Appendix — Herzog v. United States
Supreme Court brief1997
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No. OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1997
DONALD HERZOG,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT
JUDD BURSTEIN
Counsel of Record
BURSTEIN & FAsSs LLP
99 Park Avenue
New York, New York 10016
(212) 681-0606
Attorneys for Petitioner
On the Petition: Donald Herzog
JUDD BURSTEIN
MARC FERNICH
TABLE OF CONTENTS
PAGE
Appendix A
Opinion of United States Court of Appeals
for the Second Circuit in United
States v. Zagari, 111 F.3d 307
8 ae l
Appendix B
Oral Opinion of United States District Court
for the Southern District of New York
(Brieant, D.J.) excluding Rule 806
Evidence (May 10, 1995) ............................... 48
Appendix C
Oral Opinion of United States District Court
for the Southern District of New York
denying Rule 33 Motion
eS ra ee 51
Appendix D
Opinion of the United States Court of Appeals
for the Second Circuit denying
petitioner’s motion for rehearing
RO Gk Go aoe roe os cole ciblediiencscl. 59
Appendix E
Constitutional and Statutory Provisions
Involved in this Appeal
POO I 6 ask vided ecko kv ccd ideducueeecncecn 61
vie, PEE TT OT eae 61
POU I 666 oo ok ca Ws sok s kde vacances lccces 62
l
Appendix A
Court of Appeals Decision
111 F.3d 307 (2d Cir. 1997)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 599, 627 -- AUGUST TERM, 1996
(Argued: December 11,1996 Decided: April 17, 1997)
Docket Nos. 96-1120(L)*, -1121, -1155
UNITED STATES OF AMERICA.
Appellee,
: v.
JOHN J. ZAGARI; PASQUALE "PAT"
MASELLI, aka PAT; FRANK SALERNO:
FRANK TRAPANI, aka HARPO; ANGELO
J. DIPALO, aka SHORTY; PETER DEL
CIOPPO, aka PETEY DEL; GEORGE
MERUSI; JAMES A. ROGAN, aka JIMMY:
RAYMOND E. RYDER; DAVID ZANOLINI:
MORTON WAGNER, aka MORTY,
Defendants,
DONALD HERZOG; ALFRED CHRISTIANSEN; '
CHARLES SHAY,
Defendants-Appellants.
Before:
OAKES, ALTIMARI and PARKER, Circuit Judges.
Appellant Donald Herzog appeals from judgment of
conviction under various counts of RICO and Travel Act
violations, mail and wire fraud, tax conspiracy and fraud, and
money laundering, entered in the United States District Court for
the Southern District of New York (Charles L. Brieant, Judge).
Appellant Charles Shay appeals from judgment entered in the
same court of conviction on one count of wire fraud. Appellants
jointly bring assertions of error relating to Fed. R. Evid. 806,
Brady material, the court's refusal to grant a Franks hearing, and
the newly discovered evidence doctrine. Appellant Shay further
asserts that his sentence was issued in violation of the ex post facto
clause, while Appellant Herzog argues that two counts of
conviction and one RICO Act ought to have been dismissed for
insufficient evidence and that the court improperly applied several
Sentencing Guideline provisions.
Convictions affirmed; both sentences remanded for
recalculation.
Judd Burstein, New York, NY (Marc
Fernich, Burstein & Fass LLP,
ofcounsel), for Defendant-Appellant
Herzog.
Richard D. Willstatter, White Plains,
NY (Green & Willstatter, of
counsel), for Defendant-Appellant
Shay.
‘Appeal has been withdrawn.
3
Anthony J. Siano, Assistant United
States Attorney, New York, NY
(Mary Jo White, United States
Attorney, Guy Petrillo, Assistant
United States Attorney, of counsel),
for Appellee.
OAKES, Senior Circuit Judge:
The strictures of environmental law lie at the base of this
involved criminal appeal; avoiding these strictures, with high
profit forthcoming, resulted in the charges brought against the
Appellants. Donald Herzog and Charles Shay appeal from
judgments of conviction entered respectively on February 20 and
28, 1996, in the United States District Court for the Southern
District of Now York, Charles L. Brieant, Judge,” following a
fifteen-week jury trial. Herzog was convicted on one count of
violating the RICO statute, 18 U.S.C. 5 1962 (c), one count of
RICO conspiracy, 18 U.S.C. 5 1962 (d), four counts of wire fraud,
18 U.S.C. 5 1343, six counts of money laundering, 18 U.S.C. 55
1956 (a) (1) (A) (i), (A) (ii) and (B) (i), one count of violating the
Travel Act, 18 U.S.C. 5 1952, three counts of mail fraud, 18
U.S.C. 5 1341, count of tax conspiracy, 18 U.S.C. 6 371, and one
count of tax fraud, 26 U.S.C. 5 7206 (2). He was sentenced to
concurrent terms of imprisonment, forfeiture of $500,000, a
supervised release term of three years on each count, and a special
assessment of $900. Shay was convicted on one count of wire
fraud, 18 U.S.C. 552 and 1343, and sentenced to 60 months’
imprisonment to be followed by two years of supervised release
and a $50 assessment.
Appellants Herzog and Shay jointly bring two assertions of
*Alfred Christiansen, who was charged and convicted as
set forth in this preliminary statement, was sentenced and filed a
notice of appeal. After Christiansen’sdeath, however, his appeal
was withdrawn.
4
error. First, they argue that the district court erred by failing to
admit Shay's former lawyer's affidavit to impeach the out-of-court
statements attributed to the lawyer. Second, they assert that the
Appellee ("the Government") withhold information concerning the
insanity of a key prosecution witness in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963);
that the district court improperly denied them a Franks hearing,
see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.
2d 667 (1978), to determine whether the information gained in the
course of the Government's surveillance of defendants ought to
have been suppressed; and that the alleged Brady material is
“newly discovered evidence," the discovery of which warrants
grant of a new trial. Brady, 373 U.S. at 84, 83 S. Ct. at 1195.
In addition, Appellants bring independentassertions of error.
Shay asserts that his sentence was issued in violation of the ex
post facto clause, and thus that two Sentencing Guidelines
provisions were improperly applied to him: the “Conscious or
Reckless Risk of Serious Bodily Injury” enhancement, and the
increase for "Fraud and Deceit Loss.” He therefore asks that we
vacate his sentence and remand for resentencing. Appellant
Herzog first asserts that the trial judge improperly denied his post-
trial motion to dismiss Counts Twenty-Seven, Twenty -Eight, and
corresponding RICO Act Twenty, for insufficient evidence. He
further argues, that the court improperly increased his sentence
pursuant to three Sentencing Guideline provisions: the two-level
Obstruction of Justice enhancement, the four-level "Aggravating
Role” adjustment, and the three-level “Value of the Loss”
calculation.
Although we disagree with the majority of these assertions
of error, we remand Shay's sentence for recalculation under the
Guidelines in affect in October of 1989, and Herzog's for further
evidentiary findings with regard to a) his perjury in the related
state civil action, and b) the enhancement for his leadership role.
I
Facts
A. Background
Prior to December 1988, Herzog, Christiansen and others
operated without a permit a large landfill, "Buffalo Farm," in
Ancramdale, Columbia County, Now York. The Buffalo Farm
landfill was closed around December 1988 due to regulatory
action by New York State environmental authorities. In order to
continue profiting from the dumping of construction and
demolition ("C&D") debris, Herzog and his associates, including
Pasquale Maselli,’ began to look for a new landfill.
B. The Matamoras, Pennsylvania, Site
Charles Shay and his wife owned a parcel of land near
Matamoras, Pennsylvania, on the Pennsylvania bank of the
Delaware River, just across the river from Port Jervis, New York.
The site is immediately south of Interstate 84, which crosses a
bridge from Port Jervis to Matamoras. Prior to 1988, Shay had
been using a portion of the land as a campground and _boat-
docking area.
*Maselli was a “made member” of the Luchese Crime
Family, and was the first of Herzog’s associates to offer money to
Shay for access to the Matamoras landfill to dump C&D debris.
After Maselli’s direct negotiations with Shay broke down, Herzog
began to deal with Shay directly. Maselli was indicted with
Herzog but died prior to trial. Maselli’s widow testified as a
defense witness at trial, admitting that Maselli received vast sums
from the landfill and gave cash on a regular basis to Alphonse
D’Arco, another high-ranking member of the Luchese Family.
D’Arco testified in the Government’ sdirect case pursuantto a plea
and cooperation agreement.
6
In 1969, during the construction of 1-84, the property's
previous owner had allowed state highway contractors to excavate
large hole from the property. The hole became partially filled with
tree stumps and other organic waste, but there remained a large
depression on the property. In 1988, the Shays began construction
of a restaurant on the property and needed to fill the depression an
part of that project. With the help of a local contractor, Raymond
Ryder, Shay arranged with a waste broker named Kelly Wall to
bring “clean fill" to the site. Instead of clean fill, however, Wall
caused shredded demolition waste, municipal waste, construction
debris, and other debris (“C&D debris") to be hauled to and
dumped at the site.°
Apparently, Shay did not consider this to be entirely
undesirable. In fact, at some point during this time, Shay's then
attorney, Randolph Borden, requested that PADER consider
issuing a permit to Shay to use his land as a site for the dumping
of C&D debris. PADER responded in the negative, indicating
that Shay's property was too close to residential areas and the
Delaware River to serve as such a dump site. On October 19,
1988, and December 6, 1988, PADER officials inspected the Shay
property and found the landfill material previously dumped by
Kelly Wall (“the Wall material") to be environmentally
““Clean fill” is “[uJncontaminated, nonwatersoluble, non-
decomposable inert solid materials.” Govt. Br. at 11 (citing
Government Exhibit 157 (PADER Regulation § 271.1)). (PADER
is an acronym for the Pennsylvania Department of Environmental
Resources. )
“C&D debris,” or “construction and demolition debris,”
was defined in PADER regulations as “solid waste resulting from
the construction or demolition of buildings and other structures,
including but not limited to, wood, plaster, metals, asphaltic
substances, bricks, block and unsegregatcd concrete.” Govt. Br.
at 12 (citing Government’s Exhibit 158 (PADER Regulation §
271.1)).
a a
7
acceptable. Wall thereafter stopped dumping and abandoned the
project.
In January 1989, Donald Herzog, James Rogan and Frank
Salerno met with Shay and Ryder and proposed to bring processed
C&D to the site.° Herzog formed a corporation called Tri-State
Land Development, Inc. (“TLSD”), which brought the materials
to the site and supervised the work there.
On March 8, 1989, PADER issued an order and assessment
of civil penalties, which cited the Shays for the unlawful dumping
of the Kelly Wall waste and imposed a $20,000 civil penalty. On
March 23, 1989, Herzog, Shay and others met with Pennsylvania
regulatory authorities to discuss cleanup of the Matamoras site.
Herzog proposed to remove the Wall material and replace it with
better quality fill. He provided PADER with a list of safeguards
to ensure that the Wall material would be properly removed and
that clean fill would be dumped in its place. As no permit was
required to dump “clean fill,” PADER officials told Herzog, Shay
and Ryder that they were free to go forward at their own risk.
In fact, however, the evidence at trial showed that even
before they met with PADER on March 23, Herzog and Shay had
already opened the landfill and accepted C&D debris. “Dump,”
or “load,” tickets admitted at trial showed that C&D debris was
dumped at Matamoras as early as January and February 1989.
The dumping apparently stepped up after the meeting with
PADER, however, though not on the terms discussed with the
officials. From March through July 1989, Herzog, Shay and
others arranged for the disposal of vast quantities of untreated
C&D debris at the landfill. The dumped materials were not
Segregated or processed in any way, and included substantial
°PADER officials later testified that, by processed C&D
debris, they understood Herzog to mean that the C&D debris was
to be cleaned in New York so that it would meet the PADER
definition of “clean fill.”
amounts of wood, metal and building fixtures. It appears that,
during this period, Herzog, Shay and others sought to accept as
much C&D debris as possible at the Matamoras site while eluding
scrutiny by PADER, law enforcement and local residents. The
dumping of C&D debris often took place at night, in the early
morning hours and on Saturdays, presumably in order to avoid
PADER scrutiny. Moreover, rather than being removed entirely
from the Matamoras site as promised, much of the Wall material
was moved to a large pit on the Shay property while the remainder
was taken down the road to another unauthorized location known
as the “St. Onge site.”
