1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-17-1996

USA v. Friedland

Precedential or Non-Precedential:

Docket 95-5582,95-5583,95-5584

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Recommended Citation

"USA v. Friedland" (1996). 1996 Decisions. Paper 179.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/179
 UNITED 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, Circuit Judges 

 (Filed: May 17, 1996) 
 

 Brian W. Shaughnessy (argued) 

 Shaughnessy, Borowski & Gagner 

 1155 15th Street, N.W. 

 Suite 502 

 Washington, DC 20005 

 Attorneys for Appellant 

 Kevin McNulty 

 Assistant United States Attorney 

 Faith S. Hochberg 

 United States Attorney 

 970 Broad Street 

 Room 502 

 Newark, NJ 07102 

 George S. Leone (argued) 

 Assistant United States Attorney 

 4th & Cooper Streets 

 Mitchell H. Cohen Courthouse 

 One John F. Gerry Plaza 

 Camden, NJ 08101 

 Attorneys for Appellees 

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 David Friedland appeals from orders entered on March 2, 

1995, and August 3, 1995, in these post-conviction proceedings in 

which he seeks release from incarceration. The district court 

denied his applications by the order of March 2, 1995, 

implementing the conclusions it reached in United States v. 

Friedland, 879 F. Supp. 420 (D.N.J. 1995), and denied his motion 

for reconsideration by the order of August 3, 1995. Essentially, 

Friedland claims that his continued incarceration through denial 

of parole contravenes the intentions of the district court when 

it sentenced him and is not justifiable under the parole 

guidelines and that his cooperation with agents of the United 

States Government in furthering criminal prosecutions 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 general counsel to 

the Teamsters Local 701 Pension Fund in North Brunswick, New 

Jersey in the 1970s. He used this position to obtain kickbacks 

for arranging loans from the pension fund. This conduct and his 
efforts to cover it up led to his indictment and conviction for 

conspiracy, soliciting and receiving kickbacks, interstate and 

foreign travel to facilitate bribery, obstruction of justice, and 

income tax evasion. The district court sentenced Friedland to 

seven years in prison and we affirmed. United States v. 

Friedland, 660 F.2d 919, 922-25 (3d Cir. 1981), cert. denied, 456 

U.S. 989, 102 S.Ct. 2268 (1982). 

 Following his conviction, Friedland avoided serving his 

sentence by agreeing to cooperate with the government in the 

investigation of other crimes. However, he took this opportunity 

to engage in additional criminal activity involving the Local 701 

pension fund. See United States v. Zauber, 857 F.2d 137, 140-42 

& n.1, 153 (3d Cir. 1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 

1349 (1989). At that time, instead of receiving kickbacks, 

Friedland began paying them to obtain money from the Pension Fund 

for high risk investments. 

 When his second and independent criminal episode began 

to unravel, Friedland took a unique step to avoid apprehension. 

In 1985, he staged his drowning in a scuba-diving accident in the 

Bahamas. We presume that Friedland hoped that the government 

simply would write him off so that he could avoid apprehension. 

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 was returned to 

New Jersey for trial on an indictment for the second group of 

offenses. This trial ended when, pursuant to a plea agreement, 

Friedland pleaded guilty to a count charging RICO conspiracy. 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 between 40 and 

52 months, and the court indicated that it believed that 

Friedland should serve a term within that range. App. 70-71. On 

March 30, 1989, Friedland filed a timely motion for reduction of 

sentence under Fed. R. Crim. P. 35(b), but following a hearing on 

May 12, 1989, the district court entered an order denying the 

motion. Supp. app. 7, 8. 

 While one might have thought that Friedland's ability 

to scheme now had been exhausted, events prove that this was not 

so. In early 1989, his attorney approached the United States 

Attorney in New Jersey and offered Friedland's services 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 was making it 

"absolutely clear . . . [his office] will not make any promises, 

express or implied, to do anything whatsoever on behalf of your 

client." App. 78. 

