# Appendix — Sonneberg v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1111

## Text

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APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
FILED APRIL 4, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2607
MILTON SONNEBERG,
Appellant
v.
UNITED STATES OF AMERICA

On appeal from the United States District Court
for the District of New Jersey

District Court Judge: The Honorable Nicholas H Politan
(D.C. Civil No. 00-cv-1000)

Submitted Under Third Circuit L.A.R. 34.1(a)
January 14, 3003

Before: ROTH, FUENTES, Circuit Judges,
and ALDISERT, Senior Circuit Judge

(Opinion Filed: April 4, 2003)

OPINION OF THE COURT: FUENTES, Circuit Judge

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Appendix A

Milton Sonneberg appeals the District Court’s denial of
his petition for collateral relief pursuant to 28 U.S.C. § 2255.
Sonneberg was convicted of conspiracy to commit wire fraud
and mail fraud, wire fraud and multiple counts of each of
mail fraud and interstate transportation of money obtained
through fraud. Sonneberg contends in his Section 2255
petition that the Supreme Court’s decision in Neder v. United
States, 527 U.S. 1 (1999), is an “intervening change in the
law” that establishes that he has been convicted for offense
conduct that is not a crime. We disagree. For the reasons
that follow, we will affirm the District Court’s denial of
Sonneberg’s Section 2255 petition.

I. BACKGROUND

Sonneberg was indicted by a federal grand jury on
April 23, 1995, along with Irwin H. Block (sic) (a/k/a
“Sonny Bloch”), James Barschow , Joseph Glenski, and
Bruce Schroeder. Sonny Bloch pleaded guilty to eight of the
thirty-five counts in the indictment on September 18, 1996.
A federal grand jury returned a thirty-count superceding
indictment against the remaining four defendants on
December 18, 1996. Barschow, Glenski and Schroeder
pleaded guilty to nine counts on April 9, 1997. Another thirty-
count superceding indictment was filed against Sonneberg
on April 23, 1997. In that indictment, Sonneberg was
charged with the following offenses: (1) conspiracy to
commit wire fraud and interstate transportation of money
obtained through fraud in violation of 18 U.S.C. § 371;
(2) conspiracy to commit mail fraud and interstate
transportation of money obtained through fraud in violation

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Appendix A

of 18 U.S.C. § 371; (3) wire fraud in violation of 18 U.S.C.
§ 1343; (4) four counts of mail fraud in violation of 18 U.S.C.
§ 1341.

A trial commenced on May 1, 1997. In brief, the facts
established at trial show that Sonneberg, Bloch, Barschow,
Glenski and Schroeder conspired to market limited liability
company (“LLC”) interests in a series of wireless cable
television ventures and in a proposed radio-station network.
The conspirators’ sales pitches promised potential investors
unparalleled opportunities in the cutting-edge technology of
wireless cable television systems and a network of
independent broadcasters owned by “Bloch Broadcasting.”
The problem with the sales pitches was there were no viable
business ventures behind them. In fact, the wireless cable
systems being promoted did not have any of the resources,
such as profitable channels, sites and FCC licenses , necessary
to make them operable, much less profitable. And “Bloch
Broadcasting” was a shell company with no assets.
Nonetheless, the promoters raised millions of dollars from
investors. Approximately forty percent of the investor money
was paid to the conspirator-promoters in the form of sales
commissions.

Sonny Bloch touted the sale of the LLCs on his
nationally-syndicated radio program, “The Sonny Bloch
Radio Show.” Bloch had 1.5 million listeners and a good
reputation as a consumer advocate. He agreed to endorse the
sale of the LLCs and to vouch for the character of the
promoters and the financial soundness of the ventures on his
radio program. Despite the fact that Bloch was paid $2000

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Appendix A

per week for these endorsements, he made them sound
personal rather than commercial]. The conspirators used
Bloch’s radio program to develop leads to market the LLCs.

The conspirators also developed sales brochures for each
of the LLCs they were promoting. The brochures included
inflated financial projections and promised unrealistically
high returns. The brochures misrepresented the true identity
of the principals in the ventures, how the investment money
would be allocated, the claims regarding the subscribership
base for the ventures, and the ability of investors to participate
in management decisions. The brochures also failed to
disclose the prior criminal convictions and civil fraud
injunctions against certain of the conspirators, including
Sonneberg.