In addition to misrepresenting their actions to PADER, the
Appellants falsely represented to private waste haulers that they
had a permit to operate the Matamoras landfill and to receive
C&D debris. The receipt of such debris was, however, conducted
in a suspicious manner. Waste haulers and garbage transfer station
operators who used the landfill were asked to pay cash; Herzog
offered cash discounts and refused to allow certain haulers onto
the site unless they first paid in cash. Some of the cash and checks
received were deposited by Herzog into a TSLD bank account, but
much of the cash was not deposited and was never recorded on
TSLD’s books and records.
Although the Matamoras landfill operated for only six
months, the proceeds of the illegal operation totaled approximately
$3 million, of which Shay received a one-sixth cut. In addition,
Herzog and his co-defendants paid approximately $500,000 in
regular installments to the New York Luchese Crime Family, a
fact which Herzog, Ryder and Mazelli concealed as part of a
conspiracy to defraud the Internal Revenue Service. Herzog's
surteptitious payments to the Luchese Family, although
independently documented by Herzog, were not recorded in
TSLD’s books and records.
In May 1989, the ground wells of neighboring residents on
Rome Lane began to emit foul odors and brown fluids, and the
9
water acquired a foul taste. After heavy rains, the wells would
also emit a brown foam. A May 30, 1989, on-site PADER
inspection revealed that defendants were dumping C&D debris
and other materials for which a permit was required. The
following day, PADER informed Herzog, Shay and Ryder that
this waste was unacceptable. On June 7, 1989, PADER mailed
the defendants a letter demanding the removal of the Wall materiai
and notifying them that sampling of the debris being dumped at
Matamoras would be undertaken. In response to complaints of
bad odors coming from the landfill, PADER issued a cease and
desist order in July 1989, ordering immediate halting of further
dumping at the site.
After the cease and desist order was obtained, PADER
employees performed tests on the well water of the residents of
Rose Lane, whose wells were down-gradient from the Matamoras
landfill. PADER found that the water samples contained elevated
levels of heavy metals and other pollutants, which rendered the
wells contaminated under federal water pollution standards. In
October 1989, PADER declared the water unfit for human
consumption.
Following issuance of the July cease and desist order,
Herzog, Shay and others took a number of steps to give PADER
the false impression that they had removed the Wall material from
the Matamoras site. They dug large pits at the site, which they
filled and then bulldozed. Herzog also created a series of false
trucking manifests to reinforce the impression that the Wall
material had been removed. Specifically, Herzog obtained blank
manifests from transfer stations in New York, and caused them to
be completed with false indications that the tainted materials had
been removed from the Matamoras site. These false "removal
manifests” were sent to PADER in October 1989.
By its terms, the July 1989 cease and desist order expired
during the summer. In mid-September 1989, Herzog, Shay and
others met to make plans to reopen the Matadors landfill, and
10
agreed on a plan. According to Jerry Dotey, the Government's
trial witness, TSLD’s lawyer, Borden, would propose to PADER
that the already-dumped offending waste would be removed and
that a clay liner would be installed at the landfill to protect the
ground water. If PADER agreed to this remedial action, the
defendants would reopen the landfill and proceed to accept as
much C&D debris as possible before PADER discovered their
actions. Herzog and the other defendants also agreed to refuse
PADER personnel access to the property.
On September 15, 1989, and again on September 19,
PADER informed the defendants that no now fill was to be
accepted at the Matamoras landfill. Nevertheless, on September
19, trucks is carrying debris started arriving at the Matamoras
landfill. For the next two to three weeks, Herzog and Shay were
were present at the landfill regularly while nearly continuous
dumping resumed. The site once again began to emit a foul odor
and polluted liquid waste.
Residents of Rose Lane began to complain again of odors
and well water contamination, as well as of noise at all hours of
the night caused by the continuous deliveries of C&D debris to the
site. PADER's orders to cease acceptance of debris were,
however, ignored. A PADER inspector was denied entry to
Shay's property on September 25 and September 26, 1989. FBI
surveillance establishedthat night-time dumping occurred on each
night from September 25 though September 28, and that Herzog
was present during this dumping. On October 6, 1989, the eve of
PADER's obtaining an injunction from the Pike County Court,
defendants finally ceased accepting debris at the site.
After the second closure of the Matamoras site, and
continuing through January 1992, Herzog, Shay and their
coconspirators made various efforts to re-open the Matamoras site.
To this end, Herzog induced two environmental engineering firms
to provide favorable reports concerning the Matamoras landfill.
Engineers testified to advising the defendants of the impropriety
1]
of dumping C&D debris at the site, of the contamination that the
prior dumping was causing, and of the high and ever-increasing
costs of remedial measures. According to the Government, when
an engineer retained by the defendants would recommend
expensive remedial steps, the defendants would simply leave that
engineer's bills unpaid and ignore the recommendations.
C. The Rochester, New York, Site
Ultimately, the defendants' attempts to persuade PADER to
allow the Matamoras dump to re-open were unsuccessful. Seeking
a new site for C&D dumping, Herzog and Christiansen arranged
in mid-1989 to meet Harry Purcell, then the Rochester, New York,
Township Supervisor. At this time, the Rochester dump was the
subject of a New York Department of Environmental
Conservation (NYDEC) remediation order directing that
Rochester reclaim, with stone fill, land that had been excavated
during earlier strip-mining on the site of the dump. When Purcell
met with Herzog and Christianson, Rochester had made no
progress toward compliance with this order.
Herzog proposed that his newly-created entity, Almordon
Environmental Corp., fill in the Rochester site with C&D debris.
Christiansen told Purcell that he could supply test results from
Matamoras which would demonstrate to NYDEC that the
Matadors fill was “clean fill.” Moreover, Christiansen and Herzog
falsely told Purcell that the Matamoras site had regulatory
approval.They also both falsely described allegedly stringent
control steps followed at the Matamoras landfill to ensure that
nothing but C&D debris was dumped at the site, and falsely
represented to Purcell that any “bad” materials were removed from
the Matamoras landfill site by TSLD. Ina letter mailed to Purcell
dated July 25, 1989, Borden misleadingly wrote that TSLD’s
Matamoras operation had fully complied with and exceeded all
PADER requirements.
In further discussions, Herzog and Christiansen arranged for
12
what the defendants described as “test loads” of debris to be
dumped at the Rochester dump in mid-summer 1989. In October
1989, Herzog asked Jerry Dotey, who represented himself to
defendants an a licensed engineer, to prepare false test reports
about these test loads for Christiansen to provide Purcell. Herzog
and Christiansen each explained to Dotey that Purcell needed to
give the NYDEC proof that the “test loads” were untainted. Dotey
accordingly altered reports that had been prepared by a laboratory,
Prosser Labs, with respect to tests of soil taken from the vicinity
of the Matamoras site, to make them seem as though they
concerned tests of waste samples taken from the Rochester dump
in August 1989. At Christiansen's direction, these altered reports
were transmitted to Purcell on October 11,1989. On November
13, 1989, Christiansen confirmed that he had seen the altered
reports.
In early 1990, Purcell made written application to NYDEC,
which included the altered Prosser Lab reports, to use the C&D
debris to reclaim the Rochester mine site. NYDEC officials
rejected the proposed use of C&D debris as reclamation materials,
and, on March 2, 1990, wrote a letter to Purcell that was critical of
the materials. Despite NYDEC’s reaction, Herzog and Purcell
agreed that Almordon would build a road within the dump
perimeter. Herzog then undertook to obtain approval for dumping
from the Township. In early 1990, Herzog told the Town
Attorney, Thomas Halley, that he, Herzog, could reopen the
Matamoras landfill “tomorrow” if he wished to do so. Because
this statement was in apparent contradiction to information that
Township officials had received from persons in Pennsylvania,
Halley asked Christiansen for an explanation. Christiansen then
materially misrepresented virtually every aspect of Herzog's
management of the Matamoras landfill. © When Halley
subsequently advised the Township Board that it could proceed
with the Almordon project, he did so in reliance on these
representations.
13
On May 1, 1990, Purcell signed a contract with Almordon
on behalf of the Rochester Township, with Christiansen signing
for Almordon. Under the contract, Almordon agreed to test every
truckload of C&D debris for gross contaminants, using a
“MicroTip,” an expensive specialty device which tests for toxins
in the atmosphere; to carry liability insurance on the project; and
to pay the Town $2 per cubic yard of waste dumped.
On April 22, 1990, in an intercepted telephone conversation,
Herzog told Christiansen not to worry about paying the Micro Tip
manufacturer, Photo-Vac International, because they were going
to display the tester and then return it with a claim that it did not
work. He made similar indications in a May 13, 1990,
conversation with Rogan.
Dumping began at the Rochester site on May 10, 1990. In
a May 14, 1990, telephone conversation, again intercepted,
Christiansen described the defendants’ intention to dump up to
250,000 cubic yards of C&D debris in the Rochester dump. Once
the dumping began, however, the immediate public reaction was
hostile, and due to public pressue and the discovery by a citizens’
group that Almordon had not obtained the required permits, the
Rochester Town ship Board voted on June 7, 1990, to stop the
dumping.
After extensive investigation by both state and federal
agencies, indictment on sixty counts was filed against Herzog,
Shay and Christiansen, and eleven co-defendants on September
20, 1993. ’
’ Prior to trial, co-defendant Maselli died; co-defendant
Ryder pleaded guilty pursuant to a cooperation agreement to the
substantive RICO charge in Count One, to one money laundering
charge (Count Forty-Six), and to the forfeiture count; and co-
defendant Zagari pleaded guilty to a superseding information
14
Trial began on February 6, 1995, and consumed fifteen
weeks. Before the jury was charged, the District Court granted
defense motions pursuant to Fed. R. Crim. P. 29 to dismiss Counts
Three and Four, which charged Herzog, Shay, Christiansen and
others with mail fraud and wire fraud directed at the State of
Pennsylvania, on the ground that Pennsylvaniaregulators were not
deprived of revenues (in the form of licensing and dumping fees)
from the Matamoras dump because Pennsylvania would never
have granted a permit for this type of landfill operation. On
Government motion, the Court also dismissed Count Thirty-Eight,
charging a co-defendant with obstructions of justice, and certain
money laundering counts as to defendant Frank Salerno.
On May 18, 1995, the jury returned its verdict. Herzog was
convicted of the following eighteen charges: Count One charged
all defendants with participating in the conduct of a racketeering
enterprise in violation of RICO, 18 U.S.C. § 1962 (c), in
connection with both the Matamoras and the Rochester landfills;
Count Two charged all with conspiring to participate in the RICO
enterprise in violation of 18 U.S.C: § 1962 (d); * Count Five
charged Herzog, Christiansen, Shay and others with wire fraud
directed at haulers, transporters and processors of C&D debris in
connection with the Matamoras site; Counts Seventeen through
Nineteen charged Herzog, Shay, Christiansen and others with
laundering proceeds of the Matamoras landfill through the
Luchese Crime Family in violation of 18 U.S.C. § 1956 (a) (1) (A)
charging him with being an accessory after the fact to mail fraud,
in violation of 18 U.S.C. §§ 3 and 1341.
‘Counts One and Two alleged twenty-eight acts of
racketeering i in furtherance of the charged enterprise (many of
which alleged acts were separately charged in additional counts of
the indictment), including various acts of mail and wire fraud,
money laundering, extortion, bribery, interstate travel in aid of
racketeering, and obstruction of justice.