 This rebuff did not deter Friedland. Rather, he 

devised what he characterized as a "program" to obtain 

information regarding illegal drug activity from other inmates 

that he intended to barter to the government in return for having 
his own sentence shortened. App. 119. Unfortunately 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 information 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 help him. This 

search led him to Anthony Longarzo, a special agent of the Drug 

Enforcement Administration. Friedland dealt with Longarzo for 

about three months in the summer of 1990. Gov. app. 53-54. 

Friedland offered to give information to Longarzo who, 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 information 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 in having his 

period of incarceration shortened. 

 Friedland's initial parole hearing was scheduled for 

early in 1993. Chertoff opposed his parole and wrote a letter on 

January 7, 1993, to John R. Simpson, regional commissioner of the 

United States Parole Commission, expressing his views. Gov. app. 

56. Chertoff knew that Friedland had been in touch with the 

United States Attorney's office in the Eastern District of New 

York, and thus Chertoff sought information from that office 

regarding Friedland's activities. In response to Chertoff'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 indicated that 

Friedland did not have a written agreement with her office and 

that her office had made no promises to him. She stated that, 

although she told Friedland that she would relay the information 

he provided to the District of New Jersey, that district "was the 

sole authority that would decide what benefit, if any, he would 

receive for the information he provided." App. 86. She also 

related that Friedland had given reliable information to Longarzo 

that he obtained from another inmate and that, as a result, a 

"mule" carrying approximately five kilograms of heroin had been 

arrested at Kennedy Airport. Id. She explained that Friedland 

revealed the name of the informant who had given him the 

information, and that the informant agreed that Friedland could 

take the credit for the information. She further indicated that 

the informant gave additional information to her office, which 

led to additional arrests. App. 87. 

 On March 9, 1993, Chertoff wrote to Friedland's 

attorney and enclosed a copy of Notopoulos's letter. Chertoff 

indicated that his office generally considered it bad policy to 

give credit to an individual who was merely brokering someone 

else's information, and that it did not want to create a 

"secondary market" in benefits awarded for cooperation. Chertoff 

said that his office therefore would continue strongly to oppose 

Friedland's application for parole. Gov. app. 59. 

 On March 10, 1993, a two-person panel of the Parole 
Commission held a hearing on Friedland's case and then referred 

the case to the regional commissioner for an original 

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 regional 

commissioner arguing against the panel's recommendation for 

parole. In support of his position, Chertoff enclosed a coverstory from the New York Daily News in which Friedland described 

his life as a fugitive to a reporter using the French Alps as a 

backdrop. He also enclosed other newspaper and magazine 

articles, as well as a transcript of a television interview 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 "highly publicized" 

and would "appropriately be viewed by the public as outrageous 

given Friedland's crimes and his disdain for the criminal justice 

system." Gov. app. 66. 

 On March 25, 1993, the regional commissioner rendered a 

report referring Friedland's case to the national commissioners 

and recommending that parole be denied. The regional 

commissioner decided that the aggravating factors in Friedland's 

case outweighed his cooperation and favorable institutional 

adjustment. He reached this conclusion notwithstanding the fact 

that under the parole guidelines Friedland's offense severity and 

salient factor score indicated that parole ordinarily 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 the 'very good' 

parole risk group." Gov. app. 70. 

 On April 19, 1993, the national commissioners 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 condition. While 

they recognized that a mechanical application of the 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 diversion of 

$20,000,000 from the Local 701 Pension Fund for placement in high 

risk investments which caused the fund a $4,500,000 loss, the 

fact that Friedland had committed this offense while supposedly 

cooperating with the government while released on bond, his tax 

evasion not related to the crime, his attempt at escape by faking 

his drowning, and an attempt to influence grand jury testimony. 

