Appendix — Galluzzi v. United States

A-8

(E.D. Pa. 2001) (The Apprendi rules “are not the type of

watershed rules implicating fundamental fairness that

necessitate retroactive application on collateral review.”’);

Garrott v. United States, 238 F.3d 903, 906 (7th Cir, 2001)

(“[N]o appellate court has held” Apprendi retroactive). For

the above reasons, Petitioner’s Apprendi argument cannot be

deemed a substantial claim.

B. Petitioner’s Due Process Rights Were Not Violated

by the Proof Standard Imposed by the Court

Petitioner claims that this Court should have used a

higher standard than the preponderance standard that was

used in deciding the loss and obstruction. This Court will not

consider this claim because Petitioner made this same

argument on direct appeal. A §2255 petitioner may not

relitigate issues that were previously litigated at trial or on

direct appeal. United States v. Palumbo, 608 F.2d 529, 533

(3d Cir. 1979). The Palumbo petitioner had two full and fair

hearings in federal tribunals (district court and court of

appeals), where he argued the same issues that he was

attempting to argue on his §2255 claim. The Palumbo Court

found that “[t]o permit relitigation here of the issues

previously decided by this Court ... would not further the

purpose of §2255 and would result in wasteful duplication of

the federal judicial review process.” Palumbo, 608 F.2d at

533. Here, Petitioner has had two ful! and fair hearings, one

before this Court and one before the Court of Appeals where

the preponderance standard was found to he sufficient.

Assuming Petitioner’s claim survived the procedural —

obstacles, it would fail on the merits. The Third Circuit has

held that ‘‘disputed sentencing factors need only be proved by

a preponderance of the evidence. United States v. Dass, 2002

WL 549103, *2 (3d Cir. 2002) (quoting United States v.

Evans, 155 F.3d 245, 253 (3d Cir. 1998)); United States v.

Kikumura, 918 F.2d 1084, 1098-102 (3d Cir. 1990). When

A-9

the court evaluates loss according to the Sentencing

Guidelines, “the loss need not be determined with precision.

The court need only make a reasonable estimate of the loss,

given the available information.” U.S. Sentencing Guidelines

Manual §2F1.1, cmt. n.8 (1997). After considering testimony

of expert witnesses for both the defense and the government,

this Court was convinced by a preponderance of the evidence

that the amount of the loss to the county of Essex was

$5,000,000. This finding was proper and affirmed by the

Third Circuit.

Similarly, a preponderance of the evidence was the

sufficient standard for finding that the Petitioner obstructed

justice by perjuring himself before the SEC, and enhancing

the sentence by two levels. The Sentencing Guidelines

provides for an enhancement of 2 levels if a defendant

willfully obstructed the administration of justice. United

States v. Boone, 279 F.3d 163, 180 (3d Cir. 2002); U.S.

Sentencing Guidelines Manual §3C1.1 (1987). The

government must prove by a preponderance of the evidence

that the defendant obstructed the administration of justice.

U.S. v. Helbling, 209 F.3d 226, 250 (3d Cit. 2000). In this

case, the government was able to convince this Court, by a

preponderance of the evidence, that the Petitioner lied in his

sworn testimony before the SEC. The inconsistency was

based on the fact that the jury found that the Petitioner was

receiving kickbacks, but while under oath the Petitioner

alleged he was being paid this money for doing work. This

Court, consequently increased Petitioner’s sentence 2-levels

pursuant t U.S.S.G. §3C1.1. This finding was also proper and

affirmed by the Third Circuit.

C. Petitioners Counsel Was Not Ineffective

Under the Strickland test, in order to prove ineffective

assistance of counsel:

PRs a rete ROS oe Tat ee ee ee en Re ne

A-10

First the defendant must show’ that counsel’s

performance was deficient. This requires showing that

counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant

by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors

were So Serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984). “Only after both prongs of the

analysis have been met will the petitioner have asserted a

successful ineffective assistance of counsel claim. Moreover,

‘Judicial scrutiny of an attorney’s competence is highly

deferential” United States v. Hart, 2002 WL 3183374. “4

(E.D. Pa. 2002), (quoting Diggs v. Owens, 833 F.2d 439,

444-45 (3d. Cir. 1987)); “An attorney is presumed to possess

skill and knowledge in sufficient degree to preserve the

reliability of the adversarial process and afford his client the

benefit of a fair trial.” Id.; see also Strickland, 466 U-S. at

690 (“[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgement.”)

To prove prejudice, Petitioner must show “that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would be

different.” Strickland, 466 U.S. at 694. Petitioner alleges he

was deprived of effective assistance of counsel because of his

counsel’s failure to investigate and challenge the opinion of

the government’s expert witness as to the amount of loss:

failure to present effectively evidence prepared by the

defense expert that no loss occurred; and failure to challenge

at sentencing other items of loss attributed to Petitioner by

the government.

A-11

This Court finds that Petitioner has not demonstrated

ineffective assistance of counsel. During the sentencing

hearing Petitioner’s counsel challenged the government’s

position on loss and made an effort to convince this Court to

adopt the defendant’s witness’ calculation. The only evidence

Petitioner offers to prove that but for the errors of his

counsel, the outcome would have been different, is the

opinion of a new expert witness as to the amount of loss.

Simply replacing the opinion of his former expert witness

with that of a new expert is not sufficient to illustrate that

counsel was ineffective, especially since the Petitioner

selected the former expert. (Sentencing Tr. at 10). “The

proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.”

StrickLand, 466 U.S. at 688; McAleese v. Mazurkiewicz, 1

F.3d 159,170 (3d Cir. 1993), and Petitioner’s argument based

on this new expert’s opinion is not enough to overcome the

“strong presumption that counsels conduct falls within the

wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

CONCLUSION

For the forgoing reasons, Petitioner’s request for

relief pursuant to 28 U.S.C. §2255 is denied. Because

Petitioner has not made a reasonable showing of a

constitutional violation, no certificate of appealability shall

issue.

*** si onature***

William H. Walls, U.S.D.J.

26 June 2002

Dated

A-12

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH P GALLUZZL

Petitioner,

V. ORDER

Civ. No. 00-5952 (WHW)

UNITED STATES OF AMERICA, Crim. No. 96-640

Respondent.

Walls, District Judge

Petitioner Joseph Galluzzi moves for a writ of habeas

corpus. For the reasons given in this opinion,

It is on this 26th day of June 2002:

ORDERED that the petitioner’s request for a writ of

habeas corpus pursuant to 28 U.S.C. §2255 is denied.

***sionature***

William H. Walls, U.S.D.J.

Appearances:

RICHARD E. MISCHEL |

ONE WHITEHALL STREET |

10'" FLOOR

NEW YORK, NY 10004

;

E

;

;

A- 13

RALPH J. MARRA, JR

U.S. ATTORNEY’S OFFICE

970 BROAD ST.

NEWARK, NJ 07102

EMERY Se LAS IEE EC ET EY EN LL RE IE LL

A-14

IN THE UNITED STATES COURT OF APPEALS

FOR TIE THIRD CIRCUIT

02-3267

JOSE°H GALLUZZL,

Appellant

:

UNITED STATES OF AMERICA

PRESENT: SCIRICA, Chief Judge, SLOVITER, -

NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY,

AMBRO, FUENTES, SMITH

Circuit Judges

SUR PETITION FOR PANEL REHEARING

WITH SUGGESTION FOR REHEARING EN BANC

The petition for rehearing filed by Appellant having

been submitted to the judges who participated in the decision

of this Court, and to all the other available circuit judges in

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 active service not having voted

for rehearing by the court en banc, the petition for rehearing

is DENIED.

BY THE COURT

***sionature***

Circuit Judge

DATED: September 26, 2003

CLC\CC:JPG, GSL, GJM

A-15

UNITED STATES COURT OF APEALS

FOR THE THIRD CIRCUIT

JOSEPH P. GAL1.UZZI

Appellant,

v.

UNITED STATES OF AMERICA

Respondent.

Docket No. 02-3257

Se WS a eae

Application For A Certificate Of Appealability

Joseph P. Galluzzi, Pro Se

No. 20596-050-Unit 2

Post Office Box 2000

Lewisburg, PA 17837

November 1, 2002

Date

AEDS oe AE SR MH TSBO cee See A eNOS Ss OME LER OTN SEER ORE A AS RE BEE RE OEE PTET ORS eR INT ARETE ee MEAS oe NEWT TLE CORN RE GU Oe Po RE

Se a LT IE AHS IEE RE A ARIE RAT UR HE ee

A - 16

The Appellant, Joseph P Galluzzi, does hereby make

Application for Certificate of Appealability from the

“Opinion” and “Order” of Denial of Appellant’s initial and

first §2255 Motion for a Writ of Habeas Corpus, of District

Court Judge William H. Walls dated June 26, 2002, and June

28, 2002 respectively. Exhibit A. A detailed procedural

history is set-forth in the “Statement of Facts” in the

accompanying “Memorandum of Law In Support of this

Application”’.

The Opinion of the District Court is a classic failure

to address the pivotal substantial denial of the 5th and 6th

Amendment Constitutional guarantee of Appellant. The

substantial prejudice, to Appellant, caused by this denial of

Constitutional rights is crystal clear as herein after set forth.

The District Court refused to consider the granting of a

“Certificate of Appealability”. As will be demonstrated, any

further attempt to have that Court reconsider or fairly address

the issues that were present before it 1s fatal. ~

The erroneous failure of this lower Court can be

basically viewed in three categories:

(1) Total ignoring and attempt to avoid addressing the

recent June 24, 2002 mandate of the United States Supreme

Court in the case of Ring v. Arizona, No 01-488, and its per

se application to the case at bar.

(2) Absolute blindness to the multiple and

accumulative ineffective counsel Sixth Amendment

violations and attempt to divert the focus by an erroneous

conclusion that this substantial claim was based upon an

attempt to substitute a new expert’s report (see Op of Ct. p. 8)

Ext “A”

ail

A-17

(3) Total cloaking of prosecutorial misconduct,

including the concealing of critical favorable defense

evidence.

Finally, this Application urges the granting of the

Certificate based upon newly discovered evidence not

previously available to appellant by the gross ineffectiveness

of counsel and prosecutorial misconduct.

More specifically, the District Court’s Opinion” and

“Order” on its’ face fatally violates Appellant’s constitutional

rights.

Summary of Opinion

1. Standard of Review — Page 3, Op of Ct.

The Court acknowledges, here that “a §2255 motion

is to he granted --- if the sentence resulted in a fundamental

defect, which inherently results in a complete miscarriage of

justice or an omission inconsistent with the rudimentary

demands of fair procedure” Kikumara, 987 F.Supp. at 574.

The Court, however, fails to address the recent

Supreme Court decision of June 24, 2002 in Ring v Arizona,

No. 01-488 (6/24/02), which supports and addresses the

unconstitutional impact on appellant’s jury trial rights, the

miscarriage of justice and constitutional rights infringement,

where the critical factual sentencing aggravating finding of

pecuniary loss if removed from the jury and a judge alone

substitutes respecting the same.

2. Analysis Pages 3&4 Exh “A”

A. Unconstitutional Sentencing Enhancement

A-18

The Court, in its’ opinion, fails to recognize the

elimination of “indeterminate sentencing” as a result of the

“Sentencing Reform Act’, implemented with the “Federal

Sentencing Guidelines”, which are statutory and have the

“effect of law” Instead, the Court erroneously cites United

States v. Cepero, 224 F.3d 858, 868 (3d Cir 2000) and

miscites United States v. Williams, 235 F.3d 858, 868 (3d Cir

2000), despite its inapplicability as stated in Appellant’s

Memorandum and Reply to Government Response. Notably

the Court fails to cite the significant Third Circuit cases that

are the forerunner of Ring: United States v. Spinner, 180 F.3d

514 (3d Cir. 1999); United States v. Mack, 229 F.3d 226 (3d

Cir 2000): United States v. Pressler, 256 F.3d 144 (3d Cir

2000); Knight v. United States, 266 F.3d. 203 (3d Cir, 2001);

and United States v. Vasquez, 2 F.3d 93 (3d Cir. 2001). See

Point I(A) of Memorandum of Law and Chart — “Third

Circuit Forerunner to Ring v. Arizona”. Exhibit B.

Page 5 The Court has failed to recognize the

Amendment to Title 28 U.S Code Annotated, Chapter 153 -

Habeas Corpus, dated April 24, 1996, that makes

“retroactivity ’’ a non—issue when on an initial §2255 motion.

Further, the Court failed to recognize that Ring is

retroactive per se. See Point I(B) of Memorandum re: Ring v.

Arizona Applies Retroactively to Appellant. The Court in

their Opinion, cites and relies on cases that are not applicable

to appellant’s case.

Page 6 “B” Violation of Due Process

Here, the Court first, miscites, United States v. Evans,

155 F.3d 245, 453 (3d. Cir. 1998), by taking out of context

one statement in the case, but fails to reflect the outcome of

the matter which is in contradiction to the court s reference.

A-19

Secondly, the Court fails to address the total impact of

Ring v. Arizona. See Point I(A) & (B) of “Memorandum of

Law.

Page 6 Op Ct. The Court erroneously uses a defective

umbrella stating that Appellant’s arguments regarding “Loss”

and “Obstruction of Justice” were previously litigated stating

“a §2255 Petition cannot re-litigate issues that ~vere

previously litigated ...... ”, disregards and dismisses the fact

that a §2255 Petition is purposefully the vehicle and venue to

challenge a sentence based on Constitutional issues of jury v.

judge fact finding.

Page 7 Op. Ct. C. Ineffective Trial and Appellate

Counsel

The Court fails to address the specific critical issues

of ineffective counsel that were raised in Petitioners

Memorandum of Law filed with Petitioner’s §2255 motion

(see pages 18-22) Exhibit C. Instead, the District Court

created a false issue; ie. substitution of expert report. Not so!

The Court also failed to address the claim, on pages

25 and 26 (of Memorandum) that the reasons, and reliance,

by the Court, on the critical document referred to as CH-9”

was incorrect. The text of the relevant pages clearly establish

that the substandard performance of trial defense counsel, in

not bringing to the attention, of the Court, misleading,

inaccurate and inconsistent information and testimony, which

would have definitely impacted favorably on Appellant’s

sentence was negligent. In addition, the test also clearly

establishes the prejudice against Appellant’s expert, and the

failure of defense counsel to point out the many errors See

Point II A through C.

A - 20

Had the Court granted an evidentiary hearing, the

Petitioner’s claims would have been overwhelming supported

and documented.

Most significant is defense counsel’ s clear

ineffectiveness when he agreed (stipulated) as to the use, by

Petitioner, of “numbers” that appear in CH-9. See Page 26,

Memorandum (Exhibit C-1). This stipulation, without

Petitioner’s consent, and the Court’s failure to ensure that

Petitioner understood the impact and consequences of the

stipulation is unconstitutional. The Court in its Opinion failed

to address or respond to these clear factual instances of

counsel’s ineffectiveness. It attempts to cloud, avoid and

erroneously dismisses these claims by stating; “the only

evidence Petitioner offers .... is the opinion of a new expert

witness s to the amount of loss”. Totally wrong!

oe pit Nae

Had the requested hearing been granted, Petitioner |

would have had the opportunity to further document .

counsel’s ineffectiveness regarding “Obstruction of Justice”

enhancements. See Point II Memorandum of Law.

Based on the foregoing facts, it appears that the

sentence imposed was based on “legal and factual error”, |

thereby violating Appellant’s guarantee to due process anda |

jury trial with effective counsel under the Sth and 6th

Amendment of the United States Constitution.

Therefore, it is respectfully requested that a

Certificate of Appealability be granted in order to restore

Appellant’s constitutional rights and remedy the very

substantial prejudice which occurred.

Further, the District Court in its failure to respond to

the government’s claim that the 1989 Bond Refunding issue

was not a sound economic strategy, and Appellant’s response

to this claim, has in effect decided [the Court] that the

A-2l

economic merit of this bond issue is a non-issue. The Court,

however, enhanced Appellant’s sentence based on a non-

existent economic loss.

The Court has also failed to respond to Appellant’s

statements that this type of “Bond deal” (refunding) with its

costs [not loss] was used again by Essex County in 1995.

That 1995 Bond issue, also, did not achieve a present value

savings, as the government claims that it must. (see Reply

Memorandum, Exhibit C-2, p. 4 (Discovery previously

denied)).

In addition, the Court failed to respond to, or give

recognition to, the other examples, brought forth by

Appellant of this type of “Bond Refunding” that were sold

for the Cities of Trenton and Atlantic City (see pgs. 4,5,6

Reply Memo., Exhibit C-2). All of these bond issues (“bond

deals”) had costs relating to their sale, and all disclosed that

there was not a present value savings from the transaction.

No one recharacterized these costs as losses, as was

done by the government in regard to the 1989 Bond

refunding deal; no less were they charged in a criminal

activity. Ironically, on the two refunding issues, Trenton and

Atlantic City; both were represented by the same individuals

who had input on the Essex County 1989 $104 million bond

issue.

(a) Clifford Goldman (Trenton) was the financial

advisor to the Local Finance Board at the time the 1989 Bond

issue was considered. Clifford Goldman’s failure to respond

to a subpoena served to appear at Appellant’s sentencing

hearing was critical to Appellant

(b) John Frohling (Atlantic City), an attorney, served

as an advisor to the Board of Chosen Freeholders in regards

to the 1989 Essex County Bond refunding.

ee

A - 22

No one has been indicted on these Bond deals.

The Court, has failed to recognized, as put forth in the

§2255 Motion; that the sentencing enhancement based on

loss was further in error, as supported by trial testimony. see

pages 9 and 10 Reply Memo., Exhibit C-1 which clearly

raises the factual question as to whether the County of Essex

suffered any loss at all. Trial Defense Counsel failed to

advise the District Court regarding testimony concerning the

alleged spread adjustments, and the “losses” resulting - . p. 10

Reply memo. Exhibit C-2. The Court failed in not responding

to these claims, that cannot be refuted, and. thereby failed as

the sentencing court, to correct this eggregious error.

Appellant asserts that this is not re-litigation. This 1s

the revealing of documented facts that clearly support a

sentence reduction.