15
(i) and (B) (i) (2); Count Twenty charged Herzog, Shay,
Christiansen and others with interstate travel to carry on unlawful
activity (money laundering) in violation of 18 U.S.C. §§ 2 and
1952; Count Twenty-Seven charged Herzog and one other
defendant with mail fraud directed at CHMR representatives;
Count Twenty-Eight charged Herzog and one other with wire
fraud directed at CHMR representatives; Count Thirty charged
Herzog, Christiansen and others with mail fraud directed at the
Town of Rochester; Count Thirty-One charged the same
defendants with wire fraud against Rochester; Count Thirty-Three
charged Herzog, Christiansen and one other defendant with mail
fraud directed at Photo-Vac International; Count Thirty-Four
charged the same defendants with wire fraud directed at Photo-
Vac; Count Forty-Twocharged Herzog and others with conspiracy
to defraud the IRS in violation of 18 U.S.C. § 371, by hiding
payments made to members of the Luchese Crime Family; Count
Forty-Three charged Herzog and others with aiding in the filing of
false tax returns which failed to disclose the payments to the
Lucheses, in violation of 26 U.S.C. § 7206 (2); and Counts Fifty-
Seven through Fifty-Nine each charged Herzog and others with
money laundering with intent to engage in conduct constituting a
violation of 26 U.S.C. § 7206, in violation of 18 U.S.C. §§ 2 and
1956 (a) (1) (A) (ii). Herzog was acquitted of the remaining
counts and predicate acts charged against him. Shay was
convicted on Counts One, Two, Thirty, Thirty-One, Thirty-Three
and Thirty-Four, and acquitted of all other counts; the remaining
defendants’ were acquitted of all charges.
On February 20, 1996, the court sentenced Herzog to 151
months’ imprisonment on each of Counts One, Two, Seventeen
through Nineteen, and Fifty-Seventhrough Fifty-Nine; 60 months’
imprisonment on Counts Five, Twenty, Twenty-Seven, Twenty-
Eight, Thirty, Thirty-One, Thirty-Three, Thirty-Four, and Forty-
*Frank Salerno, Frank Trapani, Angelo DiPalo, Peter Del
Cioppo, George Merusi, James Rogan, David Zanolini, and
Morton Wagner.
16
Two; and 36 months’ imprisonment on Count Forty-Three; all to
run concurrently. It also sentenced Herzog to forfeiture of
$500,000," a supervised release term of three years on each
count, and a special assessment of $900. On February 28, 1996,
the court sentenced Shay to 60 months’ imprisonment on Count
Five, to be followed by a term of supervised release of three years.
It further imposed the usual special assessment of $50 against
Shay. Herzog is currently serving his sentence. Shay is on bail
pending appeal.
II
Discussion
A. Joint Assertions of Error
Appellants Herzog and Shay jointly bring two assertions of
error: The first relates to the court’s refusal to admit the affidavit
of Shay’s former attorney; the second relates to the Government’s
alleged knowledge and suppression of evidence which would have
impeached Jerry Dotey, an important Government witness.
1. Borden’s Affidavit
Appellants first contend that the district court erred in
refusing to admit an affidavit of Randolph Borden, Esq., Shay’s
former attorney, which Borden submitted to the United States
Attorney’s Office and the FBI in an effort to avoid indictment.
After Borden was arrested and charged with mail and wire fraud,
he undertook to convince the Office and the FBI that his conduct
in the Matamoras matter had been consistent with his professional
obligations, and that he had at no time harbored criminal intent.
''In addition, Herzog and Christiansen consented to a
$500,000 order of forfeiture pursuant to a stipulation entered into
after the verdict was returned in order to resolve Count Sixty,
which had been bifurcated and was not resolved by the verdict.
17
To this end, he submitted a sworn statement which outlined his
response to the Complaint and sought to explain his innocence.
Soon after being indicted, Shay demanded production of
documents which Borden had provided to the Government in an
effort to avoid prosecution. The Government disclosed these
documents upon court order, but withheld the Borden affidavit
until mid-trial. In the affidavit, Borden recounted giving Shay his
opinion that the regulations were legally suspect, and recalled
advising Shay at a September 1989 meeting that dumping could
be lawfully resumed provided the Shay group followed his advice,
i.e., dump only processed C&D, remove the so-called leaded
materials, erect a clay liner, and test the new fill prior to dumping.
Further, Borden swore he advised Shay that completion of the
reclamation project with new processed C&D could be defended
in court.
Prior to cross-examining Dotey, Shay sought to introduce
this affidavit under Fed. R. Evid. 806 to impeach statements
attributed to Borden by Dotey and others. Defendants argued that
the affidavit impeached the statements because it showed, inter
alia, that Borden advised Shay to take steps to ensure that the new
dumping could be “defensible in court,” and therefore contradicted
Dotey’s testimony as to what Borden had said at the critical
September 1989 meetings.
The district court denied Appellants’ request, ruling that the
statements were “not a basis of cross examination for [Dotey].
They’re admissible, if you want, and you will be entitled to
receive them. And when you do, I think you’re entitled to offer
them.”
Later, however, when the defense sought to introduce the
Borden affidavit to impeach the veracity of statements attributed
to Borden by Dotey, the district court refused. In response to an
application that defendants be permitted to impeach a non-
testifying declarant with the affidavit as provided by Rule 806, the
court responded that the Borden statements were offered for the
18
fact that they were said in the presence of the defendants, but were
not admitted for the truth of the matter asserted. Therefore, the
statements were not hearsay admitted under either one of the Rule
803 exceptions to the hearsay rule or as statements of a co-
conspirator.
We first address whether the court correctly admitted the
statements as non-hearsay rather than as coconspirator statements.
Borden’s statements could not have been elicited for the truth of
the matters he discussed unless the Government had been
attempting to show that Borden’s legal advice was accurate,
which was clearly not the case. Furthermore, even Herzog
conceded at argument to the district court that Borden’s
statements only served to demonstrate the defendants’ scienter,
not to prove any other facts underlying the charges.
We are somewhat concerned by the court’s failure to grant
a limiting instruction as to the purpose for which the Dotey
testimony about Borden’s statements was admitted. Rule 105
makes such an instruction mandatory, if it is requested. However,
a review of the record reveals that none of the defendants
objected to the admission of the Dotey testimony at the time the
Borden statements came into evidence, nor did any defendant
request a limiting instruction at that time. Furthermore, during
Dotey’s cross-examination, when the court ruled that the Borden
affidavit could not be used for impeachment purposes because the
Borden statements were not admitted for the truth, no defendant
requested a limiting instruction. After the evidence was closed,
Shay sought again to have the proffer admitted under Rule 806.
Even at that time, neither Shay nor Herzog requested a limiting
instruction -- rather, Herzog requested that the Government be
prohibited from arguing that Borden was a co-conspirator (which
the Government in fact never did argue). At that time,
Christiansen's counsel requested an inappropriate limiting
instruction to the effect that the Borden statements are “only
admissible as to what he said and what his intent was.” That
request was incorrect because it was not Borden's intent but the
19
defendants’ intent that was at issue. Without deciding whether
Shay and Herzog can now rely upon Christiansen's dilatory and
inexact request for a limiting instruction, we hold that if the failure
to give an instruction was error, it was harmless error. First, as
indicated above, the Government never contended to the jury,'! at
any point in the trial, that Borden should be viewed as a co-
conspirator. Furthermore, defendants were free to manage the
jury's potential confusion by attacking Dotey’s credibility, his
recollection of what was said during the September meetings, and
his motive to fabricate. And, they in fact did so, as discussed fully
in the next section of this opinion. Defendants also could have
presented conflicting testimony as to what was discussed at those
meetings to refute Dotey's recollection. We conclude that Dotey’s
testimony was properly admitted, not for the truth of the matter
asserted, but simply to show defendants’ scienter. Having held
that the court properly considered Dotey's statements to be non-
hearsay, it follows that Rule 806 does not apply to the proffered
Borden affidavit. Rule 806 provides in pertinent part: “When a
hearsay statement, or a statement defined in Rule 801(d)(2), (C),
(D), or (E), has been admitted in evidence, the credibility of the
declarant may be attacked, and if attacked may be supported, by
any evidence which would be admissible for those purposes if
declarant had testified as a witness.” Fed. R. Evid. 806.' Because
Rule 806 is not applicable to non-hearsay statements, and because
Dotey's statements are not of the sort defined in Rule 801 (d) (2)
''Shay’s counsel points out that the Government, at one
point, contended to the court that Borden was a co-conspirator, but
that position was apparently abandoned and never argued to the
jury.
"Thus, the Rule permits introduction of out-of-court
statements of a co-conspirator for the purpose of impeachment
where the co-conspirator’s statements have been admitted in
evidence under Rule 801(d) (2) (E). United States v. Myerson, 18
F.3d 153, 161 (2d Cir. 1994). Dotey’s statements, however, were
correctly not admitted as co-conspirator statements.
20
(C), (D),or (E), the Rule by its very terms is irrelevant to Dotey's
statements, and the affidavit did not fall within Rule 806. We thus
uphold the court’s ruling.
1. Insanity of Jerry Dotey
Second, Appellants both assert that the Government
withheld information showing that Jerry Dotey was insane.
Appellants assert that, subsequent to trial, they unearthed evidence
that Dotey had been clinically diagnosed as a “pathological liar"
with “serious psychological problems” and “a multiple personality
disorder." Specifically, Dotey apparently suffered from delusions
that he had a second German identity, and believed that he had
been born in Nazi Germany to a Gestapo “spymaster,” “smuggled
into the United States,” and “switched at birth with an American
baby.” He professed to have been kidnaped, brainwashed, and
tortured by "the Group," a neo-Nazi cabal seeking to take over the
world and create a "Fourth Reich” through, among other methods,
genocide, mind control, genetic engineering, and state-sponsored
slavery.'*.
"In his various conversations with federal officials and
psychologists, Dotey claimed that he was tortured by Dr. Joseph
Mengele in the presence of former CIA director Richard Helms.
Mengele, Dotey said, also kidnapped American children and
brought them to “an evil lair in Florida” for "unspeakable
purpose[s]." In addition, Dotey stated that he had been told by
Mengele that Mengele had trained Lee Harvey Oswald
Dotey maintained that the Group, which he said espoused
a Hitlerian philosophy of Aryan nationalism and totalitarian
control over all aspects of human behavior, was planning the mass
extermination of American Jews in Nazi-style death camps. He
held them responsible for other horrific activities, ranging from
Watergate to forcing Dotey to watch the rape of his wife and the
beating of his pregnant sister. He also asserted that the Group's
constituents included at least one former U.S. President, top
federal officials, and numerous Supreme Court Justices and other
21
Throughout the years, Dotey has been investigated by
federal agents for assorted conduct. For example, Dotey claimed
to have murdered witnesses to the assassination of President
Kennedy. He sparked an FBI investigation after stealing money
from the Atlantic Richfield Company ("ARCO"), his former
employer, then staging his own kidnaping, alleging that black,
Puerto Rican and Cuban terrorists “beat him up, took [the] money
and held him prisoner on a boat off the coast of South Carolina,”
and forging a ransom note to President Carter demanding the
release of Cuban prisoners. He later asserted that ARCO agents,
dressed in SS regalia, had tortured, drugged and hypnotized him,
programming him to massacre President Reagan and everyone else
at the 1985 inauguration via germ warfare.
Dotey, his lawyer and his psychologist memorialized all
these comments in complaints, letters and videotapes to agencies
including the Justice Department and the Secret Service. ARCO
also forwarded Dotey’s personnel file to the FBI. The Secret
Service personally interviewed Dotey, his lawyer and his
psychologist in connection with the Reagan assassinationplot. The
record also indicates that the Secret Service knew of a Dotey-
related plot to kill President Bush in 1991, two years after
investigation of the Matamoras site case began.
a. Brady Material
Upon discovery of the evidence relating to Dotey's alleged
insanity, Appellants moved for a new trial, claiming that the
Government suppressed information relating to the alleged
insanity in violation of Brady. The district court rejected
Appellants’ motion as lacking sufficient evidentiary basis. The
court found that the statements were corroborated by independent
sources, including federal and state law enforcement agencies and
documents, an well as the consensually recorded statements of
federal judges.
22
certain defendants. On appeal to this court, Appellants maintain
that a remand is necessary to explore whether the Government
suppressed information in violation of Brady. They further
challenge the trial court’s finding that the evidence they presented
on this point was not “material.”
