United States District Court, N.D. Mississippi, Eastern Division
ORDER DENYING DEFENDANT'S MOTION  TO UNSEAL
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
matter comes before the court on the motion  by Peter
Bernegger, through counsel, to unseal Grand Jury testimony as
to Count 1 of the Superseding Indictment in this case, with
the purpose of showing that Mr. Bernegger was charged in
Count 1, contrary to the assertions of the government near
the end of trial and afterwards. For the reasons set forth
below, the motion will be denied.
and Procedural Posture
Bernegger was charged in five counts of a six-count
Superseding Indictment alleging mail fraud, wire fraud,
conspiracy to commit mail and wire fraud, and bank fraud.
Bernegger's business partner, Stephen Finch, was also
charged in the Superseding Indictment
(“Indictment”). The Indictment described a
general scheme in which Bernegger and Finch made fraudulent
misrepresentations to investors and potential investors to
induce them to invest in various business ventures of
Bernegger and Finch. Specific counts charged either Bernegger
(Counts Two, Three, and Four) or Finch (Count One) with
specific acts of mail fraud or wire fraud within the
framework of the overall scheme. Count Five charged both
Bernegger and Finch with conspiracy to commit acts of mail
and wire fraud. Count Six charged Bernegger with bank fraud,
alleging that he also made fraudulent misrepresentations to a
local bank in order to secure a loan for the business. The
defendants proceeded to trial on November 2, 2009. On
November 12, 2009, Finch was acquitted of all charges while
Bernegger was convicted on Counts Three, Four, and Six. On
May 13, 2010, Bernegger was sentenced to 70 months in prison
and ordered to pay restitution in the approximate amount of
$2.2 million. Bernegger appealed his conviction to the Fifth
Circuit, which issued an order dated October 20, 2011,
affirming the conviction and the length of the sentence, but
modifying the amount of restitution by reducing it to $1,
725, 000.00. On February 12, 2012, Bernegger filed a motion
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, and added or amended claims numerous times. The
United States Supreme Court denied Mr. Bernegger's
petition for writ of certiorari as to his first direct appeal
on January 16, 2013. The Supreme Court denied another
petition for writ of certiorari on January 6, 2014. This
court denied Mr. Bernegger's Motion to Vacate, Set Aside,
or Correct Sentence on March 9, 2015. The Fifth Circuit Court
of Appeals denied Mr. Bernegger's Certificate of
Appealability on February 24, 2016.
Issue Has Been Adjudicated on the Merits Multiple Times, and
Mr. Bernegger Has Faced Sanctions for Continuing to Pursue
related case, In re Peter Bernegger, 3:16CV60-SA,
Mr. Bernegger previously requested  to unseal Grand Jury
testimony from his criminal case - the same request as in the
present motion. The court will reproduce its entire ruling on
this matter in the interest of efficiency - and to ensure
that Mr. Bernegger's counsel is aware that this court and
the Fifth Circuit Court of Appeals have ruled upon the issue
of Count 1 of the indictment many times:
This matter comes before the court on the petition of Peter
Bernegger for the court “to permit a licensed attorney
of his to inspect the grand jury information at the Oxford,
MS courthouse for determining one question: was he charged
with Count 1 or not by the grand jury.” The court has
previously imposed a sanction on Mr. Bernegger in In re
Bernegger, 3:15CV182-MPM-SAA (N.D. Miss.) Because Mr.
Bernegger had repeatedly filed frivolous, malicious, and
duplicative pleadings and motions, the court ordered him to
submit any future filings to the Chief Judge of the court for
screening, and, if the court finds the filing to be
frivolous, malicious, or disrespectful, then the filing is to
be summarily dismissed.
court has reviewed the proposed pleading in the instant case,
and it is frivolous. The issue regarding whether Mr.
Bernegger was charged in Count 1 of the Superseding
Indictment in his criminal case has been adjudicated multiple
times, as the court has previously held:
In sum, though there was some confusion early in the criminal
proceedings, Mr. Bernegger was not charged with a crime in
Count One of the superseding indictment. The court discussed
the issue with all counsel involved multiple times on the
record to arrive at that conclusion. The Fifth Circuit Court
of Appeals agreed, thus precluding this court from
considering the issue again. Further, as the record shows
that this court was fully aware of all facts relevant to the
issue, no one perpetrated a “fraud upon the court,
” and any suit Mr. Bernegger might wish to pursue
on that basis would be frivolous.
In re Bernegger, 3:15CV182-MPM-SAA (N.D. Miss.)
(emphasis added) (December 8, 2015, Memorandum Opinion
dismissing case as frivolous). The court also addressed the
issue in denying Mr. Bernegger's Motion to Vacate, Set
Aside, Or Correct sentence in the criminal case giving rise
to all these proceedings:
Put simply, the court has no idea why Mr. Bernegger wishes
that the jury could have considered his guilt or innocence as
to an additional crime. The end result of the court's
decision is that Bernegger faced one less criminal charge.
Bernegger's trial counsel stated on the record that he
heartily approved of the court's decision, and rightly
so. Thus, Bernegger benefited from the exclusion of Count 1
from the form of the verdict - and from the court's
instruction to the jury making clear that Bernegger was not
charged in Count 1. The Fifth Circuit explained this
succinctly in its ruling on the issue. Indeed permitting
Count 1 to go to the jury as to Mr. Bernegger would likely
have constituted reversible error. In any event . . . any of
Mr. Bernegger's grounds for relief involving the proper
interpretation of the Superseding Indictment - and its effect
on the proceedings - are procedurally barred because the
Fifth Circuit has already ruled on that issue.
United States v. Bernegger, 1:07CR176-MPM-SAA (March
9, 2015, Memorandum Opinion Denying Relief Under 28 U.S.C.
§ 2255). This is exactly the type of pleading the court
told Mr. Bernegger not to present; as such, under the
sanctions order, supra, the instant case is
DISMISSED as frivolous.
In Re: Peter Bernegger, Petitioner, 3:16CV60-SA. Mr.
Bernegger filed a motion to reconsider the dismissal as
frivolous, and the court denied that motion on May 18, 2016.
Again, the court will include the ruling in its entirety:
This matter comes before the court on the plaintiff's
motion for reconsideration of the court's March 25, 2016,
order dismissing the instant case as frivolous. Indeed, in a
sanctions order entered in In re Bernegger,
3:15CV182-MPM-SAA, the court admonished Mr. Bernegger not to
submit any more papers with the court challenging whether he
was charged with a crime in Count I of the Superseding
Indictment in his criminal case. That issue has been decided
by both this court and the Fifth Circuit Court of Appeals.
However, despite the sanctions order in the previous case and
the dismissal of ...