The Court also fails to respond to two significant

Third Circuit, due process cases, i.e., United States v.

Mannino, 215 F.3d 835, 845 (3rd Cir. 2000), p.g. 10. Reply

Memo. and United States v. Nappi, 243 F.3d 758, 763-64

(3rd Cir. 2001) p. 10 and 11 (Reply Memo. C-2).

The significant critical issues raised by the Appellant

in his $2255 Motion, and the Court’s failure to address them

would have been fully considered and decided, if an

evidentiary hearing, as requested, had been conducted by the

Court.

This Court, in the particular matter finds itself in a

unique position in having the Hon. William H. Walls

conducting the proceedings below. Judge Walls had

approximately eleven (11) years of experience in Municipal

government with the City of Newark, N.J.

————————E=aaaaaPEEEEeeeeEeEeEeEeeeeeeeeeeeeeeeeeeeee ea” re ee

A - 23

Other than sitting as a Municipal Judge from 1968-

1970, the balance of his municipal government experience

was as an Assistant Corporation Counsel, Corporation

Counsel and then Business Administrator for the City of

Newark. In these capacities, it is certain that he dealt with

municipal financing documents and the N.J. Bond Law.

It is therefore shocking to Appellant, that Judge Walls

remained silent, when the government’s expert witness Mack

Egland proposed alternatives to the 1989 $104 million Bond

refunding; that were all illegal in the State of New Jersey.

Surprisingly by also is his Honor’s failure to respond

or take into. consideration, defense counsel’s response to the

P.S.R. detailing, by statute, Mr. Egland’s incorrect

assumptions and his lack of understanding of N.J. Bond law.

Although defense counsel was negligent and

ineffective, by not presenting this to the Court, i.e., this clear

error of the government’s expert, and his obvious confusion

and misunderstanding of this particular bond issue, the Court

(Judge Walls) remained silent and therefore failed to ‘

consider. facts that clearly refute his reliance of any report

prepared by the governments expert.

Defense counsel failed to ask for a ruling of law on

these issues presented by the government, and Judge Walls,

because of his unique experience in municipal government,

should have interrupted the proceedings, at trial, to issue a

Memorandum of Law regarding the legality, in the State of .

N.J., of the alternatives presented in Mark Egland’s

testimony.

This critical failure, among the others set forth above,

clearly prejudiced the Appellant at trial and most certainly at

sentencing. Since the 5th and 6th Amendment rights of

A-24

Appellant have been clearly shown to have been violated a

Certificate of Appealability should be granted.

Respectfully submitted,

***sionature****

Date Joseph P. Galluzzi, Pro Se

No. 20596-050-Unit 2

Post Office Box 2000

Lewisburg, PA 17837

A - 25

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JOSEPH P. GALLUZII )

)

)

Petitioner, )

)

)

V ) No. 02-3267

) Civ. 00-5952 (WHW)

) Crim.No.96—640

UNITED STATE OF AMERICA

)

)

)

)

Respondent. )

APPELLANT’S MEMORANDUM OF LAW IN

SUPPORT OF APPLICATION

FOR A CERTIFICATE OF APPEALABILITY

Joseph P. Galluzzi

Per Se Appellant

20596-050, Unit 2

Post Office Box 2000

Lewisburg, PA 17837

November |, 2002

Date

A - 26

Table of Contents Page

Preliminary Statement ..........ccccccccceceseeseesesseseessesseteeteseeneens l

Statement Of Fact ..........ccccccsssssssssesrorsenecssresssssseevecsssroseens ps

Legal Argument ........ccccccceceeeesetesersessseesseneeeeseneneeneneneenenges 4

Point I Ring v. Arizona, applicabie in this case,

requires that the alleged Pecuniary Loss

and Obstruction of Justice facts which

drastically aggravated the Sentencing

Range Level above the Crime of

Conviction he found by a jury not the

BLU Ce (Lo | (0) «| 4

Crvenvit 6 OF TRGB vcvcseevcscaiesecercdnccensisxpeoreatstorseccerens 4

A. Substantive Principles of Ring ............cceeeeseeeeeeeeeeees 6

a Jury, not Judges choice, fixes

sentencing range in all CASES «0.0... eects 6

é Ring parallels the alleged

Pecuniary Loss enhancement in this case ...6

a Series of High Court cases

culminating in Ring’s solid revival of right

to trial by jury in this CaSe€ ........:eeeeeeeeees 8

4. Statutory Maximum Rule; ............... 9

B. Unconstitutional Enhancement for Obstruction of

Pe aos cnseanconnnsscencvnesentaiocugeiucbacastennexssnremedanenneston 14

is Ring applies retroactively to this Appellant's

inital §2255 Motion in that it invalidates a

statutory scheme that has the effect of divesting a

jury from deciding the aggravating facts ofa

crime in violation of the 6th Amendment ............. 17

Point II The pattern of ineffective counsel's

failure and substandard conduct,

individually and cummulatively so

prejudiced the appellant to result in a

violation of the 6th Amendment Right to

Effective Counsel ...:...cccsccecssssssecenevesersees 26

OQVETVIEW OF TSBIE ici seisieisicassicserescersenveessuesmmcerstenen 26

aT ee a

oe Po eee ee ee

Fe Fee ea eh Ee OP ae ws

ee ee ee ee a ed Se eee” Pee

———e se

A - 27

A. Defense Counsel ignores that cost

ROE OE iisetersiee eee 26

B. Defense Counsel’s reliance and

Stipulation to document known as

NTI as iccisatieeiaceaiisotiaabeamecemetand: 30

.. Defense Counsel’s failure to

enforce appearance of subpoenaed

ici te eas 36

Point III The U.S. Attorney denied appellant

his Sixth Amendment rights by

causing to be denied appellant’s right

to discovery during pre-trial, trial

and post-trial periods, and thereby

obstructed justice. Newly discovered

material was unilaterally previously

SREB ARE RSet ne NaC MST art 4]

Exhibits: In Support of Application for a Certificate of

Appealability and Memorandum of Law -

CERRO VIII a srsesctenssstixccwenseratersecine Enclosed

Preliminary Statement

This memorandum is submitted by Appellant, Joseph

P. Galluzzi, acting pro se, in support of his application for a

Certificate of Appealability and Appeal of the decision of the

District Court of New Jersey, (Hon. W.H. alls), in denying

Appellant’s Petition for a Writ of Habeas Corpus pursuant to

28 U.S.C. §2255, opinion dated June 26, 2002, filed June 27,

2002, Order dated June 28, 2002.

Appellant requests the Court to accept his motion to

appeal the District Court’s decision based on reasons set forth

in the application and in this memorandum, that clearly and

specifically demonstrate the very substantial violations of

Appellant’s constitutional rights.

Statement of Facts

By Superseding Indictment No. 96-640, Appellant

was accused of fourteen counts of mail fraud (18 U.S.C.

§§1341, 1346) two counts of wire fraud (18 U.S.C. §§$1343,

1346), five counts of bribery (18 U.S.C. §666), and five

counts of using a facility in interstate commerce to commit

bribery (18 U.S.C. §1952)

The charges were premised on the theory that

Appellant abused certain financial positions he held with

Essex County by taking alleged bribes or kickbacks in

exchange for referring bond and financing projects to various

entities. On April 24, 1998, the jury found Appellant guilty of

all 26 counts (PSR §2). The jury did not find nor were they

asked to find aggravating elements/factors of pecuniary loss

or obstruction of justice.

A sentencing hearing was conducted before a judge to

determine an appropriate amount of alleged loss. After that

OE ee ee eee t

yee ee

PO a ee -—

= —

te an RS i elev

A - 29

hearing, the sentencing court, alone, concluded that a

preponderance of the evidence showed that the loss exceeded

$5 million, warranting an increase of 14 levels tc the offense

level. The loss was based on non-jury findings and were

allegations that Essex County lost millions of dollars as a

result of a debt re-structuring plan, not alleged in the

indictment.

The Court also held that a 2-level increase for the

obstruction of justice was warranted, based on testimony

before the Securities and Exchange Commission. Ultimately,

the offense level was aggravated to be 28 and the

corresponding guideline range 78-97 months. Accordingly,

on September 10, 1998, the Court sentenced Appellant to

concurrent terms of 90 months imprisonment on several of

the counts, and lesser concurrent terms on other counts, as

well as restitution in the amount of $350,000. A judgment

was entered accordingly on September 18, 1998.

On appeal to the United States Court of Appeals for

the Third Circuit, petitioner raised various issues, including

that: the evidence of guilt was legally insufficic.; the district

court erroneously admitted certain evidence; the ,-rosecutor’s

conduct in connection with a civil proceeding was imprope

the court should have applied a heightened burden of proof

when evaluating the amount of loss; and that the court’s

findings regarding loss and obstruction of justice were not

supported by the record. The conviction and sentence were

affirmed in an unreported decision on May 28, 1999, and a

petition for a writ of certiorari was denied on December 6,

1999 (528 U.S. 1048 [1999]).

A petition for a writ of habeas corpus was filed

pursuant to 28 U.S.C. §2255 on December 6, 2000. This

petition has been denied pursuant to district court’s opinion

dated June 26, 2002, ordered June 28, 2002.

A - 30

Subsequent to the appeals Court’s determination, and

as a result of discovery, previously denied, additional

information and documents have been uncovered by

appellant that have a significant impact on the decision and

proceedings of the District Court. The new discovery and its .

impact is addressed extensively in this memorandum.

LEGAL ARGUMENTS

Point I Ring v. Arizona, applicable in this case,

requires that the alleged loss and obstruction of justice facts,

which drastically aggravated the sentencing range level

above the crime of conviction, be found by a jury and not the

judge alone.

Overview of Issue

The Honorable William H. Walls totally fails to

address the recent United States Supreme Court decision of

June 24, 2002, in Ring v. Arizona, No. 01-488 (6/24/02).

That case mandated that the portion of the statutory scheme

under which this District Court enhanced Appellant’s level of

crime of conviction, to a higher level, based on an

aggravating uncharged and unfound crime, outside the jury

verdict, was unconstitutional. It violates Petitioner’s

guarantee of a jury trial. Had the District Court addressed the

Ring declaration, its Opinion and Order would have

necessitated that the §2255 Petition be granted. The Court

solely addressed and misapplied Apprendi v. New Jersey, See

Exhibit A, Dist. Ct. Op. pages 3 to 5. :

The Court then proceeded to compound its wrong by

holding erreneously that Apprendi v. New Jersey, id., as it

relates to this case did not apply retroactively even though

this case was not a successive §2255 petition. The Court cited

only inapplicable successive §2255 cases in support of its

position. Exhibit A, pgs. 5-6. It then maximized its fatal

rr

A-3l

destiny by failing to recognize that the controlling case of

Ring v. Arizona, applied retroactively to this Appellant’s

motion.

Upon this defective foundation, the district court then

held that “Appellant’s sentence was not unconstitutionally

enhanced”. (Exhibit A, p. 5-5). The district court even

acknowledged that the enhanced Appellant’s sentences “were

on the basis of loss and obstruction of justice, where the jury

was not asked to decide on these issues’’. Exhibit A, p. 4.

Failing to address Ring’s contrary holding regarding

the limit of the district court’s sentencing authority and range,

Judge Walls erroneously held:” Apprendi is not applicable to

Appellant’s situation because the penalty imposed, on

Appellant, was within the statutory range”’. id. at p. 4. Not

only was the Court in error on its basic Apprendi premise, it

failed to consider Ring’s contrary holding, and also failed to

even respect the Third Circuit cases on the subject. See

Exhibit B, Chart — “Third Circuit - The Forerunner to Ring.”

A. Substantive Principles of Ring

Rs Ring applies to non-capital and capital

cases: Jury not Judges choice.

is Ring v. Arizona, requires that a jury, not a

judge, to find the existence of pecuniary or other facts upon

which a defendant’s sentence is enhanced to an aggravated

sentencing range. The District Court’s omission of Ring v.

Arizona, cannot be attributed to any perception of non-

application of that case to the Appellant’s case. The United

States Supreme Court clearly and expressly stated to the —

contrary.

‘What today’s decision says is that the jury

must find the existence of the fact that an

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aggravating factor existed”. Ring v. Arizona,

No. 01-488, June 24, 2002, (Scalia, J.

concurring at page 4).

“Capital defendants, no less than non-capital

defendants, we conclude, are entitled to a jury

determination of any fact on which the

legislature conditions an increase in their

maximum punishment’. We see no reason to

differentiate capital crimes from all others in

this regard”. Ring, id. at p. 2 and 21, Op. of

the Court, Ginsburg, J.

“The right to a trial by jury, guaranteed by the

Sixth Amendment, would be senselessly

diminished if it encompassed the fact-finding

necessary to increase a defendant’s sentence

by two years, but not the fact-finding

necessary to put him to death”. “We hold the

Sixth Amendment Applied to both”. Ring, id.

at 23 - Ginsburg, J. Op. of the Court.

2. Ring Parallels The Alleged Pecuniary Loss

Enhancement In This Case.

The United States Supreme Court, on June 24, 2002,

reversed a death penalty sentence based on a pecuniary gain

aggravating factor. The Court stated that the Sixth

Amendment guarantee of the right to a jury trial had been

violated, because the judge and not the jury made the factual:

findings required for the imposition of the increased

sentence, beyond the scope of the jury verdict. That portion

of the statutory scheme, that permitted the violation was

struck as unconstitutional.

The Court made it clear that there is no difference in

the Sixth Amendment sentence violations when a jury

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convicts a “white collar” defendant, as here, of charges that

did not include a pecuniary loss. A sentencing judge is

constitutionally constrained by the jury’s crime of conviction

verdict where no pecuniary loss are found. The jury verdict

provides the maximum range for the punishment to be

inflicted under the mandatory federal sentencing law (i.e.

Federal Sentencing Guidelines). Here, the jury finding had no

pecuniary specification. A loss level was not a charge for the

jury to consider, therefore the verdict must be considered to

be without any such finding. The judge cannot change that

verdict.

In Appellant’s case, the statutory maximum varied

among the charges. The final sentence, however, was

enhanced, as in the Ring case, based on certain aggravating

factors such as pecuniary gain or loss that was found by a

judge conducting the sentencing hearing alone.

Mandatory sentencing ranges, under the Federal

Sentencing Guidelines, as adopted by Congress, are limited

to those authorized by a jury verdict. The Supreme Court

found unconstitutional the Arizona sentencing scheme that

allowed a judge to impose a greater penalty, than that

dictated by the jury verdict, based on aggravating factors of

pecuniary gain, presented at said sentencing hearing,

conducted by the judge alone. So too was the finding of the

sentence of the sentencing judge in Appellant’s case.

: Series of High Court Cases Culminating In S

Ring’s Solid Revival Of The Right To Trial

By Jury In This Case.

Ring v. Arizona, was the critical decision in that

implemented, that which was the goal, of the United States

Supreme Court two years prior in Apprendi v. New Jersey,

120 S.Ct. 2348 (2000)---”it is unconstitutional” to remove

from the jury the assessment of facts that alter the

La)

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Congressionally prescribed range of penalies to which a

criminal defendant is exposed. (1).

The holding in Apprendi is.that:

“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime

beyond the prescribed statutory maximum

must be submitted to a jury and proved

beyond a reasonable doubt.” id. 120 S.Ct. at

2362-63. (2)

Over the past two years, Circuit Courts have rendered

a diversity of opinions on the subject of the scope of the

Apprendi mandate. The High Court has now clarified and

implemented its decision in the Jones and Apprendi cases.

Any conflicts in the Circuits have now been resolved and

reconciked-in Ring v. Arizona, See also recent - State v.

Benenati, Ariz. Ct. App. No. 2, CA—CR, 1999-0066

(9/3/02). [Ring hold that Apprendi applies even when

sentence imposed is less than unechanced maximum]. Exh. D

Ring v. Arizona leaves no question unanswered:

The Sixth Amendment right to a jury trial and

determination, requires a jury (not a judge) finding, regarding

aggravating factors of a pecuniary nature, that results in an

increased penalty. So too, this Appellant has the same

guarantee as Ring.

The Court’s decision resolved any ambiguity anyone

might still perceive regarding the issues of what is the role of

statutory maximum, in relation to the Federal Sentencing

Guideline law and also the debate in regard to elements

verses factors. The United States Supreme Court

unequivocally put to rest the misguided technique of

minimizing its Apprendi decision that suggested that the

Pe ET Te, GY

Se A tale Dera — a

SS eee ee et Pie

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formalistic statutory maximum language of Pre-Sentencing

Reform Act Statutes exclude the application of Apprendi.

The Supreme Court of the United States’ decision in

Ring clearly states that the guarantee of a jury trial “applies

even when the sentence imposed is less than the formalistic

statutory maximum”. It is the “effect” that a finding of fact

has on a sentence, not the form of the finding. id.

4. STATUTORY MAXIMUM ROLE

Ring v. Arizona, recognizes it is “meaningless”

jurisprudence that results from the formalistic approach to the

convenient use of statutory maximum as an exception to

Constitutional jury protection. Arizona argued, as the federal

government does here, against Appellant, the formal

maximum, in the Statue dictates over the prerequisite that

proceed it, i.e., a factual pecuniary fiding.

“The Arizona first degree murder stature

authroizes a maximum penalty of death,

only in a formal sense”, Apprendi, 530

U.S. at 544 (O’Conner, J. dissenting), for

it explicitly cross-references that statutory

provision requiring the finding of an

aggravating circumstance before

imposition of the death penalty ... If

Arizona prevailed on its opening

statement, Apprendi would be reduced to a

meaningless and formalistic rule of

statutory drafting”. See 530 U.S. at 591

(O’Conner, J. dissenting Ring Id. at p.__ ).

The rule is one of “effect” not one of statutory

maximum “form”. The ultimate test is not statutory

maximum.

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“The dispositive question, we said, is one

not of form, bit effect: Id at 494, citing

Apprendi. If a State makes an increase in a

defendant’s authorized punishment,

contingent on the finding of a fact, that fact-

no matter how the State labels it-must be

found by a jury beyond a reasonable doubt’.