“[{ T]he government has the obligation to turn over evidence
in its possession that is both favorable to the accused and material
to guilt or punishment.” Pennsylvaniav. Ritchie, 480 U.S. 39, 57,
107 S. Ct. 989, 1001, 94 L. Ed. 2d 40 (1987) (citing United States
yv. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976);
and Brady, 373 U.S. at 87, 83 S. Ct. at 1196). A grant of a new
trial is warranted if this obligation is not fulfilled. United States
vy. Wong, 78 F.3d 73, 79 (2d Cir. 1996).Evidence is material if
there is "a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome. United States
vy. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d
481 (1985) (opinion of Blackmun, ].)). We conduct an
independent examination of the record to determine whether
Brady has been violated in a nondisclosureclaim, and we likewise
make an independent review of a district court’s determination of
materiality, which is a mixed question of fact and law. United
States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995), cert. denied,
116 S. Ct. 1056, 134 L. Ed. 2d 201 (1996).Nevertheless, the trial
judge’s conclusion as to the effect of non disclosure on the
outcome of the trial is ‘entitled to great weight.’" United States v.
Rivalta, 925 F.2d 596, 597 (2d Cir.1991) (quoting United States
vy. Provenzano, 615 F.2d 37, 49 (2d Cir. 1980)).
We first hold that the Government here did not suppress
information so as to violate its obligation under Brady. Brady
cannot be violated if the defendants had actual knowledge of the
relevant information or if the documents are part of public records
and defense counsel should know of them and fails to obtain them
because of jack of diligence in his own investigation. Payne, 63
SS
or ren re—rarnresee
23
F.3d at 1208 (citing United States v. Bermudez, 526 F.2d 89, 100
(2d Cir. 1975) (state investigative files were available to defense
with the exercise of due diligence)). Here, Appellants had actual
knowledge of the witnesses with information about Dotey -- the
defense admittedly knew of Scott and Rosenbaum, and had
contacted Scott prior to trial.'* In addition, we agree with the trial
court that the evidence here was not material to Appellant’s
convictions. Certainly, several of Dotey’s assertions are alarming:
His statement that the Group routinely (virtually daily) implicates
many, many innocent people all over this country in crimes they
have not committed,” as well as his apparent anti-Semitism,
provides a strong evidence of lack of credibility and of potential
bias against Herzog, who is Jewish. Had the jury's verdict relied
solely or largely upon Dotey's testimony and had his testimony
been otherwise unimpeached, we might have considered the
evidence to be material, although we note the principle of cases
such as United States v. Reyes, 49 F.3d 63, 68 (2d Cir. 1995)
'*" Although the Government also argues that Brady was
not violated because the prosecution lacked actual or constructive
knowledge of the evidence, we decline to rest our holding on this
point. The extent to which knowledge may be imputed from one
federal investigative agency to another for Brady purposes is as
yet unclear. Cf. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d
40 (assuming without discussion that state prosecutor’s office had
imputed knowledge of information available to state child services
division’s investigative officers, even though prosecutor had no
actual knowledge of information). Because it is clear to us that
Brady was not violated because of the lack of materiality and the
defense’s ability to access the information about Dotey with due
diligence, we need not address the Government’s contention that
Brady does not apply because the prosecution was unaware of
certain statements made by Dotey to the Secret Service in 1985.
We do note, however, the Government’ sargument that it could not
have failed to disclose a draft document written by Dotey’s former
attorney because the Government did not possess this document
until it was provided by the defense.
24
1995) (“New evidence that is merely impeaching will not
ordinarily justify a new trial." Jd. (citing Mesarosh v. United
States, 352 U.S. 1,9,-)) S. Ct. 1, 5, 1 L. Ed. 2d 1 (1956)); see
United States v. Aquilar, 387 F.2d 625, 626 (2d Cir. 1967) (The
discovery of new evidence which merely discredits a government
witness and does not directly contradict the government’s case
ordinarily does not justify the grant of a new trial.”). Here,
however, there is substantial reason to agree with the district
court’s opinion that the jury had information with which to
evaluate Dotey’s credibility, though perhaps not as much
information as Appellants would have liked. Dotey was cross-
examined as to lying about his association with the CIA, lying
about being a licensed engineer, his false statements in civil
litigation, his false statements on credit card applications, logical
gaps in his claim that he had been shot at during the investigation,
his falsification of professional credentials and engineering
documents and Prosser lab reports, his prior inconsistent
statements before the grand jury, his misstatements to the FBI
about his personal background, the financial abandonment of his
children, his enormous tax debt, his loss of relevant records, his
own involvement in the charged crimes, the civil judgments
against him, the foreclosure on his home, bad checks he had
written, and his acceptance of expense money from the FBI. This
alone might be enough to make the evidence of his bizarre
statements cumulative and non-material. See United States v.
Diaz, 922 F.2d 998, 1006-07 (2d Cir. 1990) (newly discovered
evidence that informant had stolen money from the Government
would have provided redundant impeachment of a witness whose
credibility “had in fact been attacked repeatedly”). Still, however,
were Dotey's evidence the only support for Appellants’
convictions, we would be concerned that perhaps the evidence of
his mental condition is material, particularly considering the
prosecution’s summation remarks relating to Dotey's credibility .'°
'SThe prosecution attempted to rehabilitate Dotey during
summation by stating:
25
Yet we agree with the trial judge’s assessment that as to the
convicted counts, the jury did not rely entirely upon Dotey’s
testimony, but independent evidence corroborated all evidence.
We thus hold that the evidence relating to Dotey’s insanity and
neo-Nazi leanings is not material, in that there is not a reasonable
probability that the evidence, if presented to the jury at trial, would
have affected the verdict. Although it does not appear that the
Government suppressed this evidence, such a suppression would
not warrant grant of a new trial because it is not material.
b. Franks Hearing
Appellants next assert that the district court improperly
denied their request for a hearing pursuant to Frank v. Delaware,
438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Franks
tells us that evidence obtained by the Government must be
suppressed at trial if the Government concealed facts that were
material to an informed probable cause determination, and that the
defense is entitled to a hearing on this matter if it makes a
substantial showing that a false statement was knowingly,
Mr. Dotey could have behaved like a great many
people in this case chose to behave. See no evil, hear no
RS
Mr Dotey didn't need to pick up the telephone and
call the FBI. He could have just taken the defendants’
money and run, but he didn't... .
Mr. Dotey begins to cooperate in August of 1989
and he cooperated, and he got on the stand with no
immunity and no promises, no protection, and every
problem he had before ho got on the witness stand he stil!
has, but he chose to do something that these defendants
cannot abide, I submit. He showed some spine. He was
willing to sit on this witness stand and be ridiculed and
demeaned by these defense attorneys.
26
intentionally or recklessly included in the warrant affidavit, and
that the allegedly false statement was necessary to the finding of
probable cause.
As part of its application to initiate Title III interception of
certain communication devices during its investigation, the
Government submitted the affidavit of Special Agent Marston of
the FBI. That affidavit contained a disclosure that Special Agent
Marston had conversations with Dotey beginning in August of
1989, relating to Dotey’s statements that he had conducted covert
activities on behalf of the CIA. In the affidavit, Special Agent
Marston noted that he had spoken with Dotey’s former
psychologist, a man who had also been retained asa consultant for
the FBI on unrelated matters, and that the psychologist had
determined, after independent verification of some of Dotey’s
CIA-related claims, that Dotey was “a credible person from whom
to receive information.” Special Agent Marston further stated that
“(ijn dealing with Dotey, I have continually sought to
independently verify the accuracy of the information that he has
furnished. On each and every occasion I have found that his
information has proven to be truthful, reliable, and accurate.
Prior to trial, Appellants filed motions for a Franks hearing
seeking to suppress the recorded evidence gathered in the Title III
investigation, asserting that Agent Marston had not revealed the
existence of significant information impeaching Dotey’s general
credibility. The court denied the motion. Appellants maintain that
remand is necessary to explore whether the Government’s
application for Title III interception was materially misleading.
We hold that the court correctly denied Appellant’s motion
for a Franks hearing. Agent Marston’s affidavit does not represent
that he undertook an exhaustive exploration of Dotey’s personal
background; rather, it states that he fully explored issues with
Dotey himself and discussed some of his claims with Dotey’s
psychologist, who confirmed Dotey’s statements. Marston made
no claim that he attempted to verify Dotey’s general credibility by
27
conducting a complete investigation into his past. Nothing before
us indicates that Agent Marston’s representations were false or
misleading, and there was therefore no basis for a Franks hearing.
c. Newly Discovered Evidence
When & trial court learns of newly discovered evidence after
a conviction, it should grant a new trial if the defendant makes a
showing that the evidence is in fact ‘new’, i.e., it could not have
been discovered, exercising due diligence, before or during trial,
and that the evidence is so material and non cumulative that its
admission ‘would probably lead to an acquittal. United States v.
Siddigi, 959 F.2d 1167, 1173 (2d Cir. 1992)quoting United States
v. Alessi, 638 F.2d 466, 479 (2d Cir. 1 980)). [A] district court must
exercise ‘great caution’ in determining whether to grant a retrial
on the ground of newly discovered evidence, and may grant the
motion only in the most extraordinary circumstances. United
States v. Spencer, 4 F.3d115, 118 (2d Cir. 1993) (emphasis in
Original) (citations and quotation marks omitted). On review,
"[aJn appellate court must weigh whether or not there is in reality
a ‘significant chance’ that the disclosure would have induced a
reasonable doubt in the minds of enough jurors to prevent a
conviction. United States v. Rosner, 516 F.2d 269, 273 (2d Cir.
1975) (citations omitted).
This standard is very similar to the Brady test, though it of
course incorporates no element of Government action or inaction.
We reject this argument for substantially the same reasons
articulated in our discussion and rejection of Appellants’ Brady
argument. First, the evidence relating to Dotey’s insanity in not
‘new’ because it could have been discovered by the defense before
or during trial. Second, the evidence is not material, in that its
admission does not cast doubt upon the verdict in light of the
substantial other cumulative evidence against Shay and Herzog as
well as the impeachment evidence against Dotey of which the jury
28
was aware. The extraordinary circumstances of which Spencer
speaks are not present here, and Judge Brieant did not err in
refusing to grant a new trial.
B. Independent Assertions of Error
In addition to the allegations of error regarding Borden and
Dotey which Appellants raise jointly, they also bring independent
Assertions of error.
1. Shay's Assertions of Error
Shay asserts that his sentence was issued in violation of the
ex post facto clause of the U.S. Constitution. He also argues that
two sentence increases were improperly applied to him: the two-
level “Conscious or Reckless Risk of Serious Bodily Injury”
enhancement, and the twelve-level “Fraud and Deceit Loss"
increase. He therefore asks that we vacate his sentence and
remand for resentencing.
We begin by setting out the principles of law applicable to
our review of a district court’s application of the Sentencing
Guidelines, which will apply to much of the section of this opinion
addressing Herzog's claims as well an those of Shay. Section
1B1.3 of the Guidelines provides that “relevant conduct” may be
considered at sentencing as a reason for upward departure. U.S.
Sentencing Guidelines Manual [hereinafter “U.S.S.G.”] § 1B1.3
(1989). Despite the contrary view held by some members of this
court, see United States v. Frias, 39 F.3d 391, 392-94 (2d Cir.
1994) (per curiam) (Oakes, J,, concurring), cert. denied, 115 S. Ct.
1433, 131 L. Ed. 2d 313 (1995); United States v. Concepcion, 983
F.2d 369, 395-96 (2d Cir. 1992)(Newman, |, dissenting from
denial of on banc review), the Supreme Court recently confirmed
the prior holdings of this court that the burden of proof for relevant
conduct increases, including conduct of which the defendant has
been acquitted, need only meet the preponderance of the evidence
standard; not the higher clear and convincing evidence standard.
29
United States v. Watts, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997)
(per curiam); Concepcion, 983 F.2d at 388 (majority opinion);
United States v. Gigante, 94 F.3d 53 (2d Cir. 1996). We therefore
must refuse Appellants’ request that we apply a clear and
convincing standard to certain of the points argued below, and
instead review the district court's application of the preponderance
standard. Of course, we review a district court's interpretation and
application of the Guidelines de novo, United States v. Palmer, 68
F.3d 52, 54 (2d Cir. 1995), and its findings of related fact for clear
error, United States v. Ibanez, 924 F.2d 427, 430 (2d Cir. 1991);
18 U.S.C. 5 3742(e).
a. Ex Post Facto. ;
The district court sentenced Shay to 60 months'
imprisonment and two years’ supervised release, as well as a $50
assessment, for his conviction on the wire fraud charge. Shay's
primary argument at sentencing and here is premised upon the ex
post facto clause,”"* which prohibits Congress from passing a law
that increases the punishment for a crime after it has been
committed. United States v. Harris, 79 F.3d 223, 228(2d Cir.)
