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. e du/thir dc ir c uit_1996/179UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-5582/5583/5584

UNITED STATES OF AMERICA

v.

DAVID FRIEDLAND

David J. Friedland,

Appellant in No. 95-5582

DAVID FRIEDLAND

v.

DOUGLAS LANSING, Warden, Federal Correctional Institution, Ft. Dix, NJ; UNITED STATES

PAROLE COMMISSION

David J. Friedland,

Appellant in No. 95-5583

DAVID FRIEDLAND

v.

UNITED STATES OF AMERICA

David J. Friedland,

Appellant in No. 95-5584

On Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 85-332-1; D.C. Civil Nos. 94-4463 and 94-4464)

Argued March 29, 1996

BEFORE: GREENBERG, ROTH, and ROSENN, Circui t Judges

(Filed: May 17, 1996)Brian W. Shaughness y (argued)

Shaughnessy, Borows ki & Gagner 1155 15th Street, N .W.
Suite 502 Washington, DC 2000 5

Attorneys for Appellant

Kevin McNulty
Assistant United St ates Attorney Faith S. Hochberg
United States Attor ney 970 Broad Street
Room 502 Newark, NJ 07102

George S. Leone (ar gued)
Assistant United St ates Attorney 4th & Cooper Street s Mitchell H. Cohen C ourthouse One John F. Gerry P laza Camden, NJ 08101

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge. David Friedland appeals from orders entere d on March 2, 1995, and August 3, 1995, in these post-conviction proceedings in
which he seeks release from incarceration. The dis trict court denied his applications by the order of March 2, 19 95, implementing the conclusions it reached in United S tates v. Friedland, 879 F. Supp. 420 (D.N.J. 1995), and deni ed his motion for reconsideration by the order of August 3, 1995. Essentially,
Friedland claims that his continued incarceration t hrough denial of parole contravenes the intentions of the distric t court when it sentenced him and is not justifiable under the p arole guidelines and that his cooperation with agents of the United States Government in furthering criminal prosecutio ns and the
interdiction of narcotics entitles him to have his sentence shortened by the district court pursuant to Fed. R. Crim. P. 35(b).

I. FACTUAL AND PROCEDURAL BACKGROUND The case has an extraordinary background. Friedland, who has been a New Jersey state senator, was genera l counsel to
the Teamsters Local 701 Pension Fund in North Bruns wick, New Jersey in the 1970s. He used this position to obta in kickbacks for arranging loans from the pension fund. This co nduct and hisefforts to cover it up led to his indictment and co nviction for

conspiracy, soliciting and receiving kickbacks, int erstate and foreign travel to facilitate bribery, obstruction o f justice, and
income tax evasion. The district court sentenced F riedland to seven years in prison and we affirmed. United Stat es v. Friedland, 660 F.2d 919, 922-25 (3d Cir. 1981), cer t. denied, 456 U.S. 989, 102 S.Ct. 2268 (1982). Following his conviction, Friedland avoide d serving his sentence by agreeing to cooperate with the governme nt in the investigation of other crimes. However, he took th is opportunity to engage in additional criminal activity involving the Local 701 pension fund. See United States v. Zauber, 857 F.2 d 137, 140-42 & n.1, 153 (3d Cir. 1988), cert. denied, 489 U.S. 1 066, 109 S.Ct. 1349 (1989). At that time, instead of receiving ki ckbacks, Friedland began paying them to obtain money from th e Pension Fund for high risk investments. When his second and independent criminal e pisode began to unravel, Friedland took a unique step to avoid a pprehension. In 1985, he staged his drowning in a scuba-diving a ccident in the Bahamas. We presume that Friedland hoped that the government simply would write him off so that he could avoid a pprehension. While we do not know whether the government agents ever thought Friedland was dead, for more than two years he did remain at large. However, in December 1987 he was found and arrested on
the Maldive Islands in the Indian Ocean. He then w as returned to New Jersey for trial on an indictment for the secon d group of offenses. This trial ended when, pursuant to a ple a agreement, Friedland pleaded guilty to a count charging RICO c onspiracy. On December 2, 1988, the court sentenced Friedland on this count to a 15-year custodial term to be served concurrently to the sevenyear term imposed on his original convictions. App . 81. At that time, the court had a report from a probation officer calculating Friedland's parole guideline range as b etween 40 and 52 months, and the court indicated that it believed that Friedland should serve a term within that range. A pp. 70-71. On March 30, 1989, Friedland filed a timely motion for reduction of sentence under Fed. R. Crim. P. 35(b), but followin g a hearing on May 12, 1989, the district court entered an order d enying the motion. Supp. app. 7, 8. While one might have thought that Friedlan d's ability to scheme now had been exhausted, events prove that this was not so. In early 1989, his attorney approached the Uni ted States Attorney in New Jersey and offered Friedland's serv ices in supplying information regarding certain crimes. On April 3, 1989, Samuel A. Alito, Jr., then the United States Attorney for the District of New Jersey, wrote the attorney and said that, while his office would accept any information, he w as making it "absolutely clear . . . [his office] will not make any promises, express or implied, to do anything whatsoever on be half of your client." App. 78.
This rebuff did not deter Friedland. Rath er, he devised what he characterized as a "program" to obt ain information regarding illegal drug activity from ot her inmates that he intended to barter to the government in ret urn for havinghis own sentence shortened. App. 119. Unfortunate ly for