See id. at 482-483. “A defendant may not be

exposed... to a penalty exceeding the

maximum he would receive if punished

according to the facts reflected in the jury

verdict alone”. id at 483 also id. at 499

Scalia, J. concurring). All facts which must

exist in order to subject the defendant to a |

legally prescribed punishment must be f

found by the jury: Ring Id. at p. 16, Op. of ;

the Court, Ginsburg, J.

Severity of punishment is a “process” related to

separate aggravating fact-finding in some cases. Ring id. Op.

of Court pg 14, Ginsburg, J. Thus, under Ring, it is the |

maximum sentence provided by law solely on the basis of the

factors found by the jury that is controlling. The form of the

statutory language is immaterial. The Third Circuit had

previously predicted and decided this prior to Ring. See

previous Third Circuit cases of Mack, Pressler, Knight and

Vasquez in Exhibit B. For example, if as in Appellant’s case,

that sentencing level is a 10, then that is the maximum

Sentencing Guideline level that can be imposed. The jury did

not, nor was it asked to specifically find a pecuniary loss

aggravating factor to enhance the penalty. The statutory

indeterminate maximum sentence is formal but without

effect. It requires a pre-requisite factual fact-finding. The

same does not apply in the case ranges that, fix determinate

statutory minimum terms. The Court in Harris, reconciled:

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“As we shall explain, McMillan and Apprendi

are consistent because there is a fundamental

distinction between factual findings, that were

at issue in both cases. Apprendi said that any

fact extending the defendant’s sentence,

beyond the maximum authorized by the jury

verdict would have been considered an

element of an aggravated crime-thus the

domain of the jury-by those who framed the

Bill of Rights. The same cannot be said of a

fact increasing the mandatory minimum (but

not extending the sentence beyond the

statutory maximum), for the jury’s verdict has

authorized the judge to impose the minimum

with or without the finding”. Harris v. United

States, No. 00-10666, June 24, 2002, opinion

of Kennedy, J. at p. 9 (emphasis added).

The bottom line in the case at bar, is that the statutory

maximum “authorized by the jury verdict” is a level 10. The

District Court here was totally out of step when deciding:

“Apprendi, is not applicable to Appellant’s situation because

the penalty imposed on Appellant was within the statutory

range.” The statutory range per the P.S.R., as promulgated by

the Federal Sentencing Guidelines, was a level 10, plus 2

points for multiple events - totalling 12 points. The Guideline

range has the “force and effect of law” - see Mistretta v.

United States, 488 U.S. 361 (1989) at 413, Scalia, J.

dissenting. Also see Guidelines are “law” in Miller v. Florida.

482, U.S. 423 (1987) and United States v. R.L.C., 503 U.S.

29 (1992), that Guidelines are “statues”.

Determinate Sentences were established as a result of

the U.S. Sentencing Reform Act and the implementing U.S.

Sentencing Guidelines. The flexibility of the Court is

constrained by the criminal classizication, the bundling of

offenses, and the Ranges as established by the conviction of

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the elements of the crime. The statutory maximum previously

applied during the period of indiscriminate sentencing

procedures have been superseded by the Sentencing

Guidelines, which are in fact a statute and have the force and

effect of law.

The District Court here does not recognize that the

discretion once allowed has been lost after the adoption of the

Guidelines. Level 12, as per Guidelines, is a 10-16 month

sentnece. This is a for cry from the 90 months to which the

Court aggravated the “maximum authorized by the jury

verdict”. Note, the District Court, recognized that Guidelines

had to be followed, but used the wrong factors and range that

was contrary for the crime of conviction as found by, the

jury.

The United State Supreme Court in Ring, in

emphasizing the importance and the conscience of the Sixth

Amendment has revived its spirit of jurisprudence and

enforcement. The High Court, in its final word, “says is that

the jury must find the existence of the fact that an

aggravating factor existed.” That is conclusive in Appellant's

case. The District Court has infringed very substantially, on

Appellant’s Constitutional right of trial by jury.

The Federal Sentencing Guidelines that were given

birth under the Federal Sentencing Reform Act supersedes

the old indeterminate statutory maximum system. These

Guidelines, with its determinate ranges, and fixed by

Congress, are mandatory law. Any facts that have the

“effect” of increasing a defendant’s term of imprisonment

beyond the “outer limits” fixed by a jury verdict and

mandated by the Federal Sentencing Guidelines cannot be

found by a judge at a post-trial sentencing hearing. As in the

case of pecuniary factors which fix ranges of prescribed

sentences, the Sixth Amendment requires that such factors be

submitted to and decided by a jury...” Whether the statute

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calls them elements of the offense, sentencing factors or

Mary Jane - must be found by a jury beyond a reasonable

doubt”. Ring, id. Scalia, J.

In the case at bar, it was unconstitutional to strip the

jury of that finding.

The back to tradition and history approach used by

Justice Thomas in Apprendi, is relevant here. Utilizing the

petit larceny/ grand larceny example of separate crimes, the

aggravating element factors, as a pecuniary element is clear.

It is rooted in long history, and is again the test. Effect not

form is the Ring message. “Pecuniary” facts must be

submitted and decided by the jury.

FOOTNOTES

1) Apprendi endorsing Jones, 120 S.Ct. at 2363 (quoting

Jones, at 526 U.S. at 252-253); also see the historical

condemning of the stripping of grand and petit juries power

of fixing the “aggravating” penalty parameters of a crime,

e.g. United States v. Gaudin, 515 U.S. 506 (1995) c.f. In re:

Winshp, 397 U.S. 358 (1970). :

2) The issue is beyond mere Statutory interpretation as in

Castillo v. United States, 530 U.S. 120 (2000) and Carter v.

United States, 530 U.S. 225 (2000).

B. Unconstitutional Enhancement For

Obstruction of Justice.

Appellant was further unconsitutionally enhanced two

levels by the Court because of his testimony before the SEC

in July of 1995. The facts here, also, were not changed or

found by a jury. The sentencing transcript of September 10,

1998 (Exh. N, pgs 71 (18-21), pg 72 (22—28), Pg 73 (1—8),

(15-19) states the Court’s reasoning for the enhancement. In

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addition to a two level increase in his sentence, the Court

erroneously added to the economic loss factor, monies

relating to Appellant’s association with A.G. Edwards.

Testimony before the SEC, given by the two primary

A.G. Edwards Vice Presidents, was completely contracdict

the Court’s findings. See Exh 0 and 0-1. Timothy

McDounough (Exh 0 pgs 38, 39 and 40) when asked several

times directly and indirectly, whether Appellant asked for

was paid a finder’s fee or any monies in connection with the

1990 E.C.1.A. bond issue, state (Mc Donough) clearly *NO”

nine times (9) and “absolutely not’ once.

Testimony of Mr. David Brownstein, on Decembe 07,

1995 (Exh 0-1) when asked a similar series of questions on

page 119, 120 and 121, regarding the payment of a finder’s

fee to Appellant, answered in the negattive 6 times. Mr.

Brownstein was a government witness at Appellant’s trial

and did not once state that Appellant was paid directly or

indirectly a fee, in any form for the 1990 E.C.I.A. bond issue.

Mr. Brownstein testified at trial that payments to Appellant

were consultant fees no matter how they may have been

described in any billing. '

The testimony (SEG) of these two A.G. Edwards Vice

Presidents clearly contradict the government’s and the

Court’s conclusion that Appellant received kickbacks from

the 1990 E.C.I.A. bond issue.

This testimony, regarding these alleged kickbacks

was completely ignored by the Court. Defense counsel failed

to remind the Court, or present this testimony at sentencing,

to argue, first, that the enhancement for “obstruction of

Justice”, and the related dollars the court applied to the

enhancement of a monetary loss.

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This issue should, under the Fifth and Sixth

Amendment Rights, have been charged in the indictment, and

presented to a jury for findings. This would have resulted in a

determination that would have required a higher standard of

proof before a jury, which more than likely would not have

supported an aggravated factor to increase Appellant’s

sentence. Alternatively, if the Court had granted an

evidentiary hearing regarding Appellant’s §2255 motion,

ineffective counsel, is also more than likely that a downward

sentencing adjustment would have been granted.

1. The SEC and the government also questioned Mc

Donough and Brownstein, as to how A.G. Edwards was

chosen lead underwriter for the 1990 E.C.LA. bond issue.

Both answered that it was through the County Executive,

Nick Amato and Tom Banker, the Executive Director of the

E.C.LA. This is in complete contradiction to the

government’s and subsequently the Court’s erroneous

determination that Appellant “steered this deal to A.G.

Edwards.”

2. The SEC and the government also questioned Mc

Donough and Brownstein as to how Robert Brown, an

attorney, became involved in the E.C.LA. deal. Both

answered that Mr. Brown’s involvement in the bond issue

came as a recommendation from the County Executive Nick

Amato. SEC testimony given by Robert Brown also

confirmed that he became part of the bond issue through his

friend, Nick Amato. Mr. Brown was paid a fee of $20,000,

which was unconstitutionally added to the loss calculation on

monetary loss.

Defense counsel again failed to urged the Court of

this strong testimony in contradiction to the assumptions

made to increase Appellant’s sentence.

ad

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C. Ring v. Arizona Applies Retroactive To This

Appellant’s Initial §2255 Motion, In That it

Invalidates A Statutory Scheme That Has The

Effect Of Divesting A Jury From Deciding The

Ageravating Factors Of A crime In Violation Of

The 6th Amendment.

The District Court’s opinion places its ultimate

argument “assuming Apprendi were applicable”, (not

addressing the stranger Ring case), “it should not be applied

because it established a “new rule” of constitutional law

which may not be applied retroactively.” citing Teague v.

Lane, Op. Ct. Pg. 5. EXH “A”

The District Court on this point scored a two-fold

error.

; The real issue is not Apprendi’s retroactivity

but the per se retroactive application of Ring v. Arizona.

When the Supreme Court, deems a statute or a portion

thereof as fatally unconstitutional, its decision 1s retroactive

per se. The statute was, is and remains void, yesterday, today

and tomorrow.

é. The Court failed to recognize that Teague has

been preempted in so far as the facts of this case is

concerned. Teague was decided in 1989. Seven years later,

(1996) Congress modified the Teague doctrine. In so far as

the case at bar is concerned, the non-retroactivity bar to

raising a new constitutional rule does not apply to an initial

§2255 motion. It applies only to “a second or successive

motion”. See 28 U.S.C.A. §2255, Anti-Terrorism and

Effective Death Penalty Act (ATEDPA).

Appellant’s §2255 motion is not a “second or

successive motion”. Interestingly any case that was cited In

the District Court’s decision and in the prosecutorial brief

—— a —

I =

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was either a second or successive motion, or was pre-1996,

le, prior to the controlling statue. (ATEDP).

For example, the District Court, at pg. 5, Exhibit A

cited a series of pre-1996 Anti-Terrorism and Effective Death

Penalty Act (ATEDP) cases, ie, Graham v. Collins, 566 U.S.

46 (1993), Peney v. Lynaugh, 492 U.S. 302 (1989), which

does not address the 1996 amendments that do not require a

finding of retroactivity in the case of an initial §2255

motion/petition. The government induced the District Court’s

confusion by citing similar not applicable cases. However,

the greater confusion was caused by the government in its

answer/response citing at p. 25-26 -- a Litney of second or

successive motion cases, like Jones v. Smith, 231 F.3d 1227,

1236 (9th Cir. 2000); Levan vy. United States, 128 F.Supp.

___,» 270 (E.D. Pa. 2001). Clearly not applicable to an initia]

§2255 motion. The district court, in turn, at p. 5 of its

“opinion” robotically cites Levan v. United States in support

of its erroneously based position. Levan clearly is a

“successive” motion.

The district court, again on page 5 of the opinion,

Exhibit A, cites O’Dell v. Netherland, 521 U.S. 151, 157, 117

S.Ct. 1969, 1973 (1997), quotes both Penry v. Lynaugh and

Teague. However, neither case is applicable to appellant’s

case. They are cases which are superseded by the 1996 Act or

involve procedural rather than Statutory constitutionality. not

a “second or successive” motion. The 1996 Congressional

Act (ATEDP) only relinquishes retroactivity finding in cases

of second or successive §2255 motions.

(A) Retroactive Application of Ring v. Arizona

The retroactive application of a United States

Supreme Court mandate striking a legislative

sentencing scheme, which is in violation of a

fundamental constitutional guarantee, is the essence

A-44

of preventing it from being “senselessly diminished.”

Ring, id at 23, (Ginsburg, J.), Op. of the Court.

Retroactive application of this constitutional

guarantee and its future protection provides the restoration

which is the linch-pin of Ring v. Arizona. Without retroactive

application “our people’ s traditional belief in the right toa

jury trial by jury” would be placed on continuances “perilous

decline’. Ring, id. Scalia, J. at p. 3.

The absurdity of a contrary position is demonstrated

by the “effect” and “impact” test of Ring, not a formalistic

legalism. Reflect on a death-row candidate’s life being saved

or extinguished based upon whether his sentence was before

or after June 24, 2002. Absurd! Ring’s mandate must be both

redemptive as well as restorative. It redeemed those who

were previously under an unconstitutional law. It would be

“senselessly diminished” if it did not deliver all equally from

this infraction. All under Ring are to receive the promise of

the founders of the constitution of a guaranteed jury trial.

B. Separation of Powers and Retroactive

Application of Voiding Portions of Statue.

It is a fundamental cornerstone of the Untied States

Constitution that the United States Supreme Court is granted

the judicial power to declare statutory schemes as being in

violation of the Constitution. Where the High Court so acts in

striking such a statutory scheme there is no issue of

retroactive application. This is distinguished from a ruling

that merely addresses a technical procedural defect. Granted,

quite a division occurred in the lower courts over whether the

declaration of Apprendi v. New Jersey was substantive or

procedural. In the narrow context of the 6th Amendment

striking of a statutory scheme, either facially or as applied,

the issue is different. That statutory regime is either

Constitutional (yesterday, today and tomorrow) or it isn’t.

A-45

The date of the declaration of validating or invalidating is

immaterial to the application of the Supreme Court decree.

The Ring declaration puts to an end the cavorting

with issues of statutory maximum and elements vs.

sentencing factors. Respecting the 6th Amendment aspect of

the Apprendi ruling, Ring brought to a demise any debate

regarding retrospective unconstitutionality in the narrow

context of invalidation of sentencing regimes.

In its effort to end the diminishing of the right to trial

by jury, Ring selected a demonstrative example. It was in the

context, as in this case, of the role of a jury in finding

pecuniary facts as opposed to a judge alone.

Ring was a case in which the judge’s role, authorized

by the statutory regime, resulted in a finding of pecuniary

gain which increased the jury verdict of life to death. In doing

so, the High Court in Ring, repeatedly stated that its’ ruling

extends to non-capital as well as capital cases. In the case at

bar, the statutory scheme, likewise, authorized a judge to

make pecuniary findings to drastically increase the sentence.

The 6th Amendment deenis any Statutory structure,

which permits a judge rather than a jury to find this pecuniary

aggravating fact, unconstitutional. This type of foundational

unconstitutionality is unlike many Apprendi cases argued in

the lower courts. Ring runs right to the legislative law that

permitted 6th Amendment violations. It is the difference

between procedural and foundational constitutionality. It is _

the difference between peripheral and core constitutionality.

The United States Supreme Court, within four days of

rendering its historic Ring mandate, of revival of the 6th

Amendment, made it undisputably clear that there is no room

for avoiding it by a retroactivity argument. Retroactivity is a

non-issue not applicable to Ring’s ring of protection to

OL Ln LL LT LL eee

A - 46

defendants. Four cases (three from Arizona and one, from the

Eighth Circuit) were decided before the court’s summer

break. There is to be no attempt to minimize this decree with

retroactivity.

The Ring mandate was applied retroactively in all

four cases. All involved the collateral attack of the sentence

at issue. Although some were on direct appeal, among the

issues present was the collateral issue of sentence validity.

In Harrod v. Arizona, 2002 WL 13935 (U.S.), the

High Court acted on a collateral attack of an aggravated

sentence. Leaving no doubt it declared: “The judgment is

vacated and the case is remanded to the Supreme Court of

Arizona for further consideration in light of Ring v. Arizona,

536 U.S. ___ (2002)”. The issue in Harrod, as in Ring and in

the case at bar, is one where a judge alone has enhanced a

sentence beyond the facts determined by a jury was:

“Is the law under which the penalty was enhanced by

the judge’s findings” unconstitutional on its’ face

and/or as applied in this case?” Arizona v. Harrod,

352 Ariz. 11, 26 P.3d 492 (2001); see also accord,

Sansing v. Arizona, No. 1-7837 and Pendell v.

Arizona, 2002 WL 1393 603, both United States

Supreme Court June 28, 2002.

_

In Allen v. United States, a federal court judgement

was retroactively vacated in light of Ring. Here, the

provisions of the Federal Death Penalty Act (FDPA) were the

focus. The issue was the allowing of a prosecutor to propose

non-statutory aggravating facts to a jury. It was upheld as

constitutional by the 8th Circuit. United States v. Allen, 247

F.3d 741 (8th Cir. 2000), Particularly relevant to the

retroactivity issue was that it was based on the 8th

Amendment and Article 1 of the Untied States Constitution.

An 8th Amendment violation was argued. The Circuit Court

ee

A - 47

rejected “Allen’s” facial challenge to the FDPA. The United

States Supreme Court, however, viewed the portion of the

FDPA unconstitutional in light of Ring. Allen’s sentence was

vacated and remanded in view of Ring. The federal courts

continue to respect retroactivity of Ring. See United States v.

Fell, D.Vt., No. 2:01-Cr-12-01, 9/24/02.

fd Ring and Third Circuit Recognition of Facial

and Implemental Unconstitutional] Portions of

Federal Sentencing Scheme at Issue Here.

The substantive aspects of increasing and enhancing

imprisonment sentences are a function of the statutory

Federal Guidelines, but are implemented through the Courts.

The entirety of the Sentencing Reform Act of 1984 is not at

issue. However, the recent United States Supreme Court

decisions of Jones, Apprendi and now Ring; seriously call

into focus the constitutionality of the certain narrow aspects

that appear to vest in the Court the sole right to increase, in

substantive increments, prison terms, e.g., U.S.S.G. Chpts. 2

and 3. That right is on occasion, as in the case at bar, beyond

that specified in the indictment and the jury verdict.

