1

PRECEDENTIAL

_____________

No. 10-2235

_____________

UNITED STATES OF AMERICA, 

v.

HERMAN FRIEDMAN,

 Appellant

_____________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT 

FOR THE DISTRICT OF NEW JERSEY

___________

(D.C. Crim. Action No. 09-cr-00132)

District Judge: Honorable Anne E. Thompson

______________

Argued on April 25, 2011

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Before: SLOVITER and GREENAWAY, JR., Circuit Judges, 

and POLLAK, Senior District Judge

*

 

* Honorable Louis H. Pollak, District Judge of the United 

States District Court for the Eastern District of Pennsylvania, 

sitting by designation.
2

(Opinion Filed: September 28, 2011)

Lawrence S. Lustberg (argued)

Kevin McNulty

Joshua C. Gillette

Gibbons P.C.

One Gateway Center

Newark, NJ 07102

Counsel for Appellant

Caroline A. Sadlowski (argued)

Paul Fishman

United States Attorney

970 Broad Street

Newark, NJ 07102

Counsel for Appellee

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge

Herman Friedman (―Friedman‖) was convicted of 

bribery, in violation of 18 U.S.C. § 666(a)(2) and sentenced 

to 34 months of imprisonment. Friedman argues on appeal 

that (1) the District Court abused its discretion in rejecting 

Friedman‘s proposed jury instruction; (2) the District Court 

erred in excluding witness testimony; (3) the District Court 

improperly limited Friedman‘s cross-examination of certain 

witnesses; (4) the District Court erred in denying Friedman‘s 

motion for mistrial based on violations of Giglio v. United 

States, 405 U.S. 150 (1972); and (5) Friedman‘s sentence is 
3

procedurally and substantively unreasonable. Friedman

appeals the final judgment of conviction and sentence 

imposed by the District Court on April 26, 2010. For the 

reasons discussed below, we will affirm the judgment of 

conviction and remand to the District Court for resentencing. 

I. BACKGROUND

Friedman was part owner of an apartment building at 

235 56th Street West New York (―WNY‖), New Jersey. On 

March 2, 2007, Building Inspector Silvio Acosta (―Acosta‖) 

conducted a routine inspection of the apartment building that 

Friedman owned and concluded that, in addition to the 

building‘s fifteen legal units, it contained a sixteenth illegal 

unit. On March 27, 2007, Acosta issued a Notice of Violation 

instructing Friedman to remove the illegal apartment unit. 

Friedman did not comply and Acosta issued a Municipal 

Court complaint on May 25, 2007, claiming that Friedman 

was in violation of § 106.1 of the International Property 

Maintenance Code. 

On or around July 5, 2007, Friedman met with 

Construction Code Official, Franco Zanardelli (―Zanardelli‖). 

At the time of the meeting, Zanardelli had been cooperating 

with the Federal Bureau of Investigation (―FBI‖), as a result 

of his June 25, 2007 arrest for bribes he had previously 

accepted. Zanardelli confirmed that the computerized tax 

records showed only fifteen legal units in the building and 

informed Friedman that he needed to either seek a variance 

from the Board of Adjustment or remove the illegal 

apartment. Friedman followed Zanardelli‘s admonition and 

filled out an ―Application for Variance/Denial Letter,‖ the 

first step in the variance application process. (App. at 1515.) 

In essence, Friedman claimed that the building contained 
4

sixteen rental units when he bought it in 2006 and that there 

was no indication that the unit was a recent addition.

On July 11, 2007, Friedman appeared in the Municipal 

Court in response to the complaint. The Municipal Court

advised Friedman to work with the town‘s Building Office to 

devise a resolution out of court because the violation could 

accrue a daily penalty of up to $500. 

Friedman called Zanardelli on July 12, 2007, urging 

him to grant a Certificate of Occupancy (―C.O.‖), without 

going through the process of the variance. Zanardelli said 

that ―maybe‖ there was a way to do so and said, ―let me look 

at all the records I have in there. What, what do you want to 

do? You just want to legalize the unit?‖ and Friedman 

responded, ―Yes I want to legalize it and take out permits, and 

just redo it, to make, to make a new unit out of it.‖ (App. at 

979-80.) Zanardelli said, ―Oh. I don‘t care. Without going 

through the, without going through the-‖; Friedman 

interjected and said ―Without going through the whole nine 

yards.‖ (Id. at 980.) Zanardelli replied, ―Without going 

through the nine yards. Uh-huh. Alright, let me see what I 

can do.‖ (Id.) 