On May 29, 1997, Sonneberg was convicted of all thirty
counts alleged in the indictment. The District Court sentenced
him to a 76 month prison term and ordered him to pay $5.2
million in restitution. Sonneberg appealed his conviction and
sentence. On August 12, 1998, this court affirmed his
conviction and sentence by judgment order. United States
v. Sonneberg, 164 F.3d 621 (3d Cir. 1998) (unpublished,
non-precedential opinion). The Supreme Court denied his
petition for certiorari on March 5, 1999.

On March 1, 2000, Sonneberg filed a petition for
collateral relief pursuant to 28 U.S.C. § 2255. While that
petition was pending in the District Court, Sonneberg filed a
petition for a writ of mandamus, which this Court denied on
March 20, 2001. On April 6, 2001, the District Court denied
his Section 2255 petition and denied him a certificate of

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Appendix A

appealability. The District Court denied Sonneberg’s motion
to reconsider.

On May 2, 2001, Sonneberg filed a timely notice of
appeal and a request for a certificate of appealability from
this Court. By order dated June 18, 2002, this Court granted
Sonneberg a certificate of appealability limited to two of his
claims: (1) that the District Court failed to instruct the jury
on an element of the offense; and (2) that the government
used an untenable theory of materiality, resulting in a
conviction for offense conduct that is not a crime.

Il. ANALYSIS

The District Court had jurisdiction over Sonneberg’s
petition for collateral relief pursuant to 28 U.S.C. § 2255.
We have jurisdiction over his appeal pursuant to 28 U.S.C.
§ 2255, 1291. We have plenary review over the
District Court’s denial of Sonneberg’s Section 2255 petition.
United States v. Lloyd, 188 F.3d 184, 186 (3d Cir. 1999).

28 U.S.C. § 2255 provides in pertinent part:

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to

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Appendix A

collateral attack, may move the court which
imposed the sentence to vacate, set aside, or
correct the sentence.

It is well settled that a petitioner generally may not
relitigate issues that were decided adversely to him on direct
appeal by means of a Section 2255 petition. See United
States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1994).
An exception exists, however, when there has been an
“intervening change in the law” affecting the claim previously
decided adversely to the petitioner. See Davis v. United
States, 417 U.S. 333 (1974).

The certificate of appealability sets forth two claims:
(1) that the District Court failed to instruct the jury on an
element of the offense; and (2) that the government used an
untenable theory of materiality, resulting in a conviction for
offense conduct that is not a crime. As Sonneberg’s brief
makes clear, these two claims collapse into one argument
that, prior to finding liability for mail and wire fraud on the
basis of a material non-disclosure, a jury must first find that
the defendant was under a duty to disclose, and that, in this
case, the District Court erred in failing to instruct the jury on
this element of the offense.

This claim was previously litigated on direct appeal.
The first issue raised in Sonneberg’s opening brief on direct
appeal is “The Jury Was Improperly Permitted to Convict
on the Basis of Nondisclosures.” (Supp. App. at p. 9)
The arguments he made in support of the asserted error were
as follows: (1) the mail and wire fraud statutes require a duty
to disclose before imposing liability for a material omission;

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Appendix A

(2) because he had no duty to disclose his prior guilty plea
and civil injunction, he was convicted on a legally insufficient
theory; (3) the jury was never instructed that it had to find
that he had a legal duty to disclose; and (4) reversal is required
because the jury was permitted to find guilt on legally
impermissible and unconstitutional theory. Id. at 9-10. After
considering Sonneberg’s arguments, this Court affirmed his
conviction and sentence. United States v. Sonneberg,
164 F.3d 621 (3d Cir. 1998) (unpublished, non-precedential
opinion). Thus, this Court has already considered the central
argument raised by Sonneberg in his Section 2255 petition
namely, that the duty to disclose is a required element of the
offenses of mail and wire fraud.