The national commissioners, agreeing with the regional 

commissioner, concluded that Friedland was "a poorer 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 persisted in his 

efforts to have his sentence reduced by continuing to seek help 

from assistant United States attorneys from the Eastern District 

of New York. The Eastern District prosecutors, however, told him 

that he should discuss his case with the United States 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 three 

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 for 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, and the United 

States Parole Commission, and one petition under 28 U.S.C.  2255 

in which he sought a reduction of sentence. The district court 

denied Friedland relief without conducting an evidentiary 

hearing. United States v. Friedland, 879 F. Supp. 420. 

 In its opinion, the district court set forth the 

background described above. It explained that Fed. R. Crim. P. 

35(b), which was amended significantly effective November 1, 

1987, was applicable in its current form in this case, 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 the 

 Government made within one year after the 

 imposition of the sentence, may reduce a 

 sentence to reflect a defendant's subsequent, 

 substantial assistance in the investigation 

 or prosecution of another person who has 

 committed an offense, in accordance with the 

 guidelines and policy statements issued by

 the Sentencing Commission pursuant to section 

 994 of title 28, United States Code. The 

 court may consider a government motion to 

 reduce a sentence made one year or more after 

 imposition of the sentence where the 

 defendant's substantial assistance involves 

 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 reduce 

 such sentence to a level below that 

 established by statute as a minimum sentence. 

Consequently, the court could not reduce a defendant's sentence 

under the new rule absent a motion by the government. 

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 States, 112 

S.Ct. 1840 (1992), the Supreme Court held that, even when a 

defendant has provided assistance to prosecutors, the 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 religion. The 

district court then indicated that the court might consider such 

a motion, even if not made by the government, if the 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 Friedland, 

there was no evidence that Longarzo had the authority to make the 

promises. Id. at 427. See LaPorta v. United States, 651 F. 

Supp. 884, 890 (E.D. Pa. 1986). Furthermore, Friedland could not 

show either that the government had an unconstitutional motive in 

refusing to file the motion or that its refusal to file the 

motion was not related to a legitimate government objective. SeeWade, 112 

S.Ct. at 1844. 

 The district court also held that Friedland was not 

entitled to relief under Fed. R. Crim. P. 35(b) as it existed 

before November 1, 1987. Friedland, 879 F. Supp. at 428. The 

rule at that time read as follows: 

 Reduction of Sentence. A motion to 

 reduce a sentence may be made, or the court 

 may reduce a sentence without motion, within 

 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 days 

 after entry of any order or judgment of the 

 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 subdivision. 

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 sought to 

circumvent the time limit by characterizing his motion as one for 

reconsideration of his March 30, 1989 motion to reduce his 

sentence, he could not avoid the rule on this basis because he 

had developed his "program" to obtain a reduction of his sentence 

after he had served his original motion. Friedland, 879 F. Supp. 

at 429. See United States v. Irendino, 655 F.2d 108, 109-10 (7th 

Cir. 1981). 

 The court next considered Friedland's petition under 28 

U.S.C.  2255. Friedland there argued that the government had 

been "selectively invidious" in failing to file a Rule 35(b) 

motion on his behalf. He also contended that its failure to file 

the motion constituted a breach of its contract with Friedland. 
The court dismissed these claims for the same reasons that it 

dismissed the motion filed directly under Rule 35(b). Friedland, 

879 F. Supp. at 429. 

 The court then addressed Friedland's application under 

28 U.S.C.  2241. It rejected his claim that the severity level 

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 level. The court 

also rejected Friedland's contention that the Parole Commission 

did not have good cause for exceeding its guidelines as required 

by 18 U.S.C.  4206(c) and set forth at length its reasons for 

this conclusion. Furthermore, the court rejected Friedland'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 abolition of 

the Parole Commission, which the Crime Control Act of 1984 had 

provided would be effective in 1992. 

 Finally, the court rejected Friedland's contention that 

he was entitled to an evidentiary hearing under 28 U.S.C.  2255. 

