obstruct justice. It was established that approximately $ 8,700,000 was moved and that Bertoli moved the funds so the Government could not reach it. It was further established that the $ 8,700,00 included (1) $ 5,086,593.94 from Centurion (Cannistraro's company), (2) $ 3,132,956.09 from Eastern (Eisenberg's company) and (3) $ 471,580.61 from Beecham (Bertoli's company).

  Although the documentary evidence produced at trial indicates the portion of the $ 8,700,000 attributable to Bertoli is less than $ 500,000, it has been established Bertoli controlled all of the money once it reached Andorra.

  As part of their plea agreements in this case, Eisenberg and Cannistraro forfeited to the Government their interest in the funds held by Eastern and Centurion. The Government, however, has been able to recover only $ 789,083.89 of that money.

  For Bertoli, with an offense level of twenty-eight, the maximum fine under the Guidelines is $ 125,000. An upward departure is necessary in calculating the appropriate fine for Bertoli because the fine indicated by the Guidelines is inadequate to "disgorge" the gain of Bertoli's criminal activities. Moreover, as demonstrated by the Government, Bertoli retains control of the millions of dollars, forfeited to it by Eisenberg and Cannistraro, but removed by Bertoli to Andorra beyond its reach. Bertoli does not deny he has access to several million dollars in foreign bank accounts. In fact, Bertoli has indicated he "takes no position" regarding the Government's claim that "Bertoli has access to millions of dollars in foreign bank accounts." See Bertoli 1 Dec. 1993 Letter at 1.

  Accordingly, at the Sentencing Hearing, a fine of $ 7,000,000 plus interest was assessed.

  Ability to Pay

  Bertoli contends he is financially destitute. He filed for personal bankruptcy in 1983; the case is still pending. *fn259" Bertoli has not filed a tax return for several years, claiming he has no tax owing. Presentence Report at 37. Bertoli further contends he receives no income and meets family expenses through a combination of his pension and financial support from other family members. Id. Probation asked Bertoli to submit a financial questionnaire, but Bertoli has yet to provide that document. Id. Bertoli has stated to Probation that his house is owned by a trust company in the name of his wife and children; the home is conservatively valued in excess of $ 1,000,000. Id.

  Bertoli is not destitute; he can afford the fine of $ 7,000,000. As established at trial, in October 1983, Bertoli stashed millions of dollars in secret bank accounts in the Cayman Islands and other off-shore accounts. In addition, in 1990, Bertoli was able to successfully move millions of dollars out of the Cayman Accounts into the accounts in Andorra which are beyond the reach of the Government. In fact, the jury convicted Bertoli for obstructing justice by transferring funds from the Cayman Islands to Andorra. The evidence further demonstrates Bertoli is in control of those funds in the accounts in Andorra. Bertoli is, therefore, not destitute and is able to pay the fine.

  5. Bertoli's Motion for Bail Pending Appeal

  At the Sentencing Hearing, Bertoli moved to continue his release on bail pending his appeal of his conviction. *fn260"

   a. Background

  On 6 November 1989, Bertoli was arraigned on the Superseding Indictment. At that time, Bertoli was ordered to surrender his passport and to report to Pretrial Services according to a schedule set by Pretrial Services. Bertoli was also ordered to post a one million dollar bond secured by the house in which he lived, which, in November 1989, had a fair market value of between $ 1,850,000 and $ 1,900,000. A subsequent order modified the release conditions to allow Bertoli to travel, upon notice to Pretrial Services, anywhere within the continental United States for purposes of pretrial preparation.

  In January 1992, the Government made a motion to modify Bertoli's release conditions pursuant to 18 U.S.C. § 3148. See 29 Jan. 1992 Bail Memo. Specifically, the Government sought to increase the amount of bail from $ 1,000,000 to $ 4,000,000 and to have Bertoli confined to his home subject to twenty-four hour electronic monitoring under the supervision of Pretrial Services. Id. at 2. The Government contended these modifications were necessary because it had recently learned of Bertoli's continuing efforts to conceal his illegal racketeering activities, which activities constituted the bases for Counts Three through Seven of the Second Superseding Indictment. Id. at 1. The Government further stated that "although Bertoli has been in personal bankruptcy proceedings since October 1983, he beneficially owns in excess of $ 4 million in accounts outside the United States -- money that represents the proceeds of his illegal racketeering activities." Id. at 1-2. By order, dated 8 April 1992, the Government's motion to modify Bertoli's bail conditions was denied.