Despite the fact that we have already decided this issue
adversely to Sonneberg, he urges us to reconsider it in light
of Neder v. United States, 527 U.S. 1 (1999), which he
asserts is an “intervening change in law.” We do not agree
that Neder is an intervening change in the law warranting
relitigation of the issue already decided on direct appeal.
First, Neder is not a “change in law” because the two holdings
of Neder do not pertain to the issue raised by Sonneberg.
In fact, Neder did not change the state of the law pertaining
to whether a duty to disclose is an element of the offenses of
mail and wire fraud. And second, Neder is not an intervening
decision.

In Neder, the defendant had been “tried on charges of
violating a number of federal criminal statutes penalizing
fraud.” 527 U.S. at 4. The government conceded that the
district court erred in refusing to submit the issue of
materiality to the jury with respect to the tax fraud charges.

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Appendix A

Id. The Supreme Court held that an instruction that omits an
element of the offense, such as the instruction on tax fraud,
does not necessarily render a criminal trial unfair, and is thus
subject to harmless error analysis. Id. at 4, 9. The Court also
held that “materiality is an element of the federal mail, wire
and bank fraud statutes.” 1d. at 4 (emphasis added).

In this case, the District Court properly instructed the
jury that materiality is an element of the offenses of wire
and mail fraud. (App at pp. 40-471). Sonneberg does not
contest the District Court’s materiality instruction. Instead,
Sonneberg argues that the District Court failed to instruct
the jury that duty to disclose is an element of the offenses in
mail and wire fraud when there is an allegation of a material
non-disclosure. Neither holding of Neder bears on that
argument.

Sonneberg argues, however, that certain language in
Neder supports his argument that the duty to disclose is an
element of mail and wire fraud. Specifically, he points to the
Court’s rejection of the government’s argument that Congress
“chose to unmoor the federal mail fraud statute from its
common-law analogs...’ Neder, 527 U.S. at 24. Based on
this statement, Sonneberg contends that, because duty to
disclose was an element of common-law fraud, it must remain
an element of the federal mail and wire fraud statutes.
Sonneberg overlooks the fact that in determining that the
common-law element of materiality remains an element of
federal mail and wire fraud, the Court observed that
“the fraud statutes did not incorporate all the elements of
common-law fraud.,” including the elements of reliance and
damage. Id. at 24-25 (emphasis in original). Sonneberg also

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Appendix A

disregards the fact that the Court was only considering the
element of materiality in the Neder decision. Thus, the
language cited by Sonneberg is not sufficiently precise to be
an “intervening change in law” warranting relitigation of an
issue previously decided on direct appeal.

Sonneberg also overlooks the substantial precedent
establishing that duty to disclose is not always an element of
common-law fraud when there has been a material non-
disclosure. In a decision post-dating Neder, the Fourth Circuit
recognized that “[t]he Supreme Court has recently articulated
an outer boundary for the interpretation of the federal fraud
statutes,” but nonetheless found that “at common law, no
fiduciary relationship, no statute, no other independent legal
duty to disclose is necessary to make active concealment
actionable fraud - simple ‘good faith’ imposes an obligation
not to purposefully conceal material facts with intent to
deceive.” United States v. Colton, 231 F.3d 890, 899-900
(4 Cir. 2000) (citing Neder, 527, at 1; Strong v. Repide,
213 U.S. 419, 430 (1909); Tyler v. Savage, 143, U.S. 79, 98
(1892); Stewart v. Wyoming Cattle Ranch Co., 128 U.S.
383, 388 (1888)); United States v. Keplinger, 776 F.2d 678,
697-98 (7" Cir. 1985); United States v. Townley, 665 F.2d
579, 585 (5" Cir. 1982); United States v. Allen, 554 F.2d
398, 410 (10" Cir. 1977). Thus it is clear that both before
and after the Neder decision, duty to disclose is not a
required element of the common-law offenses when there
have been material non-disclosures.

