# Appendix — Galluzzi v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1126%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2004 - **Citation:** 541 U.S. 939 ## Text 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 A - 32 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 A - 33 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) A - 34 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 A - 35 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. A - 36 “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: A - 37 “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 A - 38 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 A - 39 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 A - 40 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. A - 41 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 A - 42 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 = A - 43 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 A - 53 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. 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 A- 110 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 A-112 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 A-113 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 indictment on the ground of alleged prosecutorial misconduct, the Court reasoned that even if the prosecutorial misconduct occurred as alleged by defendants, “the petit jury’s guilty verdict rendered any prosecutorial misconduct before the indicting grand jury harmless.”), cert. denied, 511 co” a amc conan ea A-114 U.S. 1076 (1994); United States v. Mechanik, 475 U.S. at 70—72 (holding that any error in the grand jury’s charging decision that may have flowed from permitting two law enforcement agents to testify in tandem, in violation of Fed. R Crim. P. 6(d), was rendered harmless by the petit jury’s guilty verdict). As the Supreme Court stated in Mechanik: ...Rule [6(d)] protects against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty. ...But the petit jury’s subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt. Mechanik, 475 U.S. at 70. A- 115 UNITED STATES SECURITIES AND EXCHANGE COMMISION NORTHEAST REGIONAL OFFICE 7 WORLD TRADE CENTER NEW YORK, N.Y. 10043 March 7, 1997 Ralph Marra, Esq. United States Attorney’s Office District of New Jersey 970 Broad Street; Room 502 Newark, New Jersey 07102 Re: Certain Municipal Securities Transactions (NY-6085) Dear Ralph: Enclosed please find a copy of the testimony of Joseph Galluzzi. If you need anything else, please do not hesitate to call me at (212) 748-8368. Very. truly yours, Ten A. Brotbacker Senior Attorney A - 116 THIS PAGE LEFT BLANK INTENTIONALLY NER eaeae sree nyenrre ARENT In the Matter of Joseph P. Galluzzi A -117 Documents being withheld as provided by SEC Rule of Practice 230(b) | Doc Document Length | Date Author/Source Recipient Subject Matter Reason for No. | Type Withholding l Internal 18 Undated Commission Commission Draft copy of Work-product, Memorandum pages Staff (attorney) staff Order Instituting Deliberative Public process, Attorney- Administrative Client, Rule Proceedings 230(b)(ii) 2 Internal 15 Undated Commission Comunission Draft copy of Work-product, Memorandum pages staff (attorney) staff Order Instituting Deliberative Public process, Attorney- Administrative Client, Rule ae en Proceedings 230(b)(1i) 3 Internal 15 Undated Commission stall | Commission Draft copy of Work-product, Memorandum pages (attorney) staff Order Instituting Deliberative Public process, Attorney- Adininistrative Client, Rule ee . Proceedings 230(b)(ii) 4 Internal 3 pages | Undated Commission Commission Draft copy of Work-product, Memorandum staff (attorney) staff Order Instituting Deliberative Public process, Attorney- Administrative Client, Rule - be ; Proceedings 230(b)(11) Se | a i i ee Tia iii 5 Na ie ie oes i es a ol a eis cai tee A-118 Proposed Final Judgment of Injunction and a Internal 15 Undated Commission Commission Draft copy of Offer | Work-product, Memorandum pages staff (attorney) staff Of Settlement Deliberative process, Attorney- - Client, Rule 230(b)(11) 6 Internal 3 pages | Undated Commission Commission Draft copy of Work-product, Memorandum staff (attorney) staff appendix to Action | Deliberative Memorandum process, Attorney- Client, Rule 230(b)(i1) 7 Internal 33 Undated Commission Commission Draft copy of Work-product, Memorandum pages staff (attorney) staff Memorandum in Rule 230(b)(i1) Support Of The Motion For Summary Judgment And Permanent injunction And Other Equitable Relief in SEC v. 7 Joseph P. Galluzzi 8 Internal 4 pages | Undated Commission Commission Draft copy of Work-product, Memorandum staff (attorney) staff : Rule 23 (b)(1i) A A LT TI ee - 119 Other Equitable Relief in SEC v. Joseph P. Galliizzi Internal Memorandum 2 pages 3/30/99 Anthony J. Bosco — Commission staff Draft copy of Declaration Of Service in SEC v. Joseph P. Galluzzi Work-product, Rule 230QD)(i1) 10 interna! Memorandum 20 pages Undated Commission staff (attomey) Commission staff Draft copy of Reply In Support Of Motion For Summary Judgment in SEC v. Joseph P. Galluzzi Work-product, Rule 230(b)(i1) Internal Memorandum 4 pages Undated Commission staff (attorney) Commission staff : Draft copy of Proposed Final Judgment Of Permanent Injunction And Other Equitable Relief in SEC v. Joseph P. Galluzzi Work-product, Rule 230(b)(11) 12 Internal Memorandum 18 pages Undated Commission staff (attorney) Commission staff Draft copy of Reply In Support Of Motion For Work-product Rule 230(b)(ii) A - 120 Summary Judgment in SEC v. Joseph P. Galluzzi 13 Internal] 44 1/3/96 Ten A. Commission Draft copy of Work-product, Memorandum pages Brotbacker staff Action Deliberative Memorandum process, Attorney- Chent, Rule ns, 230(b)(ii) 14 Internal 12 11/25/96 Commission Commission Supplemental Work-product, Memorandum pages staff (attorney) staff Action Deliberative Memorandum with | process, Attorney- staff notes Client, Rule 230(b)(i1) 15 Internal 12 11/25/96 Northeast The Supplemental Work-product, Memorandum pages Regional Office | Commission Action Deliberative (attorney) Memorandum process, Attorney- Client, Rule : 230(b)(ii) 16 Internal 1] 11/25/96 Ten A. V Comumnission Draft copy of Work product, Memorandum pages Brotbacker staff Supplemental Deliberative Action process, Attorney- Memorandum Client, Rule 230(b)(ii) 17 Internal 12 12/31/96 Northeast The Action Work-product, ee . A - 121 Memorandum pages Regional Office | Commission Memorandum . Deliberative (attorney) process, Attorney- Chent, Rule 230(b)(ii) 18 Internal 2 pages | Undated Ten A. Commission Draft copy of Work-product, Memorandum Brotbacker staff Declaration Of Rule 230(b)(ii) Service in SEC v. Joseph P. Galluzzi 19 Internal 7 pages | 10/8/96 Northeast The Action Work-product, Memorandum Regional Office | Commission Memorandum Deliberative (attorney) process, Attorney- Client, Rule 230(b)(ii) 20 Internal 25 11/7/96 Northeast The Action Work-product, Memorandum pages Regional Office | Commission Memorandum Deliberative (attorney) process, Attorney- Client, Rule 230(b)(i1) 21] Internal 10 2/17/95 Ten A. * Commission Draft copy of - Work-product, Memorandum pages Brotbacker staff Action Deliberative Memorandum process, Attommey- a Client, Rule 230(b)(it) 22 Internal S pages | 2/22/95 Ten A. Commission Draft copy of Work-product, Memorandum Brotbacker staff Action Deliberative A - 122 examiner/investi Memorandum process, Aitorney-Client, Rule | 230(b)(11) V 23 Internal 1] 11/25/96 Ten A. Commission Draft copy of Work-product, Memorandum