The court reasoned that, while an evidentiary hearing is required 

to resolve disputed facts, a hearing was not required in this 

case because, even under Friedland's view of the facts, 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 offense before 

the sentencing guidelines became effective, was untimely. That 

rule required Friedland to make his motion within 120 days of 

sentencing. Friedland did move for reduction of sentence within 

that period but the district court denied the motion and 

Friedland did not appeal from that denial. Friedland's motion 

under old Rule 35(b), now before us, is literally years late, 

because he filed it after the Parole Commission rejected his 

application for parole. 

 We recognize that Friedland has characterized his new 

motion under Rule 35(b) as a "motion for reconsideration of 

reduction of sentence." Gov. app. 1. But this ploy 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, the 120-day 

limit is jurisdictional, and cannot be extended. Consequently, a 

defendant may not file an untimely motion for reduction of 

sentence and relate it back to a timely motion because treating 

the second motion as timely would frustrate the purpose of the 

time limitation in old Rule 35(b). See United States 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, 581 F.2d 69, 72 

(3d Cir. 1978). 

 Friedland's use of old Rule 35(b) was a particularly 

blatant violation of the time constraint policy of the rule 

because in the motion he relied on his efforts to implement 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 sentence 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 purpose, i.e., as 

a substitute for the decision of the Parole Commission. 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 agreement 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 States 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 process of law to 

have these promises enforced. In his brief, he does not 

delineate clearly whether he is entitled to this relief directly 

under Rule 35(b) or under 28 U.S.C.  2255. 

 Friedland's contentions in this respect are bizarre. 

When new Rule 35(b) was adopted effective November 1, 1987, it 

provided that the court, "on motion of the Government, may within 

one year after the imposition of a sentence, lower a sentence to 

reflect a defendant's subsequent, substantial assistance in the 

investigation or prosecution of another person who has committed 

an offense, in accordance with the guidelines and policy 

statements issued by the Sentencing Commission pursuant to 

section 994 of title 28, United States Code." Pub. L. No. 98- 

473,  215, 98 Stat. 1837, 2016 (1984); Pub. L. No. 99-570, 

1009, 100 Stat. 3207, 3207-8 (1986). New Rule 35(b) was amended 

on April 30, 1991, with an effective date of December 1, 1991, to 

permit the court to "consider a government motion to reduce a 

sentence made one year or more after imposition of the sentence 

where the defendant's substantial assistance involves information 

or evidence not known by the defendant until one year or more 

after imposition of sentence." 

 As we have noted, the court sentenced Friedland on 

December 2, 1988. Thus, in the summer of 1990, when Friedland 

claims to have made his agreement with Longarzo, the government 

could not file a motion on his behalf under the original and then 

applicable version of new Rule 35(b) because the time 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 have been 
negotiating for assistance which as a matter of law could not 

have been given with respect to his sentence. 

 Notwithstanding this legal flaw in Friedland's 

argument, we have examined the voluminous documentation in the 

record and find nothing to support Friedland's contention that 

the government agreed to make a motion to reduce his sentence. 

But his assertion, which the government vigorously denies, even 

if true, gets him nowhere because it is perfectly clear that 

Friedland's dealings with assistant United States attorneys in 

the Eastern and Southern Districts of New York could not have 

included any such enforceable promise. 

 The office of the United States Attorney in New Jersey 

has taken the position without equivocation from the 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 responsible 

for the prosecution of all criminal cases within his or her 

district. The United States Attorney for the District 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 file such a 

motion. Indeed, that knowledge led him to deal with Longarzo and 

the New York assistant United States attorneys. 

 It is significant that Friedland, though disbarred, had 

been an attorney admitted to practice in the state and federal 

courts in New Jersey. Thus, he should have recognized that at a 

minimum there was a serious legal question as to whether 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 clear 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 participated in the 

writing of the brief. Thus, this case does not involve any 

government overreaching by taking advantage of an unsophisticated 

defendant. 

 We recognize that, in some situations, a United States 

Attorney can form agreements that are effective outside of his or 

her district. United States v. Carter, 454 F.2d 426 (4th Cir. 