For sometime, before Ring, constitutionally minded

lower court jurists have expressed concern. See United States

v. Frank, 682 F.Supp. 815 (W.D. Pa. 1988.)(holding the

“sentencing guidelines procedure applicable here (did) not

adequately protect the due process right of defendant to

present evidence and to challenge the basis of his sentence

before a court which has authority to wei gh the evidence and

determine the appropriate sentence). id. at 819. Also see

United States v. Davis, 715 F.Supp. 1473 (C.D. Cal.

1989)(declaring the guideline procedures to be

unconstitutional).

Unfortunately, many Circuit Courts, early on, turned a

deaf ear, e.g., the Ninth Circuit immediately reversed the

A - 48

Davis’ declaration. United States v. Davis, 950 F.2d 820, 829

(9th Cir. 1990), cert. denied, 113 S.Ct. 210-211. It was Jones

v. United States, that cornmenced a redemptive and

restoration process. Next the Supreme Court decided

Apprendi. If Jones and Apprendi left room for arguments on

the issue of retroactivity, the day of reconciliation came on

June 24, 2002 in Ring v. Arizona. To avoid any issue

regarding retroactivity the major opinion, and concurring

opinions, adopted the facial/implemented unconstitutionality

of the legislative structure that bred the dilemma. Retroactive

per se.

In the Third Circuit, Chief Judge Becker, from the

outset of the Apprendi decision, through its progeny has been

consistent. He cautioned that these violations had to be

viewed through the constitutional “lens” of the United States

Supreme Court. As the unconstitutionality in certain cases

became evident he (Judge Becker), pointed it out and

ultimately he suggested that the legislative branch review the

Constitutional dilemma of a sentence exceeding the “crime of

conviction”. A detailed study of the relevant Third Circuit

cases compliments the foresight of this Circuit. See “Third

Circuit - The Forerunner to Ring”. Exhibit B.

This “chart” places in juxtaposition the Third Circuit

case of Mack, Pressler, Knight and Vasquez to the

declaration of the United States Supreme Court. The

exactness, consistency and conclusions of this Third Circuit

are indeed prophetic to the fulfillment in Ring.

POINT II: The Pattern Of Ineffective Counsel Failures And

Substandard Conduct Individually And Accumalatively, So ~

Prejudiced The Appellant To Result In A Violation of the

6th.Amendment Right To Effective Counsel.

A - 49

OVERVIEW OF ISSUE

The law and facts as it relates to the severe pattern of

failures and substandard conduct resulting in a Sixth

Amendment violation is set for in Appellant’s §2255 Motion

(Exh. C—1 & C-2)

The District Court did not address one, no less the

cumulative impact of prejudice incurred. Instead Judge Walls

chose to do an “end run”, attempting to convert a supporting

report, verifying the initial defense expert report and

addressing to total incompetence, the government report

relied upon by the Court in sentencing. It is clear from the

Memoradum of Law and expert report, put before the District

Court that it was not at all a defense attempt to substitute one

expert for another. Had the court read the report and

Memorandum, it is crystal clear that both defense experts are

in one accord, based on factual financial bond closing

documents and transcript testimony.

A. Defense Counsel] Ignores The Fact That The

1989 Bond Refinancing Issue Had A Stated

Cost Not A Loss.

Definitions:

Cost - Price paid to acquire or accomplish something

(Anticipated)

Loss - The act of losing not as a result of accident or ;

misfortune failure to maintain.

(Not Anticipated)

History:

Testimony at Board of Chosen Freeholder (BOCF)

meetings and at the Local Finance Board (LFB)

meeting were ignored.

It was made very clear during the presentation before

the BOCF and the LFB, by Appellant and the government’s

co-operating witness (Tuttle), that the proposed $104 million

debt restructuring bond issue was being proposed for two

basic reasons:

1. To ease cash flow problems that the County was

esperiencing.

2. Reduce the Tax Levy over the first four years. This

intermediate measure would give the County an opportunity

to re-structure their financial needs and source of funds to

satisfy those needs. See BOCF 4/12/89 (Exh E) and LFB

4/19/89 pgs. 14, 16, 19, 43 and LFB 4/19/89 pgs. 12, 13, 18,

29. Exh F

Also stated at these hearing, very clearly was:

1. That there was a Cost to this debt refunding

transaction.

2. That this transaction was not and could not be an

interest rate savings refunding, and therefore, no Present

Value (PV) savings.

See BOCF minutes 4/12/89, pgs. 14, 16, 19, 43 (Exh

E)

Tuttle in a bank “Memorandum” dated 3/7/89 (Exh

G) is both forthright and honest in presenting the fianncial

impact of the proposed financing. He clearly states a net cost

over the life of the program. On April 19, 1989, at the BOCE

meeting, almost 1% months later, Appellant emphasizes the ~

cost factor impacting this transaction.

There was nothing regarding the Refunding Bond

issue that was misrepresented, or misleading at any time,

before any Board. There was Full Disclosure regarding the

impact of this transaction.

Defense Counsel never referred to these minutes or

disclosures, either at trial and specifically not in answering

the PSR or at the sentencing hearings.

Bond Counsel, John Scally, of McCarter & English,

on May 31, 1989, testitied before the BOCF, that the $104

million Refunding issue had a cost (not a loss)element (Exh

I) pg. 21) Mr. Scally, again on September .26, 1989, in a

Memorandum that he prepared in reponse to Freeholder

Lustbader’s concern, re-stated that there was a cost factor in

doing this transaction. (Exh. J). In contrast to the Court’s

interpetation, at trial, to the jury, regarding the role of Bond

Counsel, ie: “does not deal with the economic merits of the

issue.....”, the BOCF, Appellant the Administration and the

LFB, had every right to rely on the clear testimony and

written opinion of a very respected bond counsel and

prestigious law firm of McCarter & English. Defense

Counsel failed to effectively press the right to a complete

cross examination of Mr. Scally.

Report Of Analysis Group Economics Inc., Prepared 12/3/97:

This report was co-authored by Mark Egland, the

government’s expert witness.

(Exh. K) Under “A” Opinion Summary pg |

expressly states (2d 9) “The refunding plan will cost the

A-52

County approximately $5.8 million on a net present value

basis as of 1989.

Cost not Loss

* This report was given to defense counsel in

December 1997,

* This report, supportive of Appellant’s statements of

cost, was never presented at Trial.

* Defense Counsel failed to argue this contradicting

evidence in the prosecutors case, to the Court, at

trial and at sentencing, the jury and to the Probation

Office. Defense was unprepared and ineffective.

Under “B” Reasons and Basis, for Opinion

Pg. 8 (Second §) “On November 21, 1989 (5 plus

months after bond sale) Mr. Galluzzi provided the

County Executive with a”Close Out” report that

contained similar base case alterntive charts” (Exh. L)

* Attachment #7 becomes government Exhibit CH-9,

which Egland ultimately uses in his certificate in Report

submitted 9/5/98 (undated) See (Exh. L-2 (CH-9)

Documentation that expert did not prepare or orginate

schedule used in certification.

Same Paragraph “Both the Base Case and Alternative

three.... avoidance of borrowing at 8% clearly show that the

County increased its costs (not loss) by engaging in this

refunding scheme.

* Everyone knew and was told, beginning in April

1989, that there was a cost factor. NOTHING NEW,

SS t—S

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NOTHING HIDDEN, NO LOSS. Government’s expert

confirms Appellant’s disclosures

Defense counsel totally failed to enlighten the jury or

remind the Court, of any of these extensive disclosures of

costs. He failed to distinguish costs from loss. See

Appellant’s Reply Brief. (Exh C-2).

* Costs, specifically when everyone is aware of them,

are not a sentencing element or factor. Only losses are.

* Subsequently the government had Mark Egland

prepare a “Certification”, post trial, undated, in which he re-

characterizes the same information, conviently as a loss (Exh.

M).

* Mark Egland presents confused testimony at trial

regarding the cost or loss of this bond transaction, as cited in

Appellant’s Reply Brief (Exh C-2}.

* The Government again in “Response to Petitioner’s

§2255 motion”, 4/23/01, pg. 11, mistates testimony and

documented Exh. J-2 eveidence by replacing the word cost

with loss. These words are not interchangeable. This mis-

characterization appears to be a conscience attempt to

mislead the Court and no a mere oversight.

Appellant objects to the Court’s failing to address this

significant misrepresentation. See (Exh. E) BOCF minutes

4/12/89, stating $14 million cost, memo from Tuttle (Exh. G)

stating $15 million cost.

B. Defense Counsel’s Stipulation Resulting In

Prejudice Reliance On Government’s Exhibit

CH-9

At the sentencing hearing of September 10, 1998,

defense counsel, without the consent of Appellant, made a

monumental incompetent and substandard “Stipulation”. A

stipulation to the inaccurate government Exhibit CH-9. As a

result, a totally non-existent loss was fabricated. Neither

defense counsel nor the Court instructed Appellant as to the

impact of this Stipulation.

Transcript Sentencing Hearing 9/10/98, Exhibit N. p

69 (5-12)

Page 69 -Jines 5-12

Court: (to defense counsel D. Durbin)

“He used these numbers did he not?”

Durkin: “He, in conjunction with others”

Court: “[’m not interested -- he used those

numbers, that’s what I mean advanced”.

Durkin: “They are the numbers, that were used in

the transaction’. (Stipulation).

Court: “If he used them he will he bound by them

9

Page 76 - lines 3-8

Court: “Because they are not Eglands figures.

This is the defendant’s figures which he

advanced which he adopted and used to

swing this deai in 1989. Those figures are

A-54 | |

Sia. wedbiout

ee

A-55

found in CH-9. And if the defendant relied

upon them then, I shali rely upon them

now.

Stipulation to Use of Exhibit CH-9

“when facts which tend to establish guilt are submitted on

stipulation, the Court must determine whether the

consequences of the admissions are understood by the

defendant and whether he consented to them.” Cox v.

Hutto, 589 F.2d 394, 396 (8th Cir. 1979)(emphasis

supplied).

“Lower courts have held that admissions and stipulations

of guilt by counsel are the “functional equivalent of guilty

pleas”. Cox v. Hutto, 589 F.2d 394, 396-97 (8th Cir.

1979).

“Thus like guilty pleas, the Court is required to question

the defendant to determine whether he knowingly and

voluntarily agreed to the admission or stipulation.

Without such an inquiry, there would be constitutional

error that would be presumptively prejudiced. id. at 396”,

see also Adams v. Peterson, 968 F.2d 835, 843 (9th Cit.

1992)(Conviction Sentencing based on stipulation valid

only if defendant voluntarily and knowingly agreed to

admission or stipulation”.

There is no doubt that from the sentencing hearing

transcripts, that Appellant’s attorney (Dennis Durkin) .

stipulated that appellant used the schedule known as Exhibit

CH-9, in “selling this deal” ($104 million refunding) to the

Board of Chosen Freeholders. (see sentencing transcript

dated 9/10/98, pages 69, lines 5- 12, page 76, lines 3-8).

Counsel stipulated to the court despite the fact that this

schedule was not prepared until 5% months after the Bond

Refunding sale an some 74 months after the proposal was

A - 56

initially presented to the BOCF. (April 1989). See

Memorandum of Law, pag 25).(EXH C-1)

Neither the Court nor appellant’s attorney advised

appellant of the sentencing consequences as a result of the

reliance on Exhibit CH-9.

The error of the Court’s reliance on Exhibit CH-9 and

defense counsel’s stipulation to that reliance by appellant,

was presumptively prejudicial, unless the Court and/or the

government can show, absent the reliance on and stipulation

of the use of Exhibit CH-9, the government or court can show

evidence/trial evidence, that would prove the calculated loss

amount as presented by the government’s expert Mark

Egeland.

Thus, if the only document that the government and

the court used to establish the alleged significant loss was not

In existence as the government and the court assumed it was,

and then, that assumption was compounded when defense

counsel erroneously stipulated that it was available to

defendant, “to sell this deal”, then that portion of defendant’s

enhanced sentence must be immediately cancelled or released

from the sentence imposed.

Appellant never stipulated or was asked to stipulate to

the alleged use of Exhibit CH-9 in “selling this deal” to the

BOCE.

Appellant never pleaded guilty to crimes charged nor

stipulated to any of the sentencing factors/elements presented

to or used by the Court.

Appellant was never told of the draconian impact on

his sentence as a result of everyone’s reliance on Exhibit CH-

9 and its alleged use by Appellant.

A -57

Defense counsel was ineffective in his defense of and

argument against the enhanced sentence despite the

documentation before him.

Defense counsel was ineffective in questioning

government expert witness on his use and reliance of Exhibit

CH-9 that was not available to appellant before the Bond Sale

of June 1989, or was it part of the Bond transaction

documents. Exhibit CH-9 is a schedule, prepared by the

underwriter (Tuttle), that was part of a “Close out” report

prepared by Appellant on November 21, 1989, and

acknowledged as such by government’s expert Mark Egland.

See Exhibit H, Tr. trans 4/8/89, page 45, line 9, pg. 46, lines

8-15.

Defense counsel, at sentencing hearing and during

cross examination never asked government’s expert to

produce his work papers that were subpoenaed. See Reply

Brief, Direct Appeal, 4/13/99, page 4, Exhibit W. Defense

counsel was ineffective in this regard inasmuch as these work

papers were requested by Appellant’s expert Felipe Ferrand,

to verify calculations that government’s expert allegedly

made. Appellant’s expert, because of this ineffective counsel,

was not able to assist defense counsel in his cross-

examination of government’s expert. See Ferrand Affidavit,

Exhibit X.

As a result of defense counsel’s ineffectiveness and

the obvious prejudicia! treatment of appellant’s expert, (who

was not questioned on his report or his documented work

papers), appellant had no alternative but to submit a report

from another highly credentialed expert with his §2255

Petition, to emphasize the significant importance of the errors

made by the Court and the government’s expert.

te ernie t eee ee

(8 en ee i te |

Applicable Law

| Attorneys’ performance was unreasonable under ;

prevailing professional standards and that this performance

prejudiced the defense, i.e., “that there is a reasonable

probability that but for counsel’s unprofessional errors, the

result of the proceeding would have been different”.

Government of the Virgin Islands v. Frederick, 865 F.2d 59

(3rd Cir. 1989)(citing Strickland v. Washington, 466 U.S.

688 (1984).

Applicable Law re: Sixth Amendment Violation:

Generally, in order to sustain a claim of ineffective

assistance of counsel, the defendant [Appellant] must show

that counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 688, 687—96 (1984), United States v.

<ronic, 466 U.S. 648, 658 (1984). But the Supreme Court has

stated there are exceptions to that general rule:

“There are, however, circumstances that are so

likely to be prejudice to the accused that the cost

of litigating their effect in a particular case is

unjustified.” Cronic, 466 U.S. at 658.

“In certain Sixth Amendment contexts, prejudice

is presumed. Actual or constructive denial of

counsel altogether is legally presume to result in

prejudice.” Strickland, 466 U.S. at 692 (emphasis

added).

Applicable Law re: Concessions and Stipulations by

Counsel, amount to a waiver of constitutional rights of a

defendant without the defendant’s consent is:

A -59

“constitutional error of the first magnitude and no

amount of. showing of want of prejudice would

cure it.”’ Brookhart v. James, 384 U.S. 1,3 (1966).

C. Defense Counsel Failure To Enforce

Appearance Of. Subpeonaed Defense Witness

Was Highly Prejudical To Defendant At

Sentencing.

Clifford Goldman, a former State Treasurer for the

State of New Jersey, was the financial consultant/advisor to

the Local Finance Board (LFB) at the time that the 1989,

$104 million Bond Refunding issue was proposed.

Defense subpeonaed Mr. Goldman, to appear at

Appellant’s hearing on September 8 and 10, 1998, and to

testify as to his knowledge of, input to, the structure and

merit of the bond issue in question.

Mr. Goldman and his input and comments to this

refunding were referenced several times during the LFB

hearing of April 19, 1989. (See LFB minutes, 4/19/89, pg. 12,

lines 22-25; pg. 13, lines 2-8; pg. 18, lines 11-25, and pg. 29,

lines 11-25). EXH F Mr. Goldman was also referenced at the

Board of Chosen Freeholder (BOCF) meeting of April 26,

1989 (pg. 15, lines 2-25; pg. 19, lines 4-13). Exh E-2

SENTENCING HEARING, SEPTEMBER 8, 1998

TRANSCRIPT: (Exh N-2 )

Pg. 3, lines 9-25.

Durkin (Defense Counsel)- .....“‘we have also

subpoenaed Clifford Goldman who was financial consultant

to the local finance board for the bond issue involved.”

Defense counsel states that he received a call form Richard

Weinroth, attorney for goldman, who acknowledged

A - 60

Goldman’s receipt of the subpoena ----but that “Mr. Goldman

did not understand the significane of the subpoena. ....” Mr.

Weinroth further stated that Mr. Goldman was not available

today because of an emergent periodontal surgery that day.

Mr. Durkin advises the court that he instructed Mr. Weinroth

to contact the court.

Pg. 4, line 4 Court “How essential is Goldman?”

Lines 5-10 Durkin “Judge, depending on what... .he is not the

central point, but he has a role to play in regard to Mr.

Egland’s opinion in regard to A, the purpose of the bond

issue and B, other alternatives available. Basically, he was

the counterpart to Galuzzi, Judge. He was the financial

consultant..... (LFB)”

Line 11 Court “I appreciate that”. I understand that”. Pg. 28

Lines 6-8 Durkin (in regards to Thursday hearing 9/10/98)

“Maybe we can check back wihin the hour. Maybe

Mr. Weinroth has faxed the letter that he indicated he would

send to the court’.

Sentencing Hearing September 10, 1998: (.Exh N )

Pg. 2, lines 1-12 Defense counsel reminds the court that

Clifford Goldman is under subpoena and that he has not

appeared.

The court then makes a unilateral decision regarding -

the importance of Goldman’s appearance and his testimony.

Court - Mr. Goldman’s testimony would be

appreciated but I don’t think it’s vital.”