Not only is Neder not an (sic) “change in law” with
respect to Sonneberg’s claim, it is also not “intervening.”
Sonneberg’s conviction and sentence were affirmed by this

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Appendix A

Court on August 12, 1998. He petitioned to the Supreme
Court for certiorari, and raised the issue of whether
‘a defendant may be convicted under the federal mail and
wire fraud statutes for failing to disclose certain information
despite having no duty to disclose that information.”
(Supp. App. At p. 232). Sonneberg’s petition for certiorari
was pending when the Court decided Neder. In fact, Neder
was decided on February 23, 1999, and the Court denied
Sonneberg’s petition on March 5, 1999. Because
Sonneberg’s petition was not final until his petition for
certiorari was denied, see Kapral v. United States, 166 F.3d
565, 570 (3d Cir. 1999), the Neder decision was not
“intervening.” Moreover, because Sonneberg’s petition was
still pending when Neder was decided, if the Court thought
that Neder was relevant to Sonneberg’s claims, the Court
could have remanded his case for further proceedings.
Instead the Court simply denied Sonneberg’s petition.

In sum, because Sonneberg has not established an
“intervening change in law” he is not entitled to relitigate
the claim decided adversely to him on direct appeal.
Accordingly, we will affirm the District Court’s denial of
Sonneberg’s Section 2255 petition.

TO THE CLERK OF THE COURT
Kindly file the foregoing Opinion
/s/

Julio M. Fuentes
Circuit Judge

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APPENDIX B — LETTER OPINION OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY DATED APRIL 6, 2001

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF
NICHOLAS H. POLITAN
JUDGE

April 6, 2001

LETTER OPINION
ORIGINAL ON FILE WITH
CLERK OF THE COURT

Mr. Milton Sonneberg
Reg. No. 20869-050
P.O. Box 1000

Fort Dix, NJ 08640
Petitioner Pro Se

Alain Leibman, Assistant

U.S. Attorney

ROBERT J. CLEARY, UNITED STATES ATTORNEY
970 Broad Street

Newark, NJ 07102

Attorney for Respondent

Re: Milton Sonneberg v. United States
Civil Action No. 00-1000 (NHP)

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Appendix B

Dear Litigants:

This matter comes before the Court on the petition of
Milton Sonneberg to vacate, set aside or correct a sentence
pursuant to 28 U.S.C. 2255. This matter was resolved without
oral argument pursuant to Fed.R.Civ.P. 78. The Court has
reviewed the written submissions of the parties and, for the
reasons explained herein, the petition of Milton Sonneberg
to vacate, set aside, or correct the sentence is DENIED and
DISMISSED. No certificate of appealability shall issue.
This case is now CLOSED.

BACKGROUND

Petitioner, Milton Sonneberg (“petitioner”), acting
pro se, brings this civil action pursuant to 28 U.S.C. § 2255
to vacate, set aside or correct the sentence, or in the
alternative, to remand for an evidentiary hearing.

The facts of this case are fairly straightforward. Petitioner
was indicted by a federal grand jury on April 23, 1995, along
with four other individuals: Irwin H. Block (sic), a/k/a “Sonny
Block,” James Barschow, Joseph Glenski, and Bruce
Schroeder. Sonny Bloch pled guilty to eight counts in the
thirty-five count indictment on September 18, 1996.

A federal grand jury returned a thirty-count superseding
indictment against the remaining defendants on December
18, 1996. A trial was scheduled to begin on April 7, 1997.
On April 9, 1997 Glenski, Schroeder, and Barschow pled
guilty to nine counts in the superseding indictment.

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Appendix B

A thirty-count second superseding indictment was filed
against petitioner on April 23, 1997. This indictment charged
petitioner with the following offenses: conspiracy to commit
wire fraud and interstate transportation of money obtained
through fraud in violation of 18 U.S.C. § 371; conspiracy to
commit mail fraud and interstate transportation of money
through fraud in violation of 18 U.S.C. § 371; wire fraud in
violation of 18 U.S.C. § 1343; twenty-three counts of
interstate transportation of money obtained through fraud in
violation of 18 U.S.C. § 2314; and four counts of mail fraud
in violation of 18 U.S.C. § 1341.

A trial commenced on May 1, 1997, and petitioner was
convicted of all thirty counts on May 29; 1997. This Court
sentenced petitioner on December 16, 1997, to a seventy-six
month term of imprisonment, followed by five years of
supervised release. Petitioner was also ordered to pay %5.2
million in restitution. Final judgment was entered on
January 9, 1998.

Petitioner filed a notice of appeal from his conviction.
On August 12, 1998, the Court of Appeals for the
Third Circuit affirmed petitioner’s conviction. The United
States Supreme Court denied his petition for certiorari on
March 5, 1998.