Friedland, however, Michael Chertoff, who since had replaced Alito as United States Attorney for the District of New Jersey, did not regard the supplying of brokered informatio n as a basis
for a reduction of Friedland's sentence. Chertoff thus continued
Alito's attitude toward Friedland. Undaunted, Friedland sought to circumvent Chertoff by finding other agents of the government who might he lp him. This search led him to Anthony Longarzo, a special agent of the Drug
Enforcement Administration. Friedland dealt with L ongarzo for about three months in the summer of 1990. Gov. app . 53-54. Friedland offered to give information to Longarzo w ho, according to Friedland, agreed to recommend to the sentencing court and the
United State Parole Commission that his sentence be reduced. Gov. app. at 4-5. Friedland did deliver informatio n leading to
the seizure of narcotics and several arrests. Id. Friedland also contacted assistant United States attorneys in districts other than New Jersey seeking to obtain their aid i n having his period of incarceration shortened. Friedland's initial parole hearing was sch eduled for early in 1993. Chertoff opposed his parole and wro te a letter on January 7, 1993, to John R. Simpson, regional commi ssioner of the United States Parole Commission, expressing his vie ws. Gov. app.
56. Chertoff knew that Friedland had been in touch with the United States Attorney's office in the Eastern Dist rict of New York, and thus Chertoff sought information from tha t office regarding Friedland's activities. In response to C hertoff's request, on March 7, 1993, Patricia E. Notopoulos, an assistant United States attorney for the Eastern District of New York, wrote to Chertoff regarding Friedland. She indicat ed that Friedland did not have a written agreement with her office and that her office had made no promises to him. She s tated that, although she told Friedland that she would relay th e information he provided to the District of New Jersey, that dis trict "was the sole authority that would decide what benefit, if a ny, he would receive for the information he provided." App. 86. She also related that Friedland had given reliable informati on to Longarzo that he obtained from another inmate and that, as a result, a "mule" carrying approximately five kilograms of her oin had been arrested at Kennedy Airport. Id. She explained th at Friedland revealed the name of the informant who had given hi m the information, and that the informant agreed that Fri edland could
take the credit for the information. She further i ndicated that the informant gave additional information to her of fice, which led to additional arrests. App. 87. On March 9, 1993, Chertoff wrote to Friedl and's attorney and enclosed a copy of Notopoulos's letter . Chertoff indicated that his office generally considered it b ad policy to give credit to an individual who was merely brokeri ng someone else's information, and that it did not want to cre ate a "secondary market" in benefits awarded for cooperat ion. Chertoff
said that his office therefore would continue stron gly to oppose Friedland's application for parole. Gov. app. 59. On March 10, 1993, a two-person panel of t he ParoleCommission held a hearing on Friedland's case and t hen referred

the case to the regional commissioner for an origin al jurisdiction determination. 28 C.F.R.  2.17(b)(2)(ii). The panel also recommended to the regional commissioner that he set a presumptive parole date of December 24, 1994, which would represent 84 months of incarceration, and that the commissioner require financial disclosure as a special condition of parole. Gov. app. 64. On March 18, 1993, Chertoff wrote to the r egional commissioner arguing against the panel's recommenda tion for parole. In support of his position, Chertoff enclo sed a coverstory from the New York Daily News in which Friedla nd described his life as a fugitive to a reporter using the Fren ch Alps as a backdrop. He also enclosed other newspaper and mag azine articles, as well as a transcript of a television i nterview that Chertoff characterized as glamorizing Friedland and his criminal escapades, particularly his flight as a fugitive. Chertoff pointed out that Friedland had made himself into a high profile celebrity figure. Thus, his parole would be "highl y publicized" and would "appropriately be viewed by the public as outrageous given Friedland's crimes and his disdain for the cr iminal justice system." Gov. app. 66. On March 25, 1993, the regional commission er rendered a report referring Friedland's case to the national c ommissioners and recommending that parole be denied. The region al commissioner decided that the aggravating factors i n Friedland's case outweighed his cooperation and favorable insti tutional adjustment. He reached this conclusion notwithstan ding the fact that under the parole guidelines Friedland's offens e severity and salient factor score indicated that parole ordinari ly would be appropriate. The commissioner alluded to Friedland 's fraudulent behavior, and concluded that Friedland was "a more serious risk to the community than a person normally placed in t he 'very good' parole risk group." Gov. app. 70. On April 19, 1993, the national commission ers issued an original jurisdiction decision in Friedland's case. They ruled
that Friedland should serve his entire sentence and also should be subject to a special financial disclosure condit ion. While they recognized that a mechanical application of th e parole guidelines provided for a range of 40 to 52 months before parole, they concluded that the aggravating factors in his case warranted a longer sentence. These factors included the dive rsion of $20,000,000 from the Local 701 Pension Fund for pla cement in high risk investments which caused the fund a $4,500,000 loss, the
fact that Friedland had committed this offense whil e supposedly cooperating with the government while released on b ond, his tax evasion not related to the crime, his attempt at es cape by faking his drowning, and an attempt to influence grand jur y testimony. The national commissioners, agreeing with the regio nal commissioner, concluded that Friedland was "a poore r risk than indicated by [his] salient factor score." App. 66. Friedland appealed but the full national Commission affirmed the decision in an opinion dated July 27, 1993, concluding that the original decision complied with applicable regulations. App . 65.After the denial of parole, Friedland pers isted in his