  As stated, Bertoli was convicted of Counts Three and Six of the Redacted Second Superseding Indictment on 24 August 1993. At that time, Bertoli requested that he "remain at liberty pending sentencing on the [then-existing] bail conditions." Trial Transcript at 6938. The Government argued that "there [was] a presumption of flight," and accordingly asked that Bertoli's bail conditions be restricted. Specifically, the Government asked that Bertoli be required to post further security as bond, and that he "be confined to his home . . ., and be subject to 24-hour electronic monitoring under the supervision of Pretrial Services at . . . Bertoli's cost, and upon notification to and approval by Pretrial Services, he be permitted to leave his home only to attend religious services, visit and consult with counsel, receive medical treatment and attend court proceedings." Trial Transcript at 6941.

  Bertoli's request to continue his release conditions was denied, and Bertoli was remanded to custody pending sentencing. The basis for the Remand Order was the determination that there was "a certainty that [Bertoli would] flee. . . ." Trial Transcript at 6945. It was explained:

  

[Bertoli] is thoroughly familiar and experienced in international monetary transactions. He has had and still has foreign bank accounts worth millions of dollars. He is an experienced international traveler. He obviously has contacts in various countries. He has friends in other countries.

  

He has previously been convicted of 77 counts of either securities fraud or mail and wire fraud. To my understanding he has not had a job for a long[] period of time. He owns no real estate. All [domestic] assets that he [owns] are in his wife's name. He has no viable roots to hold him. His children are grown. It is his second major conviction. He has taken extensive steps to cover up his prior activity. He now faces a very significant sentence.

  

. . .

  

As indicated by his extensive years of experience internationally, he does have the ability to flee, [and] I believe he will flee. I do not believe he is reliable. I do not believe he is truthful.

  

. . .

  

I have had an opportunity to see [Bertoli] every day for the past three and a half months. I am satisfied he will flee. He will be out of the country. He has no reason to stay here. . . . I again stress he is not employed, he owns no real estate, he has no assets. He has no viable roots.

  Trial Transcript at 6942-43, 6944.

  As stated, the Circuit reversed the Remand Order on 27 August 1993, and reinstated the bail conditions which existed prior to the Remand Order. See 27 Aug. 1993 Circuit Order. However, the Circuit also added to the conditions of Bertoli's release the establishment of a regime of 24-hour electronic monitoring. See id.

  The Government subsequently moved before the Circuit to increase the amount of security to $ 4,000,000.00 and to require that Bertoli bear the costs of electronic monitoring. The Circuit granted the Government's motion only in so far as it sought to impose the costs of monitoring on Bertoli. See Order of the Circuit, dated 15 September 1993 (the "15 Sept. 1993 Circuit Order"). The Circuit further clarified the 27 August 1993 Circuit order by stating:

  

[Bertoli] shall be permitted to leave home for [six specifically requested] purposes, *fn261" provided that he shall give 48 hours notice of the time and place of each trip and provide an address and telephone number at which he can be reached at all times during such trips.

  15 Sept. 1993 Circuit Order. The instant motion to continue bail pending appeal followed at the Sentencing Hearing.

  b. 18 U.S.C. § 3143(b)

  The Bail Reform Act of 1984 (the "1984 Act") provides, in relevant part:

  

The judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds --

  

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; *fn262" and

  

(B) that the appeal is not for the purposes of delay and raises a substantial question of law or fact likely to result in -- (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

  18 U.S.C. § 3143(b).

  Section 3143(b) creates a presumption against post-conviction release pending appeal. See United States v. Miller, 753 F.2d 19, 22 (3d Cir. 1985) ("The [1984 Act] was enacted because Congress wished to reverse the presumption in favor of bail that had been established under the prior statute, the Bail Reform Act of 1966."); United States v. Mathis, F. Supp. , 1994 U.S. Dist. LEXIS 520, 1994 WL 22303, at *2 (E.D.Pa. 25 Jan. 1994). The Circuit has explained:

  

Once a person has been convicted and sentenced to jail, there is absolutely no reason for the law to favor release pending appeal or even permit it in the absence of exceptional circumstances. First and most important, the conviction, in which the defendant's guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law, a presumption factually supported by the low rate of reversal of criminal convictions in the Federal system. Second, the decision to send a convicted person to jail and thereby reject all other sentencing alternatives, by its very nature includes a determination by the sentencing judge that the defendant is dangerous to the person or property of others, and dangerous when sentenced, not a year later after the appeal is decided. Third, release of a criminal defendant into the community, even after conviction, destroys whatever deterrent effect remains in the criminal law.