Petitioner filed the instant petition on March 1, 2000.
He filed a writ of mandamus with the Court of Appeals for
the Third Circuit on August 13, 2000. That court denied
petitioner’s writ of mandamus on March 20, 2001. In his
petition, petitioner claims several errors occurred at trial,
including the following: (1) the district court failed to instruct

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Appendix B

the jury on an element of the offense; (2) the government
used an untenable theory of materiality; (3) ineffective
assistance of counsel based on counsel’s (a) permitting the
presentation of false testimony by government; (b) permitting
of inadmissible evidence; c) conflict of interest; and (d)
failure to recognize and defend against the aforementioned
alleged errors.

Discussion
I. Standard of Review

Section 2255 of Title 28 of the United States Code
provides a means of collaterally attacking a sentence imposed
after a conviction. Section 2255 provides, in pertinent part:

A petitioner in custody under the sentence of a
court established by Act of Congress claiming the
right to be released upon the ground that the
sentence was imposed in violation of the
Constitution or laws of the United States, or that
the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside
or correct the sentence. ...

The grounds for collateral attack of a sentence pursuant
to Section 2255 are narrowly limited. See United States v.
Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). The Third Circuit
has recognized that “not all non-constitutional errors in

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Appendix B

criminal proceedings enable a prisoner to bring an
action under [Section] 2255 for relief.” Diggs v. United
States, 740 F.2d 239, 242 (3d Cir. 1984); accord United States
v. Vancol, 778 F.Supp. 219, 22 (D.Del. 1991), aff'd, 970 F.2d
901 (3d Cir. 1992).

A motion under Section 2255 will be granted “only if
the sentence results in ‘a fundamental defect which inherently
results in a complete miscarriage of justice’ or ‘omission
inconsistent with rudimentary demands of fair procedure.’”’
United States v. Cannistraro, 734. F.Supp. 1110, 1119 (D.N.J.
1990) (quoting Hill v. United States, 368 U.S. 424, 428
(1962)); see also United States v. DeLuca, 889 F.2d 503, 506,
93d. Cir. 19898), cert. denied, 496 U.S. 939 (1990);
Vancol, 778 F.Supp. at 222-23. Similarly, errors of fact will
not provide a basis for relief unless “the errors were of the
most fundamental character, that is, such as rendered the
proceeding itself irregular and invalid.” United States v.
Addonizio, 442 U.S. 178, 185-86 (1979) (quoting United
States v. Mayer, 235 U.S. 55, 69 (1914)).

A petitioner’s failure to raise a particular error either at
trial or on direct appeal generally precludes the assertion of
that error for the first time in a collateral attack under Section
2255. See United States v. Essig, 10 F.3d 968, 979 (3d Cir.
1993); United States v. DeRewal, 10 F.3d 100, 105 n.4
(3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994); United
States v. Oser, 864 F.2d 1056, 1061 (3d Cir. 1988). Where a
Section 2255 motion rests on issues not raised at trial or on
direct appeal, the petitioner bears the burden of demonstrating
both “cause” to excuse the procedural default and that “actual
prejudice” will result from the errors at issue. See United

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Appendix B

States v. Frady, 456 U.S. 152, 167, reh'g denied, 456 U.S.
1001 (1982); Essig, 10 F.3d at 979; DeRewal, 10 F.3d at 105
n.4; Biberfeld, 957 F.2d at 104. “[T]he existence of cause
for procedural default must ordinarily turn on whethersome
objective factor external to the defense impeded counsel’s
effort to comply with the ... procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986); see also Essig, 10 F.3d
at 979.