efforts to have his sentence reduced by continuing to seek help from assistant United States attorneys from the Eas tern District of New York. The Eastern District prosecutors, how ever, told him
that he should discuss his case with the United Sta tes Attorney for the District of New Jersey and that they could not file a motion for reduction of his sentence. Gov. app. 9- 10. Subsequently, Friedland instituted the thr ee proceedings leading directly to these appeals. He moved in the
district court for reconsideration of his sentence pursuant to Fed. R. Crim. P. 35(b) and brought two petitions fo r habeas corpus. He filed one petition under 28 U.S.C.  2241, naming as respondents the warden of the Federal Correctional Facility at Fort Dix, New Jersey, where he was then confined, a nd the United States Parole Commission, and one petition under 28 U.S.C.  2255 in which he sought a reduction of sentence. The di strict court denied Friedland relief without conducting an evide ntiary hearing. United States v. Friedland, 879 F. Supp. 420. In its opinion, the district court set for th the background described above. It explained that Fed. R. Crim. P. 35(b), which was amended significantly effective No vember 1, 1987, was applicable in its current form in this ca se, but that the old form of Rule 35(b) also was applicable, as this case arose before November 1, 1987, when the sentencing guidelines became effective. Friedland, 879 F. Supp. at 426. See United States v. Hernandez, 34 F.3d 998, 999 n.1 (11th Cir 1994); United States v. Weaver, 884 F.2d 549, 850 (11th Cir. 1989 ). It further pointed out that Rule 35(b) now reads as follows: Reduction of Sentence for Changed Circumstances. The court, on motion of th e Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subseque nt, substantial assistance in the investigatio n or prosecution of another person who has committed an offense, in accordance with t he guidelines and policy statements issued by the Sentencing Commission pursuant to sect ion 994 of title 28, United States Code. The court may consider a government motion to reduce a sentence made one year or more af ter imposition of the sentence where the
defendant's substantial assistance involve s information or evidence not known by the defendant until one year or more after imposition of sentence. The court's authority to reduce a sentence under this subsection includes the authority to reduc e such sentence to a level below that established by statute as a minimum senten ce. Consequently, the court could not reduce a defendan t's sentence under the new rule absent a motion by the governmen t. Friedland, 879 F. Supp. at 426. See United States v. Francois, 889 F.2d 1341, 1345 (4th Cir. 1989).The court noted that, in Wade v. United St ates, 112

S.Ct. 1840 (1992), the Supreme Court held that, eve n when a defendant has provided assistance to prosecutors, t he government can refuse to move for a downwards departure under 18 U.S.C.  3553(e) unless the prosecutor bases the refusal on a constitutionally suspect ground such as race or rel igion. The district court then indicated that the court might consider such a motion, even if not made by the government, if th e government previously had entered into an agreement requiring it. Friedland, 879 F. Supp. at 426-27. The court held that, even if Longarzo's statements were considered promises to F riedland, there was no evidence that Longarzo had the authori ty to make the promises. Id. at 427. See LaPorta v. United State s, 651 F. Supp. 884, 890 (E.D. Pa. 1986). Furthermore, Fried land could not show either that the government had an unconstituti onal motive in refusing to file the motion or that its refusal to file the motion was not related to a legitimate government o bjective. SeeWade, 112
S.Ct. at 1844.
The district court also held that Friedlan d was not entitled to relief under Fed. R. Crim. P. 35(b) as it existed before November 1, 1987. Friedland, 879 F. Supp. a t 428. The
rule at that time read as follows:
Reduction of Sentence. A motion to reduce a sentence may be made, or the cour t may reduce a sentence without motion, with in 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 day s after entry of any order or judgment of th e Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The
court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible
reduction of sentence under this subdivisi on. The court first indicated that the 120-day limit in the rule was jurisdictional. United States v. Addonizio, 442 U. S. 178, 189, 99 S.Ct. 2235, 2242-43 (1979). While Friedland sou ght to circumvent the time limit by characterizing his mot ion as one for reconsideration of his March 30, 1989 motion to red uce his sentence, he could not avoid the rule on this basis because he had developed his "program" to obtain a reduction o f his sentence after he had served his original motion. Friedland , 879 F. Supp. at 429. See United States v. Irendino, 655 F.2d 10 8, 109-10 (7th Cir. 1981). The court next considered Friedland's peti tion under 28

U.S.C.  2255. Friedland there argued that the government had been "selectively invidious" in failing to file a R ule 35(b)
motion on his behalf. He also contended that its f ailure to file
the motion constituted a breach of its contract wit h Friedland.The court dismissed these claims for the same reaso ns that it

dismissed the motion filed directly under Rule 35(b ). Friedland, 879 F. Supp. at 429. The court then addressed Friedland's appli cation under
28 U.S.C.  2241. It rejected his claim that the severity lev el for his offense recognized by the Parole Commission was unjustified, as it was clear that the Pension Fund suffered a
loss in excess of the threshold amount for that lev el. The court also rejected Friedland's contention that the Parol e Commission did not have good cause for exceeding its guideline s as required by 18 U.S.C.  4206(c) and set forth at length its reasons for this conclusion. Furthermore, the court rejected F riedland's contention that United States v. Addonizio, 442 U.S . 178, 99 S.Ct. 2235, which held that the Parole Commission's determination did not have to be controlled by the district court 's intentions regarding parole, was inapplicable in view of the a bolition of the Parole Commission, which the Crime Control Act of 1984 had provided would be effective in 1992. Finally, the court rejected Friedland's co ntention that he was entitled to an evidentiary hearing under 28 U.S.C.  2255. The court reasoned that, while an evidentiary heari ng is required to resolve disputed facts, a hearing was not requir ed in this case because, even under Friedland's view of the fa cts, he was not entitled to relief. United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992); United States v. Forte, 865 F.2d 59 , 62 (3d Cir. 1989). After the district court denied Friedland's motion for reconsideration, he filed this appeal.