A - 61

The Court’s denial of insuring defense witness the

Opportunity to testify is clearly prejudcial and impacts on

Appellant’s due process rights.

Pg. 67, lines 5-21 - Defense counsel attempts to return to the

matter of Clifford Goldman.

Durkin - “Mr. Lawrence advises me that he has been

in contact through our office directly with Mr. Weinroth who

represents Mr. Goldman, your honor.” Mr. Goldman is. not

available today. Mr. Weinroth indicates he is available

tomorrow. I don’t know nessarily ....... G

Court - “What would he. . . .how would he help us?”

Durkin - “Mr. Goldman acted as the financial advisor

to the Local Finance Board in regard to the 1989 Series B

transaction. And to that extent that there is a contention that

the transaction itself had no economic benefit, it is clearly

relevant for sentencing purposes to establish that the Local

Finance Board and its financial consultant either did not say

there is no economic benefit....or by the fact of approval

(unanimous) stated that there is an economic benefit to the

transactions.”

* The court completely disregards defense counsel’s

statement regarding Goldman.

* Defense counsel fails to ask for a continuance.

* The court took no action on Appellant’s behalf to

institute whatever procedure was necessary to require

Goldman to appear.

* Defense Counsel never makes this an issue again, at

the sentencing hearing or in Appellant’s Direct Appeal.

A - 62

Becaue of the impact that the $104 million bond

refunding issue had on his sentence, Appellant, starting in

June 2000, through an invesigator, Richard Childs, attempted

to obtain information from Clifford Goldman and the LFB

that were missed or ignored by the government. Information

that Appellant believed would help in his appeal of his

sentence.

Appellant presents in Exhibit U , items 1, 2, 3, 4, 5, 6,

7 and 8, correspondence that is inconsistent to the facts and

somewhat confusing. The dialogue varies from no

recollection of the subpoena, or the transaction, or the

existence of any workpapers, back to the acknowledgement

of having received the subpoena. Mr. Childs re—confirms

through correspondence the representations made. Most

interesting is item #5, letter from Mr. Weinroth, 9/21/2000,

indicating that Mr. Goldman was subsequently advised that

his appearance would not be required. Item #6, letter from

Mr. Childs to Weinroth, 11/27/2000, stating that it is critical

to ascertain who advised Goldman not to appear. Mr. Childs

never received a response to this letter.

Interestingly - as a result of a document filed in a

related matter, County of Essex y. First Union, Tuttle &

Galluzzi, copy of a report that Clifford Goldman did in fact

prepare for the LFB on 4/6/89, specifically addressing the

Essex County 1989, $104 million bond refunding porposal.

Exh U Item 9

Appellant was denied due process to question

Goldman on this transaction and his report.

; The significance of this is (1) that Mr. Goldman

described the transaction in.his report of 4/6/89 for the

benefit of the LFB, (2) The Local Finance Board unaimously

approved this refunding application, (3) In 1995, the County

of Essex did an identical refunding issue, with LFB approval

A - 63

and as in the 1989 bond issue, did not reflect a Present Value

savings (PV).Exh V. (4) During the year 2000, Mr. Goldman

was the financial advisor to the City of Trenton in regard to a

similar bond refunding issue, for basically the same reasons,

and that issue also did not reflect a Present Value savings----

as the government, their expert and the court declared that it

should. If Present Value savings was not achieved the

government has classified these transactions as without

economic merit and fraudulant, as they so characterized the

1989 bond issue.

The exhibits referenced in this issue are an important

part of Appellant’s claim. Evidence, discovery and testimony

were denied Appellant that certainly had the possibility of

reducing the draconian enhancement of his sentence.

POINT Ul: THE U.S. ATTORNEY DENIED APPELANT

HIS FIFTH AMENDMENT RIGHTS BY

CAUSING APPELLANT TO BE DENIED

RIGHTS TO DISCOVERY DURING PRE-

TRIAL PERIOD, TRIAL AND POST TRIAL

PERIODS AND THEREBY OBSTRUCTED

JUSTICE. RECENTLY DISCOVERED

MATERIAL WAS EVIDENCE PREVIOUSLY-

CONCEALED.

A. Concealment of Evidence:

1. The U.S. Attorney’s office was successful in

halting Appellant’s efforts for discovery and thereby

controlling litigation by choosing what discovery can and

cannot take place and what selected facts will be revealed. —

2. Appellant’s claim rests on the discovery of

previously unavailable evidence and information regarding

violation of Fifth Amendment privileges during Pre-Trial,

Trial and Post-Trial periods.

A - 64

3. On September 18, 1997, the U.S. Attorney’s

Office filed a motion in Superior Court of New Jersey, Law

Division, Essex County, for an order permitting the United

States to intervene and staying discovery in the matter of

County of Essex y. First Union Corp.., et.al., Joseph

Galluzzi and George Tuttle, pending conclusion of the

federal criminal case U.S. v. Galluzzi Crim, No. 96-640

(WHW). Exh P. This motion was granted.

4. Further, the U.S. District Court granted the U.S.

Attorney’s Office motion to intervene and stopped discovery

in an SEC Civil Action until completion of Appellant’s

Criminal case. The motion was granted on December 8,

1997. See Exh Q. (Gov’t Response 3/29/99, Direct Appeal,

pgs. 57, 58, 59, 60.

5. Finally, after sentencing on November 17,

2000, by order of Administrative Law Judge, James T. Kelly,

Appellant was granted discovery and inspection of SEC

documents previously denied by intervention and

subsequently by SEC Law Division refusal. Judge Kelly

clearly stated that under the Rules of Procedure, the SEC’s

Division of Enforcement was required to make available to

the Appellant SEC investigative files and material. Exh R.

The SEC violated these Rules when Appellant requested

access to SEC files, in 1998, post criminal trial was denied.

As a result of this newly discovered evidence, previously

concealed from Appellant, is now available.

6. Between January 29, 2001 and April 11, 2001, .

the U.S. Attorney’s Office, Ralph J. Marra, AUSA, filed a

certification opposing any additional release or inspection of

SEC documents to Appellant Joseph P. Galluzzi. Exh. S—1

and S—2.

A -65

ANALYSIS AND IMPACT

Appellant’s post conviction and sentencing discovery

of SEC investigation files, granted in November 2000,

through April 2001, produced documented evidence that

contradicts government’s misleading statements, in their

Response Brief below, that clearly misleads the court and

severely prejudiced Appellant’s trial and sentencing. Exh Q

(Appelle’s Brief - Point VI - pgs. 57-60). As a result of this

discovery and this proof of “prosecutorial misconduct”, it is

obvious that the U.S. Attorney’s successful action in

prohibiting Appellant discovery has cause “substantial

prejudice to the rights” of Appellant.

B. Unconstitutional Investigative Device Of

Simultaneous Unilateral Government Civil Discovery.

1. Appellant, in light of post—trial and sentenci 1g

discovery, again takes issue to the manner and extent that the

U.S. Attorney’s O “fice used the investigative powers of the

SEC to support their effort for a criminal indictment and

conviction.

2. This alliance, confluence, between the US.

Attorney’s Office and the SEC’s Division of Enforcement

and the manner in which it was orchestrated, did undermine

and violate respondent’s due process and Fifth Amendment

privileges as warned in SEC vy. Dresser 628 F2d. 1368-138]

(1980).

3. It appears that the U.S. Attorney, together wlth

the SEC has acted with scienter and have been egregious in

their actions to deny and prevent discovery of investi gative

documents to Appellant. This action has unquestionably

denied Appellant due process.

A - 66

4. The blatant uncoordinated, unprotected

providing of documents by the SEC to the U.S. Attorney and

compounded by the denial of discovery to the Appellant, to

this same material is justifiably “Agency Bad Faith”,

5. The U.S. Attorney, in their “Response: to

Appellant’s Brief, on direct appeal (see Exh Q. Pgs. 57, 58,

59 No. 1199 City SEC v. Dresser 628 F2d, 1368-1381

(1980) for justification to conduct parallel (not joint)

investigations with the SEC. Dresser was used in its most

narrow sense. A complete reading of Dresser, although

establishing authority for government agencies to “conduct

investigations regarding the same party, at the same time, that

a criminal invesigation is underway”, Dresser also trumpted

a warning:

id at 1374---”In the absence of

substantial prejudice to the rights of the

parties involved, such parallel

proceedings are unobjectionable”---the

Sherman Act provides ---and the suits

may be brought simultaneously or

successively”. “The order of their

bringing must depend upon the

Government: the dependence of their

trials cannot be fixed by a fast rule or

made imperatively to turn upon the

character of the suit”.

It is obvious, based on post trial and post sentencing |

discovery that documented U.S. Attorney’s access requests

now confirm that the SEC investigation was primarily to aid

the government in their criminal investigation. It is clear that

this was pre-meditated and prejudicial.

Continuing--—in Dresser at 1375-1376:

A - 67

“other than were there is specific evidence

of “Agency Bad Faith” or malicious

government tactics, the strongest case for

deferring civil proceedings is where a party

under indictment ---is required to defend a

civil or administrative action involving the

same matter”. The non-criminal proceeding,

if not deferred, might undermine the party’s

Fifth Amendment privilege against self-

incrimination, expand rights of criminal

discovery beyond the limits of Federal Rule

of Criminal Procedure 16 (b)---or otherwise

prejudice the case” id 1376. Dresser also

States at 1381---”there is no danger that

Justice might broaden its discovery rights,

because the subpoena power of the grand

jury is as broad ---perhaps broader than that

of the SEC’. Justice can procure from

Dresser (Appellant) directly whatever

materials it might procure indirectly through

the SEC.” “In fact, a party investigated

under SEC rules instead of grand Jury

procedures is accored far greater protection-

9

Unfortunately, the U.S. Attorney’s actions with the SEC

cooperation, violated a very significant tenant of the

cite....Justice cannot, whether through subpoena or by any

other means, procure from defendant/appellant, his testimony

for their criminal proceedings.

The U.S. Attorney sought and was provided

transcripts of Appellant’s deposed testimony before the SEC,

which was not only referenced several times during

appellant’s trial and sentencing, but at one point the Court

allowed the U.S. Attorney to read a portion of these

transcripts into the record. This unholy alliance, between

A - 68

government agencies resulted in violating Appellant’s Fifth

Amendment privileges at trial, contributing to the action that

resulted in having Appellant testify indirectly despite

Appellant’s exercise of his Fifth Amendment privilege at

trial.

‘Further to avoid Justice’s right to criminal discovery,

in concert with SEC:

“the strict limitation on discovery in criminal

cases, embodied in Federal Rules of Criminal

Procedure 15-17, do not take effect until after

a grand jury has returned an indictment.” Id at

1381.

The U.S Attorney violated this rule. An indictment

was returned on January .7, 1997, the SEC through Senior

Attorney Teri A. Brotbaker, almost two months after the

indictment on March 7, 1997, did in fact forward to the U.S.

Attorney, a copy of Appellant’s diposed privileged testimony

given in June and July 1995. Exh. S.

This blatant act was a deliberate undermining of

respondent’s Fifth Amendment privileges and also

concealing evidence from Appellant. For Appellant to

challenge, at the time, the U.S. Attorney’s insertion and

interpretation of this indirect testimony, Appellant would

have had to surrender his Fifth Amendment rights.

Contrary to the government’s assertions under Point .

V1 of their “Response” Exh Q, their reliance on Dresser to

establish “unobjectionable” cooperation between them and

the SEC only goes as far as their reference. When one reads

Dresser in its entirety one finds numerous references

warning of prejudical concerns and violations of a party’s

civil rights.

A - 69

This action is an outright trashing of Appellant’s

rights.

6. The government, in their response Point VI

contradicts the documented facts, subsequently discovered

that the “U.S. Attorney’s Office and the SEC conducted

parallel but completely separate grand jury investigations.”

The documented “privileged log” of SEC investigative file

material, contradict this statement. Note numerous

correspondence between the government and the SEC. Exh.

T. The U.S. Attorney supplied the SEC search documents

that were used by the SEC in questioning Appellant at the

deposition hearings.

7. The U.S. Attorney acknowledges that they

“moved to intervene and to stay discovery in the civil action

pending the resolution of the criminal case. (SA 2419-2422).

“By order of December 8, 1997, the District Court granted

the U.S. Attorney’s Office’s motion to intervene” and the

court ordered that discovery in the SEC civil action be stayed

until completion of the instant criminal case against Galluzzi.

Exh Q, pg. 58. The government then proceeds to deliberately

mislead the court by stating “As the docket sheet of the SEC

civil action reveals, no discovery was done by either party up

until the time of the District Court’s order staying discovery.”

(SA 2426-2428). It is obvious that this is not true. The 14

page privileged log is proof of the exchange of discovery

items, up until and beyond the indictment and prior to

December 8, 1997,

The Government continues with its misleading

statements, stating “Moreover, the U.S. Attorney’s Office did

not need to use the SEC’s civil discovery tools, given that it

obtained all the information that it needed from its own

separately conducted criminal grand jury investigation.” The

U.S. Attorney could not obtain Appellant’s testimony

directly.

A-70

SEC file discovery, “subsequently” granted to

Appellant in November 2000, and conducted into 2001,

produced documentary evidence that the statements made by

th U.S. Attorney’s Office, in their Response, Point VI are not

true and have severely prejudiced Appellant’s due process

rights.

The U.S. Attorney’s Office and the SEC have jointly

acted in bad faith, in contravention with the Constitutional

Rules of Procedure. This government action has not only

obstructed Justice, it has violated Appellant’s Fifth

Amendment Rights guaranteed under the Constitution of the

United States.

It was only since the post-trial/post-sentencing SEC

November 17, 2000 Order, permitting a limited view of what

had been previously concealed, that newly discovered

evidence was revealed. ;

NEWLY DISCOVERED EVIDENCE

As A Result Of SEC Limited Discovery Granted

November 20, 2000:

* Documented proof that the U.S. Attorney’s Office

in conjunction with the SEC, worked unilaterally to deny

discovery to Appellant.

* That the U.S. Attorney’s Office did in fact have

access to SEC files in contradiction to their claim.

* That documented correspondence reveals the Inter-

Agency bad faith to obtain information between the agencies

to build their respective cases.

* The discovery of a document revealing that the

County of Essex in 1995, conducted a Bond Refunding Sale

similar to the 1989 Bond Refunding. That sale, as the one in

A-7]1

1989, did not achieve a Present Value Savings (Critical to

Appellant, at trial, at sentencing and on Direct Appeal.)

Government, in Appellant’s case characterized this lack of

Present Value Savings as fraudulant. The availability of this

document would have impacted favorably against a 14 point

enhancement from the Court.

Discovery regarding the County of Essex:

* Appellant’s defense counsel had subpoenaed

Clifford Goldman to appear and testify at Appellant’s

sentencing hearing regarding the Essex County 1989 Bond

Refunding. Through the efforts of a Mr. Childs, on behalf of

Appellant, it was discovered through correspondence that

someone had informed Mr. Goldman that he did not have to

appear in answer to a subpoena, at Appellant’s sentencing

hearing. Exh U, Item 5.

* Again, through Richard Childs, Appellant discoverd

that the Local Finance Board’s file, regarding the Essex

County 1989 Bond Refunding issue, could not be located.

Exh. U, Item 8.

* On June 26, 2002, Appellant received a copy of a

Report prepared by Clifford Goldman, on April 6, 1989, for

the Local Finance Board, regarding the Essex County 1989

Bond Refunding Issue. Mr. Goldman, as related in

correspondence stated he had no recollection of the bond

issue, let alone a report. Exh. U, Item 9

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Conclusion

On the basis of the foregoing, the Appeliant

respectfully requests that the decision of the district court be

reversed, a certificate of appealability be granted and such

other relief as shall be deemed appropriate.

Respectfully submitted,

November 1, 2002

Joseph P. Galluzzi

Pro Se Appellant

20596-050-Unit 2

Post Office Box 2000

Lewisburg, PA 17837

\

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Joseph P. Galluzzi )

Appellant, )

)

V. ) No. 02-3267

Civ. 00-5952 (WHW)

United States of America ) Crim. No. 96-640

Respondent. )

Appellant’s Reply to Government’s Opposition

to Request For Certificate of Appealability

Joseph P. Galluzzi

Pro Se Appellant

December 26, 2002 20596-050-Unit 2

Date Post Office Box 2000

Lewisburg, PA 17837

Preliminary Statement

The “Objection” of the government to the Appellant’s

Application for a Certificate of Appealability is contrary to

and a total affront to United States Supreme Court Justice

George Sutherland’s summation in Berger v. United States,

295 U.S. 78 (1934), stating:

“The United States Attorney is the representative

not of an ordinary party to a controversy, but ofa

sovereignty whose obligation to govern

impartially is as compelling as its obligation to

govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case,

but that justice shall be done. As such, he is in a

peculiar and very definite sense the servant of the

law, the two-fold aim of which 1s that guilt shall

not escape or innocence suffer. He may prosecute

with earnestness and vigor -- indeed, he should do

so. But, while he may strike hard blows, he is not

at liberty to strike foul ones. It is as much his duty

to refrain from improper methods calculated to

produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.”

The role of the government in a criminal case is not

only to be the plaintiff but also to represent the defendant, by

ensuring that he 1s treated fairly by respecting his due process

rights.

This response primarily centers on the issues which

the government’s opposition did not dispute. With those

issues undisputed, clearly the resulting “substantial showing

of the denial of a constitutional nght” 28 U.S.C. (c)(1)(B) not

only requires the granting of the requested “Certificate of

Appealability” but in the interest of justice and the Court’s

economy of time, a granting of the ultimate relief requested.

A-75

When Appellant’s issues are not addressed, when key

cases cited are not disputed and when the government

apparently attempts to evade the violation of a substantial

constitutional right; (such as the 6th Amendment guarantee to

a jury), the government must expect that this Circuit Court is

not unknowledgeable as the prosecution’s fatal flight to

eradicate the United States Supreme Court’s constitutional

mandates at issue here.

Point I Ring v. Arizona

The sine quo non of Points I A, B and C of the

Appellant’s Application and Memorandum of Law, is the

June 24, 2002 mandate of the United States Supreme Court in

the case of Ring v. Arizona, No. 01-483 (6/24/02). This Court

will search diligently, and find that the case of Ring v.