  Miller, 753 F.2d at 22 (quoting H.Rep. No. 907, 91st Cong., 2d Sess. 186-87 (1970) (emphasis added)).

  Accordingly, under the 1984 Act, "the defendant has the burden of establishing:"

  

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;

  

(2) that the appeal is not for the purpose of delay;

  

(3) that the appeal raises a substantial question of law or fact; and

  

(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.

  United States v. Messerlian, 793 F.2d 94, 95-96 (3d Cir. 1986) (emphasis added); see United States v. Smith, 793 F.2d 85, 87 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987).

  i. The Risk of Flight

  The factors to be considered in assessing the risk of flight include: (1) the nature and circumstances of the offense, (2) the defendant's family ties, (3) the defendant's employment status, (4) the defendant's financial resources, (5) the defendant's character and mental condition, (6) the length of defendant's residence in the community, (7) any prior criminal record and (8) any flight or failures to appear in court proceedings prior to or during the time of trial. United States v. Lamp, 606 F. Supp. 193, 200 (W.D.Tex. 1985), aff'd, 868 F.2d 1270 (5th Cir. 1989); see also 18 U.S.C. § 3142(g) (setting forth similar considerations with respect to bail pending trial).

  A defendant's financial condition and the length of the sentence he or she faces are of particular importance in assessing the risk of flight. See United States v. Londono-Villa, 898 F.2d 328, 329 (2d Cir. 1990) (in spite of strong family and financial ties to community, defendant posed flight risk where he was subject to lengthy sentence, was a commercial pilot with familiarity with foreign airstrips and had substantial foreign financial resources); United States v. Castiello, 878 F.2d 554, 556 (1st Cir. 1989) (defendant posed flight risk where he faced lengthy sentence and was not United States citizen); United States v. Malquist, 619 F. Supp. 875, 878-79 (D.Mont. 1985) (in spite of strong family ties, defendant not entitled to bail pending appeal where he faced substantial prison term, was unemployed, could be employed in any part of country, and had divested himself of his local assets); United States v. Kenney, 603 F. Supp. 936, 939 (D.Me. 1985) (defendant not entitled to bail pending appeal where he faced lengthy prison term and second prosection, notwithstanding that he had no criminal record, owned a home and had strong family ties to community).

  Bertoli has done little to carry his burden of proving, by clear and convincing evidence, that he poses no risk of flight. Bertoli argues only that he "has certainly demonstrated he is neither a flight risk nor a danger to the community. He has been released pursuant to the Third Circuit's order for nearly four months, without incident, and will appear on the date of sentence." 15 December 1993 Bertoli Brief at 2.

  To the extent Bertoli argues the issue of risk of flight was conclusively determined by the Circuit in the 27 August 1993 Circuit Order, his argument fails. The 27 August 1993 Circuit Order addressed only the issue of bail pending sentencing. The issue of bail pending appeal was not before the Circuit, and the Circuit gave no indication it was addressing the likelihood of Bertoli's fleeing after sentencing. See 27 Aug. 1993 Circuit Order.

