A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Peter Goldberger has won another appeal. (How does he do it?)

The case is UNITED STATES OF AMERICA v. NEAL D. SAFERSTEIN, Appellant, No. 10-4092, (1/26/12). The panel was composed of Circuit Judges FISHER and GREENAWAY, JR., along with District Judge John JONES. Judge Greenaway wrote the Opinion for the Panel. Click for Opinion.

Neal Saferstein had pled guilty in the United States District Court for the Eastern District of Pennsylvania to four federal criminal charges related to a fraudulent business scheme. In the plea agreement, Saferstein waived his appellate rights subject to several exceptions, including an exception for “the assertion of constitutional claims that the relevant case law holds cannot be waived.” Following his sentence, Saferstein appealed on the ground that the District Court violated his rights under the ex post facto clause. He contended that his appellate waiver did not foreclose any of these arguments.

The Court held that, as a result of a statement by the District Court during the plea colloquy, which improvidently expanded Saferstein’s appellate rights, Saferstein did not waive his right to raise constitutional claims on appeal and that his ex post facto claim was of constitutional moment and meritorious. Therefore, the Court vacated and remanded to the District Court for resentencing.

Although this case is a not precedential decision by the Third Circuit, Peter advises that this decision is important for the following reasons: (1) Even if a written plea agreement is unambiguous as to terms of appeal waiver, the court’s mistaken explanation of the waiver to the defendant at the time of taking the plea, left uncorrected by counsel, can create ambiguity in the waiver which is then construed favorably to the defendant. Here, Judge Cynthia Rufe’s oral explanation resulted in all “constitutional” issues being appealable. (2) An ex post facto violation in the calculation of the Guidelines Offense Level for one group of offenses was plain constitutional error requiring resentencing, even though there was another “group” with a later date of offense and PSI (and court) used the “one book rule” – which the court thus held unconstitutional as applied (reconciling US v Bertoli with US v Siddons) even though Judge Rufe had then varied downward by 50% from the Guidelines that she determined, which is much more than the difference the EPF violation would have made.

So simple.


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