The parties disagree as to which documents Zanardelli 

reviewed. According to Zanardelli‘s testimony, he requested 

all tax documents associated with the tax property and 

reviewed the paper tax file for WNY to confirm the 

computerized records. He found that, as of 1962, the 

apartment building was reported to contain fifteen units. 

Assistant tax assessor Michael Jaeger (―Jaeger‖) testified at a 

Federal Rule of Evidence 104 hearing before the District 

Court that the property record card showed that the building 

had sixteen physical units, was the most current and accurate 
5

record maintained by the Tax Department, and was the record 

upon which the WNY Building Department relied to 

determine the number of units in a building. Jaeger could not 

attest to whether Zanardelli had reviewed this document. 

Zanardelli testified that he did not review this property record 

card. According to Friedman, Zanardelli intentionally 

overlooked the property record card, which indicated that the 

building had sixteen physical units. 

On August 30, 2007, Friedman and Zanardelli met at 

the apartment building. Friedman said to Zanardelli that the 

apartment was ―existing‖ and ―not something that was created 

yesterday or a year ago.‖ (Id. at 988.) Zanardelli responded 

that ―[i]t‘s not on your paperwork and it‘s not on anything.‖ 

(Id.) Friedman said, ―so you found an existing apartment 

which wasn‘t there, you, you put it on. It‘s not, it‘s not the 

first time this happens.‖ (Id.) Zanardelli answered, ―No . . . 

this unit was-wasn‘t here. Wasn‘t there‖ and that ―[y]ou‘re 

gonna have to go for a variance. That‘s it. I mean, I mean 

what are you gonna do.‖ (Id. at 989.) Friedman replied,

―Well, you know what you could do, what you can do?‖ and 

Zanardelli asked, ―So what are you suggesting here?‖ (Id.

989-990.) Friedman responded with, ―You tell me . . . 

Whatever it is.‖ (Id. at 990.) Zanardelli replied, ―I can‘t tell 

you, you tell me.‖ (Id.) 

Friedman used hand gestures to indicate that 

Zanardelli should write down a monetary amount; Zanardelli 

refused to write anything down and Friedman used hand 

gestures to offer a bribe of $2,000, then $3,000 and ultimately 

of $5,000. The parties agree that Friedman offered to pay 

$5,000 to Zanardelli, in lieu of seeking a variance from the 

zoning board. In return, Zanardelli would issue a C.O. 

approving the undocumented apartment. 
6

After the agreement was brokered, Zanardelli held the 

violation in abeyance and dismissed the complaint. 

Zanardelli called Friedman on September 10, 2007, 

September 13, 2007, and October 18, 2007. Friedman did not 

return his calls. In November 2007, Zanardelli reinstated the 

complaint against Friedman, at the direction of the FBI, to 

pressure Friedman. Zanardelli called Friedman again on 

February 6, 2008, March 10, 2008, March 14, 2008, and 

March 24, 2008. Friedman, again, did not respond. 

Meanwhile, Friedman placed the building on the 

market for $1,350,000. In February 2008, he had located a 

potential buyer, Steven Steiner (―Steiner‖), who was willing 

to pay $1,150,000, but only if the sixteenth apartment was 

properly approved by the municipality. With the sale in 

jeopardy, Friedman sent an associate to persuade Zanardelli 

to issue the C.O. Zanardelli responded that Friedman had two 

weeks to remove the illegal apartment, seek a variance from 

the board, or ―let him . . . know what he want[s] to do.‖ (Id. at 

1011-12.) 

On March 25, 2008, Steiner‘s attorney threatened to 

abandon the sale unless Friedman was able to deliver the 

building with sixteen approved units. That same day, almost 

seven months after Friedman agreed to the bribe, he paid 

Zanardelli $5,000 in cash and asked that the C.O. be issued 

immediately. Friedman called Zanardelli numerous times 

that day to inquire about the C.O., but Zanardelli never issued 

it. Friedman did not make the sale to Steiner. 