  In this context, any finding the Circuit made with respect to Bertoli's likelihood of flight pending sentencing would be inapposite to his likelihood of flight pending appeal. Before sentencing, Bertoli and his attorneys could not be certain of the sentence Bertoli would face. However, at this stage of the proceedings, when Bertoli has been sentenced to a term of 100 months and a $ 7,000,000.00 fine, there can be no mistake as to the consequences of remaining in custody. The risk of flight at this stage of the proceedings is, therefore, a great deal more pronounced than at the pre-sentencing stage. *fn263" See Malquist, 619 F. Supp. at 878 (though defendant was released pending sentencing, he was detained pending appeal because his "situation had changed," in that he "now faced a substantial prison term"); Kenney, 603 F. Supp. at 939 (same); see also United States v. Giannetta, 725 F. Supp. 60, 63 (D.Me. 1989) ("Defendant now faces the certainty that he will serve an extended term of incarceration; he no longer has any basis to hope or expect that . . . he will be extended significant leniency in the imposition of sentence. That certainty persuasively reinforces the court's prior conclusion [in the context of bail pending sentencing] that defendant represents a high risk of flight if admitted to bail." (emphasis in original)). Accordingly, the 27 Aug. 1993 Circuit Order does not control the instant inquiry into Bertoli's risk of flight; the issue must be considered independently in light of the facts now before the court.

  A review of these facts indicates Bertoli does in fact pose a serious risk of flight. Bertoli has no financial ties to the community. He has been in personal bankruptcy since 1983 and is currently unemployed. Title to the domestic assets which he does own, including his home, is in his wife's name. Bertoli's family ties are equally dubious, as evidenced by his willingness to involve family members in his stock manipulation scheme by trading the stocks mentioned in the Redacted Second Superseding Indictment in their names. Bertoli's weak roots in the community militate strongly against granting him bail pending appeal. See Lamp, 606 F. Supp. at 200. As well, he committed an offense, Count Six, while on pretrial release in this case.

  While Bertoli has no financial roots in the community, he does have access to millions of dollars abroad. For example, Bertoli has access to the millions of dollars in funds which were transferred from the Cayman Islands to Andorra in 1990. *fn264" Bertoli also has access to the over one-half million dollars transferred from the Berco Trust account at Swiss Bank to an account in the Cayman Islands which is beyond the reach of the Government. *fn265" Though the Government has, at various times, pointed out Bertoli's access to offshore assets, Bertoli has not denied he has such access. *fn266" Bertoli is also thoroughly familiar with international financial transactions, and has the ability manipulate his offshore funds. The fact that Bertoli has access to the financial means to flee weighs strongly against granting him bail pending appeal. *fn267" See Londono-Villa, 898 F.2d at 329.

  The Government has also presented evidence that Bertoli has, while released on bail pending sentencing, violated the conditions of release imposed on him by the 27 Aug. 1993 Circuit Order and the 15 September 1993 Circuit Order. Specifically, at the Sentencing Hearing, the Government introduced evidence that, on or about 5 November 1993, Bertoli visited an office at 50 Broad Street in New York City, New York, and had lunch in a nearby restaurant known as "Harry's." Sentencing Tr. at 16. The Government's evidence indicated that, on that date and at those places, Bertoli met with an individual named Morton Kantrowitz ("Kantrowitz"). Id. The Government indicated Kantrowitz was a securities trader who had been indicted by a New York state grand jury on stock fraud charges in January 1991. Id. at 16-17. In October 1992, Kantrowitz pled guilty to one count of falsifying business records, a class A misdemeanor under New York state law, and was sentenced to one year conditional discharge. Id. at 17. Pretrial Services neither knew of nor authorized Bertoli's meeting with Kantrowitz. *fn268"

  Under the 27 Aug. 1993 Circuit Order and the 15 Sept. 1993 Circuit Order, Bertoli was required to notify Pretrial Services of any departure from his home and obtain Pretrial Services' approval for such departures. He was specifically required to obtain Pretrial Services' approval for departures other than the Pre-Approved Departures. It is doubtful Pretrial Services would have approved Bertoli's meeting with a known criminal who was convicted of engaging in conduct so similar to that of which Bertoli was convicted. *fn269" Bertoli's violation of the conditions of his release demonstrates that he is unwilling to abide by bail conditions, and accordingly that he cannot be trusted not to flee custody. As the Government points out, "Bertoli could just as easily drive to the airport as drive to 50 Broad Street." 14 February 1994 Government Brief at 27.