Arizona is not disputed (or even mentioned) by the

government. This is not at all surprising since the

commandment of Ring dictates immediate relief to this

Appellant. There is no distinguishing Ring from the

application to the facts of this case, nor is there any room for

a prosecutorial “end run”. It is Ring (inter alia) that this

Appellant places before this Court. The government being

without argument to dispute PointI_ A, B and C, misleads

this Court. On page | of its “Opposition”, it totally

misrepresents the Appellant’s position. The government

intentionally substitutes its own alternative position on behalf

of Appellant. This is not at all the position of this Appellant.

The government falsely states, “Petitioner claims, inter alia,

that his sentence should be vacated under Apprendi v. New |

Jersey”. That is absolutely a bold face mirepresentation. It is

totally untrue. The government’s deception is placed before

this Court for appropriate action. It is absolutely crystal clear

that this Appellant, as the United, States Supreme Court in

Ring, is not prey to any further government Apprendi

cavorting. This Appellant stands with the High Court and

A - 76

again states that his sentence must be vacated and reduced in

light of Ring v. Arizona.

Ring and Apprendi are not synonymous. Ring is not

merely an extension of Apprendi. Ring is not merely

procedural as the government describes Apprendi. Ring is

not, as the prosecutor describes Apprendi, mere

“hypothesizing” by the United States Supreme Court. (see

government “opposition”,-p-9). It is such mockery and ~

disregard for the Supreme Court’s 5th and 6th Amendment

direction in Apprendi that caused that Court to halt, to further

deceptive techniques to undermine 6th Amendment

violations.

The Court in Ring unlike Apprendi, stated its intent to

terminate jury guarantee peril:

“over the last 12 years excelerating propensity ...

to increase punishment beyond that authorized by

the jury verdict ... cause me to believe that our

peoples traditional belief in the right of trial by

jury is in perilous decline. Accordingly, ...,

whenever those factors (aggravating factors) exist

they must be subject to the usual requirement of

_ the common law, and to the requirement enhanced

in our Constitution in criminal cases. They must

be found by the jury beyond a reasonable doubt.”

Ring v. Arizona, Scalia, J., concurring.

It is for the Third Circuit to respect the High Court

and not permit the prosecution to demean it as it has in its

“Opposition”. The government mocks by ignoring Ring

totally, and ridiculing that which is enshrined in our

Constitution by calling it “hypothesizing”. (P-9, Gov't.

Opposition).

A-77

As Chief Judge Becker has long warned, the United

States Supreme Court’s decisions are to be viewed through

the “lens” of the Justices. Their mandate directed at

protecting a constitutional guarantee, that are attempted to

have them placed in “perilous decline” in the government’s

“Opposition”. A total “extinction” is proposed.

Likewise the government utilizes the same misleading

disrespect to this Court regarding Point I (B) Obstruction of

Justice enhancement, Point II (the 6th Amendment violation

of the right of effective counsel); and Point III (denial of 5th ;

Amendment Right, by concealment of favorable evidence by

the government). Newly discovered evidence confirms

prosecutorial misconduct and documents untruthful

statements made in the government’s response. Here, the

government totally fails to address these issues as if not

raised by Appellant. No such process of extinction by evasion

should be permitted to be utilized.

Summary of Points Undisputed in Points TI and III

Point II - Despite Appellant’s substantial showing of

defense counsel’s ineffectiveness, and resulting prejudice, the

government failed to challenge or dispute, in any manner, the

facts presented. These claims must he accepted as factual and

correct. Appellant has clearly pointed to specific errors and

omissions that document the fact that he did not receive

reasonably, competent and effective assistance of counsel

which has seriously prejudiced Appellant causing his

sentence to be unfairly enhanced.

The government did not bear its burden of persuading

the Court of Appeals, beyond a reasonable doubt, that

counsel’s ineffectiveness did not deny Appellant of a fair

hearing or proceeding. See United States v. Tucker, 216 F.3d

576 (1983)(9th Cir.) - p.577 Item 10, Key 116.11, Item 13,

Key 1163(2).

A - 78

No government dispute to the following ineffective

counsel facts:

Defense Counsel failed to bring before the

Court the testimony of 2 A. G. Edwards V.P.

‘s that contradict the government’s and the

Court’s findings regarding alleged kickbacks,

and failed to object to the increase to alleged

monetary loss calculation of alleged

kickbacks. (Pages 14-16, Memorandum, pp.

26-40, 1989 Bond Refunding).

Defense Counsel failed to correct the Court in

its mischaracterization of loss as opposed to

testified costs. see, pp. 26-29.

On pp. 30-33, defense counsel “stipulates”,

without Appellant’s consent to the reliance on

Government Exh. CH-9, to “sell bond deal” to

BOCEF. The schedule in the Exhibit was not

available to Appellant as the Court assumed.

Defense counsel fails to correct the Court on

its reliance. Impact $4.7 million added to loss

calculation enhancement. This “stipulation”’ is

unconstitutional. p.33.

Defense counsel fails to ask government’s

expert to produce his work papers, that were

subpoenaed and thereby hampering defense

expert witness to challenge government’s

report, thus prejudicing Appellant.

C-P-36 defense counsel failed to enforce the

appearance of subpoenaed witness at

sentencing. p. 36-40.

Since no response or challenge is made by

government each must be accepted as true and accurate. The

subsequent new discovery emphasizes the prejudicial impact

on Appellant’s due process, and his sentence.

Point II] Appellant’s Fifth Amendment Rights Denied by

Action of U.S. Attorney - Thereby Obstructing

Justice By Denying Appellant the Right of

Discovery. Newly Discovered Evidence Was

Previously concealed. pages 41-48.

Government fails to respond or challenge Appellant’s

assertion of:

Prosecutorial Misconduct in their unholy

alliance with the SEC and their interference with

Appellant’s right of discovery. Appellant

charges that these acts were pre-meditated and

prejudicial.

Government lied in their response to

Appellant’s Direct appeal to this Third Circuit

regarding their successful quashing of

Appellant’s subpoena for discovery of SEC

files. They untruthfully state, that “no discovery

was done by either party up until the time of the

District Court’s Order staying discovery.” The

newly discovered SEC documented evidence

reveals this untruth (Exh. T).

Government fails to address Appellant’s claim

of prejudiced due process impact, proven by the

newly discovered evidence, previously denied.

Government fails to respond to Appellant’s

claim of a violation of his 5th Amendment

Rights by their improper acquiring and using of

A - 80

Appellant’s 1995 SEC deposition testimony.

SEE. pages 44-47 Memorandum of Law. The ©

government violated the “strict limitation on

discovery in criminal cases, embodied in

Federal Rules of Criminal Procedure 15-17”.

Dresser, Id. at 1381, p.45.

Clear sentencing errors: unchallenged and ignored by

the district court and now the government is the detailed

documented evidence that the Court committed an egregious

error in enhancing Appellant’s sentence as follows:

The government’s expert, in his certification,

calculating an alleged loss as a result of the

1989 Bond Refunding transaction used and

relied on a government’s exhibit that was

irreconcilable. This Exhibit CH-9 was not

available to Appellant as, was assumed, when

the Bond proposal was presented to the BOCF

or was it part of the Bond transaction

documents.

The Court erred when they assumed that this

Exhibit was a critical document that defendant

relied on to “‘sell this deal” to the Essex County

Board of Freeholders. See Appellant’s Exhibit

N, sentencing transcript 9/10/98 - P.69.

Appellant could not have relied on this

document, prepared by the underwriter for the

simple reason that it was not available until

almost 5% months after the Bond closing. The

Court further emphasizes their position, and thus

compounds the error. See Appellant Exh. N -

Page 76 ...“then I [the court] shall rely on

them”.

A-8l

Defense counsel, at the sentencing hearing, then

“stipulates” to the Court error that defendant

relied on the document, (government Exh. CH-

9). This further prejudiced Appellant’s due

process rights. This “stipulation” was without

Appellant’s consent. It was accepted by the

Court without the Court exercising its

responsibility to determine whether the

consequences of this “stipulated” admission by

defense counsel was understood by the

defendant/Appellant and/or whether he

consented to same. This stipulation is

unconstitutional and resulted in a $4.7 million

enhancement to an alleged monetary loss

calculation.

The district court, in denying Appellant’s §2255

Petition never responded to or addressed these

major errors. The government in their

“Opposition” to Appellant’s Application for a

Certificate of Appealability totally ignores these

claims, supported with documentation, and by

so doing shuns their responsibility as a

representative of the people to ensure

“innocence does not suffer”, “that justice shall

be done.” Berger v. U.S., 295 U.S. 78 (1934).

These sentencing errors can and should be corrected

as this Circuit has demonstrated in prior cases, Judge Rendell

stated in Vasquez, 271 F.3d 93 (2d Cir. 2001), p. 127

Footnote (2):

“we previously addressed sentencing errors such

as those implicated by a trial Court’s improper

guidelines calculation, and found that such

mistakes are sufficiently prejudicial to warrant

relief under the plain error standard. E.g.,

A - 82

United States v. Felton, 55 F.3d 861, 869 n.3

(3d Cir. 1995)(This Circuit and others have

found that the miscalculation of a defendant’s

offense level certainly is an error that seriously

affects the defendant’s rights and so amounts to

plain error”)(quoting United States v. Pollen,

978 F.2d 78, 90 (3d. Cir. 1992). Pollen, 978

F.2d at 90 (“The district court’s improper

calculation --- resulting in a significantly higher

guideline sentencing range, certainly is an error

that seriously affected [defendant’s] substantial

rights and so amounts to plain error’).

The facts as docomente, the case at bar, clearly

meets this criteria. The errors should be corrected and the

sentence vacated. |

\

LEGAL ARGUMENT

POINT I - It Is Undisputed That Ring Is Applicable

To The Case At Bar, and It’s Required Jury

Findings of Pecuniary Loss Is Indispensable,

Structured and The Essence of The Sixth

Amendment Guarantee Under Ring That Portion

of the Sentencing Regime To the Contrary Be

Struck as Unconstitutional.

A. Ring v. Arizona is Retroactive Per Se.

The attempted murder of Ring, by the government, by

aiming only at, and substituting Apprendi is fatal to the

government’s plot.

In part I (c) pp. 17-25 of Appellant’s “Memorandum

of Law” the Appellant undisputedly establishes that Ring,

unlike Apprendi, was declared, per se, retroactive by the

United States Supreme Court, id. pp. 19-21 (Appellant’s

Se, Ce a i eas

A - 83

Memorandum of Law). The government does not dispute

this. Instead, it submits a pre-Ring generic Teague argument

regarding Apprendi. In its 14 pages of avoidance of the

current real issue, the government further fails to recognize

the four (4) cases in which it unequivocally applied Ring

retroactively. Those cases are clearly set forth in Appellant’s

Memorandum of Law, pp. 21-23, i.e., Harrod v. Arizona,

Samsing v. Arizona, Pendell v. Arizona and particularly note

the seismic jolt to the prosecutorial antagonism, by the

Supreme Court, in declaring a portion of a similar Federal

Statute, unconstitutional retroactively, in Allen v. United

States, id., pp. 22-23.

The pre-Ring generic attempt to separate

constitutional justice from this Third Circuit, in cases of

structural jury violations through an unconstitutional

sentencing regime is intentional and purposely does not

address Allen. Treating this Court as a robot, it also

sorrowfully ignores Chief Judge Becker’s continued

faithfulness and constitutionally friendly opinions to this

Appellant’s plight. See Exh. B of Appellant’s Appendix in

Support of his Application for a Certificate of Appealability

and Memorandum of Law, i.e., “Third Circuit the Forerunner

to Ring”’.

In United States v. Vasquez, 271 F.3d 93 (3d Cir.

2000), p.107, Chief Judge Becker relates to a pointedly

observation of Justice Frankfurter that:

“wisdom too often never comes, and so one ought.

not to reject it merely because it comes too late”.

Henske v. Union Planters Nat’! Bank & Trust Co., 335 U.S.

395, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949 Frankfurter, J.

dissenting.

Judge Becker continues —

A - 84

“but he was surely right in so declaring”. “Had he

the occasion he might also have observed that

sometimes belated wisdom does not arrive until

doctrinal shift removes the obstacles to its

revelation, thereby exposing the unstable

foundation of that which had been uncritically

accepted before”’. id., p. 108.

Appellant submits that the case at bar demonstrates an

opportunity to apply the “wisdom” of the United States

Supreme Court’s decision that continue to remind us of ones

Fifth and Sixth Amendment Rights, and their prospective

application from 1789 to date of its respect and enforcement.

Lastly, the government deceitfully cites a myriad of

cases involving successive §2255 motions to support its non-

retroactively position. Not surprisingly, they fail to

acknowledge, to this Court, that such cases, including Teague

and its 2nd successive progeny cases is totally inapplicable.

They do not apply to an initial §2255 Petition. Further

ignored is the congressional 1996 Amendment that governs

the right to file this initial §2255 Petition, under 28.U.S.C.A.

Chpt. 153, Id. p. 17-19 (Appellant’s Memorandum of Law)

and pp. 3-4 (Appellant’s Application for a Certificate of

Appealability). Time and length restrictions of this “Reply”

do not allow a detailed showing of inapplicability of each

case cited.

Thus, Ring must be given respect in application in

this case on several bases:

a This is an initial §2255 Petition, permitted by

congressional statue - post Teague.

3 Ring v. Arizona itself, in declaring portions of

legislation that permits such unconstitutional 6th Amendment

violations as per se void ab initio, by its ruling, is retroactive,

\

A - 85

i.e., constitution avoidness of a law, today, yesterday and

tomorrow.

_ Ring v. Arizona has very specifically been

applied retroactively by the United States Supreme Court as

shown in detail in the Appellant’s Memorandum of Law, of

which none of these are disputed by the government.

B. Ring clearly rejects the Prosecutorial

“Formalistic’ Indeterminate Maximum

Penalty and Guideline Exemption Rhetoric.

The government’s response not only does not address

Ring v. Arizona, but attempts to encourage this Third Circuit

to continue to be drowned in the government’s rhetoric of

non-application of the 6th Amendment guarantee to

sentences below the indeterminate statutory maximum

penalty. It disregards the fact that the “Federal Sentencing

Reform Act” repealed that method of sentencing. Further, it

[government] urges that the Federal Sentencing Guidelines,

binding law, are exempt from 6th Amendment protection.

This is like a dying man drinking from the cup of wrath.

Ring v. Arizona is an end to such absurdity on both

scores.

1. STATUTORY MAXIMUM IS THAT

MAXIMUM FIXED BY A JURY AND NOT

THE OLD INDETERMINATE

FORMALISTIC STATUTORY MAXIMUM.

Ring deems the old indeterminate “formalistic”

statutory maximum argument of no consequences. It is the

“effect” and “impact” of the jury verdict that sets the

maximum under Ring, see Exh. B of Appellant’s filing. The

Supreme Court clearly terminates such a formalistic device to

trash the right to trial by jury. It outright instructs all Circuits

A - 86

that the maximum penalty is fixed by the “effect” and

parameters of the jury verdict. If that verdict lacks the

aggravating facts of quantifying a pecuniary loss or fact, the

sentence cannot be aggravated by that fact no matter what the

form of the old indeterminate statue provides. Likewise, Ring

is a “Tsunami” wave that submerges once and for all the

attempts to exempt the Sentencing Guidelines from jury

guarantee.

2. RING REQUIRES THE SIXTH

AMENDMENT JURY GUARANTEE TO

APPLY TO THE BINDING FEDERAL

SENTENCING GUIDELINES.

As forcefully set forth, in detail, in Appellant’s

Memorandum of Law, Ring eviserates the myth that the 6th

Amendment does not apply to the Guidelines. Here, the

government is faced with a paradox. Prior to Ring (and even

still here) it argues that the Guidelines give the sentencing

judge the power to aggravate a sentence beyond the

parameters of the jury verdict. The Guidelines Are Binding

Law. Then, it argues that the guidelines do not have the status

to permit it, the 6th Amendment protection. Again, wrong on

both fronts. Ring declares unconstitutional any portion of a

law setting up a sentencing regime permitting a judge to

substitute his fact finding, for a jury. Also see, United States

v. Allen, decided after Ring and discussed in Appellant's

Memorandum of Law.

The guidelines admittedly established narrow

maximum incarceration ranges for different amounts of

pecuniary losses. The sentencing judge is required to remain

within the designated guideline range. Congress requires that

different persons convicted of the same pecuniary facts,

respecting a designated loss category, not be incarcerated

more than designated by the guidelines. The constitution

requires that those facts be found by a jury under Ring.

A further response to the government’s position

regarding the non-applicability of the Federal Sentencing

Guidelines, is their blatant disregard to the “Sentencing

Reform Act’, a law, a statue, whose purpose was to address

the archaic indeterminate sentencing ranges of the old

statutes. The Federal Sentencing Guidelines are approved by

Congress as the only mandate for sentencing. There is no

option or alternatives. Contrary to the government’s

inaccurate presentation of Appellant’s sentencing exposure,

the Courts and the Probation Sentencing Report (PSI) are

confined to use the methodology presented in the Sentencing

Guideline Law. In Appellant’s case, despite the litany

presented by the government, the Sentencing Guideline level,

based on the conviction of all counts charged is computed to

a maximum base level 10. The fact that there were multiple

counts, the maximum increase allowed under the statutory

limitations of the Federal Sentencing Reform Act, is an

increase of two (2) levels, thereby bring the jury verdict

penalty to a level twelve (12). This is the basic Federal

Sentencing Guideline limit, which has been referred to by

many, including Justices of the United States Supreme Court,

as having the “force and effect of law”. Appellant has

presented these facts and this position in his Memorandum of

Law. The government chooses to ignore this and offers no

rebuttal as to the accuracy of Appellant’s position: Appellant

submits that the government’s silence is affirmation of

acceptance of Appellant’s facts and presentation regarding

U.S. Sentencing Guideline maximum in this case.