(citing Collins v. Youngblood, 457 U.S. 37, 41-42, 110S. Ct.
2715, 2718-19, 111 L. Ed. 2d 30 (1990)), cert. denied, 117 S. Ct.
142, 136 L. Ed. 2d 89 (1996). Ordinarily, a court ought to apply
the version of the Guidelines in effect at the time of sentencing. 18
U.S.C. 5 3553(a)(4)(A). If, however, there is an ex post facto
problem, the version in effect at the time the offense occurred
should be used. United States v. Paccione, 949 F.2d 1183, 1204
(2d Cir. 1991); United States v. Adenivi, 912 F.2d 615, 618 (2d
Cir. 1990). See also, U.S.S.G. § IBI.11(b)(1)(1995) (“If the court
determines that use of the Guidelines Manual in effect on the date
that the defendant is sentenced would violate the ex post facto
clause of the United States Constitution, the court shall use the
Guidelines Manual in effect on the date that the offense of
conviction was committed.” An ex post facto problem arises if the
'*No...ex post facto Law shall be passed.” U.S. Const. art.
I, § 9, cl. 3.
30
version in effect at the time of sentencing ‘makes more onerous
the punishment for crimes committed before its enactment. Miller
v. Florida, 482 U.S. 423, 435, 107 S. Ct. 2446, 2453-54, 96 L. Ed.
2d 351 (1987)(quoting Weaver v. Graham. 450 U.S. 24, 36, 101
S. Ct. 960, 968,67 L. Ed. 2d 17 (1981)); accord, Paccione, 949
F.2d at 1204.
Shay objects to Judge Brieant’s application of the November
1, 1989, Guidelines Manual which, he asserts, became effective
after the wire fraud scheme was completed. Shay maintained at
sentencing that “as soon as they got a preliminary injunction from
the court [in October 1989], no further representation was made to
a trucker that further dumping was legal . . . .” He asserted that,
because the offense conduct for which he was convicted took
place between February and early October of 1989, he could not
constitutionally be sentenced under Guideline amendments which
became effective after that time period, and his sentence must
therefore be vacated and remanded.
If Shay is accurate in stating that his conduct ended in
October of 1989, the trial courts use of the November 1989
Guidelines does violate ex post facto principles, because the later
Manual yields a more onerous offense level -- up to five levels
higher -- than does the earlier Manual.'? The Government,
however, argued that Shay's misconduct continued past October
of 1989 and through 1992, by virtue of his "attempt re-open the
landfill, with respect to misrepresentation to the victim, which is
[PADER]. The Government therefore insisted that the date of the
Count Five wire fraud offense, for Guidelines purposes, was the
’’"The district court agreed as much. ("If your version of
the facts is correct, I think that's true.) As discussed infra,
Amendment 154 to the “Value of the Loss” enhancement changed
the increase in level for a loss between $1 million and $2 million
from nine to either eleven or twelve. Amendment 156
implemented the “Conscious or Reckless Risk of Serious Bodily
Injury” enhancement, which added two levels to Shay’s sentence.
31
last day of that continuing misconduct. Shay responded by
pointing out the Government's concession that the victims of the
misconduct charged in the wire fraud were "these truck drivers,”
not PADER. He argues that the facts alleged to support the
continuance of the wire fraud scheme beyond October of 1989
concern a separate set of misconduct involving different actus rei
and affecting different victims. Notably, the charges asserting
misrepresentations against PADER were separately charged, and
later dismissed pursuant to Fed. R. Crim. P. 29(c).
Judge Brieant initially noted that all of the wire
communications specified in the charge were alleged to have been
made prior to November 1, 1989, and observed that if no later
misrepresentations were alleged, the ex post facto clause would
require application of those Guidelines in affect in October of
1989. He expressed his concern that the object of the wire fraud
scheme could no longer be achieved once the dump closed on
October 5" or 6" of 1989 and money was no longer being received
from any trucker. Ultimately, though conceding that it was “a
close question," the judge imposed the November 1989 Guidelines
in reliance on the dismissed PADER fraud counts, reasoning that
even though a prima facie case was not made out on those counts,
the conduct was “relevant conduct” which could be used as the
basis for the enhancement.
The question which we must initially answer, therefore, is
whether the conduct which was charged under Count Five can
properly be held to include Shay's continuing conduct into 1992.
We hold that it does not. Not only was the conduct against
PADER separately charged, but the trial judge dismissed that
charge for lack of a critical element -- loss of money or property
_ on PADER's part. This, along with the judge's initial comments
\ at sentencing, indicates to us that the two counts are not properly
subsumed into one huge scheme to defraud, as the Government
asserts, but rather should be thought of as separate schemes to
defraud separate victims.
32
As noted supra, uncharged or unconvicted relevant conduct,
if proved by a preponderance of the evidence, may be considered
when calculating the base sentence. As the judge noted, therefore,
he could have properly considered the fraud against PADER as a
relevant conduct enhancement to Shay's sentence, assuming the
Government met the burden of proof by a preponderance of the
evidence on that conduct. Unfortunately, this is not what the court
actually did, and therefore Watts and Concepcion principles do not
decide this case. Rather than applying an enhancement, the court
seemed to meld together the two separate schemes and consider
them as one large, continuing scheme of fraud. This was not
appropriate. The judge was not permitted to alter the date on
which the convicted conduct “occurred” to reflect the date on
which unconvicted relevant conduct was committed.
Having decided that Count Five refers only to the fraud
against the truckers and does not encompass fraud against
PADER, the question we must answer, for ex post facto analysis,
isa very narrow one: When uncharged or acquitted conduct occurs
after the conduct of conviction, does the ex post facto clause
prohibit application of Sentencing Guidelines applying to the later
ccnduct rather than those in effect at the time the convicted
cenduct ended? The Commentary to the November 1995 Manual
hes addressed this specific constitutional issue, and states
unequivocally that Congress did not intend for a particular set of
Guidelines to apply to conduct which occurred prior to its passage:
Under subsection (b)(1), the last date of the offense
of conviction is the controlling date for ex post facto
purposes. For example, if the offense of conviction (i.e., the
conduct charged in the count of the indictment or information
of which the defendant was convicted) was determined by the
court to have been committed between October 15, 1991 and
October 28, 1991, the date of October 28, 1991, is the
controlling date for ex post facto purposes. This is true even
if the defendant’ sconduct relevant to the determination of the
33
guideline range under § 1B1.3 (Relevant Conduct) included an
act that occurred on November 2, 1991 (after a revised
Guideline manual took effect).
U.S.S.G. § 1B1.11 comment. (n.2) (Nov. 1995). This set of
Guidelines thus requires the district court to determine the last date
of the offense of conviction, and instructs that the date of relevant
conduct may not be substituted for the date of convicted conduct.
Although we are not compelled to rely upon this Commentary
because it is not !ncorporated in either of the Manuals considered
here, we find it to be highly persuasive evidence of the Sentencing
Commission's intent. Because it comports with ex post facto
considerations, we happily utilize it in our interpretation of the
Guidelines. We therefore hold that Judge Brisant's use of the
November 1989 Guidelines to sentence Shay for a course of
conduct which ended in October 1989 violated the ex post facto
clause.
Shay's sentence is vacated and remanded for re-sentenciiig
in accordance with the Guidelines in effect during October
1989.Upon re-sentencing, the court may take into account any
secondary conduct proved by a preponderance of the evidence.
We caution the court, however, that if it finds such relevant
conduct occurred, Shay's penalty may only be increased to the
extent permitted under § 1BI.3 of the Guidelines in effect in
October of 1989, even if the relevant conduct occurred when the
November 1,1989, Guidelines were in affect. We so instruct the
court in reliance upon the ‘one-book rule.’ See United States v.
Keller, 58 F.3d 884, 890 (2d cir. 1995) (“A sentencing court has
no authority to pick and choose, taking one provision from an
earlier version of the guidelines and another from a later version.
We adhere to the so-called ‘one-book rule’ that most other circuits
use to avoid twisting the guidelines, depriving them of uniformity
and consistency.”). See also, United States v. Bertoli, 40 F.3d
1384, 1404 n.17 3rd Cir. 1994) ("[W]hen ex post facto clause
34
issues arise, while the one-book rule cannot apply to compel
application of the later Manual to all counts, it can certainly
compel application of the earlier Manual.”).
b. Sentencing Enhancements
Having determined that the court improperly utilized the
November 1989 Guidelines, our task becomes simpler and the
district court's more burdensome with regard to Shay's other
assertions of error. First, he argues that the district court
improperly imposed a two-point enhancement for Shay's
“conscious or reckless risk of serious bodily injury” pursuant to §
2F1.1(b)(4) (1989). The court imposed the sentence in
consideration of Shay's asserted disregard for the health of his
neighbors, whose water wells were contaminated by the waste in
the Matamoras landfill. Although Appellants and the Government
have fully briefed the issue of whether Shay's conduct constituted
conscious or reckless risk of “serious bodily injury,” as defined by
§ 1B1.1, comment. (n.1(j)), we need not address that point. The §
2F1.1(4) enhancement was not in affect until the November 1989
- version of the Manual, and thus Shay cannot be sentenced in
consideration of it.'* We therefore remand for resentencing in
consideration of the October 1989 Guidelines."
18"The commentary to the, amended section states: “The
purpose of this amendment is to reflect the instruction to the
Commission in Section 2(b) of the Major Fraud Act of 1988. The
commission has concluded that a 2-level enhancement with a
minimum offense level of 13 should apply to all fraud cases
involving a conscious or reckless risk of serious bodily injury.
U.S.S.G. App. C, am. 156 (1995).
'™We note, however, that prior to the 1995 addition of
2F 1.1(4), Application Note 9(c) to § 2F1.1 (1987) provided for an
upward departure if the conduct was harmful or serious in ways
other then in dollar amount, specifically, if the offense caused or
risked physical or psychological harm." The district court is free
35
We likewise must remand for recalculation of the “Fraud
and Deceit Loss” for which Shay was responsible. The PSR’s
calculation of the loss under § 2F 1.1(b)(1) (1989) determined that
a 12-level enhancement was appropriate ‘based on an estimate of
between $1,500,000 and $2,500,000 in loss, nearly the entire
amount grossed by TSLD between February and October 1989.
Appellants asked the court to make particularized findings as to
what amount of fraud was attributable to Shay, and asked that the
court find “both what conduct or acts were within the scope of the
defendant's agreement to participate in the jointly undertaken
criminal activity and whether the jointly undertaken criminal
activity was reasonably foreseeable to the defendant.” Shay
contended that only the receipts available during September and
October of 1989 were reasonably attributable to him. At
sentencing, the court made no particularized findings on this point,
but stated that "an awful lot” or a “considerable amount" of the
materials dumped at the site were known by Shay to be in non-
compliance with what PADER was shown on the April 1989 visit
to the transfer stations, and that such non-complying dumping
continued almost throughout the period.
Tw issues are at play here: a legal issue, again relating to
€x post facto considerations, and a factual issue, relating to Shay’s
criminal liability. Under the Guidelines in effect in October of
1989, even if Shay actually wan responsible for between
$1,500,000 and $2,500,000 in loss, his base sentence would only
be increased by either 9 or 10 levels, not 12 levels. § 2F 1.1 (b) (1)
(J)-(K) (1988). Upon remand, the court is to consider that version
of the Guidelines, and to likewise reconsider the second factual
issue, whether Shay can be held responsible for the entire fraud
amount, in the light of the language and policies enunciated in that
version of §1B1.3 and § 2F1.1(b)(1).
to consider that provision on remand.