  Bertoli does not contest the Government's contention that his meeting with Kantrowitz constituted a violation of the conditions of his release. He merely argues the meeting is not indicative of his intention to flee custody. *fn270" See 1 March 1994 Bertoli Brief at 4. Bertoli's argument in this regard is unconvincing. Though his meeting with Kantrowitz may not have been on the subject of Bertoli's flight, and may not directly evidence his immediate intention to flee, it does evidence his lack of respect for the restrictions imposed on his freedom by the Circuit and by this court. These restrictions are not technical or of slight importance; they serve the crucial function of ensuring that a convicted felon with vast foreign financial resources does not flee the country to escape punishment. In light of the importance of these restrictions, Bertoli's transgression of them cannot be lightly excused.

  Based on the foregoing, Bertoli has failed to establish by clear and convincing evidence that he does not pose a risk of flight. Accordingly, his motion for bail pending appeal is denied. See Messerlian, 793 F.2d at 95-96.

  ii. Danger to the Community

  When assessing danger to the community, "danger may, at least in some cases, encompass pecuniary or economic harm." United States v. Reynolds, 956 F.2d 192, 192 (9th Cir. 1992) (denying bail pending appeal to defendant convicted of mail fraud); see United States v. Provenzano, 605 F.2d 85, 95 (3d Cir. 1979) ("We . . . hold that a defendant's propensity to commit crime generally, even if the resulting harm would not be solely physical, may constitute a sufficient risk of danger to come within the contemplation of the Act."); United States v. Leonetti, 291 F. Supp. 461, No Crim. 88-003, 1988 WL 61738 at *2 (E.D.Pa. 9 June 1988) (Provenzano "instructed that community danger not only meant a crime of physical violence, but also included the commission of future economic crimes as well."); United States v. Moss, 522 F. Supp. 1033, 1035 (E.D.Pa. 1981) (same), aff'd, 688 F.2d 826 (3d Cir. 1982); see also United States v. Strong, 775 F.2d 504, 507 (3d Cir. 1985).

  A defendant's commission of further crimes while released on bail weighs heavily against the granting of bail pending appeal. See United States v. Anderson, 216 U.S. App. D.C. 170, 670 F.2d 328, 330 (D.C.Cir. 1982) (defendant not entitled to bail pending appeal where "shortly after he was placed on probation he committed the same narcotics violation a second time"); United States v. Giannetta, 725 F. Supp. at (bail pending appeal not appropriate where defendant, while on probation, continued criminal activity); United States v. Lujan, 716 F. Supp. 477, 479 (D.Or. 1989) (bail pending appeal not appropriate where defendant had continued criminal activity while released on state court appeal bond); see also 18 U.S.C. § 3142(g)(3)(B) (In deciding whether to release defendant on bail pending trial, court should consider "whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence. . . .").

  In the instant case, a significant portion of the criminal activity of which Bertoli was convicted occurred while Bertoli was free on pretrial release. As indicated, Bertoli was arraigned on the Superseding Indictment on 6 November 1989; since that date, Bertoli has been free on bail. Bertoli was convicted, inter alia, of obstructing justice by conspiring to cause and causing racketeering proceeds to be transferred from the Cayman Islands to Andorra "in or about March and April 1990." Count Six; see Count Three, P 27. The jury determined beyond a reasonable doubt, therefore, that Bertoli had engaged in criminal activity while free on bail pending trial. Bertoli's commission of criminal activity while on pretrial release weighs heavily against granting him bail pending appeal. See Anderson, 670 F.2d at 330; Lujan, 716 F. Supp. at 479.

  In addition, it was established at trial that Bertoli illegally induced Foster to evade deposition by the Government in 1991. Specifically, it was established that in March 1991, Bertoli offered Foster $ 50,000.00 to leave the Cayman Islands for three months to avoid being deposed. Later, in September 1991, Bertoli again instructed Foster to leave the Cayman Islands to avoid deposition by the Government. It was only on Bertoli's instruction that Foster returned to the Cayman Islands, three days after the Government had completed its depositions. Tampering with a witness in this manner was both illegal and in violation of the conditions of Bertoli's pre-trial release. Commission of such acts while released on bail pending trial militates strongly against the grant of bail pending appeal. See Anderson, 670 F.2d at 330; Lujan, 716 F. Supp. at 479.

