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August 9, 1996


The opinion of the court was delivered by: MCCLURE

 August 9, 1996


 On March 16, 1994, a grand jury sitting in the Middle District of Pennsylvania returned a two-count indictment against defendant Ronald J. Goldberg charging him with forging the signature of a magistrate judge in violation of 18 U.S.C. § 505 (Count One), and with knowingly making a false representation concerning a matter within the jurisdiction of a department of the United States in violation of 18 U.S.C. § 1001 (Count Two).

 A jury returned verdicts of guilty on both counts. Goldberg was sentenced to concurrent terms of 24 months. The Court of Appeals for the Third Circuit reversed the conviction and sentence, and remanded for a new trial. United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995). The second jury also found Goldberg guilty of both counts. Goldberg was sentenced on August 2, 1996, to two concurrent terms of incarceration of 30 months, to be followed by a term of supervised release. The terms of incarceration were imposed to run consecutive to any term of incarceration previously imposed.

 In determining the appropriate sentence, the court included a 2-point enhancement to Goldberg's Offense Level for obstructing the prosecution as well as a 2-point upward departure for obstruction of justice. This memorandum is intended to place on the record the court's reasons for doing so. The same applies to a number of motions pending at the time of sentencing, the disposition of which and rationale underlying the disposition of which will be set forth below.



 In disposing of a motion by Goldberg for judgment as a matter of law under Fed. R. Crim. P. 29(c), we reviewed the evidence presented at trial as follows (with minor revisions):

 Accepting the evidence presented in the light most favorable to the government as the prevailing party, see United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991), cert. denied sub nom. Washington v. United States, 502 U.S. 1110, 117 L. Ed. 2d 451, 112 S. Ct. 1213 (1992), as set forth in our Memorandum and Order of Court dated March 20, 1996, the evidence produced at trial established the facts which follow.

 On January 19, 1993, defendant Ronald J. Goldberg arrived as an inmate newly assigned to the United States Penitentiary at Lewisburg, Pennsylvania, and was assigned to the portion of the prison designated SAN-East, F-Block. After an admissions and orientation process, Goldberg was assigned effective February 5, 1993, to "automatic heating and ventilation," which involves both training in and work related to that area. The job assignment was made by Goldberg's "unit team" after a review. For some reason not established, Goldberg was assigned to UNICOR, or the federal prison industries, for one day doing "final assembly" and then was reassigned to automatic heating and ventilation.

 On or about April 13, 1993, Goldberg entered the office of Trevor Holder, then a case manager at USP-Lewisburg and now a Lieutenant on the corrections staff at the Federal Correctional Institution at Raybrook, New York. Goldberg presented Holder with two documents. One was an "inmate request to staff," a "cop-out" as it is known in the prison, by which Goldberg requested assignment to the law library. The second document was styled an order signed by Magistrate Judge Charlene H. Sorrentino of the United States District Court for the Southern District of Florida. The order purportedly granted to Goldberg an extension of time in which to respond to a motion in Goldberg's suit against the BOP.

 In actuality, the order was a fake. The docket of the case as well as the file maintained by the Clerk of Court for the Southern District of Florida indicate that no such order ever was issued in the case. In addition, a deputy clerk from that court employed in the pro se division testified as to a number of differences between the order presented by Goldberg and orders which would have been issued by Magistrate Judge Sorrentino.

 When he received the false order, Holder set it aside while he attended to other business. Upon review of the document about twenty minutes later, Holder was suspicious because it did not have either a stamp or a seal, either of which in Holder's experience would be on an actual court order. He therefore took both the false order and the cop-out to Donald C. Troutman, a case manager and acting unit manager at USP-Lewisburg. At the time, Troutman was Holder's immediate supervisor. Holder gave both documents to Troutman and told Troutman that the order did not look real, noting the lack of a seal or stamp.