~

Il. Duty to Disclose

Petitioner claims he was improperly convicted of mail
and wire fraud based upon his failure to disclose to investors
his prior criminal conviction and civil fraud injunction. He
argues that his conviction cannot stand because the law
imposed upon him no duty to disclose such information.
Petitioner's premise is flawed. As respondent correctly points
out, the mail and wire fraud statutes are not limited to
matters which would be punishable as common law fraud.
See Durland v. United States, 161 U.S. 306, 313-14 (1896);
United States v. Moore, 37 F.3d 169, 172-73 (5" Cir 1994);
United States v. Stewart, 872 F.2d 957, 960; United States v.
Bishop, 825 F.2d 1278, 1280 (8" Cir. 1987). “[OJ]missions
or concealment of material information can constitute fraud
... cognizable under the mail fraud statute, without proof of
a duty to disclose the information pursuant to a specific
statute or regulation.” United States v. Keplinger, 776 F.2d
678, 697 (7" Cir. 1985), cert. denied, 476 U.S. 1183 (1986).
Thus, petitioner was not entitled to a duty to disclose
instruction because it is not an essential element of the
offense of mail or wire fraud. See United States v. Maxey,
898 F.2d 148 (4 Cir. 1990). Indeed, as the Fifth Circuit has

~

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Appendix B

indicated, petitioner’s contention that he had no duty under
the law to disclose his criminal conviction is therefore
“irrelevant” to the question before this Court.’ See Moore,
37 F.3d at 172. Also, the Third Circuit rejected this same
argument in affirming petitioner’s conviction upon direct
review.

In addition, petitioner’s reliance on Chiarella v. United
States, 445 U.S. 222 (1980) is misplaced. Chiarella involved
a defendant’s conviction under Section 10(b) of the Securities
Exchange Act of 1934, 15 U.S.C. 78j(b), and SEC Rule
10b-5; not mail and wire fraud as is the case here. Chiarella
simply is not applicable to this case. As petitioner has not
established a fundamental defect which would inherently
result in a complete miscarriage of justice, his claim on this
basis is denied.

Ill. Improper Jury Charge
Petitioner next contends that the Court improperly

charged the jury regarding the concept of materiality.
This argument is likewise without merit. This Court at trial

1. The Court notes that the indictment charged not only charged
petitioner with failure to disclose his previous criminal conviction
and civil fraud injunction, but also charged petitioner with affirmative
misrepresentations, false and misleading statements and material
omissions of fact made with regard to such as the true identity of the
principals involved in the investment schemes, the uses of the
proceeds, the profits to be made, and the ability of investors to
participate in management decisions. Thus, the jury was not invited
to convict petitioner on the basis of omissions alone; it is quite
possible the jury convicted petitioner on the basis of affirmative
misrepresentation and concealment as well.

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Appendix B

defined materiality in the following manner: “[a] material
fact is a fact that would have a natural tendency to influence ~
or be capable of influencing a person making a decision about
a particular matter of transaction.” This language is virtually
identical to the language consistently used by the Supreme
Court in defining “materiality.” In United States v. Wells, 519
U.S. 482 (1997), the Supreme Court defined materiality as
“hav[ing] a natural tendency to influence or [being] capable
of influencing the decision of the decisionmaking body to
which it was addressed.” See also Kungys v. United States,
485 U.S. 759, 770 (1988). The Third Circuit has expressed a
similar definition of materiality. See In re David Louis Cohn,
54 F.3d 1108, 1114 (3d Cir. 1995); United States v. Greber,
760 F.2d 68, 73 (3d Cir. 1985). The Third Circuit also rejected
this claim upon petitioner’s direct appeal.

In addition, the court instructed the jury that the charged
schemes included both false statements about the details of
the venture, such as the use to be made of the investors’
money , and the failure to disclose material facts about the
investment and petitioner and others involved in the ventures.
Moreover, the Court also instructed the jury that while it was
not required to find that every charged component of the
scheme was proved, it did have to find that “the scheme,
substantially as charged, was set up.” As a result, petitioner’s
reliance on Yates v. United States, 354 U.S. 298 (1957)
is mistaken, since Yates requires reversal only when the jury’s
verdict may have rested on a legally invalid ground and
“it 1s impossible to tell which ground the jury selected.”
354 U.S. 298, 312.