36
2. Herzog’s Assertions of Error
a. Sufficiency of Evidence
Appellant Herzog asserts that the trial judge improperly
denied his post-trial motion to dismiss Counts Twenty-Seven,
Twenty-Eight, and corresponding Racketeering Act Twenty for
insufficient evidence. The Government asserts the following
facts:
In July 1990, Herzog and attorney John Zagari met with
engineers employed by CHMR to discuss CHMR’s performing of
sampling and testing operations at the Matamoras site. Herzog
and Zagari falsely told the CHMR engineers that PADER had
approved the previous dumping at Matamoras. Herzog and Zagari
then insisted that a CHMR report conclude that more fill should be
brought into the site and that nothing needed to be removed from
the site.
When CHMR began sampling by trenching at the
Matamoras site in August 1990, heavy concentrationsof hydrogen
sulfide gas emerged from the ground. Because such explosive gas
presented a danger to workers and the community, the trenching
was immediately terminated and CHMR began to use test borings
as a safer sampling method. PADER continued to insist that the
site be cleared and emptied and that CHMR's report address and
evaluate removal remedies.
Despite Zagari’s efforts to dictate the contents of CHMR's
report by threatening the CHMR employee responsible for
preparing the report, CHMR’s draft December 1990 report
indicated that the debris at Matamoros reflected a very high
percentage of wood in the material; that decomposition of the
structural lumber in the debris had caused the high levels of
hydrogen sulfide gas detected at the site; and that one
het Le et alt te at
37
recommended corrective measure was removal of the existing
waste. The draft report did not propose the addition of more C&D
debris. After receiving this draft report, Zagari sent CHMR his
redraft of the text of CHMR’s recommendations, making them
consistent with Herzog’s earlier demands. Then, in a series of
meetings and conversations with CHMR representatives, Zagari
made it clear that CHMR would not be paid unless the report
included the proposals that Zagari and Herzog demanded. Herzog
and Zagari also told CHMR they would be paid only after filling
operations recommenced.
Thereafter, a final report was provided to Zagari in which no
conclusions were contained in the text of the report (instead,
conclusions were in a separate cover letter); the wood content of
the fill was reported to be within a falsely understated range; a
reason offered for not removing the fill was the explosive nature
of the hydrogen sulfide gas; the addition of more fill material was
listed as the preferred remediation proposal; and removal of the
offending debris was not addressed or evaluated in any way as
corrective option. After defendants received this final report, they
stopped making payments to CHMR.
The prosecution alleged in counts Twenty-Seven and
Twenty-Eight that Herzog schemed "to obtain a favorable report"
on the Matamoras landfill “by falsely promising to pay” CHMR
for that report. Three former CHMR employees testified in
support of these charges: Robert Clarke, Donald Barshter and
Michael Poe. After trial, Herzog moved to dismiss Counts
Twenty-Seven and Twenty-Eight as well as RICO Act 20,
asserting that no evidence was presented from which a rational
jury could infer that defendants made false promises to pay
CHMR. The undisputed testimony, according to Herzog, is that
CHMR's bill had been paid in full, and that the company had
undertaken a subsequent project for the defendants.
In denying Herzog's motion, the district court stated that
“defense counsel made a tactical decision [at trial] to omit... proof
38
of the purported post-1990 payments to CHMR. That decision .
. cannot be a basis now to overturn an otherwise proper
conviction by a trial jury." Herzog argues that the court thereby
impermissibly shifted the burden of proof: It was the
Government's burden to show that CHMR had not been paid, not
Herzog's burden to show that it had. He states that, because no
rational jury could conclude from the evidence in the record that
CHMR had not been paid, the two Counts and the Act must be
dismissed.
A challenge to the sufficiency of the evidence supporting
conviction by jury trial is viewed in the light most favorable to the
Government. See Glasser v. United States, 315 U.S. 60, 80,62 S.
Ct. 457, 469, 86 L. Ed. 680 (1942); United States v. Amiel, 95
F.3d 135, 141 (2d cir. 1996) (quoting United States v.
Badalamenti, 794 F.2d 821, 828 (2d Cir. 1986)). The verdict-will
be sustained unless no "rational trier of fact could have found the
essential elements of the crime beyond a_ reasonable
doubt."Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789, 61 L. Ed. 2d 560 (1979). Count Twenty-Seven charged
wire fraud; Count Twenty-Eight charged mail fraud. ""[T]he
essential elements of a mail [or wire] fraud violation are (1) a
scheme to defraud, (2) money or property [as the object of the
scheme], and(3) use of the mails [or wires] to further the scheme.”
United States v. Dinome, 86 F.3d 277, 283 (2d Cir. 1996) (quoting
United States v. Miller, 997 F.2d 1010, 1017 (2d Cir. 1993)
(quoting United States v. Wallach, 935 F.2d 445, 461 (2d Cir.
1991)))(alterations in original, some alterations in Miller). See
also Amiel, 95 F.3d at 142 (mail fraud only).
Herzog's argument misses the mark, because it is based on
the erroneous assumption that the Government needed to prove
that CHMR had not been paid. In fact, it needed only to present
evidence from which a juror could rationally infer that Herzog had
intended to defraud CHMR. “To establish the existence of a
scheme to defraud, the government must present proof that the
defendants possessed a fraudulent intent . . . [T]he government is
39
not required to show that the intended victim was actually
defrauded [,but) need only show that the defendants contemplated
some actual harm or injury.” Wallach, 935 F.2d at 461 (citations
omitted) (discussing mail fraud), see United States v. Gelb, 700
F.2d 875, 879 (2d Cir. 1983) (same); Dinme, 86 F.3d at
283(discussing mail and wire fraud). The evidence at trial was
sufficient to show intent to defraud CHMR. See Gelb, 700 F.2d
at 880 ("[P]roof need only be sufficient to establish a specific
intent [to defraud, which] need not necessarily be proved by direct
evidence, but may also be inferred from the defendant's actions
end other circumstantial evidence.”). The trial court thus properly
denied Herzog's Rule 29(c) motion to dismiss those counts.
b. Herzog's Sentencing Increases
Herzog next asserts that the district court improperly is
applied three different sentencing guideline increases to his
sentence, and that his sentence should therefore be vacated and
remanded.”
1) Obstruction of Justice
Section 3 C 1.1 of the November 1995 Guidelines provides:
"If the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense at
*°As noted in our discussion of ex post facto concerns
relating to Shay’s sentence, a sentencing court ordinarily applies
the Guidelines in effect at the time of sentencing. Herzog’s
sentencing occurred on February 20, 1996, bringing into effect the
1995 version of the Guidelines. Because Herzog’s conduct
continued into 1992, and because the 1995 Guidelines do not
provide for a higher level of sentencing than would those in effect
for 1992, no ex post facto concerns arise. The court thus properly
applied the 1995 Guidelines.
40
a two-level increase in warranted. In imposing this increase to
_Herzog's sentence, the court relied heavily upon the Presentence
Report (PSR). The PSR reported PADER's 1990 civil
enforcement action against, inter alia, Herzog, and described his
related January 16, 1991, deposition as being "replete with
fraudulent statements with regard to virtually every aspect of the
Matamoras site.” The PSR stated that, while “Herzog was not
charged with perjury, it is our position that his offering of
counterfeit statements was indeed purposeful, and as such,
constitutes the obstruction of justice.”
In finding that there were indications of Herzog's
“significant guilty knowledge which led him to perjure himself in
the civil case,” the sentencing court stated that "the activities of
the PADER lawsuit, which while they required an indictment,
occurred after the FBI was investigating the matter and probably
at the incentive or instance and request of PADER, among others.
It is adequate to support an adjustment for intentional efforts to
impede an ongoing investigation.” The court thus found that
Herzog was aware of the federal investigation and that his
knowledge of it was the motivation for his perjury in the state
deposition.
Herzog counters, however, that even if the judge believed
that perjury occurred in the related state civil regulatory suit, that
should not constitute a basis for an obstruction of justice
enhancement in this criminal federal action. Certainly, there are
circumstances in which perjury in a state civil action would be
utterly irrelevant to a federal criminal matter, even if the same
defendant were involved. Here, however, the connection between
the two cases is quite close. We agree with the district court's
conclusion that, here, perjury in the civil action could constitute
obstruction of justice in the instant federal offense. In order for
the court to properly reach the conclusion that Herzog's statements
in the state deposition did actually warrant imposition of the §
3C1.1 obstruction of justice enhancement, the court was required
to make certain findings. Application of § 3C1.1 generally
4)
requires findings of willfulness and materiality. See U.S.S.G. §
Cl.1 comment. (n. 3 (d), (f)-(h)). The willfulness requirement
means that the enhancement “is appropriate only upon a finding
that the defendant had the specific intent to obstruct justice, i.e.,
that the defendant consciously acted with the purpose of
obstructing justice.” United States v. Defeo, 36 F.3d 272, 276 (2d
Cir. 1994) (citation omitted); see also United States v. Reed, 49
F.3d 895, 900 (2d Cir. 1995) (“[T]he term ‘willfully,’ implies a
mens rea requirement.”), aff d after remand, 88 F.3d 174 (2d Cir.
1996).
An enhancement for obstruction of justice may therefore be
granted if the court finds that the defendant willfully and
materially impeded the search for justice in the instant offense.
Such obstruction can be accomplished in many ways, one of
which in the giving of perjured testimony. If a court chooses to
rely upon allegedly perjured testimony as a basis for application
of the enhancement, however, it must make specific findings
which indicate that the judge has considered all of the elements of
perjury, including materiality, and has found that they have all
been met. United States v. Dunnigan, 507 U.S. 87, 92-95, 113
S.Ct. 1111, 1115-17, 122 L. Ed. 2d 445 (1993) required that,
before applying this enhancementon the basis of apparent perjury,
a sentencing court must explicitly find that the defendant gave
“false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake or faulty memory” -- i.e., that the defendant
committed perjury rather than simply providing false testimony.
Id. at 94. Dunnigan went on to hold that this requirement could be
met if the court makes a finding of obstruction of justice which
encompasses all of the factual predicates for perjury, though
noting that distinct findings on each element of the alleged perjury
were preferable. We have held that a finding of perjury must
include findings that the witness gave false testimony concerning
a material matter with the willful intent to provide false testimony.
See United States v. Catano-Alzate, 62 F.3d 41, 43 (2d Cir. 1995)
(per curiam); see also, United States v. Williams, 79 F.3d 334,
42
337-38 (2d Cir. 1996) (sentencing court must make finding of
willful perjury even if defendant's testimony was so inherently
untruthful that factual predicates to perjury were obvious); United
States v. Cox, 985 F.2d 427, 432-33(8th Cir. 1993).
Our law to date, therefore, provides that in order to base a
§ 3 Cl.1 enhancement upon the giving of perjured testimony, a
sentencing court must find that the defendant 1) willfully 2) and
materially 3) committed perjury, which is (a) the intentional (b)
giving of false testimony (c) as to a material matter.
Judge Brieant's express finding that Herzog committed
perjury and was motivated to do so by the existence of the federal
investigation is adequate to most the willfulmess requirement, as
well as elements “a” and “b” of the third perjury finding. We do
not believe, however, that the court addressed the second element
of materiality nor the third materiality prong of the perjury
element.
We understand the materiality element to mean ordinarily
that the intentional giving of false testimony must be material to
the proceeding in which it is given. In other words, Herzog can be
found to have committed perjury in the state proceeding only if the
sentencing court finds that he intentionally gave false testimony
which was material to the state civil action. Dunnigan requires this
finding prior to application of the enhancement based on
“perjury.”
This case, presents an additional twist. Where, as here, the
enhancement is applied based upon perjury made not in the instant
judicial proceeding, but, rather, in a related but separate state
action, we must assume that the element of materiality which is
required by the Guidelines (as opposed to that required for a
finding of perjury) must refer to a finding that the false testimony
is material to the instant action. Just because perjured testimony
is given in a related action, and simply because that testimony is
found to have been material to the related proceeding, does not
43
mean that the statements are material to the instant proceeding.
We believe that, even if the court finds that Herzog's statements
constituted perjury because they were material to the state
proceeding, it must also find that the perjury was material to the
instant federa! offense before applying that state perjury as the
basis for a § 3 C1.1 enhancement of his federal sentence. We thus
hold that, when false testimony in a related but separate judicial
proceeding is raised as the basis for a § 3 C1.1 obstruction of
justice enhancement, a sentencing court may only apply the
enhancement upon making specific findings that the defendant
intentionally gave false testimony which was material to the
proceeding in which it was given, that the testimony was made
willfully, i.e., with the specific purpose of obstructing justice,?!
and that the testimony was material to the instant offense.