 Troutman reviewed the order and also felt that it did not look right. The photocopy quality was poor, and the order granted a long extension. In general, Troutman simply felt that the order seemed "wrong." Because he questioned the authenticity of the order, Troutman took it to Michael Tafelski, Esquire, a "staff attorney" at USP-Lewisburg. Based on Troutman's questions regarding the document, as well as his own doubts, Tafelski called the office of the Clerk of Court for the Southern District of Florida. After discussion with that office, the Assistant United States Attorney representing the BOP in Goldberg's civil suit, and the office of Magistrate Judge Sorrentino, Tafelski concluded that the order was fake. He documented the steps taken and his conclusion in a memorandum to Troutman.

 About a week later, Tafelski went to the dining hall for the noon meal. It is the practice of staff at USP-Lewisburg to make themselves available during meals to answer questions from inmates and to resolve any potential problems. Goldberg approached Tafelski and asked him to step aside to speak privately. Goldberg also asked if what he told Tafelski could remain between them and not be put into a memorandum. Tafelski informed Goldberg that this was not possible, that he might memorialize the discussion and that any memorandum could be used as appropriate. Despite the admonition, Goldberg stated that he was sorry for the order, and that the use of "paper" was his way of acting out.

 At the re-trial, the government presented evidence in the form of the testimony of David W. Attenberger, Supervisory Special Agent for the Federal Bureau of Investigation. Attenberger is a document examiner who works in the FBI crime laboratory in Washington, D.C. It was Attenberger's opinion that Magistrate Judge Sorrentino's signature was copied from an original order in the civil case. In essence, the process would involve typing the fake order, placing a cut-out copy of the signature in the appropriate spot, and making another photocopy. Attenberger concluded that the two signatures, that on the fake order and that on an actual order from the civil file, were so closely alike that it was highly improbable that the false signature was written by hand on the fake order.

 To rebut this testimony, Goldberg presented the testimony of Duane Munera, an inmate who was incarcerated at USP-Lewisburg during the appropriate time. On the stand, Munera made a free-hand copy of the signature of Magistrate Judge Sorrentino which credibly reproduced the signature. In response to a suggestion by the prosecutor that he had practiced signing the name, Munera copied the signature of a court security officer.

 There were, of course, minor differences between the original signatures and those produced by Munera. It is not clear whether Attenberger would have concluded that the signature on the original order and that on the fake order were more alike than those made by Munera in the courtroom, since Attenberger did not testify after Munera.

 For present purposes, we presume that the jury accepted the evidence presented by the government as the verdict winner and that the jury rejected the testimony of Munera. We note, however, that even if the jury accepted the testimony of Munera that he forged Magistrate Judge Sorrentino's signature, the verdict need not change. The jury could have found Goldberg guilty of aiding and abetting Munera's forgery, which would make Goldberg liable as a principal. The manner in which the fake order was created, then, has no legal effect on the outcome of the case.

 We turn now to the factual disputes and legal issues facing the court for sentencing purposes.


 A. Pre-Trial Conduct: First Trial

 As noted in Memoranda and Orders dated July 18, 1996, the conduct to be considered by the court for sentencing purposes is not limited to that occurring after the reversal by the Third Circuit. "A defendant's attempt to obstruct justice does not disappear merely because his conviction has been reversed on grounds having nothing to do with the obstruction. ...We hold that the reversal of a conviction on other grounds does not limit the ability of a sentencing judge to consider a defendant's conduct prior to the reversal in determining a sentence on remand." United States v. Has No Horse, 42 F.3d 1158, 1159-1160 (8th Cir. 1994).

 Although in this instance the obstructive conduct is related to the reversal, the reversal was for our failure to hold a hearing on the threat to counsel before allowing counsel to withdraw, not because the conduct did not take place. Despite being related, the reversal still is based on other grounds than the obstruction of justice enhancement. Obstructive conduct does not become any less so simply because the court takes action prematurely. For this reason, we make the following findings of fact with respect to Goldberg's conduct before the first trial:

 1. On May 27, 1994, Goldberg, acting pro se, filed a document captioned, "Emergency Motion for Removal of Counsel and for Continuance of Trial or in the Alternative to Proceed In Propria Persona," *fn1" which in effect was a motion to substitute counsel.

