Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: STAPLETON, McKEE, and NORRIS *fn1, Circuit Judges
In 1988, Alexander E. Moskovits was convicted by a jury of various narcotics offenses related to the possession and distribution of cocaine. He was sentenced by Judge Louis M. Pollak to fifteen years imprisonment. *fn2 Judge Pollak later granted Moskovits's Section(s) 2255 motion to vacate the conviction on the ground that Moskovits's trial counsel was ineffective, United States v. Moskovits, 844 F. Supp. 202 (E.D. Pa. 1993), and granted Moskovits's request to represent himself at the new trial. Moskovits was again convicted and sentenced by Judge Clarence C. Newcomer *fn3 to a prison term of twenty years, five years longer than the sentence imposed by Judge Pollak.
On appeal, Moskovits contends that his conviction must be set aside on either of two grounds: (1) that his right to testify in his own defense was abridged by the conditions imposed on the format of his testimony, and (2) that he did not knowingly and intelligently waive his Sixth Amendment right to counsel. Moskovits also contends that, even if the conviction is affirmed, the case must be remanded for resentencing because his sentence was based on impermissible considerations. We affirm the conviction but remand for resentencing.
Moskovits contends that his conviction must be set aside because the district court imposed unreasonable conditions on his right to testify in his own defense. *fn4 He argues that these conditions were so onerous that he had no choice but to forgo his right to testify.
We express no view on the propriety of the conditions imposed by Judge Newcomer because Moskovits, by electing not to testify, failed to preserve this issue for appeal. Because Moskovits did not testify, any possible harm flowing from the conditions imposed by Judge Newcomer is speculative and cannot be evaluated in relation to the record as a whole. *fn5 Accordingly, we decline to set Moskovits's conviction aside on this ground. See Luce v. United States, 469 U.S. 38, 41-42 (1984) (defendant must testify in order to raise and preserve the claim of improper impeachment with a prior conviction); United States v. Romano, 849 F.2d 812, 815-16 (3d Cir. 1988) (when defendant refuses to testify, the harm flowing from an in limine order is merely speculative and, thus, not a basis for reversing a conviction); United States v. Nivica, 887 F.2d 1110, 1116-17 (1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990) (defendant who does not testify may not challenge ruling regarding the scope of permissible cross-examination).
Moskovits also seeks a new trial on the ground that the colloquy with the district court at the time he waived his right to counsel was thoroughly "deficient." In fact, as the government points out, Judge Pollak conducted a lengthy and detailed colloquy that was, in all respects but one, a model of thoroughness. Judge Pollak set out the dangers and difficulties of proceeding pro se, stating that it would be "an imprudent course" and that Moskovits would be doing himself "a very very grave disservice." App. at 41. Judge Pollak spelled out the cumbersome procedures Moskovits would have to follow to maintain the distinction between his roles as lawyer and defendant. *fn6 He endorsed the Assistant United States Attorney's statement that Moskovits would lose the benefit of the advice of counsel regarding the most effective way to present his case to the jury. *fn7 Judge Pollak also appointed stand-by counsel. Nonetheless, it is undisputed that punishment was not discussed at the waiver hearing. In particular, Judge Pollak did not inform Moskovits of the range of punishments he faced on retrial.
For a waiver of the right to counsel to be "knowing and intelligent," which it must be in order to be valid, the defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Faretta v. California, 422 U.S. 806, 835 (1975). To ensure that a defendant "truly appreciates the 'dangers and disadvantages of self-representation,' . . . '[a defendant's] waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, [and] the range of allowable punishments thereunder.'" United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1981) (quoting Faretta, 422 U.S. at 835, and Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (plurality)) (emphasis added); see also Singer v. Court of Common Pleas, 879 F.2d 1203, 1210 (3d Cir. 1989) (no waiver where court failed to inform defendant of range of punishment he might be exposed to); McMahon v. Fulcomer, 821 F.2d 934, 945 (3d Cir. 1987) (same); Piankhy v. Cuyler, 703 F.2d 728, 731 (3d. Cir. 1983) (same).
The government concedes that Moskovits was not advised during the waiver hearing that he faced the possibility of an increase in the fifteen-year sentence that had been originally imposed by Judge Pollak, but argues that his waiver of his right to counsel was knowing and intelligent because the record shows that he was aware of this possibility at the time of the waiver hearing. The government frames its argument as follows: "[T]he record establishes that although not specifically advised of the possibility of an increased sentence at the waiver hearing before Judge Pollak, Moskovits understood that possibility before the trial commenced before Judge Newcomer." Appellee's Brief at 16. In making this argument, the government relies on the record of proceedings both before and after the waiver hearing conducted by Judge Pollak.
The government relies on United States v. McFadden, 630 F.2d 963 (3d Cir. 1980), cert. denied, 450 U.S. 1043 (1981), for the proposition that if the defendant has otherwise been made aware of the range of punishment he faced, the court is not required to notify him again at the time he waives his right to counsel. McFadden, however, is distinguishable on its facts in a material respect. In McFadden, the record was clear that the defendant was aware of the range of punishment he faced when he waived his right to counsel. As this court said, "[t]he nature of the charges and the range of punishment had been pointed out in McFadden's two initial appearances before a magistrate." Id. at 972.
Here the record is not at all clear that Moskovits had been made aware when he waived his right to counsel before Judge Pollak that the original 15-year sentence would not serve as a ceiling on the sentence he could receive in the event he was convicted again. The government cites the Pre-Sentence Investigation Reports (PIRs) that were prepared when Moskovits was originally sentenced and resentenced. *fn8 In relying on these PIRs as evidence that Moskovits was aware that he faced the possibility of an increased sentence if found guilty a second time, the government assumes, implicitly, that Moskovits either read and understood the PIRs or that counsel then representing him explained to him that the maximum sentences set forth in the PIRs could be imposed in spite of the fact that Moskovits's sentence would then exceed the 15-year sentence originally imposed. The government cites no record support for either assumption, and we have found none. Thus there is no record support, as there was in McFadden, for imputing to Moskovits knowledge at the time he waived his right to counsel that the original 15-year sentence would not act as a ceiling on his punishment. Accordingly, we see no basis for inferring that Moskovits was aware from the mere existence of the PIRs that he was facing the possibility of an increased sentence if found guilty a second time, particularly given our mandate to "indulge in every reasonable presumption against waiver" of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404 (1977).
The government also cites a conference in Judge Newcomer's chambers six or seven days before the start of the retrial as evidence that Moskovits was aware at the waiver hearing before Judge Pollak five months earlier that he faced the possibility of a twenty-year sentence. The extract from the transcript of the in-chambers conference relied upon by the government reads as follows:
THE COURT: Okay. Now, my understanding of the law, and I mention this at the outset so that everybody knows my view of the law on this matter, and if you disagree with it that you will then have an opportunity to furnish me with the authority for your stance, is that this sentence having been vacated and a new trial being granted, we are in an entirely new ballgame. And this matter is like a new case coming before me for trial for sentence with the power vested in the presiding judge to determine, if appropriate, if there should be a conviction the sentence that would be applicable.
I understand this case preceded the guidelines, is thatright?
THE GOVERNMENT: That is correct, your Honor.
THE COURT: And therefore this case will not be sentencedunder the ...