The sentencing court did not make findings with respect to
either aspect of materiality. Although Judge Brieant found that the
false state deposition was motivated by the instant federal offense,
motivation alone does not equate to materiality. We therefore
vacate Herzog’s sentence and remand for additional findings.
2) Duress/Aggravating Role
Herzog argued at sentencing that "the real manager and
supervisor" of the criminal activity was Alphonse D'Arco, a high-
ranking member of the Luchese Crime Family with an alleged
hidden interest in the Matamoras landfill. He insists that his own
apparent authority derived from D'Arco’s "duress, coercion and
blackmail." On appeal, he argues that the court violated his Due
Process rights by failing to subpoena D'Arco to testify in an
evidentiary hearing on this matter, and that the court thereby
erroneously applied a four-level increase, pursuant to § 3Bl.1(a),
as a result of Herzog's leadership role in the crimes charged. Both
his argument at sentencing and his appeal to us seem to blend two
*'“Willful” is thus distinct from "intentional,” which is
the purposeful giving of the false testimony.
44
issues: whether a downward departure should be granted on the
basis of duress pursuant to § 5 K2.12, and whether an upward
departure should be applied on the basis of aggravating role
pursuant to § 3Bl.l(a). Although [g]enerally.....a failure to depart
downwardly is not appealable[,].......if the due process right
asserted by appellants exists and the denial of a departure violated
that right, the constitutional aspects of the denial would be
appealable.” Gigante, 94 F.3d at 56 n.2 (citing United States v.
Colon, 905 F.2d 580 (2d Cir. 1990)). We thus will address both
issues, as did the district court.
Section 5 K 2.12 provides that the court may depart
downwardly “[i]f the defendant committed the offense because of
serious coercion, blackmail or duress,” which “[O}rdinarily . . .
will be sufficiently serious to warrant departure only when it
involves a threat of physical injury, substantial damage to property
or similar injury resulting from the unlawful action of a third
party........ ” Section 3B1.1(a) provides for an increase of four
levels "[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive ...." U.S.S.G. § 3B1.1(a) (1995). The sentencing court
is entitled to broad discretion in resolving disputed factual issues,
including an assessment of the credibility of witnesses. Eg.,
United States v. Beverly, 5 F.3d 633, 642 (2d Cir. 1993). The
court also enjoys broad discretion on the decision of whether an
evidentiary hearing is necessary, see Ibanez, 924 F.2d at 430, and
the Due Process Clause does not mandate that the court conduct
“a full-blown evidentiary hearing, " United States v. Olvera, 954
F.2d 788, 792 (2d Cir. 1992).
The district court found Herzog's assertion that he was
coerced into his conduct to be "almost . . . frivolous” in light of
Herzog's close dealings with the Luchese Family.” The court's
*2The court stated that its “initial reaction is to regard
[Herzog's assertion of duress and fear] almost as frivolous. The
facts at trial show that Mr. Herzog participated in robbing D'Arco
45
determination that Herzog was not subjected to duress and
corresponding refusal to subpoena D'Arco was not erroneous and
did not constitute a violation of due process. After reviewing the
trial transcript, we agree that “(hjardly have we ever known
anyone who was so willingly duressed.” We find no error in the
trial court’s refusal to depart downwardly on the basis of duress.
Likewise, we believe that the court correctly disregarded
Herzog's allegation that D'Arco was the true “leader" of the
Matamoras scheme, and held that Herzog's sentence should be
enhanced based upon his leadership role. This circuit, however,
requires a sentencing court to make two specific findings prior to
imposing any offense-role enhancement: “(i) that the defendant
was an ‘organizer or leader,’ and (ii) that the criminal activity
either ‘involved five or more participants' or ‘was otherwise
extensive.’ United States v. Patasnik, 89 F.3d 63, 68 (2d Cir.
1996); see United States v, Fermin, 32 F.3d 674,682 (2d Cir.
1994) (remanding because district court failed to make finding as
to whether defendant was “manager or supervisor"), cert. denied,
115 S. Ct. 1145, 130 L. Ed. 2d 1104(1995). While the court
expressly found that Herzog acted as a manager, it failed to make
findings with respect to the issues of whether "five or more
persons" were involved in the criminal activity or whether the
activity was “otherwise extensive.”2> Without this finding, the
body bags in his car and was going to kill you." The court noted,
for example, that Herzog had initiated communications with a
crime operation headed by John Gotti, Jr., and stated "it's highly
unlikely to me that a person who has been subject to duress by
organized crime . . . is going to willingly have any relationship
whatever with John Gotti, Jr., whose exploits and those of his
father are reported in the daily newspapers so that everyone knows
about them.”
The entirety of the court's comments regarding
aggravating role reads as follows: “This Court observes that
D'Arco was hardly ever there and that Mr. Herzog performed
46
more appropriate enhancement would be the two-level increase
permitted by § 3BI.I(c), which applies to organizers or leaders of
non-extensive criminal activities. See United States v.Carrozzella,
105 F.3d 795, 802-05 (2d Cir. 1997). We therefore remand for
additional fact-finding on this second necessary finding.
3) Enhancement for $500,000 in Laundered Monies
Finally, Herzog argues that the district court improperly
added uiree points, pursuant to U.S.S.G. § 2SI.I(b)(2)(D), for his
having laundered over $500,000. Herzog asserts that this figure
represents the total amount of allegedly laundered funds charged
in all 28 money laundering counts and 14 related racketeering acts,
despite the fact that he was acquitted of all but six of the money
laundering counts and three of the related racketeering acts.
Because the amount of laundered money corresponding to those
charges and acts is only $70,000, Herzog argues that he should
have received no increase, per § 2S1.1(b) (2) (A).
Herzog first again makes the argument relating to the district
court's refusal to subpoena D'Arco, which we have already
rejected. Because, he asserts, D'Arco's testimony would possibly
have provided more information as to the amount of money
actually laundered, his due process rights are violated by the
imposition of this enhancement without issuance of a subpoena
for an evidentiary hearing. For the reasons enunciated supra, we
reject this argument.
Second, Herzog raises the issue which we have already dealt
with in our discussion of Shay's sentencing enhancements -- the
use of the "preponderance of the evidence" standard of review on
unconvicted conduct. We have already declined Appellant's
many significant management functions having to do with checks
and money [,] appearing at hearings, dealing with governmental
agencies, .and to say that he was not a manager simply denies
reality.”
ee
47
invitation to re-visit this matter. In light of the pre-sentence report
findings, we find that the district court properly applied the lower
preponderance standard to enhance Herzog's sentence in
accordance with the entire $500,000 laundered amount. We
therefore affirm the court's sentence in this regard.
Conclusion
Shay's sentence is remanded for recalculation under the
Guidelines in effect in October of 1989, at the time that the
conduct charged in Count Five occurred. Herzog's sentence is
remanded for additional findings as to the materiality of his false
testimony in the related state civil proceeding to both that
proceeding and to this case, and for findings as to whether more
than five people were involved in the scheme to defraud or
whether the scheme was otherwise extensive.
48
APPENDIX B
Oral Opinion of United States District Court
for the Southern District of New York
(Brieant, D.J.)
Excluding Rule 806 Evidence
(May 10, 1995)
UNITED STATES of America, Plaintiff,
V.
Donald HERZOG, Defendant.
The Court turns then to the affidavit. The affidavit clearly
would be admissible under the express terms of Rule 806 of the
Federal Rules of Evidence, if hearsay statements of Mr. Borden
have been received in this trial record within the definition of Rule
801 (d) 2 (c) , (d) or (e). And there, that type of hearsay is hearsay
which is acceptable because of joint criminal activity or an agency
situation where the words of the hearsay declarant are attributable
to the person on trial as the defendant for either of those reasons,
and are sought to be introduced into evidence as proof of the truth
of the facts set forth in the hearsay declaration.
So far as I can see in this entire trial record, any hearsay
declarations of Mr. Borden were never admitted for the proof of
the truth thereof. They were admitted for the fact that they were
said. 7
Some of them were said in the presence of witnesses who
testified who were clearly adverse to defendants, people such as
officials of the Pennsylvania Department of Environmental
Regulations, PADER as it’s called, and as | said earlier, are
admissible only for the fact they were said.
i enaeearenneereeenee eal
ee Ce See ce
49
Many of them are not hearsay because they are statements of
present intention or they come within some other exception other
than 801. So the case — Rule 806 does not read directly on this
issue.
Furthermore, the Court regards the affidavit as largely either
self-serving or setting forth information as to the knowledge and
intent of the attorney, and bearing on the issue of whether he was
simply acting as a lawyer who, as he says, had no special interest
in the Shay matter. It was one of numerous acts of matters
handled by me during the period of my involvement and
represented only about one percent of the firm’s revenue during
the period,” which all may very well be true, and that was the
purpose of the affidavit, to demonstrate non-involvement or
innocent conduct, and his innocence is essentially not relevant.
Most of the information in here is cumulative or represents
his own conclusions, which would be irrelevant. And most of it
is accessible to the defendants by the testimony of others.
Anything that Borden did in the case he did in the presence
of somebody else, including for the most part non-defendants.
The fact that a defendant knows of something of his own
knowledge, he has the right to testify about it himself, but of
course, he’s not required to. On the other hand, I think the fact
that he can do so bears upon the issue of necessity.
The Court does not believe that there will be any substantial
injustice in this case by refusing to take the largely cumulative and
essentially useless affidavit of Mr. Borden. And since it’s sought
to be offered under Rule 806, | really find Rule 806 non-
applicable.
As far as the attorneys’ memorandum is concerned, the
attorneys had no knowledge except what they got from Borden,
and essentially, it contains little of substance which will be of
assistance to the triers of fact here in this case.
50
While it’s a very workmanlike job to avoid indictment by
the client, essentially, I don’t believe there is any independent
basis to receive it in evidence. The attorneys testified before me
in the absence of the jury but it was quite clear they knew nothing
about the case itself.
Now, those constitute my findings and conclusions and my
ruling on this motion. And I can see that the motion raises
significant issues on — some of them are somewhat on the cutting
edge of the law.
I know that this is important to all of you and if there is
some additional fact you would like the Court to find or decline to
find so that my decision will be clear and complete, I would like
to entertain any such additional requests and I would like to begin
with the U.S. Attorney.
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APPENDIX C
Oral Opinion of United States District Court
for the Southern District of New York
Denying Rule 33 Motion
(December 26, 1995)
UNITED STATES of America, Plaintiff.
Vv
Donald HERZOG, Defendant.
I will now discuss with you the issue of Jerry Dotey. The
defendants at this hearing and in numerous submissions to the
Court argue that their convictions should be overturned based
upon the alleged insanity of Jerry Dotey, a key witness for the
Government, and Mr. Dotey is referred to in the argument as a
pathological liar.
First, the burden is upon a moving defendant to demonstrate
which of the counts upon which he was convicted was based upon
the uncorroborated testimony of Jerry Dotey. Finding there to be
a mountain of evidence in this case, much of which were taped
conversations in the defendants’ own words, the Court concludes
that the jury must have based the convictions on such ample other
evidence and not solely upon that part of the testimony of Mr.
Dotey, if any, which may be uncorroborated. As such, the
information now presented as to Mr. Dotey in the Court’s
conclusion is not significant as to the jury’s verdict.
To the extent the jury may have based its verdict on the
testimony of Mr. Jerry Dotey, the Court notes that the jury is well
and fully made aware of the evil character of Mr. Dotey. At trial,
evidence was presented to the jury by both the Government and
the defendants that Mr. Dotey was a con man, that he lied about
being affiliated with the C.I.A., that he was an unlicensed
52
professional engineer on the Matamoras project, and that he had
feigned being shot at, and there is more. The Court incorporates
the entire trial record in its findings on this motion.
This Court concludes that the jury had ample evidence
presented to it at trial, sufficient to assess the credibility and
reliability of Mr. Dotey as a witness, and to decide what weight,
if any, to accord his testimony. Indeed, based on his demeanor the
jury could well have thought that he was insane, or if not insane,
subject to delusional behavior or practice of telling lies without
having any clear purpose in telling the lies, which is essentially
what pathological liars are believed to do.
