United States v. Bari Berger

689 F.3d 297, 2012 WL 3140914, 2012 U.S. App. LEXIS 16126
CourtCourt of Appeals for the Third Circuit
DecidedAugust 3, 2012
Docket11-2948
StatusUnpublished
Cited by8 cases

This text of 689 F.3d 297 (United States v. Bari Berger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bari Berger, 689 F.3d 297, 2012 WL 3140914, 2012 U.S. App. LEXIS 16126 (3d Cir. 2012).

Opinion

OPINION OF THE COURT

TASHIMA, Circuit Judge:

Defendant Bari Lynn Berger appeals from the sentence imposed by the District Court. Berger pled guilty to one count of mail fraud, 18 U.S.C. § 1341, and one count of wire fraud, 18 U.S.C. § 1343. These charges stem from a scheme whereby Berger and her criminal associate, Gerald Radomski, stole more than $1.7 million from friends, neighbors, and acquaintances. Radomski was prosecuted separately and also pled guilty. Berger contends that the District Court violated Fed. R.Crim.P. 32(i)(l)(C) when it failed to give her notice that it intended to rely on testimony from Radomski’s prior sentencing hearing in determining her sentence.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because the parties are familiar with the facts and prior proceedings, we set them forth only to the extent necessary to an understanding of our discussion of the issues.

I.

Berger and Radomski concocted a captivating story: Berger was said to be the illegitimate daughter of a wealthy business tycoon who had left her a $2 billion inheritance. But Berger could not inherit that *299 money until she fulfilled several conditions in her father’s will. Before Berger could receive the inheritance, she first had to pay her bills, establish a permanent home, and receive medical care. From January 2008 to January 2009, Berger and Radomski solicited money for the ostensible purpose of helping Berger meet these conditions, so that she could receive, and then share, her inheritance. They promised a 1000 to 1 return on investment.

After the scheme unraveled in March 2009, both Radomski and Berger were prosecuted and both pled guilty. Although the two cases were separately prosecuted, both cases were assigned to the same District Judge. Radomski’s sentencing hearing was held on April 11, 2011 and Berger’s sentencing hearing on July 11, 2011. Berger’s Presentence Investigation Report (“PSR”) calculated her advisory guideline range as 51-63 months. The government concedes that there was no mention of Radomski’s sentencing proceedings in the PSR or in the sentencing memoranda submitted by the parties. Berger was sentenced to 60 months’ imprisonment and three years of supervised release. She was also ordered to pay restitution of over $1.7 million.

Berger had requested a downward departure on the ground of diminished capacity, given her history of mental health issues. But the District Court placed little value on reports from Berger’s doctors, because their diagnoses and opinions were based on Berger’s self-reported symptoms. The District Court explained that Berger’s “hazy memory and reluctance to give anybody information” indicated that “she is not a reliable relator.” The District Court denied Berger’s request for a downward depai’ture.

The court was skeptical that Berger’s doctors would have known enough, without reliable self-reports from Berger, to provide useful findings. The court asked “Could the doctors have any idea what I’ve just heard from two of the victims? Could they have any idea what Mr. Radomski said at his hearing?” The court also admonished Berger, stating that “[y]ou are the one that perpetrated this fraud along with Mr. Radomski, who found out that your weren’t sick and you weren’t an heiress and there weren’t three judges in Orphan’s Court in Philadelphia and some court employee was not extorting you.” Berger contends that these statements by the court demonstrate that the court relied on information from Radomski’s separate sentencing hearing in determining Berger’s sentence.

Because Berger did not object to this alleged error during her sentencing hearing, the error was not preserved. Berger raises this issue for the first time in this appeal.

II.

This Court applies a plain error standard of review to unpreserved objections arising out of sentencing hearings. United States v. Nappi, 243 F.3d 758, 761 (3d Cir.2001). Under this standard, “[we] may ... set aside [Berger’s] sentence only if: (1) the District Court erred; (2) the court’s error was clear or obvious; (3) [Berger] can show that the error affected [her] substantial rights, i.e., that it prejudiced [her]; and (4) not correcting the error would seriously impair the fairness, integrity, or reputation of a judicial proceeding.” United States v. Reynoso, 254 F.3d 467, 469 (3d Cir.2001).

III.

In this case, we need not decide whether the District Court clearly erred, because Berger cannot show that any error affected her substantial rights.

*300 A defendant establishes that an error affected her substantial rights by showing “that the District Court would have imposed a lesser sentence had defense counsel been given the required notice.” Id. at 470. The defendant “bears the burden of demonstrating that he was prejudiced by the District Court’s error.” Nappi, 243 F.3d at 770.

Berger argues that, had she been given notice, she “would have entirely discredited Radomski’s claim that Ms. Berger duped him into participating in the fraud.” Berger says she would have called Radomski to the stand and confronted him with his sworn admission that he was behind the scheme. Berger argues that by pointing out these inconsistencies to the court, she would have persuaded the court that she was not in charge of the scheme, and thus she would have received a lighter sentence.

Even if we accept that Berger would have called Radomski to the stand and thoroughly discredited him, Berger cannot show that this would have convinced the court to grant a downward departure or otherwise lessen her sentence. First, the District Court had already expressed skepticism about Radomski’s testimony and accused him of habitual dishonesty. It is thus doubtful that the court placed much weight on Radomski’s testimony in the first place, and Berger would not have been able to change the court’s perception of Radomski by showing his inconsistent statements.

Second, the District Court never determined that Berger bore more responsibility for the fraud. In fact, the court’s statements indicated that it viewed both Berger and Radomski as responsible for the crime. The court said: ‘You [Berger] are the one that perpetrated this fraud, along with Mr. Radomski,” and that “[tjhis is a rather extensive fraud scheme ... The defendants, Mr. Radomski and Ms. Berger, are not the victims.” Moreover, Berger and Radomski received the same sentence, 60 months’ imprisonment and three years of supervised release. Thus, the record does not indicate that the District Court viewed Berger as more responsible than Radomski.

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Cite This Page — Counsel Stack

Bluebook (online)
689 F.3d 297, 2012 WL 3140914, 2012 U.S. App. LEXIS 16126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bari-berger-ca3-2012.