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Appendix B

Here, it is not impossible to discern which ground the
jury selected. It is entirely possible that the jury’s verdict
meant it found that the scheme was set up “substantially as .
charged.” It is unlikely the verdict would have been different
if the single charge of concealment of petitioner’s criminal
conviction and civil injunction had not been included in the
indictment. Even assuming arguendo that the Court
improperly instructed the jury, any error was harmless.
See Neder v. United States, 527 U.S. 1, 6-8 (1999) (“[I]f the
defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other
constitutiona[1] errors that may have occurred are subject to
harmless-error analysis.”) (quoting Rose v. Clark, 478 USS.
570, 579 (1986)). Moreover, at trial the government presented
substantial and overwhelming evidence that petitioner had
participated in a scheme to defraud by failing to disclose to
the investors that_he had been convicted of conspiracy to
commit securities fraud and permanently enjoined from
selling securities. The government also advance significant
evidence of petitioner’s fraudulent intent and active
participation in the conspiracy. Accordingly, petitioner’s
claims on this basis must be denied.

IV. Perjury

Petitioner also alleges several witnesses and
co-conspirators presented perjured testimony at trial and that
the prosecution know of the perjury but still presented the
witnesses in any event. These instances of perjury, it is .
argued, rose to the level of constitutional violation.
Yet, petitioner proffers on bald, conclusory and self-serving
allegations of perjury. No factual evidence of perjury

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Appendix B

committed by any witness, co-conspirator or co-defendant
is offered by petitioner. Petitioner’s claims based on perjury
must accordingly be denied.

V. Ineffective Assistance of Counsel

Petitioner next argues that his trial counsel was
ineffective because he failed to object to the admissibility of
audio tapes presented by a witness named Lionel Benedict.
Petitioner contends that the government and defense counsel
knew the tapes were inadmissible. His only objection to the
tapes is that they were incomplete. Petitioner asserts that his
trial counsel was “too inept and intimidated” to properly
advocate his position. Furthermore, petitioner alleges
that this admission was a violation of Federal Rule of
Evidence 107.

In order to prevail on his claim of ineffective assistance
of counsel, petitioner must satisfy a two-prong test.
First petitioner must prove that counsel’s performance was
so grossly deficient as to deny the petitioner his Sixth
Amendment right.

See Strickland v. Washington, 466 U.S. 668, 687 (1984).
In order to prove a deficient performance, petitioner must
show that counsel’s representation fell below “ an objective
standard of reasonableness.” See id. at 688. In demonstrating
such deficient performance, the petitioner must show that,
in effect, counsel’s errors were so serious that “counsel was
not functioning” as an advocate. See id. at 687. A court “must
indulge a strong presumption that counsel’s conduct falls

within range of reasonable professional assistance . . .”
Id. at 691.

2la

Appendix B

Second, to prove ineffective assistance of counsel must
show that he was prejudiced as a result of the deficient
performance of his attorney. See id. at 687. To show such
prejudice, petitioner must prove that the errors of the attorney
were “so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Jd. The petitioner must show
that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Jd. at 694.

Petitioner’s ineffective assistance of counsel claim is
without merit. Petitioner offers only vague and self-serving
allegations that his counsel, Mr. Moskowitz, failed to notify
the Court of false testimony’ and failed to object to the
admissions of the Lionel Benedict audio tapes. Petitioner has
offered no evidence substantiating these allegations.

To the contrary, the record demonstrates that
Mr. Moskowitz provided a solid and spirited defense on
petitioner’s behalf, and in no way tell below a standard of
reasonableness. Mr. Moskowitz did indeed challenge the
authenticity of the Lionel Benedict tapes. Moreover, through
vigorous cross-examination, Mr. Moskowitz obtained
concessions from several witnesses that they lied on prior
occasions and made statements that were inconsistent with
their testimony at trial. Assessing Mr. Moskowitz’s overall
performance during the trial, this Court cannot say that his
representation fell below an objective standard of
reasonableness. Indeed, even assuming arguendo

2. Since no evidence of perjury has been offered, any ineffective
assistance of counsel claim based upon Mr. Moskowitz’s alleged
failure to address perjurious testimony is meritless.

22a
Appendix B

Mr. Moskowitz’s performance was deficient, petitioner
suffered no prejudice since it is unlikely the result would
have been different in light of the overwhelming evidence
offered against him. Accordingly, petitioner’s ineffective
assistance of counsel claim is denied.

Petitioner also asserts a claim of ineffective assistance
of counsel based upon a conflict of interest. It is alleged that
Petitioner’s second defense counsel, Gail Nichols, Esq.
(“Nichols”), resigned as defense counsel after serving for
more than a year in that capacity. Petitioner argues that
Nichols suffered from an actual conflict of interest because
she resigned to become chief of the criminal division of the
same United States Attorney’s Office which prosecuted
petitioner.