The Government presents on this motion a detailed
compilation of the voluminous evidence introduced at trial in
support of the convictions. The Government has now
demonstrated that the testimony of Jerry Dotey on every material
topic was corroborated by some other evidence. There is really no
uncorroborated testimony by Mr. Dotey, and the transcript at trial
includes exhibits which show the presence at meetings and
testimony of the officials from PADER and New York DEC and
others.
The Court finds that the balance of the counts are essentially
all corroborated by testimony of others. Counts 27 and 28, 30 and
31, 33 and 34, 42 and 43 do not depend on any proof based upon
the testimony of Dotey. The Court incorporates the Government’s
memorandum, pages 4 through 19, as part of its findings. This
includes the mail and wire fraud against the C.H.M.R., the mail
fraud and wire fraud against the Town of Rochester, and the mail
and wire fraud against Photo-Vac International, and the tax return
falsifications. None of that depends on Dotey.
The defendants argue that Counts 30 and 31 are tainted
because Dotey was the only one to testify that tests done by
Prosser Laboratories were falsified and altered according to the
instructions of Mr. Herzog and Mr. Christiansen, and that,
therefore, the Rochester mail and wire fraud scheme depends
53
completely upon Dotey’s credibility. That’s in Mr. Santangelo’s
affidavit on page 6.
The Court does not find this contention to be supported by
the trial record. The altered laboratory reports were placed in
evidence, as were the original unaltered reports. That’s Exhibits
17-A and 17-B.
A representative of Prosser Laboratories itself testified to the
accuracy of the original report as distinguished from the altered or
forged report used by the defendants at Rochester. That’s Mr.
Scholtz in his testimony at pages 4275 through 4280. And the
New York State Department of Environmental Conservation
permit application, in which the altered Prosser Laboratory report
was included, was placed in evidence as Government Exhibit 106.
Mr. Harry Purcell, who was then the supervisor of the Town
of Rochester, testified that he had used the altered reports as part
of the permit application process, and a witness from the New
York Department of Environmental Conservation testified that the
altered Prosser Lab report was received by them. That’s Mr.
Ciesluk, page 4178.
Finally, the Government played a tape in which Mr.
Christiansen conceded his knowledge of and participation in the
use of the falsified Prosser Lab reports in the Rochester matter.
The only other count cited by defendants as dependent on
Mr. Dotey is Count 5, the wire fraud count for which the
defendants claim Mr. Dotey’s testimony concerning the
conversations between Mr. Borden and the defendants was the
linchpin upon which the Government proved the wire fraud
against the truckers which occurred after September 15th, 1989, as
alleged in Count 5, and the three racketeering acts of money
laundering against Mr. Herzog.
As set forth in the Government’s memorandum in greater
detail, pages 4 through 6, the proof on Count 5 was founded upon
54
a substantial number of witnesses, including several
representatives of PADER, persons engaged in waste hauling,
transfer station operators, and people living on Rose Lane,
documentary evidence, videotapes and audiotapes, as well as the
taped conversation between Mr. Herzog and Mr. Raymond Ryder,
Exhibit 1132, in which Mr. Herzog admitted that the last period of
dumping in September and October 1989 was in defiance of
PADER’s orders.
Thus, the Court concludes that all of the counts of the
convictions were either not based on evidence from Mr. Dotey or
were based on suffient additional evidence beyond that provided
by Mr. Dotey, and all of these convictions are amply supported by
the evidence presented at trial. And this is particularly true in light
of the legal presumptions which now apply, namely that the
Government is entitled to all the favorable inferences to be drawn
from the evidence at trial, taken as a whole.
The Government observes that the defendants have not
addressed directly the Government’s recitation of the proof at trial
on each count. The Court concludes that the proof on each count
of the conviction, even without the testimony of Mr. Dotey, if his
testimony were discounted in full, except to the extent
corroborated by contemporaneous documents or tapes, would be
legally and factually sufficient to support the jury’s verdicts.
We will now consider the issue of whether the defendants
were denied discoverable material. By affidavits, the Government
asserts that the defenants had access to the same inforamtion as it
did as to Mr. Dotey’s false claims of being an engineer or having
worked for the C.I.A., and could have interviewed Dr. Scott to the
extent he had any memory of Dotey. The Government has now
submitted the affidavit of his former spouse, dated October 26,
1995, which establishes without contradiction that since 1994 Dr.
Scott’s mental competence and his memory have been
substantially impaired, and that she is his full-time care giver.
These affiants disavow any knowledge of the Rosenbaum
55
report prior to the hearing and argue that they have since
discovered that the Secret Service destroyed its documents as a
routine matter prior to the hearing.
The Government, however, asserts, and the Court tends to
agree, that the defendants cannot establish that the work of David
Rosenbaum, alleged by the Government through the affidavit of
Mr. Rosenbaum to be fictional, is discoverable material under
Rule 16, or that they were required to produce it through the
totality of the circumstances in this case under either Brady, Giglio
or Kyles. The defendants have provided no one to establish
factually that this allegedly fictional work contains verbatim
Statements by Jerry Dotey.
The Court relies on the Rosenbaum affidavit Paragraphs 8
and 9.
The defendants claim that the representations that this work
is fictional are false. However, in light of its finding that the
Rosenbaum Report is not material evidence, this Court probably
need not make a determination as to the nature of this work,
namely whether it is fictional or was believed at the time by Mr.
Rosenbaum-to be factual.
The fact that such famous, honorable and distinguished
persons as Circuit Judge Van Graafeiland of the Second Circuit
Court of Appeals, and Judge Duffy of this court, along with Chief
Justice Rehnquist, Justice Souter and Justice Blackmun of the
Supreme Court were identified by Mr. Rosenbaum as members of
the group, an organization seeking to control the world by the
establishment of a neo-Nazi worldwide government through
genocide on a massive scale, mind control through artificial
alteration of genetic structure and re-establishment of slavery as a
State sanctioned institution, all seems to evidence the obviously
Satirical nature of the work or perhaps at most the delusional
nature of its author.
Even if the Government were shown to have possessed the
56
Rosenbaum draft and the tapes allegedly sent to the Secret Service,
which it denies by affidavit, a Brady obligation has not been
demonstrated by the defendants, because the Government is under
no Brady obligation if the appellant knew or should have known
the essential facts permitting him to take advantage of the
exculpatory evidence. That’s the rule of the Gaggi case in the
Second Circuit. These defendants were really more familiar with
Mr. Dotey than anybody in the Government, because they had
worked with him over many months, and he had given them
worthwhile and competent professional service in connection with
any problems concerning the landfill operations.
A conviction may be set aside by this Court only based upon
a nondisclosure of evidence in violation of Brady only where the
evidence was material to the case, which is defined by the
Supreme Court as a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the trial.
That’s the Supreme Court rule in Pennsylvania v. Ritchie.
Under the case law of this circuit, and based upon the
totality of the evidence in this case at trial, this Court finds the
non-disclosure, if any, to be immaterial and does not warrant a
reversal in this case. It does not undermine confidence in the
outcome of the trial.
In addition, as I indicated earlier in my colloquy with
counsel today, this so-called evidence is largely cumulative of the
evidence pertaining to the witness’s credibility which was fully
presented to the trial jury at trial.
New evidence under the Spencer case in the Second Circuit
must do more than impeach a Government witness; it must also
contradict the Government’s case. As I observed earlier today,
there is plenty of evidence which would permit the trial jurors to
find that Dotey was an evil person, a person whose word had very
little value and is corroborated by other witnesses and/or
57
documentation, and a con man, and he lied, whether or not an
insane liar. oe
For the purpose of these motions, this Court must construe
the facts as presented to the jury at trial in the light most favorable
for the Government’s case against these defendants, and this Court
concludes from this evidence, taken as a whole, a rational trier of
fact could have found the essential elements of the crime charged,
and the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt. This Court so finds.
The Court also finds that the additional information
concerning Dotey was essentially cumulative and that the
convictions do not rest on uncorroborated testimony of Dotey.
This Court observes that the trial jury paid very careful
attention to the unduly lengthy trial, listened carefully to the
arguments of all of the attorneys. Most discerning in their analysis
of the evidence, they did not convict all of the 11 defendants who
went to trial, and they did not convict these moving defendants on
all of the counts charges. The Court can infer from this fact as
well as the Court’s entire experience in this trial that the jury gave
careful consideration of the evidence during its six days of
deliberation for each of the counts charged as to each of the
defendants, and that the outcome would not have been changed if
the additional material claimed to exist concerning Dotey had been
fully available and in the hands of trial counsel for the defendants.
The Court concludes that enough judicial and lawyer
resources have been expended to date on the issue of Dotey and
Rosenbaum, to flush out something which is quite apparently not
there. The Court concludes the convictions of all three of these
defendants were based upon ample sound evidence and was
clearly supported by voluminous proof, and the Court so finds.
The Court concludes that no further time needs to be spent
on this side issue of Dotey and believes that the motions should be
and they are hereby denied in all respects in view of the
58
overwhelming body of evidence introduced at trial in this case,
and the Court’s analysis of the trial record which this Court
believes to have been a fair trial, and the Court concludes the
defendants have failed to meet the heavy burden which is placed
upon them in seeking to get this Court to second-guess the trial
jury.
59
APPENDIX D
Opinion of the United States Court of Appeals
for the Second Circuit
Denying Petitioner’s Motion for Rehearing
(July 17, 1997)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES COURT HOUSE
40 FOLEY SQUARE
NEW YORK 10007
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse, Foley
Square, in the City of New York, on the 17th day of July one
thousand nine hundred and ninety-seven.
FILED
USA JULY 17, 1997
v. GEORGE LANGE III
CLERK
Dkt No. 96-11120 (L)
96-1121, 96-1155
60
A petition for rehearing containing a suggestion that the action be
reheard in banc having been filed herein by the appellant Donald
Herzog.
Upon consideration by the panel that decided the appeal, it
is Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc has
been transmitted to the judges for the court in regular active
service and to any other judge that heard the appeal and that no
such judge has requested that vote be taken thereon.
FOR THE COURT
GEORGE LANGE III, Clerk
By: /s/ Arthur M. Heller
Arthur M. Heller
Administrative Attorney
61
APPENDIX E
Constitutional and Statutory Provisions
Involved in this Appeal
Fed R. Crim. P. 33
Fed R. Evid. 801(d)
Fed R. Evid. 806
U.S. Const. Amend. V
U.S. Const. Amend. VI
Fed R. Crim. P. 33. New Trial
The court on motion of a defendant may grant a new trial to
that defendant if required in the interest of justice. If trial was by
the court without a jury the court on motion of a defendant for a
new trial may vacate the judgment if entered, take additional
testimony and direct the entry of a new judgment. A motion for a
new trial based on the ground of newly discovered evidence may
be made only before or within two years after final judgment, but
if an appeal is pending the court may grant the motion only on
remand of the case. A motion for a new trial based on any other
grounds shall be made within 7 days after verdict or finding of
guilty or within such further time as the court may fix during the
7-day period.
Rule 801. Definitions
The following definitions apply under this article...
(d) Statements which are not hearsay. A statement is not
hearsay if-...
(2) Admission by party-opponent. The statement is offered
against a party and is (A) the party’s own statement in either an
individual or a representative capacity or (B) a statement of which
the party has manifested an adoption or belief in its truth, or (C)
a statement by a person authorized by the party to make a
62
statement concerning the subject, or (D) a statement by the party’s
agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the
relationship, or (E) a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.
Fed. R. Evid. 806. Attacking and Supporting Credibility of
Declarant.
When a hearsay statement, or a statement defined in Rule
801(d)(2), (C), (D), or (E), has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may be
supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. Evidence of a
statement or conduct by the declarant at any time, inconsistent
with the declarant’s hearsay statement, is not subject to any
requirement that the declarant may have been afforded an
~ Opportunity to deny or explain. If the party against whom a
hearsay statement has been admitted calls the declarant as a
witness, the party is entitled to examine the declarant on the
statement as if under cross-examination.
U.S. Const. Amend. V.
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation.
U.S. Const. Amend. VI.
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.