 3. Following a colloquy, the court denied Goldberg's motion as Goldberg had no basis to be unhappy with counsel's performance. In so doing, we found that a number of motions Goldberg was insisting that counsel file were without merit so that counsel properly refused to file them, including:

(a) a motion for a continuance of jury selection and trial;
(b) an ex parte motion for expert fees;
(c) a motion to dismiss based on the Double Jeopardy Clause;
(d) a motion for a specific request under Brady v. Maryland ;
(e) a motion to suppress statements made by Goldberg, spontaneously, to a staff attorney at USP-Lewisburg;
(f) a motion for "access to the court";
(g) a motion for in camera inspection of grand jury records for Brady material;
(h) a motion for a bill of particulars;
(i) a motion for early disclosure of material under the Jencks Act;
(j) a motion to review all witnesses' statements even if not used at trial by the government;
(k) a motion to produce employment files of BOP personnel and to produce the government's witness list;
(l) a motion to dismiss the indictment for an illegally constituted grand jury;
(m) a motion to produce evidence of prior crimes, wrongs and bad acts under Fed. R. Evid. 404(b); and
(n) a motion to dismiss the indictment based on selective prosecution.

 4. Goldberg's motion as it related to proceeding pro se also was denied because Goldberg did not make a knowing and voluntary waiver of the right to counsel.

 5. Jury selection took place on May 31, 1994, with the full participation of counsel.

 6. On Thursday, June 2, 1994, Goldberg placed a call from USP-Lewisburg to the offices of his court-appointed attorney, Bradley Lunsford, Esquire, for the purpose of passing on the file to new counsel.

 7. Lunsford indicated to Goldberg that he would not relinquish the file until new counsel had entered an appearance.

 8. Goldberg demanded that Lunsford move to withdraw as counsel and gave reasons to be presented to the court, including the incompetence of counsel.

 9. Lunsford refused to move to withdraw, noting that the court already had denied such a motion and that there was no basis for reconsideration.

 10. Goldberg then stated that he would use the money which otherwise would have been spent on new counsel to have someone outside USP-Lewisburg "get" Lunsford.

 11. When Lunsford asked what Goldberg meant, Goldberg responded that Lunsford knew what was meant and that Lunsford did not know with whom he was dealing.

 12. Goldberg's statements on June 2, 1994, constituted a clear and unequivocal threat to do serious bodily harm to Lunsford, which threat could be interpreted as a threat to the life of counsel.

 14. Goldberg's threats, therefore, were coupled with the apparent ability to accomplish physical harm to counsel through the agency of a third party hired by Goldberg for such purpose.

 15. As a consequence of the threats made by Goldberg, Lunsford was placed in fear of his own life and in fear for the safety of his family.

 16. Because of the fear in which Goldberg had placed Lunsford, Lunsford did not feel capable of representing Goldberg consistent with his duties of both competence and loyalty.

 17. The court allowed Lunsford to withdraw following Lunsford's oral motion to do so.

 18. Goldberg's conduct was intended to, and did, disrupt and obstruct the proceedings in this court.

 19. The court allowed Goldberg to challenge the factual basis for allowing Lunsford to withdraw, although after the withdrawal was permitted.

 20. This court's error in not holding a hearing before allowing Lunsford to withdraw does not alter the fact that Goldberg acted to obstruct the administration of justice.

 21. Goldberg also has been given an opportunity to challenge the factual basis for a finding of obstruction in the threat to Lunsford by the court's order of July 18, 1996, which specifically informed Goldberg that conduct related to the first trial was considered by the court to apply to the sentence to be imposed after the second guilty verdict.

 22. On June 14, 1994, Goldberg represented to the court that officials at USP-Lewisburg had interfered with his access to the law library and to witnesses by separating him from his housing unit and general population inmates.

 23. Actually, when Goldberg was returned to USP-Lewisburg on June 13, 1994, he overheard the time at which the marshals would be transporting him to court in the morning, so that his separation was a reasonable, standard security precaution because such information can be used in an escape attempt. See N.T. 6/14/94 at 225-226.