1972), cert. denied, 417 U.S. 933, 94 S.Ct. 2646 (1974), 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 cooperating defendant 

who helped in the apprehension and conviction of other 

defendants, if made, would be binding on the United States 

Attorney for the Eastern District of Virginia. But in Carter the 
alleged promise was that the District of Columbia prosecution 

would be "the sole prosecution against defendant." Id. at 428. 

The agreement, if made, would have been binding with respect to a 

future prosecution in another district. Thus, the Carter court 

remanded the matter to the district court for an evidentiary 

hearing to determine if the government made the promise and, if 

so, whether the defendant relied on it. 

 Here the situation is different. The prosecution in 

New Jersey had been completed long before Friedland opened his 

negotiations with Longarzo and with the assistant United States 

attorneys in New York. We need not and will not determine 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 exercised such a 

degree of control over the Friedland prosecution and the 

prosecution had progressed so far that, without his or her 

consent, as a matter of law the United States Attorneys in the 

Eastern and Southern Districts of New York could not bind the 

government to make a motion to reduce Friedland's District 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 nor consented 

to any such agreement, and from shortly after Friedland's 

sentencing told him it would make no promises to him and has 

adhered consistently with that position, the district 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 technical argument 

involving the interplay between United States v. Salerno, 538 

F.2d 1005 (3d Cir. 1976), and United States v. Addonizio, 442 

U.S. 178, 99 S.Ct. 2235. (1979) In Salerno, we ordered 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 sentence merely 

because the Parole Commission prolonged the defendant's period of 

incarceration beyond the time contemplated by the district court. 

The Court emphasized that, in general, Congress provided that the 

Parole Commission, and not the sentencing court, would determine 

when a lawfully sentenced defendant would be released. Id. at 

188-89, 99 S.Ct. at 2242. In this case, the district court 

thought that Friedland would be paroled between 40 and 52 months 

after his incarceration. 

 Friedland seeks to have Salerno applied here based on 

the following reasoning. The court sentenced Friedland 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 argues that 
after November 1, 1992, 

 the Court, not the Parole Commission, would 

 exercise parole supervision jurisdiction. 

 Thus, Judge Gerry [the sentencing judge who 

 has since died] had enforceable parole 

 expectations because after November 1, 1992, 

 according to the law in existence when he 

 sentenced Friedland, the Court and not the

 Parole Commission would supervise Friedland's 

 parole. Since Judge Gerry recommended on 

 Form A0235 that Friedland be paroled within 

 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 abolition. He 

further recognizes that the Parole Commission may depart from the 

parole guidelines. But he reasons that under section 235(b)(4) 

"responsibility for parole supervision and revocation [is 

transferred] to U.S. District Judges." Brief at 39. Thus, in 

Friedland's view, when Judge Gerry sentenced him, the judge must 

have contemplated that if the Parole Commission rejected his 

parole application, a district judge could review his 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 reconstruction of 

what would have happened if the Commission's life had not been 

extended should lead to his release because the two-year review 

period would have expired no later than two years after the 

original date for the abolition of the Commission in 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 "that the 

district court shall determine, in accord with the Federal Rules 

of Criminal Procedure, whether release should be revoked or the 

conditions of release amended for violation of a condition of 

release." This provision says nothing about granting parole. 

Third, it is speculative to attempt to ascertain what a district 

court would have done with respect to parole, assuming that it 

had the power to grant parole, if Congress had not extended the 

life of the Parole Commission. Perhaps the same arguments that 

convinced the Parole Commission to deny parole would have 

convinced a district judge to reach the same conclusion. 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 sentencing 

judge's expectation of when the defendant would be paroled than 
the Parole Commission itself after Addonizio. 

 b. Abuse of discretion 

 Friedland next contends that: (1) the Parole 

Commission's decision denying him parole was arbitrary; (2) the 

Commission did not consider the factors it should have 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 reaching its 

conclusion. He points out that he had excellent work reports, 

no incident reports, received bonuses for job performance, 

volunteered for service on the suicide watch, had an excellent 

institutional adjustment and received positive evaluations while 

incarcerated. He also notes that Judge Gerry recommended that he 

be paroled after service of the parole guideline range of 40 to 

52 months and that his co-defendants were paroled after two years 

of imprisonment. 