Where an ineffective assistance of counsel claim is based
upon the existence of a conflict of interest arising from
counsel’s multiple representation, the petitioner
‘“‘must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” Cuyler v. Sullivan, 446
U.S. 335, 348 (1980). The mere possibility of a conflict of
interest is not sufficient to collaterally attack a conviction.
See id. Furthermore, once an actual conflict of interest is
found the petitioner need not prove prejudice. See id. At 349-
50. The Supreme Court has not expanded the standard set
forth in Cuyler beyond cases involving multiple
representation.

Petitioner’s conflict of interest claim is likewise without
merit. First, ineffective assistance of counsel based on a
conflict of interest typically involves multiple representation,

23a
Appendix B

where a lawyer defends two or more clients or represents or
previously represents a testifying witness. A conflict of
interest may also arise where an attorney was involved in
the alleged criminal activity. This case, however, does not
involve multiple representation. Rather, it deals with Nichols
joining the United States Attorney’s Officer (sic). Other than
self-serving conclusions, petitioner fails to establish an actual
conflict of interest on Nichols’ part. Indeed, there is not even
an existence of a “possibility” of a conflict of interest, which
in any event would not suffice to collaterally attack a
conviction.’ Petitioner offers only speculation and his own
suspicion of a conflict of interest. He has not explained what
Nichols did, or failed to do, as a result of the purported
conflict which may have affected the outcome of the trial.
This is not sufficient to grant petitioner’s request for relief.
As a result, petitioner’s claim of conflict of interest must be
denied.*

Lastly, petitioner in his amended petition alleges
government misconduct contributed to his convictions (sic).
He presents not a shred of evidence of government
misconduct. Nor has petitioner shown he was deprived of a

3. Nichols’ representation of petitioner ended before the
criminal trial commenced.

4. To the extent that, as respondent suggests, petitioner’s claim
of conflict of interest is actually a general ineffective assistance of
counsel claim because petitioner alleges Nichols’ attention to his case
diminished at some point, this claim is also denied. There is no
evidence that Nichols’ performance fell below an objective standard
of reasonableness and no evidence that petitioner suffered prejudice
as a result of any alleged deficiency in Nichols’ representation.

24a

Appendix B

fair trial in any way. This Court previously found no
government conduct (sic) occurred at trial. The Third Circuit
similarly rejected petitioner’s claim on this basis upon direct
review.

Because petitioner’s claims are wholly without merit,
no evidentiary hearing is warranted and the petition is denied
and dismissed.

CONCLUSION

For the aforementioned reasons, the petitioner Milton
Sonneberg’s petition to vacate, set aside, or correct the
sentence pursuant to 28 U.S.C. § 2255 is DENIED and
DISMISSED. Accordingly, this case is now CLOSED.

A certificate of appealability shall not issue since the
petitioner has not made a substantial showing of the denial
of a constitutional right.

An appropriate Final Order accompanies this Letter
Opinion.

/S/ Nicholas H. Politan
NICHOLAS H. POLITAN
U.S.D.J

25a

APPENDIX C — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
DENYING PETITION FOR REHEARING
DATED JULY 14, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No.01-2067
MILTON SONNEBERG,
Appellant
V.
UNITED STATES OF AMERICA

On Appeal from the United States District Court
for the District of New Jersey

District Court Judge: The Honorable Nicholas H. Politan
(D. C. Civil No. 00-cv-01000)

SUR PETITION FOR REHEARING EN BANC
Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD,
ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO
FUENTES, SMITH, Circuit Judges, and ALDISERT'

The Petition for Rehearing filed by the Appellant in the
above-entitled matter, having been submitted to the judges

1. Judge Aldisert is limited to panel rehearing only.

26a

Appendix C

who participated in the decision of this court and to all the
other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of
the circuit in regular service not having voted for rehearing,
the Petition for Rehearing by the panel and the Court en banc,
is hereby DENIED.

BY THE COURT

/s/ an
United States Circuit Judge

DATED: JUL 14 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0706%3A2. Public record. Not legal advice.