 24. The misrepresentation was material because it was made to obtain court intervention in housing and access to facilities to permit Goldberg to represent himself.

 B. Second Trial

 1. The Third Circuit reversed the judgment of conviction which followed the first trial of this case on October 16, 1995, and remanded to this court for further proceedings. United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995).

 2. Although reversing the judgment, the Third Circuit affirmed our finding that there was not good cause to substitute counsel and delay the first trial. Id. at 1098-1099.

 3. Supporting our finding that good cause for the substitution did not exist was a finding that motions which Goldberg insisted be filed by Lunsford were without merit. Id. at 1098 (citing United States v. Goldberg, 855 F. Supp. 725, 730-732 (M.D. Pa. 1994)).

 4. On November 24, 1995, the court received from Goldberg a letter indicating that he was "pending possible eye surgery" and requesting that a writ for his return for the second trial be deferred for an indefinite period. Record Document No. 93.

 5. The same letter indicated that Goldberg wanted counsel appointed to represent him, and that the firm of Rieders, Travis, Mussina, Humphrey & Harris would be acceptable to Goldberg.

 6. Members of the Rieders, Travis firm had been involved in cases involving serious charges against USP-Lewisburg inmates in which the inmates were acquitted. See United States v. Vasquez, 889 F. Supp. 171 (M.D. Pa. 1995) (inmate charged with murdering another inmate; acquittal after jury trial in which Jeffrey C. Dohrmann, Esquire, an associate of Rieders, Travis, represented the defendant); United States v. Gambina, 4:CR-92-0093 (M.D. Pa.)(USP-Lewisburg inmate and wife charged with conspiring to effect escape of inmate; acquittal of both defendants after jury trial in which Ronald C. Travis, Esquire, of the Rieders, Travis firm represented inmate's wife).

 7. The court declined to continue generally a criminal matter, and directed Goldberg to complete a financial affidavit for the purpose of appointing counsel. Goldberg was provided with a blank form of the financial affidavit. Order of Court dated November 30, 1995 (record document no. 94).

 8. No financial affidavit having been received from Goldberg, the court continued jury selection from January 3, 1996, to February 14, 1996, and scheduled a hearing with respect to:

(a) whether Goldberg qualified financially for the appointment of counsel;
(b) if not, whether Goldberg would elect to retain counsel or to proceed pro se ;
(c) the nature, extent and required timing of medical treatment prescribed for Goldberg; and
(d) the dates on which Goldberg is required to be present in Florida for sentencing.

 9. At the hearing, held January 4, 1996, Goldberg indicated that he had not received the order of November 30, 1995, nor the form financial affidavit, apparently due to his movement by the BOP and subsequent disruption of mail delivery.

 10. A second blank form financial affidavit was provided to Goldberg.

 11. Goldberg stated during the hearing that his medical condition was fine and that he was under observation.

 12. Goldberg originally completed the financial affidavit indicating that he had no assets; however, after further consideration, Goldberg amended the affidavit to indicate that he had approximately $ 1,000.00 in his prison commissary account.

 13. The court indicated that it would direct that $ 500.00 be removed from the account to make partial payment for the cost of legal representation provided to Goldberg at government expense.

 14. Upon further consideration, however, the court determined that any amount in Goldberg's account in excess of $ 200.00 would be paid to defray the cost of Goldberg's representation.

 15. The court appointed the Federal Public Defender to represent Goldberg; specifically, Goldberg was represented by Assistant Federal Public Defender Thomas Thornton, Esquire.

 16. On January 16, 1996, Goldberg moved to proceed pro se and to waive counsel. However, he claimed that he was doing so because the Public Defender's Office had a conflict of interest and because he could not afford to be represented.

 17. On January 19, 1996, the court held a hearing with respect to Goldberg's request to proceed pro se.

 18. At the hearing, Goldberg again claimed that the Federal Public Defender had a conflict of interest and sought substitute counsel.

 19. The basis for the claimed conflict of interest was that the Federal Public Defender had referred the case to Lunsford as part of its usual practice of referring cases to members of the Criminal Justice Act panel when the Federal Public ...

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