II. DISCUSSION

1. Old Rule 35(b)

It is clear that Friedland's motion under old Rule 35(b), applicable because Friedland committed the o ffense before the sentencing guidelines became effective, was unt imely. That rule required Friedland to make his motion within 1 20 days of sentencing. Friedland did move for reduction of se ntence within that period but the district court denied the motio n and Friedland did not appeal from that denial. Friedla nd's motion under old Rule 35(b), now before us, is literally y ears late, because he filed it after the Parole Commission rej ected his application for parole. We recognize that Friedland has characteri zed his new motion under Rule 35(b) as a "motion for reconsider ation of reduction of sentence." Gov. app. 1. But this plo y does not change the fact that the motion was untimely under old Rule 35(b). As the district court noted, citing United States v. Addonizio, 442 U.S. at 189, 99 S.Ct. at 2242-43, th e 120-day limit is jurisdictional, and cannot be extended. C onsequently, a defendant may not file an untimely motion for reduc tion of sentence and relate it back to a timely motion beca use treating the second motion as timely would frustrate the pur pose of the time limitation in old Rule 35(b). See United Stat es v. Ferri,686 F.2d 147, 154-55 (3d Cir. 1982), cert. denied, 459 U.S. 1211,

103 S.Ct. 1205 (1983); United States v. Dansker, 58 1 F.2d 69, 72 (3d Cir. 1978). Friedland's use of old Rule 35(b) was a pa rticularly blatant violation of the time constraint policy of the rule
because in the motion he relied on his efforts to i mplement his "program" as a basis for a reduction of sentence. Of course, he did not even devise this "program" until after the expiration of the 120-day period for serving a motion to reduce s entence under old Rule 35(b). Furthermore, inasmuch as Friedland made his motion after the Parole Commission had rejected his application for parole, he used the motion for an improper purp ose, i.e., as
a substitute for the decision of the Parole Commiss ion. SeeUnited States v. Idone, 38 F.3d 693, 696-97 (3d Cir. 1994).

2. New Rule 35(b) and 28 U.S.C.  2255

Friedland asserts that he reached an agree ment with Longarzo in the summer of 1990 that, in return for information, Longarzo would help him obtain a shortening of his sentence and
would assist him before the Parole Commission. Gov . app. 4.
Friedland claims that the offices of the United Sta tes Attorneys
for the Eastern and Southern Districts of New York ratified this understanding. Brief at 9. He asserts that he has a right predicated on contractual principles and due proces s of law to have these promises enforced. In his brief, he doe s not delineate clearly whether he is entitled to this re lief directly under Rule 35(b) or under 28 U.S.C.  2255. Friedland's contentions in this respect ar e bizarre. When new Rule 35(b) was adopted effective November 1, 1987, it provided that the court, "on motion of the Governme nt, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant's subsequent, substantial assis tance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and p olicy statements issued by the Sentencing Commission purs uant to section 994 of title 28, United States Code." Pub. L. No. 98- 473,  215, 98 Stat. 1837, 2016 (1984); Pub. L. No. 99-57 0,  1009, 100 Stat. 3207, 3207-8 (1986). New Rule 35(b ) was amended on April 30, 1991, with an effective date of Decemb er 1, 1991, to permit the court to "consider a government motion t o reduce a sentence made one year or more after imposition of the sentence
where the defendant's substantial assistance involv es information or evidence not known by the defendant until one ye ar or more after imposition of sentence." As we have noted, the court sentenced Frie dland on December 2, 1988. Thus, in the summer of 1990, whe n Friedland claims to have made his agreement with Longarzo, th e government
could not file a motion on his behalf under the ori ginal and then applicable version of new Rule 35(b) because the ti me for such a motion had expired. Nor could it file a motion on his behalf under the amended new Rule 35(b) as that amendment had not yet been adopted. Consequently, Friedland claims to ha ve beennegotiating for assistance which as a matter of law could not

have been given with respect to his sentence. Notwithstanding this legal flaw in Friedla nd's argument, we have examined the voluminous documenta tion in the record and find nothing to support Friedland's cont ention that the government agreed to make a motion to reduce hi s sentence. But his assertion, which the government vigorously denies, even if true, gets him nowhere because it is perfectly c lear that Friedland's dealings with assistant United States a ttorneys in
the Eastern and Southern Districts of New York coul d not have included any such enforceable promise. The office of the United States Attorney i n New Jersey has taken the position without equivocation from th e time of Alito's letter of April 3, 1989, that it would not negotiate with Friedland. It maintains that position to this day. Under 28

U.S.C.  541 and 547 the United States Attorney is responsi ble for the prosecution of all criminal cases within hi s or her district. The United States Attorney for the Distr ict of New Jersey never was removed from or superseded in the Friedland prosecution. Consequently, only the United States Attorney for the District of New Jersey could file a motion for reduction of sentence in Friedland's case under new Rule 35(b). Thus, as a matter of law, Friedland could not have negotiated an agreement for the government to move to reduce his sentence. Of course, Friedland knew that the United States Attorney for the District of New Jersey would not f ile such a motion. Indeed, that knowledge led him to deal wit h Longarzo and the New York assistant United States attorneys. It is significant that Friedland, though d isbarred, had been an attorney admitted to practice in the state and federal courts in New Jersey. Thus, he should have recogni zed that at a minimum there was a serious legal question as to wh ether the
district court could reduce his sentence without a motion from the United States Attorney in New Jersey requesting it to do so. It is also significant that the record makes it cle ar that Friedland has been involved personally in the legal aspects of his case. Indeed, when we pointed out to Friedland 's attorney at oral argument that Friedland's brief twice referred to Friedland as "me," suggesting that Friedland had written the brief, the attorney acknowledged that Friedland had participat ed in the writing of the brief. Thus, this case does not inv olve any government overreaching by taking advantage of an u nsophisticated