 Our review of the district court's order denying 

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 Commission's 

ruling unless it acted arbitrarily or capriciously or abused its 

discretion in reaching its result. Bridge v. United States 

Parole Comm'n, 981 F.2d 97, 105 (3d Cir. 1992). In exercising a 

deferential standard of review we recognize that although 

Friedland's parole guideline range was 40 to 52 months, 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 notwithstanding the 

guidelines . . . if it determines there is good cause for so 

doing." See Campbell v. United States Parole Comm'n, 704 F.2d 

106, 111 (3d Cir. 1983). This rather nonspecific standard 

differs materially from the more exacting criteria for departure 

from the sentencing ranges established under the sentencing 

guidelines. 

 Our task, then, is to determine whether we can say that 

the Parole Commission abused its discretion in determining that 

there was good cause for denying Friedland parole. In this 

regard, we note that release may be denied if it would 

"depreciate the seriousness of [the] offense or promote 

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 income taxes; and 

his crime caused a multi-million dollar loss. Friedland also 

mocked the criminal justice system by faking his own death and 

remaining a globe-trotting fugitive. In the circumstances, his 

release would depreciate the seriousness of the crime. 

 We recognize that Friedland's institutional conduct 

superficially supports his application for parole. Yet in some 

respects that very conduct is disturbing. After his initial 
convictions he manipulated the government so that he could stay 

out of prison and commit a further crime. He then faked his own 

death in an attempt to avoid apprehension. Friedland's conduct 

in prison, the procuring of information from other inmates for 

his own benefit, is consistent with his prior manipulative 

conduct. Furthermore, his efforts to circumvent the authority of 

the United States Attorney in New Jersey demonstrate that his 

manipulative character has not changed. By any standard 

Friedland, though undoubtedly highly intelligent, is a cunning, 

manipulative individual, scornful of society's constraints. 

 Furthermore, while it is true that in a conventional 

sense, i.e., the causing vel non of management problems in 

prison, Friedland is not a problem prisoner, it hardly would be 

expected that a person with his background would present a 

discipline problem. Overall, we think that the Commission was 

justified in concluding that Friedland was "a poorer risk than 

indicated by [his] salient factor score." 

 Friedland also attacks the predictive abilities of the 

Parole Commission, pointing out that "statistics on parole 

violators show how often the parole commission's decisions are 

wrong." Brief at 31. No doubt this statement is correct because 

paroled convicts do commit further crimes. Yet this unfortunate 

fact is hardly a reason to upset a Parole Commission 

determination that a person should not be paroled in part because 

he is a poor risk. If Friedland's history teaches us anything, 

it is that when not in custody he is dangerous. After 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 under the 

criminal justice system but yet was not in physical custody. We 

know what he did then, and we cannot fault the Parole Commission 

for wanting to avoid repetition of that conduct. Friedland's 

institutional record in no way detracts from the Commission's 

conclusions. 

4. The request for an evidentiary hearing 

 Friedland finally argues that the court erred in 

denying him an evidentiary hearing. We see no basis 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 beyond dispute 

that his motion for reduction of sentence under old Rule 35(b) 

was not timely. As a matter of law, he also was not entitled to 

relief under new Rule 35(b) or 28 U.S.C.  2255. Finally, the 

fact that Friedland engaged in additional serious criminal 

conduct after his first convictions, and then faked his death and 

fled to avoid apprehension cannot be disputed, so it is clear 

that the Parole Commission did not abuse its discretion in 

denying him parole. In the circumstances, there was no reason 

for the district court to conduct an evidentiary hearing. 