On February 26, 2009, Friedman was indicted on one 

count of bribery, in violation of 18 U.S.C. § 666(a)(2). A jury 

trial commenced on November 16, 2009. During the trial, the 

District Court excluded Jaeger‘s testimony that the property 
7

record card showed that the building had sixteen units and 

was the most current record maintained and used by the 

WNY Building Department. The District Court excluded the 

testimony as it was ―distracting . . . it‘s a whimsical argument 

that this is somehow related to entrapment‖ and ―Mr. Jaeger‘s 

testimony doesn‘t seem to me to be pertinent or relevant 

because I just don‘t see any relevance to it, quite frankly.‖ 

(Id. at 627, 639.) 

During trial, the District Court also limited the 

testimony of Zanardelli and Acosta. The Government‘s 

disclosure listed twenty-two properties for which Zanardelli 

had received money to facilitate building approvals. 

Zanardelli testified about these bribes during direct 

examination. During cross-examination, the District Court 

allowed Friedman to question Zanardelli generally about the 

twenty-two properties, but did not allow counsel to continue 

Zanardelli‘s cross-examination with respect to details about 

each individual property and bribes solicited once Zanardelli 

had indicated that he did not remember specific details. The 

District Court reasoned: ―I just want to make sure that we 

make the best use of our time. Now, to go through every one 

of those, the point has been made. The details of that is really 

not this case.‖ (Id. at 373.)

Friedman was permitted to question Zanardelli 

generally on the bribes and whether he had solicited the 

bribes or had been approached about the bribes. Zanardelli 

was asked on cross-examination, ―but there were bribes that 

you solicited, right? That‘s what you pleaded guilty to.‖ (Id.

at 378.) Later, Zanardelli was asked at least three more times: 

―Were people just coming in and offering you bribes?‖ (Id. at 

386), ―Were there times when you solicited bribes and people 

refused to pay them?‖ (Id. at 387), and ―Were there times 
8

when you asked for [bribes] and people refused to pay them?‖ 

(Id. at 388). 

Additionally, the District Court permitted crossexamination of Acosta generally regarding his fifty-four 

building code violations, but did not permit questioning of 

each of the fifty-four violations, individually. When the 

District Court instructed Friedman‘s counsel to ask general 

questions about the issue but avoid specific questions with 

regard to every single violation, Friedman‘s attorney 

responded that he ―wasn‘t planning on it.‖ (Id.) 

Prior to trial, the Government had provided the defense 

with a disclosure letter, pursuant to Giglio, which included 

the following paragraph:

Silvio Acosta has identified 

approximately 11 properties for 

which he was told by Zanardelli 

or Thomas O‘Malley, who was 

Zanardelli‘s successor, to 

disregard apparent violations. 

The properties include 

Zanardelli‘s residence, although 

Acosta is not aware that the 

property belongs to Zanardelli. 

Acosta states that this behavior 

started approximately two years 

ago. 

(Appellant‘s Br. at 42.) At trial, Acosta testified that 

Zanardelli or his successor, O‘Malley, never told him to 

ignore violations for eleven properties and the Government 

did not identify eleven properties for which Acosta was told 
9

to ignore apparent violations. The Government represented to 

the District Court that Mr. Acosta had not retracted his 

statement during witness preparations and that ―[t]he first 

time we heard about it was when Mr. Acosta testified. It 

came as a surprise to us just like it came as a surprise to 

[Appellant].‖ (App. at 195.) The District Court denied a

motion for mistrial, explaining that there was not sufficient 

prejudice and that Appellant had every opportunity to crossexamine Acosta on the issue. Notably, the District Court also 

stated that ―[w]hatever [was] said during [Friedman‘s 

counsel‘s] opening statement with regard to this had so little

traction I don‘t remember it. I daresay most of the jurors 

wouldn‘t have remembered it.‖ (Id.) 