  The conclusion that Bertoli continues to pose a danger to the community is further supported by his meeting with Kantrowitz in November 1993. As stated, Bertoli, in defiance of the conditions of his release pending sentencing, met on 5 November 1993 with Kantrowitz, a person convicted of falsifying business records in violation of New York state law. The similarity of Kantrowitz's conviction with the acts for which Bertoli was convicted gives rise to, at least, the inference that Bertoli continued to engage in illicit activity while released on bail pending sentencing.

  It is also observed that the instant conviction is not Bertoli's first. As indicated, he has previously been convicted of seventy-seven counts of securities, mail and wire fraud. In addition, in connection with the Rutherford Suit, the Superior Court found that Bertoli had engaged in transfers "with the intent of defrauding the unmatured claims of shareholders and creditors of [Executive Securities]." Rutherford Op. at 17. The economic danger that Bertoli has posed to the community in the past is a strong indication of the danger he presently poses. See Reynolds, 956 F.2d at 192.

  Bertoli's commission of criminal acts while free on pretrial release demonstrates that no conditions of supervised release can prevent him from posing a danger to the community. Bertoli has offered nothing in support of his burden of proving he is not a danger to the community. Under these circumstances, bail pending appeal is inappropriate on the independent ground that Bertoli poses a danger to the community. See Anderson, 670 F.2d at 330.

  iii. Substantial Question of Law or Fact

  The Third Circuit has held a "substantial question" is one which is "fairly debatable." Smith, 793 F.2d at 89-90 (adopting standard articulated in United States v. Handy, 761 F.2d 1279, 1281-82 (9th Cir. 1985), and rejecting "close question" formulation stated in United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)); see Messerlian, 793 F.2d at 96. The defendant must show not only that the issues presented on appeal are "debatable among jurists of reason," but also that they are "significant." Smith, 793 F.2d at 88-89.

  The Circuit has elaborated that the court "must find that the significant question at issue is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful." Miller, 753 F.2d at 23. Moreover, "[a] question of law or fact may be substantial but may, nonetheless, in the circumstances of a particular case, be considered harmless, to have no prejudicial effect, or to have been insufficiently preserved." Id. In order for a question to be "significant" in a particular case, it must be "so integral to the merits of the conviction on which a defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." Id.

  Bertoli raises six issues which he contends are "substantial" for the purposes of section 3143(b). Specifically, Bertoli contends the court erred:

  

(1) in its investigation of possible juror misconduct,

  

(2) in precluding Bertoli from presenting to the jury evidence concerning the Government's motives to prosecute Bertoli,

  

(3) in quashing the Cahill Subpoena,

  

(4) in sending the jury transcripts of witnesses' testimony and the jury books used during trial,

  

(5) in denying Bertoli's 6 July Motion for Mistrial and

  

(6) in denying Bertoli's Sentencing Recusal Motion.

  See generally 19 January 1994 Bertoli Brief. Each of these contentions of error was addressed when raised by Bertoli at trial and was discussed in detail above; none of them present a substantial question of fact or law likely to result in reversal.

  Bertoli's Allegations of Juror Misconduct

  Bertoli's first assignment of error is without merit. As indicated, the inquiry into Bertoli's allegations of juror misconduct was fully adequate and dispelled any possibility that such misconduct affected the outcome of the trial. See supra at 301. Because Bertoli cannot establish he was prejudiced by juror misconduct, his allegations of juror misconduct would not provided a basis for reversal of his conviction on appeal. Bertoli's argument as to juror misconduct fails, therefore, to raise a "significant" and "substantial" question for appeal within the meaning of section 3143(b). See Smith, 793 F.2d at 89; Miller, 753 F.2d at 23.

  Preclusion of Bertoli from Presenting Evidence Concerning Selective or Vindictive Prosecution to Jury

  Bertoli next contends it was error for the court to prevent him from presenting a defense based on vindictive prosecution to the jury. See 19 Jan. 1994 Bertoli Brief at 6. As indicated, Bertoli was properly precluded from introducing evidence of prosecutorial motive to the jury. As stated, questions relating to selective or vindictive prosecution and prosecutorial misconduct are properly addressed to the trial judge, and not to the jury. See supra at 237; Engler, 806 F.2d 425, 430; Berrigan, 482 F.2d 171, 174-75. Bertoli's arguments regarding vindictive prosecution and Government misconduct were properly addressed and rejected by the court. Submission of these arguments, and evidence in support thereof, to the jury would have been inappropriate and was properly disallowed. See supra at 237; Young, 470 U.S. 1, 13, 84 L. Ed. 2d 1, 105 S. Ct. 1038; Pungitore, 910 F.2d 1084, 1127.