 III. CONCLUSION 

 For the foregoing reasons we will affirm the district 
court'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 the district 

court properly denied Friedland relief under his motions 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 experienced 

trial judge of the United States District Court for the District 

of New Jersey, sentenced Friedland. Judge Gerry imposed a 

sentence which he believed would adequately reflect the 

seriousness of Friedland's offenses, punish Friedland, and permit 

his rehabilitation. With the facts before him of all of 

Friedland's offenses, including his conduct in leading the United 

States Attorney's office for the District of New Jersey to 

believe that he would cooperate and instead committing another 

offense, and his flight while on bail, Judge Gerry imposed a 

sentence which would allow for parole eligibility after 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 the 

presumptive parole date set by Judge Gerry does not have the 

force of law. Nor do I see merit in Friedland's procedural 

argument that the imminent dismantlement of the Parole Commission 

requires a return to this court's rule in United States 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) still applies. 

Thus, I agree that the Parole Commission's departure from the 

parole date target set by Judge Gerry does not give the courts 

authority to reduce his sentence. The Commission may disregard 

the guidelines if there is good cause for so doing. See, 18 

U.S.C.  4206(c). 

 Nonetheless, if the Parole Commission wishes to 

exercise its power to, in effect, overrule Judge Gerry'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 substance. 

They rely solely on facts considered by the sentencing judge when 

he fixed the sentence; the extended period of the fraud, the 

aborted cooperation, the flight, and the misconceived amount of 

loss. The Commission cited no factors that the trial judge 

had not properly taken into account in setting the sentence. His 

initial sentence was 7 years; his final sentence, in light of the 
second fraudulent offense and the factors now assigned by the 

Commission, was 15 years, 11 months, and 6 days. Reiteration of 

these reasons, therefore, cannot constitute "good cause" 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 the law." It is 

this statute which the United States Attorney relied 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 offenses that 

involved no violence, no assault upon any person, no drugs, no 

organized crime. Instead of pointing to material factors that 

the sentencing judge may have disregarded or ignored, 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 record and of its 

own panel's recommendation that the prisoner be granted "a 

presumptive parole after service of 84 months provided the 

committed fine is paid or otherwise deposed of according to law." 

This suggested presumptive parole date even includes 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 would 

depreciate the seriousness of the offense and promote disrespect 

for the law is a conclusory statement. It has no facts to 

support it and relies on similar conclusory statements of the 

prosecuting attorney and the Department of Labor Special Agent. 

No personal victim opposes the parole; the appellant has done 

nothing since his incarceration that remotely suggests 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 engaged in crime. 

From time to time, he has been helpful. In the meantime, 

numerous white-collar criminals, some with offenses much more 

far-reaching and with offenses on a greater scale than this 

applicant, have been paroled after serving two to five 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 Commission 

regulations, suggest that the Commission focus on the applicant's 

conduct since he began the service of his sentence, not his 

behavior that brought him into conflict with the law. The 

purpose of penal punishment is not only to deter crimes but also 

rehabilitate. Regulations of the Parole Commission require it 

to consider any reasonable information concerning the prisoner. 

29 C.F.R. 2.19-04(a). The Commission may even consider an 

advancement of the presumptive release date for (1) superior 

program achievement over a period of 9 months in custody, 

pursuant to the provisions of 28 C.F.R. 2.60 and/or assistance in 
the prosecution of other offenders pursuant to 28 C.F.R. 2.63. 

Friedland has provided both. 

 Friedland's institutional record demonstrates an 

excellent adjustment, a sincere respect for law and order. In 

addition to the positive reports and volunteer activities noted 

by the majority, Friedland also participated in the financial 

responsibility program to make restitution. He wrote a letter to 

the Parole Commission that shows his remorse and understanding of 

the seriousness of his crime. Every person who had personal 

contact with Friedland, from psychologists to the original panel 

of parole examiners, found him to be a candidate for parole. The 

Commission, however, has ignored completely any factor favorable 

in Friedland's behavior since his incarceration. 

