                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-9-2006

USA v. Seal
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1101




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                                               NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No: 04-1101



          UNITED STATES OF AMERICA

                           v.

                DANIEL J. SEAL, II,
                          Appellant


                 _______________

   On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
               (D.C. No. 03-cr-00172-1)
   District Judge: Honorable Clarence C. Newcomer
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                on November 7, 2005

BEFORE: ROTH, FUENTES and GARTH, Circuit Judges

         (Opinion Filed:   February 9, 2006)




                     OPINION
ROTH, Circuit Judge:

       Daniel Seal appeals the judgment of conviction of the District Court and its denial

of his motion for a mistrial and he challenges his sentence under United States v. Booker,

125 S. Ct. 738 (2005). For the following reasons we will affirm the conviction, vacate the

sentence and remand for sentencing, pursuant to Booker.

       On March 12, 2003, a grand jury returned an indictment against Seal charging him

with one count of conspiracy to tamper with a witness, in violation of 18 U.S.C. § 371

and three counts of witness tampering and aiding and abetting, in violation of 18 U.S.C.

§§ 1512 (b)(1) and 2. On June 25, 2003, a jury found Seal guilty of conspiracy and of

two counts of witness tampering. On January 5, 2004, the District Court sentenced Seal

to 21 months imprisonment, a term of supervised release of two years, a $10,000 fine, and

a special assessment of $300. Seal appealed and, on March 17, 2005, applied for relief

under Booker.

       We have jurisdiction over this appeal from a final judgment of conviction

and sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Daniel Seal, an attorney, was charged along with his client, Nicholas Paz,with

conspiracy to tamper with a witness. Seal was representing Paz on charges of bank

robbery, for which Paz admitted his guilt and cooperated against his co-defendant Harvey

Clanton. Paz and Clanton were both housed at the Federal Detention Center in

Philadelphia but were separated so they could not communicate with each other. While

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representing Paz, Seal met with Clanton on two occasions, both without the permission of

Clanton’s lawyer.    At the first meeting Seal told Clanton that he had a message from his

client and showed Clanton a note signed by Paz. During this meeting, Seal and Clanton

discussed a supposed drug deal involving Paz, Clanton, and a mob figure named Joe

Ligambi. Seal told Clanton that Paz was going to tell the government the story about

Ligambi. Clanton informed Seal that, although the story was false, he would consider

going along with it. Clanton also asked Seal for more details and Seal agreed to provide

them. Seal’s handwritten notes from this meeting contain a reminder that stated he had to

get the story to “Baz.” Baz is Clanton’s nickname.

       At a proffer interview of Paz conducted by FBI Special Agent Vito Roselli, Paz

told the government the story about Ligambi to further his supposed cooperation with the

government. Some time later, Seal was interviewed by FBI Special Agent Thompson. At

trial, Agent Thompson testified that during the interview Seal admitted that the purpose of

the second meeting with Clanton was to influence what he was going to say to the

government at his proffer. Based on this information, Seal was found guilty of conspiring

with his client to tamper with a witness and of two counts of witness tampering. This

appeal followed.

       Seal appeals his conviction and sentence on five grounds: (1) the District Court

erred in dismissing a hold-out juror in favor of the defense and in proceeding with 11

jurors; (2) the District Court erred in providing insufficient jury instructions regarding a

corrupt witness; (3) the District Court erred in permitting the government to use and refer

                                              3
to ethical violations to infer wrong doing by Seal; (4) the District Court erred in

enhancing the guidelines range for perjury; (5) the District Court erred by enhancing

Seal’s guidelines range for use of a special skill. Seal also challenges his sentence under

United States v. Booker, 125 S.Ct at 738. Specifically, he points out that his fourth and

fifth grounds for appeal were made prior to Booker but would now be considered Booker

claims. For the reasons set forth below, we will affirm the District Court’s judgment of

conviction, vacate the sentence, and remand this case to the District Court for re-

sentencing in line with Booker.