  Because the preclusion of Bertoli from presenting evidence of vindictive prosecution to the jury was proper under the relevant law, Bertoli's reassertion of this issue does not present a "substantial" issue for appeal within the meaning of section 3143(b). See Miller, 753 F.2d at 23.

  Quashal of the Cahill Subpoena

  Bertoli also argues the quashal of the Cahill Subpoena constituted reversible error. See 19 Jan. 1994 Bertoli Brief at 19. Contrary to Bertoli' assertions, he was properly prevented from subpoenaeing Special Agent Cahill. As indicated, none of the proffers presented by Bertoli's counsel indicated he had a good faith basis for questioning Special Agent Cahill regarding undue influence on the testimony of Government witnesses. Moreover, the testimony which would have been solicited from Special Agent Cahill would have served no purpose beyond that which was already served by Bertoli's cross-examination of the Government's witnesses. See supra, at 258-67. The quashal of the Cahill Subpoena was therefore proper and does not give rise to a substantial question of fact or law which would justify granting bail pending appeal. See Miller, 753 F.2d at 23.

  Submission of Trial Transcripts and Jury Books to Jury

  Bertoli further argues it was error to submit the trial transcripts and jury books to the jury. See 19 Jan. 1994 Bertoli Brief at 29. As stated, however, the submission of the trial transcripts to the jury was well within the court's discretion, if not required by the law of the Circuit. See supra, at 222; Zarintash, 736 F.2d 66, 70. Moreover, the submission of the Government Jury Books and Bertoli Jury Books to the jury was also proper. See supra, at 228. Because the submission of the trial transcripts and jury books to the jury did not constitute reversible error, these rulings do not give rise to a substantial question of law or fact under section 3143(b). See Miller, 753 F.2d at 23.

  Denial of the 6 July Motion for Mistrial

  Bertoli contends the court erred in denying the 6 July Motion for Mistrial. See 19 Jan. 1994 Bertoli Brief at 38. The comments cited by Bertoli in support of that motion could not have prejudiced the jury, and, in any event, were made out of the presence of the jury, and therefore could not have been prejudicial to Bertoli. Because there was no showing of prejudice, Bertoli's 6 July Motion for Mistrial was properly denied. See supra, at 163; Tarantino, 269 U.S. App. D.C. 398, 846 F.2d 1384, 1413. The denial of the 6 July Motion for Mistrial does not, therefore, create a substantial question of law or fact for appeal. See Miller, 753 F.2d at 23.

  Denial of Sentencing Recusal Motion

  Finally, Bertoli assigns error to the denial of the Sentencing Recusal Motion. See 19 Jan. 1994 Bertoli Brief at 43. Contrary to Bertoli's suggestion, there was neither bias nor the appearance of bias on the part of the court in this case. Bertoli's Sentencing Recusal Motion was, therefore, properly denied. See supra, at 369; Edelstein, 812 F.2d at 131. Because the denial of the Sentencing Recusal Motion is not likely to result in reversal of Bertoli's conviction it does not create a substantial issue for appeal under section 3143(b). See Miller, 753 F.2d at 23.

  Bertoli has failed to carry his burden of establishing the existence of an issue of law or fact likely to result in reversal or an order for a new trial. He has further failed to carry his burden of establishing, by clear and convincing evidence, that he would not pose a risk of flight or a danger to the community if released on bail pending appeal. Accordingly, Bertoli's motion for bail pending appeal must be denied. *fn271" See Messerlian, 793 F.2d at 95-96.

  Conclusion

  This opinion is meant to address Bertoli's motion for bail pending appeal, and to facilitate the processing of his appeal. Pursuant to Third Circuit Rule 8(4), it is intended to clarify and amplify the rulings made during pretrial proceedings, at trial and through sentencing. As already indicated, this opinion is not intended to stand alone, and should be read in conjunction with prior orders and opinions, as well as the pre-trial and trial transcripts in this case. *fn272"

  APPENDICES NOT INCLUDED FOR PURPOSES OF PUBLICATION


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