defendant. We recognize that, in some situations, a U nited States Attorney can form agreements that are effective out side of his or her district. United States v. Carter, 454 F.2d 42 6 (4th Cir. 1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646 (1 974), on which Friedland relies, demonstrates this principle. In Carter, on appeal from an order denying a motion to dismiss an indictment, the court held that an alleged promise made by the United States Attorney for the District of Columbia to a cooperat ing defendant who helped in the apprehension and conviction of ot her defendants, if made, would be binding on the United States Attorney for the Eastern District of Virginia. But in Carter thealleged promise was that the District of Columbia p rosecution

would be "the sole prosecution against defendant." Id. at 428. The agreement, if made, would have been binding wit h respect to a future prosecution in another district. Thus, the Carter court
remanded the matter to the district court for an ev identiary hearing to determine if the government made the pro mise and, if so, whether the defendant relied on it. Here the situation is different. The pros ecution in New Jersey had been completed long before Friedland opened his negotiations with Longarzo and with the assistant U nited States attorneys in New York. We need not and will not de termine how far a United States Attorney in one district may go in making agreements binding on other districts. Rather, we hold only that the United States Attorney in New Jersey had exerci sed such a degree of control over the Friedland prosecution an d the prosecution had progressed so far that, without his or her consent, as a matter of law the United States Attor neys in the
Eastern and Southern Districts of New York could no t bind the government to make a motion to reduce Friedland's D istrict of New Jersey sentence. Thus, notwithstanding Friedland's assertion that he had an agreement that the government would move to reduce his sentence, on the basis of the undisputed facts that the United States Attorney in New Jersey neither made n or consented to any such agreement, and from shortly after Fried land's sentencing told him it would make no promises to hi m and has adhered consistently with that position, the distri ct court properly denied Friedland relief under new Rule 35( b) and under
28 U.S.C.  2255.

3. Parole and section 2241
a. Addonizio and Salerno Friedland does make an interesting technic al argument involving the interplay between United States v. Sa lerno, 538 F.2d 1005 (3d Cir. 1976), and United States v. Addo nizio, 442 U.S. 178, 99 S.Ct. 2235. (1979) In Salerno, we ord ered a resentencing in a post-conviction proceeding under 28 U.S.C.  2255 when the defendant was not paroled within the period contemplated by the sentencing judge. In Addonizio , however, the Supreme Court held that the district court did not have jurisdiction under section 2255 to reduce a sentenc e merely because the Parole Commission prolonged the defenda nt's period of incarceration beyond the time contemplated by the d istrict court. The Court emphasized that, in general, Congress pro vided that the Parole Commission, and not the sentencing court, wo uld determine when a lawfully sentenced defendant would be releas ed. Id. at 188-89, 99 S.Ct. at 2242. In this case, the distri ct court thought that Friedland would be paroled between 40 and 52 months
after his incarceration. Friedland seeks to have Salerno applied he re based on the following reasoning. The court sentenced Fried land on December 2, 1988. At that time, the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473,  235(a)(1) and (b)(1), 98 Stat. 1837, 2031-33 (1984), provided for abolition of the Parole Commission on November 1, 1992. Thus, Friedland ar gues thatafter November 1, 1992,

the Court, not the Parole Commission, woul d exercise parole supervision jurisdiction. Thus, Judge Gerry [the sentencing judge wh o has since died] had enforceable parole expectations because after November 1, 199 2, according to the law in existence when he sentenced Friedland, the Court and not the Parole Commission would supervise Friedlan d's parole. Since Judge Gerry recommended on Form A0235 that Friedland be paroled withi n his Guideline range of 40-52 months, it is

reasonable to assume that he would follow his
own recommendation.

Brief at 38-39. Friedland acknowledges that section 235(b) (3) of the Comprehensive Crime Control Act of 1984 obliged the Parole
Commission to set a release date for an individual who would be in its jurisdiction the day before its scheduled ab olition. He further recognizes that the Parole Commission may d epart from the parole guidelines. But he reasons that under secti on 235(b)(4) "responsibility for parole supervision and revocati on [is transferred] to U.S. District Judges." Brief at 39 . Thus, in Friedland's view, when Judge Gerry sentenced him, t he judge must have contemplated that if the Parole Commission rej ected his parole application, a district judge could review h is case 24
months later. 18 U.S.C.  4208(h)(2). While Friedland realizes that Congress has extended the Parole Commission's life by five years to 1997, see Pub. L. No. 101-650,  316, 104 Stat. 5089, 5115 (1990), he believes that his hypothetical reco nstruction of what would have happened if the Commission's life h ad not been
extended should lead to his release because the two -year review period would have expired no later than two years a fter the original date for the abolition of the Commission i n 1992. We reject Friedland's argument for several reasons. First, the Parole Commission has not been abolished . Second, it is by no means clear that Congress ever intended to authorize a district court to grant parole. Section 235(b)(4) of the Comprehensive Crime Control Act of 1984 provides "t hat the district court shall determine, in accord with the Federal Rules of Criminal Procedure, whether release should be re voked or the
conditions of release amended for violation of a co ndition of release." This provision says nothing about granti ng parole. Third, it is speculative to attempt to ascertain wh at a district court would have done with respect to parole, assum ing that it had the power to grant parole, if Congress had not extended the life of the Parole Commission. Perhaps the same ar guments that convinced the Parole Commission to deny parole woul d have convinced a district judge to reach the same conclu sion. In this regard we observe that we see no reason why a judge passing on a parole application would be any more bound by a sen tencing judge's expectation of when the defendant would be paroled thanthe Parole Commission itself after Addonizio.