       We review the dismissal of a juror for cause pursuant to Federal Rule of Criminal

Procedure 23(b) for abuse of discretion. United States v. Gambino, 788 F.2d 938, 949 (3d

Cir. 1986). Seal’s argument that the District Court abused its discretion in dismissing

juror number six without a determination that he was unwilling to follow the law is not

convincing. Under Rule 23 (b), a court is permitted to excuse a juror for just cause and to

allow a verdict to be determined by the remaining 11 jurors. In the present case, juror

number six, in complete disregard of the court’s instructions, consulted an extraneous

source for the definition of several legal terms, including entrapment, an issue that was

not part of the case. Furthermore, the juror intentionally concealed a printout of the

definition by placing it in a newspaper, enabling him to smuggle it into the deliberation

room; he then proceeded to read the definition to the other jurors. Under these

circumstances the court did not abuse its discretion in removing the juror without a

determination that he was unwilling to follow the law. See id.

                                              4
       Furthermore, subsequent to the removal of juror number six, the court conducted

an inquiry of the remaining jurors to ensure that there was no possibility of any taint, bias,

or prejudice as a result of the impermissible materials. Seal was provided an opportunity

to question the remaining jurors but chose not to do so. As such, the District Court did

not abuse its discretion by deciding to proceed with an eleven member jury.

       Seal’s next argument is that the District Court erred in providing deficient jury

instructions regarding a corrupt witness. Because he did not object to the jury

instructions at trial, the instructions will be reviewed for plain error. See United States v.

Gordon, 290 F.3d 539, 544-545 (3d Cir. 2001). In United States v. Isaac, we held that

there is no per se rule requiring a specific jury instruction with regard to a cooperating

witness. 134 F.3d 199 (3d Cir. 1998). Moreover, we concluded that District Courts are

given “wide discretion” when charging the jury. Id. at 205, (citing United States v. Smith,

789 F.2d 196, 204 (3d Cir. 1986)).

       In the present case, the District Court did not commit plain error in its instruction

to the jury. The court reminded the jury that the cooperating witness, Harvey Clanton,

had entered a guilty plea agreement and that the testimony of such witnesses should be

scrutinized with caution. The District Court told the jury to give the testimony of the

cooperating witness such weight as they feel it deserves. These instructions, along with

the testimony of the cooperating witness as to his plea agreement, were sufficient to put

the jury on notice that it should weigh Clanton’s testimony carefully.

       Seal next argues that the District Court erred in permitting the government to use

                                               5
and refer to ethical violations to infer wrong doing by him. The District Court granted a

pretrial defense motion to preclude any mention of Rule 4.2 of the Pennsylvania Rules of

Professional Conduct. Seal argues that the District Court erred in allowing the

government to introduce evidence of both (1) his knowledge of ethics rules in state and

federal court and (2) evidence of his continuing legal education courses because both

types of evidence were irrelevant and because they were introduced in violation of the

court’s pretrial order.

       We conclude that the District Court did not abuse its discretion in deeming this

evidence admissible. The District Court properly admitted the evidence demonstrating

Seal’s knowledge of legal ethics rules; this evidence was relevant since it helped to show

intent, one of the necessary elements to prove a witness tampering charge. Furthermore,

this evidence was relevant to counter the defense’s argument that Seal’s lack of federal

practice experience prevented him from forming the requisite intent to commit the crimes

with which he was charged. The District Court also properly admitted evidence of

appellant’s continuing legal education classes because this evidence helped to show

appellant’s experience and intent to commit the crimes.

       Seal’s final two challenges will be addressed simultaneously since both are

considered claims under United States v. Booker, 125 S.Ct at 738. He challenges his

sentence based on two sentence enhancements determined by the District Court. These

enhancements placed Seal in a sentencing range of 21-27 months. It appears from the

District Court’s decision that the judge treated the sentencing guidelines as mandatory.

                                             6
As such, we find that Seal’s sentence is in violation of Booker. Id. Therefore, we will

remand the case to the District Court for re-sentencing. See United States v. Davis, 407

F.3d 162 (3d Cir. 2005).

       For the above mentioned reasons, we will affirm the judgment of conviction,

vacate the sentence, and remand the case to the District Court for re-sentencing in line

with Booker.




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