 I also note in passing the extreme unlikeliness of 

recidivism in this case. Friedland's crime was not one of 

violence, nor does he have a violent character. Rather, he 

perpetrated a fraud made possible by a conflation of 

circumstances that are unlikely ever to happen again. He is now 

sixty years of age. He has been dismissed as counsel for 

Teamster Local No.701, the victim of the fraud. He has been 

publicly humiliated and imprisoned. It is highly unlikely that 

he will hold a position of trust again. Besides, if 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 parolee is 

under supervision and subject to return to prison for any 

infraction. 

 Moreover, the procedure used by the Commission in 

deciding this case is questionable. A two-person panel of parole 

examiners originally conducted a hearing in this case at which 

Friedland appeared arguing for parole and two representatives of 

the United States Attorney's office in New Jersey and the United 

States Department of Labor appeared in opposition of parole. The 

panel had an opportunity not only to study the record, the 

offenses and sentencing, but also to weigh the positions of the 

subject and the Government. The two members of the panel were 

the only persons in the Commission to meet personally with both 

Friedland and the Government representatives opposing his parole. 

Paul C. Kurtz of the National Correctional Counseling Center in 

Washington, D.C., speaking in behalf of Friedland, urged parole 

at the time in accordance with the parole guidelines. 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 Boesky, 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. The 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. In 
this case, Friedland's application was appropriately designated 

as one for original jurisdiction. This means that the Regional 

Commissioner, after reviewing the decision of the panel and 

making his own recommendation, sends the case to the National 

Parole Commission for final review. Its decision is the final 

one. Friedland did not have the opportunity to appear before 

either the Regional Commissioner or the National Commissioners. 

 Applicants for parole do not have a right to personal 

appearances before review boards. See, e.g., Billiteri 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, presumably 

professionals, who weighed the merits of the presentations made 

in behalf of and in opposition to parole at that time. The panel 

found: 

 "It is the panel's finding's that subject 

 should be paroled because the sentencing 

 judge has no objection, but on the contrary, 

 recommends parole in accordance with the 

 parole guidelines. In making its 

 determination as to when subject should be 

 paroled, the panel believes that the negative 

 information provided by the representatives 

 of the government is off-set by the favorable 

 factors regarding subject which includes his 

 cooperation and his institutional 

 adjustment." 

 

 As an appellate court, we have many times recognized 

that the district courts which we review are in much better 

positions to judge such matters as the credibility, demeanor of 

witnesses, the harm of an evidentiary error, and the weight of 

the evidence. We recognize that our review of a dry 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 should exercise 

the same appellate restraint. They are not in a position to make 

credibility judgments, but rather should defer to those of the 

panel. Their review should by no means be a rubber-stamp of the 

panel decision, any more than appellate review rubber-stamps 

district court decisions. Nonetheless, like appellate courts, 

the Commissioners should specifically note where the panel 

committed error if they wish to overrule its recommendation. 

 The Commissioners, all political appointees, did not do 

this in Friedland's application. The Regional Commissioner, in 

his memorandum, merely details the facts of Friedland's preincarceration offenses, and concludes: "The aggravating 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 Judge Gerry and 

by the panel examiners, merited more confinement than any of them 

had found appropriate. The National Commissioners adopted the 

Regional Commissioner's recommendation. Neither review board 
disputed, or even mentioned, the carefully weighed factual 

findings and the conclusions made by the panel at its hearing of 

Friedland on March 10, 1993, regarding his institutional 

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 deference to the 

panel finders of fact. Also, the Parole Commission usurped 

judicial power by departing from the parole guidelines solely for 

reasons already considered by Judge Gerry. Moreover, the 

Commission does not point to any fact that justifies the outright 

denial of any parole. 

 I therefore believe that the Parole Commission abused 

its discretion in rejecting Friedland's application. In turn, 

the district court perpetuated the conclusory action of the 

National Commission. Hence, I respectfully dissent. 

Accordingly, I would vacate the judgment of the district court 

with directions to remand the case to the Parole Commission with 

instructions to consider with proper deference the findings of 

the hearing panel and for such further proceedings as are 

consistent with this opinion.