pages Brotbacker staff Supplemental Deliberative Action process, Attorney- Memorandum Client, Rule ; 230(b)(i1) 24 Internal 12 1/16/97 Teri A. Commission Draft copy of Work-product, Memorandum pages Brotbacker staff Action Deliberative Memorandum process, Attorney- Client, Rule 230(b)(i1) 23 Internal 15 12/22/93 Commission Commission Draft of Work-product, Memorandum pages staff (Attorney) staff memorandum Deliberative process, Law Enforcement, Attorney-Client, Rule 230(b)(ii) 26 Internal 7 pages | 9/22/99 Elizabeth Baier Anthony J. Analysis of pre- Work-product, Memorandum Bosco judgment interest Rule 230(b)(11) 27 Spreadsheet l page 2/16/99 Commission Anthony J. Analysis of pre- Work-product, staff (attorney, or | Bosco judgment interest Rule 230(b)(ii) On ee ee ee, A - 123 gator acting at attomey’s direction) 28 Internal 4 pages | 1/9/95 Ten A. Commission Draft copy of Work-product, Memorandum Brotbacker staff Summary Deliberative Memorandum process, Attorney- Client, Rule 230(b)(11) 29 Internal 34 1/9/95 Ten A. Commission Draft copy of Work-product, Memorandum pages Brotbacker staff Action Deliberative Memorandum process, Attorney- Chent, Rule 230(b)(ii) 30 Internal 10 2/17/95 Ten A. Commission Draft copy of Work-product, Memorandum pages Brotbacker staff Action Deliberative Memorandum process, Attorney- Client, Rule 230(b)(ii) 3+ | Internal 1] 11/25/96 Ten A. Commission Draft copy of Work-product, Memorandum pages . Brotbacker staff Supplemental Deliberative Action process, Attorney- Memorandum Client, Rule 230(b)(ii) 32 Internal 14 Undated Commission Commission Draft copy of Work-product,. Memorandum pages staff (attorney) staff Order Instituting Attorney Client, A - 124 Public Rule 230(b)(i1) Adininistrative Proceedings 33 Internal 2 pages | Undated Commission Commission Draft copy of Work-product, Memorandum staff (attorney) staff Administrative Rule 230(b)(i1) Release 34 Internal 18 Undated Ten A. Commission Draft copies of Work-product, Memorandum pages Brotbacker staff Notice of Motion, Rule 230(b)(i1) Declaration, Memorandum of Law, and Order in NC v. Joseph P. Galluzzi : 35 Copy of 17 7/25/95 Commission Commission Copy of transcript | Work-product, Testimony pages staff (attorney, or | staff with Commission Rule 230(b)(i1) transcript examiner/investi staff notes and gator acting at analysis written on ‘ attorney’s transcript direction) 36 Correspondence | 3 pages | 7/19/95 Faith S. Richard H. Request for access | Law enforcement, Hochberg Walker to Commission Interagency files communication 37 Correspondence | 5 pages | 5/12/93 Richard H. Howard E. Request for access | Law enforcement, Walker Heiss to Commission Interagency files communication Lia. He reaaraa te A - 125 38 | Correspondence | 2 pages | 5/6/93 Howard E. Heiss | Carmen J. Request for access | Law enforcement, Lawrence to Commission Interagency files communication 39 Notes V 1 page Undated Commission Commission Investigative Work-product, staff (attorney) staff testimony Rule 230(b)(11) 40 | Notes 7 pages | Undated Commission File Galluzzi Work-product, staff (attorney, or investigation Rule 230(b)(i1) examiner/investi gator acting at ns attorney’s direction) 4) Notes 10 2/27/95 Commission File Galluzzi Work-product, pages staff (attorney, or inve stigation Rule 230(b)(i1) examiner/investi gator acting at attomey’s direction) 42 | Correspondence | 2 pages | 3/14/96 Jean E. Murphy | Colleen P. Request for access | Law enforcement, Mahoney to Commission Interagency files communication 43 FBI Form 28 8/30/94 Andrew P. Commission Interview with Law enforcement, | pages Bingaman staff George L. Tuttle Work-product on USAO’s/FBI’s behalf 44 | FBI Form - 9 pages | 10/20/94 Andr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_1126%3A2. Public record. Not legal advice.