                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-1823




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                                               NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT



                   Nos. 01-1823/1916


            UNITED STATES OF AMERICA

                           v.

                 RICHARD J. HARLEY,
                              Appellant 01-1823

            UNITED STATES OF AMERICA

                           v.

                JACQUELINE M. KUBE,
                         Appellant 01-1916



       Appeal from the United States District Court
          for the Middle District of Pennsylvania
(D.C. Criminal Action Nos. 96-cr-00286-2 & 96-cr-00286-3)
       District Judge: Honorable Thomas I. Vanaski


       Submitted Under Third Circuit LAR 34.1(a)
                  on March 22, 2002

              Before: ROTH, NYGAARD
              and AMBRO, Circuit Judges


             (Opinion filed July 16, 2002 )
                                       OPINION



ROTH, Circuit Judge.

       Defendants Richard Harley and Jacqueline Kube were tried in the Middle District

of Pennsylvania for crimes arising out of a scheme to defraud patients and investors by

promoting an unsafe and untested therapy for AIDS/HIV. Harley was convicted on seven

counts of mail fraud, three counts of wire fraud, and three counts of violating the Food,

Drug and Cosmetic Act. Kube was convicted on one count of mail fraud. Harley

appeals his convictions on three bases: (1) that the trial court denied Harley’s

constitutional right to counsel, (2) that the trial court denied Harley the opportunity to

impeach testimony, and (3) that the delay between the declaration of a mistrial and the

order scheduling a new trial violated the Speedy Trial Act. Kube’s appeal asserted that

there was insufficient evidence to establish her specific intent under the mail fraud

statute. For the following reasons, we will affirm the judgment of the District Court.

       Under his first assignment of error, Harley argues that he did not voluntarily waive

his right to counsel because the District Court failed to make a penetrating colloquy on

the dangers of pro se representation. Faretta v. California, 422 U.S. 806, 835 (1975).

Nevertheless, the right to counsel may be forfeited through extremely dilatory conduct.

United States v. Goldberg, 67 F.3d1092, 1101 (3d Cir. 1995).



                                              2
       We agree with the District Court’s conclusion that Harley’s conduct was extremely

dilatory. Harley engaged new counsel on six occasions and repeatedly failed to satisfy his

fee obligations. The numerous motions to withdraw and requests for continuance

effectively constituted a forfeiture of the right to counsel.

       Next, Harley argues that the District Court erred by denying him the opportunity to

impeach testimony. Specifically, Harley was not prevented from confronting a key

witness with evidence of that witness’s prior crimen falsi conviction. Relying on the

Rule 609(a)(2) of the Federal Rules of Evidence and United States v. Wong, 703 F2d 65

(3d Cir. 1983), Harley asserts that the District Court is prohibited from any exercise of

discretion where a party seeks to impeach testimony with a prior crimen falsi conviction.

       Harley, however, failed to raise the prior crimen falsi conviction during his cross-

examination and re-cross examination of the witness. Clearly, Harley would have had

ample opportunity to impeach at that time if he had tried to do so. But it was only after

testimony had closed that Harley attempted to introduce evidence of the prior conviction.

The District Court properly exercised its discretion to insure that evidence was presented

in an organized manner. See Fed. R. Evid. 611(a).

      Finally, Harley argues that a 144 day delay between the District Court’s declaration

of mistrial and scheduling of a retrial violated the seventy day limit of the Speedy Trial

Act. 18 U.S.C. 3161(e). However, a closer examination of the act reveals that the

seventy day limit begins running from the “action occasioning the retrial.” Id. The



                                               3
“action occasioning the retrial” is the order setting the case for retrial, not the declaration

of a mistrial. United States v. Crooks, 804 F.2d 1441, 1445 (9th Cir. 1986); United States

v. Gaffney, 689 F. Supp. 1578, 1579 (M.D. Fla. 1988). Therefore, the elapsed time from

May 22, 1998, the declaration of mistrial, to October 13, 1998, the date of the denial of

the motion for acquittal and of the order for retrial, is immaterial for the purposes of the

Speedy Trial Act’s seventy day limit.

        Kube’s argument on appeal also lacks merit. The standard of review for a

challenge to the sufficiency of evidence is “whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United States v.

Price, 13 F.3d 711, 731 (3d Cir. 1994) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979), cert. denied, 514 U.S. 1023 (1995). The standard of review must be considered in

light of the essential elements of the crime. The court must determine that there is

sufficient evidence for a rational juror to conclude that Kube (1) knew the fraudulent

nature of the scheme to promote the unsafe and untested therapy, and (2) willfully

participated in the scheme. United States v. Pearlstein, 576 F.2d 531, 534 (3d Cir. 1978).

The record establishes in detail Kube’s participation in several efforts to solicit

investments. (App. 507 through 526; App. 576 through 582) Certainly, a rational juror

would be able to conclude beyond a reasonable doubt that Kube did so knowingly and

willfully.

       For the reasons set forth above, we will affirm the judgements of conviction of



                                               4
both defendants.




TO THE CLERK:

      Please file the foregoing Opinion.



                                           By the Court,



                                            /s/ Jane R. Roth
                                           Circuit Judge




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