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UNITED STATES v. MOSKOVITS

September 1, 1994

UNITED STATES OF AMERICA
v.
ALEXANDER EUGENIO MOSKOVITS



The opinion of the court was delivered by: LOUIS H. POLLAK

 POLLAK, J.

 SEPTEMBER 1, 1994

 In December of 1987, in a superseding indictment, Alexander Moskovits -- then a student at the University of Pennsylvania -- was charged, together with four other persons, with numerous drug and drug-related offenses, some of which allegedly took place at the University of Pennsylvania. Mr. Moskovits was the principal accused; non-trial dispositions of the charges against the other defendants resulted in Mr. Moskovits being tried alone. The ensuing procedural history has been complex. The principal events covering Mr. Moskovits' trial, conviction and sentence (1988), affirmance of conviction (1989), vacation of sentence (1991), and subsequent resentencing and affirmance of new sentence (1992), have been compendiously summarized in a prior opinion:

 
In June of 1988, a jury found Moskovits guilty of conspiracy to distribute in excess of one kilogram of cocaine; four counts of possession with intent to distribute cocaine; five counts of causing interstate and foreign travel with intent to promote unlawful activity; and eight counts of unlawful use of a telephone to facilitate a drug conspiracy. On September 7, 1988, I sentenced Moskovits to a period of incarceration of seventeen years (divided between a mandatory minimum of ten years without parole on Count Eight, a possession count, and seven years on Count One, the conspiracy count). Moskovits appealed from the judgment of sentence, and, on April 13, 1989, the Third Circuit affirmed his conviction in an opinion not for publication. The Supreme Court denied certiorari on October 2, 1989.
 
Approximately two weeks after the Supreme Court denied certiorari, Moskovits filed a pro se "Motion for Correction of Sentence Pursuant to Federal Rule of Criminal Procedure 35(a)." Therein, Moskovits argued, among other things, that his sentence on Count Eight had been improperly enhanced on the basis of a prior conviction in Mexico obtained without the assistance of defense counsel at critical stages of the proceedings. Subsequently, James D. Crawford, Esq., entered his appearance for defendant and consideration of that motion was held in abeyance at Mr. Crawford's request. Thereafter, on November 28, 1990, William M. Kunstler, Esq., entered his appearance for defendant and filed a new motion styled as a "Motion Under 28 U.S.C. § 2255 and FRCRP 35(a) & (b)." That motion, which expressly incorporated the previous pro se Rule 35(a) motion, argued that defendant's trial counsel, Robert Simone, Esq., rendered constitutionally ineffective assistance of counsel by failing to argue to the court at sentencing that the Mexican conviction was obtained in violation of due process and therefore should not enhance Moskovits' sentence. The combined § 2255/Rule 35 motion requested a de novo sentencing hearing to evaluate what effect the Mexican conviction and ineffective assistance of counsel might have had upon the sentence.
 
In a September 9, 1991 order, I granted defendant's motion to vacate his sentence. [ United States v. Moskovits, 784 F. Supp. 183 (E.D. Pa. 1991)]. (The government's motion to reconsider that decision was denied on January 13, 1992.) A resentencing hearing was held on March 3, 1992, after which I imposed a five-year mandatory minimum on Count Eight, to be followed by ten further years of imprisonment (seven years on Count One and three years oh Count Twenty) for an aggregate of fifteen years. On March 9, 1992, defendant filed a notice of appeal from the sentence, and, in an August 26, 1992 memorandum opinion, the March 3, 1992 sentence was affirmed.

 United States v. Moskovits, 815 F. Supp. 147, 148-49 (E.D.Pa. 1993) (footnotes omitted).

 While his appeal from the new sentence was pending, Mr. Moskovits filed a § 2255 motion to vacate his conviction. Mr. Moskovits' contention was that the constitutional flaw that invalidated his initial sentence -- the failure of his trial attorney to challenge his Mexican conviction -- also undermined his conviction, since Mr. Moskovits had refrained from testifying in his own defense because the two attorneys representing him at trial, Robert Simone, Esq., and Milton Grusmark, Esq., had advised him that if he were to take the stand the Mexican conviction would probably be utilized to impeach his testimony, and thereby be brought to the jury's attention with potentially very damaging consequences. After determining that the § 2255 motion was not procedurally barred, United States v. Moskovits, 815 F. Supp. 147 (E.D.Pa. 1993), I conducted an evidentiary hearing and, on the basis of the record there made, vacated Mr. Moskovits' conviction and directed that there be a new trial. United States v. Moskovits, 844 F. Supp. 202 (E.D.Pa. 1993).

 The new trial is scheduled to commence on September 21, 1994. Mr. Moskovits has decided to represent himself at trial. I have appointed L. Felipe Restrepo, Esq., and Lawrence S. Krasner, Esq., to serve as back-up counsel, available to assist Mr. Moskovits whenever he requires their assistance.

 Mr. Moskovits has filed a Motion for Judicial Disqualification, pursuant to 28 U.S.C. § 455(a), a statute which directs that "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." It is Mr. Moskovits' submission that my long-standing connection with the University of Pennsylvania -- where from 1974-78 I was a full-time, and have since been an adjunct, faculty member; and where my wife has been a member of the administrative staff since 1975 -- makes it inappropriate for me to preside at the upcoming trial. The government resists the motion as (a) insufficient in law and (b) untimely.

 The question whether I should disqualify myself from presiding in Mr. Moskovits' case is not a new one. I raised it mea sponte prior to the original trial. A letter I wrote to Mr. Simone, Mr. Moskovits' then counsel, on February 29, 1988, characterizes the matter as I saw it six years ago; the letter shows that at that time I could not perceive "any problem in my serving as trial judge" but felt that all counsel should be advised so that they might, if so minded, pursue the question. The full text of the letter is as follows:

 
Dear Mr. Simone:
 
The purpose of this letter is to advise you, as I have advised prior counsel for Mr. Moskovits (and counsel for the Government), of my affiliation with the University of Pennsylvania -- a matter which, arguably, bears on the appropriateness of my serving as trial judge in Mr. Moskovits' case. The arguable relevance would be that Mr. Moskovits has been a student at the University of Pennsylvania and the indictment alleges that certain of ...

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