b. Abuse of discretion

Friedland next contends that: (1) the Paro le Commission's decision denying him parole was arbitr ary; (2) the
Commission did not consider the factors it should h ave taken into account in making its decision; (3) the record does not support a conclusion that he was a poor parole risk, and (4) the Commission
relied on a false assessment of his crimes in reach ing its conclusion. He points out that he had excellent wo rk reports, no incident reports, received bonuses for job perfo rmance, volunteered for service on the suicide watch, had a n excellent institutional adjustment and received positive eval uations while incarcerated. He also notes that Judge Gerry recommended that he be paroled after service of the parole guideline ra nge of 40 to 52 months and that his co-defendants were paroled a fter two years of imprisonment.
Our review of the district court's order d enying
Friedland relief under 28 U.S.C.  2241 is plenary. United States ex rel. Schiano v. Luther, 954 F.2d 910, 912 (3d Cir. 1992). In contrast, we cannot disturb the Parole C ommission's ruling unless it acted arbitrarily or capriciously or abused its discretion in reaching its result. Bridge v. Unite d States Parole Comm'n, 981 F.2d 97, 105 (3d Cir. 1992). In exercising a deferential standard of review we recognize that al though Friedland's parole guideline range was 40 to 52 mon ths, the parole guidelines do not have the conclusive force of the sentencing guidelines. Thus, 18 U.S.C.  4206(c) provides that the Commission may "deny release on parole notwiths tanding the guidelines . . . if it determines there is good cau se for so doing." See Campbell v. United States Parole Comm' n, 704 F.2d 106, 111 (3d Cir. 1983). This rather nonspecific s tandard differs materially from the more exacting criteria for departure from the sentencing ranges established under the se ntencing guidelines. Our task, then, is to determine whether we can say that
the Parole Commission abused its discretion in dete rmining that there was good cause for denying Friedland parole. In this regard, we note that release may be denied if it wo uld "depreciate the seriousness of [the] offense or pro mote disrespect for the law." 18 U.S.C.  4206(a)(1). The facts show that Friedland engaged in his second crime activity while he was on bond after his original convictions; this second crime took place over an extended time period while Friedland pretended to cooperate with the government; Friedland evaded inc ome taxes; and
his crime caused a multi-million dollar loss. Frie dland also mocked the criminal justice system by faking his ow n death and remaining a globe-trotting fugitive. In the circum stances, his release would depreciate the seriousness of the cri me. We recognize that Friedland's institutiona l conduct superficially supports his application for parole. Yet in some respects that very conduct is disturbing. After hi s initialconvictions he manipulated the government so that h e could stay

out of prison and commit a further crime. He then faked his own death in an attempt to avoid apprehension. Friedla nd's conduct in prison, the procuring of information from other inmates for his own benefit, is consistent with his prior manip ulative conduct. Furthermore, his efforts to circumvent th e authority of the United States Attorney in New Jersey demonstrat e that his manipulative character has not changed. By any sta ndard Friedland, though undoubtedly highly intelligent, i s a cunning, manipulative individual, scornful of society's cons traints. Furthermore, while it is true that in a co nventional sense, i.e., the causing vel non of management prob lems in prison, Friedland is not a problem prisoner, it har dly would be expected that a person with his background would pr esent a discipline problem. Overall, we think that the Commission was justified in concluding that Friedland was "a poore r risk than indicated by [his] salient factor score." Friedland also attacks the predictive abil ities of the Parole Commission, pointing out that "statistics on parole violators show how often the parole commission's de cisions are wrong." Brief at 31. No doubt this statement is c orrect because paroled convicts do commit further crimes. Yet thi s unfortunate fact is hardly a reason to upset a Parole Commissio n determination that a person should not be paroled i n part because he is a poor risk. If Friedland's history teaches us anything, it is that when not in custody he is dangerous. Af ter all, when he remained at liberty after his first convictions he was in a position analogous to that of a convict on parole. Like a convict on parole, he was subject to some control u nder the criminal justice system but yet was not in physical custody. We know what he did then, and we cannot fault the Paro le Commission for wanting to avoid repetition of that conduct. F riedland's institutional record in no way detracts from the Co mmission's
conclusions.

4. The request for an evidentiary hearing

Friedland finally argues that the court er red in denying him an evidentiary hearing. We see no basi s for this argument, as the undisputed facts show that he was not entitled to relief. Government of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). As we have explained, it is bey ond dispute
that his motion for reduction of sentence under old Rule 35(b) was not timely. As a matter of law, he also was no t entitled to relief under new Rule 35(b) or 28 U.S.C.  2255. Finally, the fact that Friedland engaged in additional serious c riminal conduct after his first convictions, and then faked his death and fled to avoid apprehension cannot be disputed, so i t is clear
that the Parole Commission did not abuse its discre tion in denying him parole. In the circumstances, there wa s no reason for the district court to conduct an evidentiary he aring.

III. CONCLUSION For the foregoing reasons we will affirm t he districtcourt's orders of March 2, 1995, and August 3, 1995

.