Again, in this Third Circuit, Judge Sloviter, in a

dissenting opinion eloquently expresses his fears regarding

the 6th Amendment jury guarantee violations. In United

States v. Vasquez, 271 F.3d 93 (3d Cir. 2001) - p. 126, states:

“T believe the majority opinion undermines,

indeed nullifies, the long tradition in American

Constitutional criminal jurisprudence that it is the

A - 88

jury, rather than the judge, that must determine the

offense for which the defendant has been

sentenced and that it must so find beyond a

reasonable doubt”.

Judge Sloviter follows with a footnote (4) p. 126, quoting

Justice Scalia in Neder v. United States, 527 U.S. 1, 119 S.Ct.

1827, 144 L.Ed.2d 35 (1999), quoting from Blackstone:

‘However convement [intrusions on the jury

right] may appear at first, (as doubtless, all

arbitrary powers, well executed, are the most

convement), yet let it be again remembered that

delays and little inconvenience in the forms of

justice are the price that all free nations must pay

for their liberty in more substantial matters; that

these inroads upon this sacred Bulwark of the

nation are fundamentally opposite to the spirit of

our constitution; and that, though begun in trifles,

the precedent may gradually increase and spread

to the utter disuse of juries in questions of the

most momentous concern”. Neder, 527 U.S. at 39-

40 (quoting Blackstone, commentaries §350).

DISTRICT COURT RECOGNIZES RING V. ARIZONA

Notwithstanding this Third Circuit’s cited concerns

respecting ones constitutional due process Jury guarantees,

Appellant’s District Court chose to ignore and not address the

mandate of Ring v. Arizona. However, in line with the

concerns expressed by this Third Circuit’s Appeal Judges,

cited in this reply (Becker, Sloviter and Rendell) a

constitutionally conscience judge, in the Western District of

Pennsylvania, has recognized the watershed impact. of the

United States Supreme Court’s June 24, 2002 mandates. The

Court has shown respect to the clear declaration of the High

Court and has issued a Certificate of Appealability, finding a

A - 89

substantial showing of a constitutional denial of defendant’s

rights, in light of Ring v. Arizona, where a judge alone made

the pecuniary factual findings required to enhance a sentence

on the basis of loss, see United States v. Brooks, Docket No.

02-4437 . This matter is presently pending before the Court.

CONCLUSION

On the basis of the above, and the more detailed

Memorandum of Law, Exhibits, pleadings and documents

filed in the District Court, and the Application for a

Certificate of Appealability and Supporting Memorandum of

Law filed with this Circuit Court, Appellant requests that the

Certificate of Appealability be granted and that his sentence

be vacated and modified to be limited to the crime of

conviction found by the jury.

Respectfully submitted,

December 26, 2002

Joseph P. Galluzzi

Pro Se Appellant

THIS PAGE LEFT BLANK

INTENTIONALLY

3rd Circuit Cases

A-91

Third Circuit - The Forerunner To Ring

Precurser

Ring Fulfillment

United States v. Spinner,

180 F.3d 514 ex Cir. 1999)

July 23, 2000, Washington Pa

v. New Jersey and the Commit

United States v. Mack,

rd Cir. 2000)

Leading Authority In Nation: Indictment must contain

all elements of crime / unconstitutionality of lacking

an element. Jurisdictional defect. Dismissal even after

conviction by plea / post-conviction.

Post Apprendi - Ring Predecessors

st,

ment of Third Circuit To It.

Chief Judge / concurring opinion:

Expresses concern about majority reference to 8th and

5th Circuit's attempt to limit Apprendi by narrow

formalistic statutory maximum of majority).

id. 236.

Warning that "viewed through lens of the separate

opinions’ " of Justice of Supreme Court an enormous

“implication for the legitimacy of a variety of

sentencing schemes, including the United Scates

Sentencing Guidelines ***"'. id. 236.

Warning that method of attempting to exempt from 6th

Amendment protection by a formalistic statutory maximum

“approach to ‘determining a prescribed statutory maximum

is in tension with the methodology applied by the

Supreme Court in Apprendi’. id. 239.

That approach urged here "appears foreclosed by

Apprendi". id. 239.

/

"In the wake of a retroactively unsettling Supreme

Court pronouncement *** IT have no desire for a repeat

performance, or to contribute to the constitutional

pg- Ai, Chief Justice Becker Announces Publliicly the

Under 6th Amendment jury must find (not ju "existence of

the fact that an aggravating factor existed; "whether the

statue calls them elements of the offense, sentencing factors,

rs | Jane ** must be found by the jury beyond a reasonable

oubt

dge),

"enormous" Substantial Importance of Apprendi

>

Deems formalistic statutory maximum approach "meaningless"';

the "effect", not the "form", of the finding of fact has on

the sentence is the test.

If the "effect" "makes an increase in a defendant's authorized

punishment contingent on the finding of a fact" — finding

must be by the jury.

"The Sixth Amendment does not permit a defendant to be exposed

wie to a penalty exceeding the maximum he would receive if

punished according to the facts reflected in — jury verdict

alone".

Deeming that form method and approach is in violation of

the 6th Amendment guarantee.

Foreclosing use of the narrow statutory maximum approach;

imposition of sentence even if below formal statutory maximum

is unconstitutional if pecuniary Facts not specifically found

by jury.

The declaring of a portion of legislative scheme of sentencing

as unconstitutional; it is per se retroactive meblifying —

EEE Ooelmlml

3rd Circuit Cases

A-92

Third Circuit - The Forerunner To Ring

Precurser

Ring Fulfillment

United States v. Pressler, (cotd.),

"Prescribed maximum" is the longest sentence

possible "within the jury verdict.". id.

Third Circuit joined 6th Circuit United States

v. Strayhorn, 250 F.3d 462 (6th Cir. 2001) and United

States v. Ramirez, 242 F.3d 348 (6th Cir. 2001).

Knight v. United States,

266 F.2d 203 (ord Cir. 2001),

remanded by United States

Supreme Court.

Where a sentence was imposed using the wrong guideline

range of the crime of conviction it constitutes per

se an impact on substantial rights and prejudice.

It is the "exposure" of what defendant is potentially "exposed"

beyond the limit of facts found by the jury that dictates |

constitutionality.

Inited States v. Vasquez,

2 1 F.3d 93 (3rd Cir. 2001).

(en banc)

"uk sometimes belated wisdom does not arrive until

a.doctrine shift removes the obstacles to its revelation,

thereby exposing the unstable foundation of that which

had been uncritically accepted before. I believe

this is such a case.’'. id.

The sentencing aggravating facts should not be treated

as only sentencing "factors only when they increase

the prescribed statutory maximum penalty" in a formalis-

tic context.

Reliance is placed on "the two recent cases of Jones

and Castillo, Supreme Court observed that the degree

to which the commission of a prohibitive act increases

the maximum penalty reflects Congress' intent to make

that particular act an element or a sentencing factor."’.

id.

"ules dramatic differences in the severity of

punishment" demonstrates pragmatically the umconstitu-

tionality of such a sentencing approach. id.

-

The robotic distinction previous made by some Circuits between

"elements" and “sentencing factors” is now firmly eviscerated.

"Yk whether the statue calls them elements of the offense,

sentencing factors, or Mary Jane - must be found by a jury

beyond a reasonable doubt.”. id.

Any "argument" of "distinction relied upon *** between

elements of the offense and sentencing factors ***"" "As to

elevate the maximum punishment" beyond the jury verdict is

"umtenable". The test is "who decides” judge or jury. When

a "sentencing factor" is used to enhance the punishment beyond

the facts submitted to the jury “it is the functional equivalent

of an element of a greater offense than the.one covered by

the jury verdict". id. When this occurs "the Sixth Amendment

requires they be found by a jury". id.

"WHAT TODAY'S DECISION SAYS IS THAT THE JURY MUST FIND

THE EXISTENCE OF THE FACT THAT AN AGGRAVATING FACTOR EXISTED".

id.

3rd Circuit Cases

A-93

Third Circuit - The Forerunner To Ring

Precurser

Ring Fulfillment

United States v. Mack, (contd.).

haze enveloping the appropriate relationship between

judge and jury in our system of criminal justice.

I do, however, believe that it has been useful to

explore one aspect of the Apprendi problem with which

the judiciary will doubtless soon be required to

grapple.". id. 244.

Chief Judge Becker's analysis requires that the first

step is to look at the jury verdict alone.

the statutory authority past, present and future.

The "perilous decline" of the jury guarantee ''over the last

12 years" required restoration.

The Court unequivocally declares that it is the jury verdict

alone that dictates the sentence.

United States v. Pressler,

250 F.2d 144 (ord Gir. 2001)

On July 2, 2001, 8-months after Mack, the unconstitution-

ality of the guideline scheme permitting a judge to

erode the jury verdict by use of "relevant conduct"

enhancement was declared.

~The "crime of comviction" sets the sentencing boundaries.

The "offense of conviction" clearly "includes onl

the facts underlying the specific offense ter ath

the defendant was convicted the history supports this

position also.”. id.

Stressing that the "prescribed statutory maximum"

is constrained by what the jury finds. That fixes

the guideline prescribed maximum statutory range, i.e.,

if no loss found it is a level 6.

"The novelty of a legislative scheme that removes

the jury from the determination of a fact that, if

found, expose the criminal defendant to a penalty

exceeding the maximum he would receive if punished

according to the facts reflected in the jury alone.”.

id.

Limiting of United States v. Williams to cases

of guilty pleas with stipulation of the aggravating

facts.

Portion of statutory scheme permitting judge to move to an

ageravated crime or "outer limits" of punishment beyond

constraint of jury findings is unconstitutional, on its'

face or as implemented. ‘‘*** the jury must find the existence

of the fact that an aggravating factor existed". id.

The jury guarantee applies to "non-capital defendants", as

well as "capital defendants". There is "no reason to differen-

tiate". id.

Any other position would "senselessly'"' diminish the fact-

finding issue of the jury, which "requirement" is "enshrined

in our constitution in criminal Cases; they must be found

by the jury beyond a reasonable doubt". id.

“Ageravating factors", like pecuniary facts, must be

specifically found by the jury not the judge.

"Pecuniary" facts have a long tradition in common law

and in statutory vintage is in the sole domain of the jury.

id. ;

Where a "state authorizes a maximum penalty *** only

in a formal sense" the constitution does not permit

such a "meaningless and formalistic rule of statutory

drafting" to infringe on the. jury role of fact~

finding.

3rd Circuit Cases

A-94

Third Circuit - The Forerunner To Ring

Precurser

Ring Fulfillment

United States v. Vasquez, (contd.).

"Wek it strains credibility, however, to assert

that Congress intended for type and quantity to be

treated as a sentencing factor in some cases and as

elements in others". id.

As to the necessity to specify in the indictment

such aggravating facts (not objected to by Vasquez)

and submit to the jury (objected to by Vasquez) "the

sky will (not) fall", citing United States v. Promise,

255 F.3d 150, 151 n.6 (4th Cir. 2001).

In diversity of opinions, all were in unity that

the failure to submit such essential facts to the

jury is fatal.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JOSEPH P. GALLUZZI )

Petitioner, )

V. ) C.A. No. 02-3267

UNITED STATES OF AMERICA)

Respondent. afi

PETITION FOR REHEARING IN BANC OR

REHEARING BEFORE PANEL

Petitioner does hereby file this Petition for Rehearing

In Banc or in the alternative, for a Rehearing Before the

Panel.

I Certify that this document was given to prison

officials on May 8, 2003 for forwarding to the Court of

Appeals. I certify under penalty of perjury that the foregoing

is true and correct. 28 U.S.C. §1746.

A - 96

I. The Miller-El Mandate: Overlooked or

Misapprehended

The decision of this Court, of April 29, 2003, (Exh.

A), at issue here is without opinion, reasoning, analysis or

any independent “full consideration” as required by Miller-El

v. Cockrel, No. 01-7662, 2003 WL431659 (u.s. Feb. 25,

2003).

The full panel decision is in a two sentence denial as

follows:

“However, the foregoing request for a

certificate of appealability is denied. The

District Court’s conclusion that appellant’s

claims are meritless is not debatable among

jurists of reason”. Citing Miller-El v. Cockrel.

The petitioner anticipates filing a Petition for a Writ

of Certiorari before the United States Supreme Court (in view

of the importance and conflict of the issues at bar). Therefore,

an expression of reasoning and “full consideration” is hereby

request from this Third Circuit Court of Appeals In Banc or

by the Panel.

The Panel’s April 29, 2003 Order, though it cites

Miller-El, “has overlooked or misapprehended”’ the reasoning

and essence of Miller-El. In fact, its two (2) sentence

conclusionary denial, without full consideration, reasoning or

analysis is antagonistic to the recent Supreme Court mandate.

It unwittingly demonstrates exactly what the reasoning of

Miller-E] rejects. It mimically repeats the very fatality to

which this Petitioner complains. The District Court in its

conclusion, and the Government in their November 26, 2003

Opposition to Petitioner’s “Request for a Certificate of

Appealability” also fails to address essential issues raised by

the Petitioner.

ea AME Sy Ane eS

A -97

In addition, the District Court, aware of the dramatic

findings of the U.S. Supreme Court in Ring v. Arizona, No.

01-488 (6/24/02)(which emphasized the constitutional right

to a defendant, to a jury determination of the facts that

determine a sentence), chose to ignore any reference to Ring.

The Government in its “Opposition” to Petitioner’s

Application, also fails to address or respond to Ring v.

Arizona, despite the fact that that decision was clearly cited

throughout Petitioner’s Application and Memorandum of

Law. The Government instead, cites Harris v. United States,

122 S.Ct. 2406 (6/24/02) also decided on the same day as

Ring, but is completely not applicable to Petitioner’s case and

issues.

The Petitioner asked this Appellate Court to address

Ring v. Arizona. However, the Panel overlooked Ring by its

terminating denial based upon the “District Court’s

conclusion that Appellant’s claims are meritless...”

The District Court did not determine that the Ring

challenge was meritless. In fact, by its’ choice not to address

Ring, it is reasonable that that jurist could not dispute it, nor

can this Circuit Court. Similarly, the same is true respecting

the District Court/Panel’s failure to address the ineffective

counsel assertions, that are supported by documented

evidence and facts which are more than mere speculation.

The Petition for an In Banc or Panel review is

requested primarily on the issues that the District Court and

the Government, in their Opposition did not dispute. These .

issues were never addressed, reviewed, analyzed or

commented to and therefore it is reasonable for Petitioner and

this Court to consider them undisputed. The failure to, at least

review the claims and offer comment, should trigger this

appeals court to consider this as a substantial showing of the

denial of a constitutional right, and grant the requested

“Certificate of Appealabi lity” Silence; on these critical

A - 98

issues and claims, do not, under any semblance of due

process categorize them as meritless. The Petitioner, and

certainly this Court, is entitled to the reasons for blatant

disregard of the existence and the Supreme Court decisions,

brought forth by the Appellant, and the obvious errors made

by the sentencing judge. These errors drastically impacted on

the appellant in the form of a draconian sentence, imposed by

the sentencing judge without regard to his obligation to

protect a defendant’s due process rights.

Silence and/or the refusal to address these claims and

issues is an attempt by the government and the District Court

to evade the violation of a substantial constitutional right,

such as the 6th Amendment guarantee to a jury

determination.

Petitioner’s Application for a Certificate of

Appealability, Memorandum of Law, Supporting

Appendix/Exhibits, and most importantly, his “Reply” to

Government’s Opposition, not only establishes the basis for

appeal, but documents his non-refutable claims with

revealing transcripts and discovered documents to warrant a

serious review of the appeal.

When Miller-El is reviewed, the following is clearly

the standard directed by the United States Supreme Court:

The Fifth Circuit did exactly what the District Court

did here. The Panel in the case-at bar presumed that the

District Court acted in accord with its’ judicial duty. c.f.

Miller-El similar presumption by the Fifth Circuit relying

there on the State Court failures. The High Court in Miller-

El therefore held “the Fifth Circuit should have issued a

C.O.A. to review the District Court’s denial of the habeas

relief to petitioner”. The same is true in this case.

A -99

The Panel overlooked or misapprehended the US.

Supreme Court’s requirement of “full consideration” which

must be demonstrated by expressed reasoning:

**... the Court of Appeals should limit its’ explanation

to a threshold inquiry into the underlying merits of his

claims”’. id.

That “examination” never occurred by the District

Court, thus an Appellate decision, solely relying on the

District Court falls short of the “full consideration” by

“examination” standard of Miller-EL

~

Further:

“.,. a prisoner seeking a C.O.A. need only

demonstrate a substantial showing of the denial of a

constitutional right”- id.

In this regard, the court’s attention is directed to the

Appellant’s reply to the Government’s Opposition to Request

for a Certificate of Appealability that respectfully should be

read in its entirety.

Further:

“A petitioner satisfies this standard by demonstrating

that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that

jurists could conclude the issues presented, were

adequate to deserve encouragement to proceed

further. Slack supra at 484. Applying these principles

to petitioner’s application, we conclude a C.O.A.

should have been issued”. id.

The adoption of the District Court’s conclusion, as

“not debatable among jurists of reason” by the Panel without

~

—

A - 100 |

addressing the issues ignored by the District Court leaves the

denial incompleie in the words of Miller-El without “full

consideration”.

The truss of the Panel’s expediency, in the lack of a

Miller-El “examination” results now in the need for a

rehearing. The system expressed by Miller-El is meaningful.

Where the fullness of its’ essential requirements is feigned by

a generic C.O.A. denial, the Petitioner's substantial |

constitutional rights have become violated. The Panel j

unfortunately places more blind faith in Judge Wall's than

was justified. This sweeping adoption carries the baggage of

the District Court’s fatal constitutional violation.

It is therefore respectfully requested that a rehearing

permitting “full consideration” and “examination” of the

substantial issues shunned by the adoptee Judge be granted.

Petitioner requests the independent scholarly and |

constitutional review of this Panel which it so inherently :

possesses but for a heavy case load on its’ agenda.

II. Rehearing In Banc: Conflict Among Circuit

Panels

It is essential to secure and maintain uniformity of

this Circuit’s decisions respecting the recognition of the

United States Supreme Court’s decision in the case of Ring v.

Arizona, 483 (6/24/02)(see Appellant’s Reply to

Government’s Opposition, p.2-4. Also Appellant’s

Application for C.O.A. pp. 1-4 and Memorandum of Law pp.

4-13).