United States of America v. David Friedland No. 95-5582/5583/5584

ROSENN, Circuit Judge, concurring and dissenting. I concur in the majority's holding that th e district court properly denied Friedland relief under his mo tions pursuant
to 28 U.S.C.  2255 and both versions of Fed. R. Crim. Proc. 35. I believe, however, that the Parole Commission did not fully consider Friedland's case for parole, gave no valid reasons for an upward departure from its guidelines, and, thus, abused its discretion. I therefore must respectfully dissent from that portion of the majority's opinion dealing with that issue, particularly Part II (3). Then-Chief Judge John Gerry, an able and e xperienced trial judge of the United States District Court for the District of New Jersey, sentenced Friedland. Judge Gerry im posed a sentence which he believed would adequately reflect the seriousness of Friedland's offenses, punish Friedla nd, and permit
his rehabilitation. With the facts before him of a ll of Friedland's offenses, including his conduct in lead ing the United States Attorney's office for the District of New Je rsey to believe that he would cooperate and instead committ ing another offense, and his flight while on bail, Judge Gerry imposed a sentence which would allow for parole eligibility a fter a period
of 40 to 52 months of incarceration. Friedland has , as of March 25, 1996, served 100 months. I recognize, as the majority notes, that t he presumptive parole date set by Judge Gerry does not have the force of law. Nor do I see merit in Friedland's pr ocedural argument that the imminent dismantlement of the Par ole Commission requires a return to this court's rule in United St ates v. Salerno, 538 F.2d 1005 (3d Cir. 1976). Because the Parole Commission is still in existence, the Supreme Court 's rule set in United States v. Addonizio, 442 U.S. 178 (1979) sti ll applies. Thus, I agree that the Parole Commission's departur e from the parole date target set by Judge Gerry does not give the courts authority to reduce his sentence. The Commission m ay disregard the guidelines if there is good cause for so doing. See, 18

U.S.C.  4206(c). Nonetheless, if the Parole Commission wish es to exercise its power to, in effect, overrule Judge Ge rry's and the defendant's parole expectations, and disregard the recommendation of the Commission's interviewing panel in this case , it cannot do so arbitrarily and capriciously. The reasons cited by the Commission lack s ubstance. They rely solely on facts considered by the sentenc ing judge when he fixed the sentence; the extended period of the fraud, the aborted cooperation, the flight, and the misconceiv ed amount of
loss. The Commission cited no factors that the tr ial judge had not properly taken into account in setting the sentence. His initial sentence was 7 years; his final sentence, i n light of thesecond fraudulent offense and the factors now assig ned by the

Commission, was 15 years, 11 months, and 6 days. R eiteration of these reasons, therefore, cannot constitute "good c ause" for denying Friedland any parole at all. The majority points out that 18 U.S.C.  4206(a)(1) authorizes a denial of parole if it may "depreciate the seriousness of offense or promote disrespect for th e law." It is this statute which the United States Attorney relie d upon in urging the Commissioners to deny Friedland parole. Friedland's offenses were serious, but he has served more than twice the sentencing judge's expectation in punishment for of fenses that involved no violence, no assault upon any person, n o drugs, no organized crime. Instead of pointing to material f actors that the sentencing judge may have disregarded or ignore d, the Commission trumps the sentence of the judge by its own views of
what the sentence should have been. And it does so in total disregard of the appellant's exemplary prison recor d and of its own panel's recommendation that the prisoner be gra nted "a presumptive parole after service of 84 months provi ded the committed fine is paid or otherwise deposed of acco rding to law." This suggested presumptive parole date even include s an extra 20 months of confinement above the guidelines because of the Commission of the second offense "while subject was on bond on
the first." The Commission's speculation that parole w ould depreciate the seriousness of the offense and promo te disrespect for the law is a conclusory statement. It has no f acts to support it and relies on similar conclusory stateme nts of the prosecuting attorney and the Department of Labor Sp ecial Agent. No personal victim opposes the parole; the appellan t has done nothing since his incarceration that remotely sugge sts any misconduct or further disregard for the law on his part. On the contrary, to the extent permitted, he has attempted to assist the Government in enforcing the law against those engag ed in crime. From time to time, he has been helpful. In the mea ntime, numerous white-collar criminals, some with offenses much more far-reaching and with offenses on a greater scale t han this applicant, have been paroled after serving two to f ive years of
their sentences. This includes Friedland's own co- defendants, who, as fiduciaries of the Teamster's pension fund, were in as great or a greater position of trust than Friedland when they participated in the fraud. In considering the prisoner's application for parole, it seems to me that sound reasons, as well as the C ommission regulations, suggest that the Commission focus on t he applicant's conduct since he began the service of his sentence, not his behavior that brought him into conflict with the la w. The purpose of penal punishment is not only to deter cr imes but also rehabilitate. Regulations of the Parole Commission require it to consider any reasonable information concerning t he prisoner. 29 C.F.R. 2.19-04(a). The Commission may even cons ider an advancement of the presumptive release date for (1) superior program achievement over a period of 9 months in cu stody, pursuant to the provisions of 28 C.F.R. 2.60 and/or assistance inthe prosecution of other offenders pursuant to 28 C .F.R. 2.63.