As aresult of the Panel’s decision dated April 29,

2003, there is a serious split and conflict between the

decision of the various Panels respecting the exceptionally

important 6th Amendment guarantee of a trial by jury issue.

A- 101

A. Conflict of Third Circuit Panels Re: Sixth

Amendment Guarantee Mandated in Ring

v Arizona.

This case presents the important ultimate issue of the

unconstitutionality of that portion of the Federal Sentencing

Guidelines that permits, as here, a District Court to aggravate

a crime beyond the jury verdict. The jury verdict returned a

level 10 crime and the district Court, the judge alone,

increased the penalty to a level 28 crime. This Appellant’s

Application for a Certificate of Appealability, Appellant’s

Memorandum of Law In Support of Application for a C.0.A.

and Appellant’s Reply to Government’s Opposition to

Request for a Certificate of Appealability, provides a firm

basis for the 6th Amendment violation in this case. Those

pleadings are incorporated herein by reference for sake of

brevity. However, the Panel’s rejection of Ring v- Arizona

via the proxy of the district Court’s avoidance leaves the

Third Circuit now in a horrible state of instability and

conflict. There is no perceivable reconciliation. Worst, at

least one member of this Panel has expressed a scholarly

contrary position on the issue, that separates himself from a

kinship of opinion with the District Court.

Judge Sloviter in a dissenting opinion eloquently

expresses his fears regarding 6th Amendment guarantee

violations.

In United States v. Vasquez, 271 F.2d 93 (3d Cir.

2001) p. 126, states:

“T believe the majority opinion undermines, indeed

nullifies, the long tradition in American

Constitutional criminal jurisprudence that it is the

jury, rather than the judge, that must determine the

offense for which the defendant has been sentenced

and-that it must so find beyond a reasonable doubt”.

A - 102

Judge Sloviter follows with a footnote (4) p. 126, 4

quoting Justice Scalia in Neder v. United States, 527 US. 1, |

119 S.Ct. 1287, 144 L.Ed.2d 35 (1999), quoting from

Blackstone:

EN ates)

“However convenient [intrusions on the jury right]

may appear at first, (as doubtless, all arbitrary powers, ;

well executed, are the most convenient), yet let it be

. again remembered that delays and little

inconveniences in the forms of justice are the price

that all free nations must pay for their liberty in more |

substantial matters; that these inroads upon this sacred

Bulwark of the nation are fundamentally opposite to

the spirit of our constitution; and that, though begun

in trifles, the precedent may gradually increase and

spread to the utter disuse of juries in questions of the :

most momentous concern’. Neder, 527 U.S. at 39-40 :

(quoting Blackstone, Commentaries §350).

This Panel’s endorsement of the District Court has

sacrificed the long credible judgment of Chief Judge Becker

and other Third Circuit jurists. As the prior submissions of

the Appellant set forth in detail this Third Circuit has prior

leadership in the country on this issue. Exhibit “B”, in

Appellant’s Appendix/Exhibits previously submitted,

provides the major Third Circuit cases that are in direct

conflict with the C.0.A. rejection here. (see Exh “B” Third

Circuit - The Forerunner To Ring).

A mere brief profile makes the point of the severe

violation of Petitioner’s 6th Amendment Jury guarantee.

Ring holds that the portion of a statutory regime that

permits a sentencing judge to enhance the level of the crime

of conviction, as here, is unconstitutional. The District Court

here was blind to this premise. The Panel in their decision

appears to endorse this avoidance.

its decision applies to both capital and non-capital cases.

mere “formalistic rule of statutory drafting” if this Circuit

would now subordinate its’ prior decisions to that of the

District Court’s erroneous view of the role and meaning of

“statutory maximum”. (see Appellant’s “Memorandum of

Law” pp. 9-13 and Appellant’s “Reply to Government

Opposition” pp. 9-15).

for Ring:

A - 103

The U.S. Supreme Court clearly directed in Ring that

“What today’s decision says is that the jury must find

the existence of the fact that an aggravating factor

existed” Ring v Arizona, No. 01-488, June 24, 2002

(Scalia, J. concurring at page 4).

“Capital defendants, no less than non-capital

defendants, we conclude, are entitled to a jury

determination of any fact on which the legislature

conditions an increase in tneir maximum

punishment”. We see no reason to differentiate capital

crimes from all others in this regard”. Ring, id. at p. 2

and 21, Op. of the Court, Ginsburg, J.

“The right to a trial by jury, guaranteed by the Sixth

Amendment, would be senselessly diminished if it

encompassed the fact-finding necessary to increase a

defendant’s sentence by two years, but not the fact-

finding necessary to put him to death”. “We hold the

Sixth Amendment Applied to both”. Ring, id. at 23 —

Ginsburg, J. Op. of the Court.

Ring would be rendered “meaningless” and a

The Supreme Court was crystal clear as to the reason

“over the last 12 years excelerating propensity ... to

increase punishment beyond that authorized by the

A - 104

jury verdict ... cause me to believe that our peoples

traditional belief in the right of trial by jury is in

perilous decline. Accordingly, ..., whenever those

factors (aggravating factors) exist they must be

subject to the usual requirement of the common law,

and to the requirement enhanced in our Constitution

in criminal cases. They must be found by the jury

beyond a reasonable doubt”- Ring v. Arizona, Scalia,

J., concurring. (see Appellant’s Reply to Government

Opposition p. 3).

Justice Scalia further emphasizes: “Whether the statue

calls them elements of the offense, sentencing factors

or Mary Jane - must be found by a jury beyond a

reasonable doubt.” Ring, id. (see Appellant’s

Memorandum of Law p. 12).

Ring and Apprendi are not synonymous. Ring

is not merely an extension of Apprendi. Ring is not merely

procedural as the government describes Apprendi. Ring is

not, as the prosecutor describes Apprendi, mere

“hypothesizing” by the United States supreme Court. (see

Government “Opposition”, p-9). It is such mockery and

disregard for the Supreme Court’s 5th and 6th Amendment

direction in Apprendi that caused that Court in Ring to bring

a halt to such an erroneous perception. (see Appellant’s

Reply p. 3-4).

Ring Parallels The Pecuniary Loss Enhancement

In This Case.

The United States Supreme Court, on June 24, 2002,

reversed a death penalty sentence based on a pecuniary gain

aggravating factor. The Court stated that the Sixth

Amendment guarantee of the right to a jury trial had been

violated, because the judge and not the jury made the factual

findings required for the imposition of the increased

_ ,

Se aaa a a a oe Oe |

A - 105

sentence, beyond the scope of the jury verdict. That portion

of the statutory scheme, that permitted the violation was

struck as unconstitutional .

The Court made it clear that there is no difference in

the Sixth Amendment sentence violations when a jury

convicts a “white collar” defendant, as here, of charges that

did not include a pecuniary loss. A sentencing judge is

constitutionally constrained by the jury’s crime of conviction

verdict where no pecuniary loss is found. The jury verdict

provides the maximum range for the punishment to be

inflicted under the mandatory federal sentencing law (i.e.

Federal Sentencing Guidelines) Here, the jury finding had no

pecuniary specification. A loss level was not a charge for the

jury to consider, therefore, the verdict must be considered to

be without any such finding. The judge cannot change that

verdict. The District Court’s fatal conclusion was adopted by

the Panel. As a result, a serious conflict exists now in this

Circuit’s decision in Mack, Pressler, Knight and Vasquez.

In Appellant’s case, the statutory maximum varied

among the charges. The final sentence, however, was .

enhanced, as in the Ring case, based on certain aggravating

factors such as pecuniary gain or loss that was found bya

judge conducting the sentencing hearing alone. Ring deems

this unconstitutional

Mandatory sentencing ranges, under the Federal

Sentencing Guidelines, as adopted by Congress, are limited

to those authorized by a jury verdict. The Supreme Court

found unconstitutiona the Arizona sentencing scheme that

allowed a judge to impose a greater penalty, than that

dictated by the jury verdict, based on aggravating factors of

pecuniary gain, presented at said sentencing hearing. So too

was the finding of the sentencing of the sentencing judge in

Appelldnt’s case.

ee

a I aH Ee ES eR ce uae |

A - 106 |

Ring’s declaration of unconstitutionality of

that portion of a statutory scheme, that permits evisceration

of a constitutional jury guarantee applies here. see

Appellant’s “Memorandum of Law”, pp. 17-25.

B. Conflict of the Panel with U.S. Supreme

Court and Third Circuit Rulings; Re:

Ineffective Counsel, Prosecutorial

Misconduct and Due Process Requires a

Hearing In Banc for Restoration of Security

and Unity.

Ineffective Counsel Claims - The Government

and the District Court failed to challenge, or dispute in any

manner, the facts presented, in form of averments - and

therefore must be accepted as factual and correct. This

incompetent and ineffective assistance of counsel did

prejudice Appellant, causing his sentence to be unfairly

enhanced. The government and the District Court, by their

silence, did not meet the standard of rebutting Appellant’s

showing of a substantial constitutional violation, nor did they

bear the burden of persuading the Court of Appeals, beyond a

reasonable doubt, that counsel’s ineffectiveness did not deny

Appellant of a fair hearing or proceeding. (see Appellant’s

Reply to Government Opposition pp. 4-5).

Counsel’s failure to remind Court of testimony

that contradicts the District Court’s findings re: enhancement

for alleged monetary loss and obstruction of justice. (see

Memorandum of Law pp. 14-16, 26-40 and referenced

Exhibits).

Counsel failed to correct Court re:

mischaracterization of cost to loss. (Memorandum, pp. 26-29

and referenced Exhibits).

A - 107

Defense Counsel’s stipulation, without

Appellant’s consent, to the Court’s reliance on a document

not available to Appellant, as Court assumed. This reliance

impacted Appellant’s sentence by more than four (4) years.

This stipulation is unconstitutional. (see Memorandum of

Law pp. 30-33 and referenced Exhibits).

Defense counsel failed to secure work-papers

from gove;nment witness, that were subpoenaed and thereby

hampering defense expert witness to challenge government

report - causing prejudice to appellant. (see Memorandum of

Law p. 33 and referenced Exhibits).

Defense counsel failed to enforce the

appearance of subpoenaed defense witness at sentencing.

Sentencing judge dismisses need for witness. (see

Memorandum of Law and referenced Exhibits).

Prosecutorial Misconduct - Appellant’s Fifth

Amendment Rights Denied by U.S. Attorney - Newly

Discovered Evidence Claim ignored by Government. Pages

41-48 Memorandum of Law and referenced Exhibits (see

also p. 6 Appellant’s Reply to Government Opposition).

Unholy alliance with the SEC, interfering with

Appellant’s nght of discovery.

Government lies in their Response to

Appellant’s Direct Appeal - regarding their successful

quashing of Appellant’s subpoena for discovery of SEC file.-

(Exh Q and Exh T).

Newly discovered evidence provides basis for

Appellant’s claim of prejudice to due process right.

Government, evades, avoids, ignores, fails to address claims.

pp. 48 and 47 Memorandum of Law.

sais l a a a

A - 108

Government fails to respond to Appellant’s

claim of Sth Amendment Rights violation, by their improper

acquiring of and use of Appellant’s 1995 SEC deposition

testimony. Government violated the “strict limitation of

discovery in criminal cases, embodied in Federal Rules of

Criminal Procedure 15-17”. (Dresser, id. at 1381. p. 45)(see

Memorandum of Law pages 44-47 and referenced Exhibits).

Clear Sentencing errors cited - were ignored

by the District Court and the Government. (see Appellant’s

Reply to Government Opposition pages 6-8 and referenced

Exhibits and cases cited).

Legal Argument - Undisputed Application of

Ring v. Arizona and Sixth Amendment Guarantee see pages

8-15 Appellant’s Reply to Government Opposition, see also

pages 17-25, Appellant's Memorandum of Law and

referenced Exhibits.

Note page 9, U.S. v. Vasquez, 271 F.3d 93 (3rd Cir.

2000) p. 107 Judge Becker relates to a pointedly observation

of Justice Frankfuter that:

“wisdom too often never comes, and so one ought not

to reject it merely because it comes too later’. Henske

vy. Union Planters National Bank & Trust Co., 335

U.S. 395, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949

Frankfurter, J. dissenting).

Judge Becker continues:

“but he was surely right in so declaring”. “Had he the

occasion he might also have observed that sometimes

belated wisdom does not arrive until doctrinal shift

removes the obstacles to its revealation, thereby

exposing the unstable foundation of that which had

been uncritically accepted before” id., p. 108.

A - 109

CONCLUSION

Based on the above, Appellant hereby requests the

granting of a Re-hearing In Banc or by the Panel regarding a

Certificate of Appealability and a reversal of the District

Court’s decision.

Respectfully submitted,

* May 8, 2003

Joseph P Galluzzi

Pro Se Appellant

Post Office Box 2000

Lewisburg, PA 17837

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IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-6351

UNITED STATES OF AMERICA

JOSEPH P. GALLUZZI

Appellant

Appeal from the Final Judgment of Sentence of the United

States District Court for the District of New Jersey (Crim. No.

96-640).

Sat Below: Honorable William Walls, U.S.D.J.

BRIEF FOR APPELLEE

FAITH S. HOCHBERG

United States Attorney

Attorney for Appellee

970 Broad Street

Newark, New Jersey 07102-2535

(973) 645-2719

On the Brief:

SHAWNA H YEN

Assistant United States Attorney

A-Illl

POINT VI

THE GOVERNMENT ACTED PROPERLY IN

CONDUCTING

THE CRIMINAL CASE AGAINST GALLUZZI

SEPARATELY

FROM THE SEC INVESTIGATION OF GALLUZZI

Galluzzi makes the frivolous argument that the U.S.

Attorney’s Office engaged in “prosecutorial misconduct,”

supposedly by abusing the SEC’s civil investigative powers

in issuing subpoenas for the purposes of the criminal case

against him. This argument is completely meritless.

It is well settled “[t]he civil and regulatory laws of the

United States frequently overlap with the criminal laws,

creating the possiiblity of parallel civil and criminal

proceedings, either successive or simultaneous. In the

absence of substantial prejudice to the nights of the parties

involved, such paraiiel proceedings are unobjectionable

under our jurisprudence.” SEC v. Dresser Industries, Inc, 628

F.2d 1368, 1374 (D.C. Cir.), cert. denied, 449 U.S. 993

(1980); see United States v. Kordel, 397 U.S. 1, 11—12

(1970).

In this case, the U.S. Attorney’s Office (through the

FBI), and the SEC, conducted parallel but completely

separate and independent investigations into Essex County

municipal bond transactions. Although the SEC and the U.S.

Attorney’s Office cooperated in their separate investigations °

as permitted by law, they conducted separate grand jury

investigations.

The superseding indictment in the instant case and the

SEC’s federal civil complaint against Galluzzi were both

filed against Galluzzi on January 9, 1997. (A4, SA2400). -

However, the U.S. Attorney’s Office moved to intervene and

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to stay discovery in the civil action pending the resolution of

fhe criminal case. (SA2419— 2422). By Order of December

8, 1997, the district court granted the U.S. Attorney’s

Office’s motion to intervene; and the court ordered that

discovery in the SEC’s civil action be stayed until completion

of the instant criminal case against Galluzzi. (SA2423). As

the docket sheet of the SEC civil action reveals, no discovery

was done by either party up until the time of the district

court’s order staying discovery. (SA2426—2428). Therefore

the civil discovery process was not used to advance the

criminal case against Galluzzi. Moreover, the U.S. Attorney’s

Office did not need to use the SEC’s civil discovery tools,

given that it obtained all of the information that it needed

from its own separately conducted criminal grand jury

investigation.

Galluzzi fails to make any colorable claim as to the

nature of the supposed “prosecutorial misconduct.” There is

not one shred of evidence that the U.S. Attorney’s Office

improperly used the SEC’s civil investigatory powers.

Galluzzi does not identify a single piece of documentary

evidence that was allegedly gathered improperly. Notably,

Galluzzi did not allege that any search warrant or search

affidavit was based on information based on the SEC’s civil

investigation. Nor did Galluzzi raise his “prosecutorial

misconduct” challenge to any of the documents as they were

being introduced at trial. In fact, the first time that Galluzzi

raised his “prosecutorial misconduct” theory was post-trial.

Galluzzi has also failed to allege or show how he suffered

substantial prejudice as a result of the claimed “prosecutorial

misconduct.”

The cases that Galluzzi cites are either unhelpful to

him and completely distinguishable. In United States v.

LaSalle Nat’] Bank, 437 U.S. 298, 313—318 (1978), the

Court held that it was error for the district court to refuse to

enforce IRS summonses, where the respondents had failed to

wa EEE IN tS alias DRAM he Alea

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show that the summonses were not issued in good—faith

pursuit of congressionally authorized purposes. In this case,

Galluzzi has not made any specific allegations, let alone

come forth with any evidence, that the SECs investigatory

subpoenas were improperly issued.

In SEC v. Dresser Industries, Inc., 628 F.2d 1368

(D.C. Cir.), cert. denied, 449 U.S. 993 (1980), another case

that Galluzzi cites, the court held that the Justice

Department’s investigation of the defendant did not preclude

the SEC from issuing subpoenas in the course of a parallel

investigation of the same defendant. Id. at 1385.The court

further held that the defendant would not be entitled to a

protective order prohibiting the SEC from providing the

Justice Department with the fruits of its civil discovery. Id.

Dresser supports the government’s position that parallel civil

and criminal investigations are common occurrences that are

unobjectionable in most instances. Galluzzi has failed to

allege any specific facts or produce any evidence showing

that the SEC was acting in bad faith or using malicious

tactics; or that his rights were prejudiced; such that the

parallel investigations should be deemed improper under

Dresser. Yet another case that Galluzzi cites, SEC v. Gilbert,

79 F.R.D. 683 (S.D.N.Y. 1978), is inapposite because it deals

with discovery rather than the pre-indictment investigation

that is at issue in the present case.

Finally, any alleged error by the grand jury in

indicting Galluzzi also must be harmless, given that Galluzzi

was convicted on all counts. See United States v. Console, 13

F.3d 641, 672 (3d Cir. 1993) (in affirming the district court’s

denial of defendants’ pretrial motion to dismiss the

indictm

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