Friedland has provided both.
Friedland's institutional record demonstra tes an excellent adjustment, a sincere respect for law and order. In addition to the positive reports and volunteer acti vities noted by the majority, Friedland also participated in the financial responsibility program to make restitution. He wro te a letter to
the Parole Commission that shows his remorse and un derstanding of the seriousness of his crime. Every person who had personal contact with Friedland, from psychologists to the o riginal panel of parole examiners, found him to be a candidate fo r parole. The Commission, however, has ignored completely any fac tor favorable
in Friedland's behavior since his incarceration. I also note in passing the extreme unlikel iness of
recidivism in this case. Friedland's crime was not one of violence, nor does he have a violent character. Ra ther, he perpetrated a fraud made possible by a conflation o f circumstances that are unlikely ever to happen agai n. He is now sixty years of age. He has been dismissed as couns el for Teamster Local No.701, the victim of the fraud. He has been publicly humiliated and imprisoned. It is highly u nlikely that he will hold a position of trust again. Besides, i f paroled, he would be on probation and strict supervision. This is obviously a time for healing, not vindictiveness on the part of the prosecution. Besides, parole is only a conditional release, it is a modified continuation of punishment, and the p arolee is under supervision and subject to return to prison f or any infraction. Moreover, the procedure used by the Commis sion in deciding this case is questionable. A two-person p anel of parole examiners originally conducted a hearing in this ca se at which Friedland appeared arguing for parole and two repre sentatives of the United States Attorney's office in New Jersey a nd the United States Department of Labor appeared in opposition o f parole. The panel had an opportunity not only to study the reco rd, the offenses and sentencing, but also to weigh the posi tions of the subject and the Government. The two members of the panel were the only persons in the Commission to meet personal ly with both Friedland and the Government representatives opposi ng his parole.
Paul C. Kurtz of the National Correctional Counseli ng Center in Washington, D.C., speaking in behalf of Friedland, urged parole at the time in accordance with the parole guideline s. Kurtz did not believe it would depreciate the seriousness of the offense if the subject were paroled because this case did not differ from any other high profile fraud case, including Ivan B oesky, Jim
Bakker or Michael Milliken. Counsel for Friedland observed at the hearing that there was no publicity in the case but only manifestations of political rancor from the Office of the United States Attorney for the District of New Jersey. Th e panel noted: "This was evident because subject has attempted to cooperate on numerous occasions but this had not been encouraged by that
office." Under Parole Commission procedures, it is usual for the panel's decision to be reviewed by the Regional Commissioner. Inthis case, Friedland's application was appropriatel y designated

as one for original jurisdiction. This means that the Regional Commissioner, after reviewing the decision of the p anel and making his own recommendation, sends the case to th e National
Parole Commission for final review. Its decision i s the final one. Friedland did not have the opportunity to app ear before either the Regional Commissioner or the National Co mmissioners. Applicants for parole do not have a right to personal appearances before review boards. See, e.g., Billi teri v. Board of Parole, 541 F.2d 938 (2d Cir. 1976). Therefore, review boards should be particularly deferential to the findings and recommendations of the interviewing panel, presumab ly professionals, who weighed the merits of the presen tations made in behalf of and in opposition to parole at that ti me. The panel

found: "It is the panel's finding's th at subject should be paroled because the s entencing judge has no objection, but on the contrary, recommends parole in accordance with the parole guidelines. In making i ts determination as to when subjec t should be paroled, the panel believes tha t the negative information provided by the rep resentatives of the government is off-set by the favorable factors regarding subject which includes his cooperation and his institution al adjustment."

As an appellate court, we have many times recognized
that the district courts which we review are in muc h better positions to judge such matters as the credibility, demeanor of witnesses, the harm of an evidentiary error, and th e weight of the evidence. We recognize that our review of a dr y record, of necessity, cannot be as comprehensive as the review of the judge who watched and heard the issues being played out. The Regional
Commissioner and the National Commissioners here sh ould exercise the same appellate restraint. They are not in a po sition to make credibility judgments, but rather should defer to t hose of the panel. Their review should by no means be a rubber -stamp of the panel decision, any more than appellate review rubb er-stamps district court decisions. Nonetheless, like appell ate courts, the Commissioners should specifically note where th e panel committed error if they wish to overrule its recomm endation. The Commissioners, all political appointee s, did not do this in Friedland's application. The Regional Comm issioner, in his memorandum, merely details the facts of Friedla nd's preincarceration offenses, and concludes: "The aggrava ting factors of subject's [pre-sentence] behavior outweighs his cooperation and institutional adjustment significantly." This conclusory statement does not explain why the same aspects of Friedland's behavior, which were taken into account by both Jud ge Gerry and by the panel examiners, merited more confinement th an any of them had found appropriate. The National Commissioners adopted the Regional Commissioner's recommendation. Neither re view boarddisputed, or even mentioned, the carefully weighed factual

findings and the conclusions made by the panel at i ts hearing of Friedland on March 10, 1993, regarding his institut ional adjustment, his remorse, or his ability to function in society. Just as appellate courts cannot reject out-of-hand the factual findings of trial courts, the Commissioners should not be able blithely to ignore those of the panel examiners who actually conducted a hearing on Friedland's application for parole. These procedures do not show proper defere nce to the panel finders of fact. Also, the Parole Commission usurped judicial power by departing from the parole guideli nes solely for reasons already considered by Judge Gerry. Moreove r, the Commission does not point to any fact that justifie s the outright denial of any parole.
I therefore believe that the Parole Commis sion abused its discretion in rejecting Friedland's application . In turn, the district court perpetuated the conclusory actio n of the National Commission. Hence, I respectfully dissent

. Accordingly, I would vacate the judgment of the dis trict court
with directions to remand the case to the Parole Co mmission with instructions to consider with proper deference the findings of the hearing panel and for such further proceedings as are consistent with this opinion.