The Government also submitted discovery to Friedman 

of a statement made by Friedman‘s real estate broker, Scott 

Callahan (―Callahan‖), to the FBI that Friedman told Callahan 

that the town did not consider one of Friedman‘s apartments 

to be legal. The Government concedes that it interviewed 

Callahan at a later date and at that time, he denied having 

made the above-mentioned statement. At trial, Callahan 

testified that Friedman had not immediately disclosed the 

illegal apartment to Callahan. 

On November 19, 2009, the District Court gave the 

government‘s proposed instruction on the theory of defense: 

It is not a defense to the 

crime of bribery that a defendant 

claims he was coerced or extorted 

into paying a bribe. Extortion and 

coercion are not a defense to 

bribery. The reason for this is that 

giving a bribe to an official 
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undermines governmental 

integrity, even where an official 

solicits money to do acts that the 

official is obligated to do anyway. 

The correct decision in such a 

situation is to refuse the elicit [sic]

overture and to report it to the 

appropriate authorities, not to pay 

the bribe. 

In addition, it is not a defense to 

bribery that the official action that 

was the subject of the bribe might 

have been lawful. It makes no 

difference whether the official 

action sought to be influenced 

was right or wrong. That is, it 

makes no difference that the bribe 

giver may have paid the official to 

perform an act to which the bribe 

giver was legally entitled. 

(Id. at 683.) 

Friedman‘s proposed instruction with respect to the 

theory of defense: 

It is not a complete defense to the 

crime of bribery that a defendant 

claims he was coerced or extorted 

into making a payment to a public 

official. That is, you cannot find 

the defendant not guilty of the 

bribery charged simply because 
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he was the victim of extortion by 

the public official whom he paid. 

However, the fact that the 

defendant was extorted or 

coerced, while it is not alone a 

defense to the charge, may bear 

upon whether the defendant ever 

formed the intent required to 

commit the crime of bribery, 

specifically upon whether he 

committed the act, ―willfully,‖

that is, with a purpose to disobey 

or disregard the law. 

―Extortion‖ means obtaining 

property from another, with his 

consent, in either one of two 

ways: [] inducing or bringing 

about this consent through the use 

of actual or threatened force, 

violence or fear, which can 

include fear of economic harm or 

hardship, which exists if a victim 

experiences anxiety, concern, or 

worry over expected personal 

economic harm, and which fear 

must be reasonable under the 

circumstances existing at the time 

of the defendant‘s actions. 

As I also explained to you earlier, 

a person may be guilty of bribery 

whether or not the official action 

sought to be influenced was right 
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or wrong. That is, a bribery 

defendant may be guilty even if 

he paid the official to perform an 

act to which the defendant was 

legally entitled. 

However, you may consider 

whether the defendant believed 

that he was paying the official to 

perform an act to which he 

believed he was legally entitled in 

evaluating whether the 

government has proven that the 

defendant had the intent required 

to commit the bribery at issue, 

that is, whether the government 

has proven that he had the 

purpose to disobey or disregard 

the law. 

(Appellant‘s Br. at 19-20.) The District Court rejected 

Friedman‘s proposed instruction, stating, ―I think that‘s 

confusing. I have thought about it. I‘ve read your 

submission. I reject it. I think it‘s confusing.‖ (App. at 649-

50.) 

The jury convicted Friedman of bribery. Following 

the conviction, Friedman filed a motion for a new trial based 

on the District Court‘s denial of Jaeger‘s testimony, the 

limitation on Acosta and Zanardelli‘s cross-examination, and 

the Government‘s failure to disclose Giglio and Brady

material to the defense regarding Acosta and Callahan. The

District Court denied the new trial motion. 
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In Friedman‘s sentencing memorandum he raised 

several arguments. Most prominently, he raised the issue of 

unwarranted disparities in sentences, pursuant to § 

3553(a)(6). In particular, he emphasized that based on his 

proposed Guidelines sentence, there would be a significant 

disparity in his sentence as compared to Anthony Lam, who 

was convicted of the same offense—making a cash payment 

of $5,000 to Zanardelli, in violation of 18 U.S.C. § 

666(a)(2)—and received a sentence of three years‘ probation. 

Likewise, Friedman contended that his sentence, as proposed 

by the Guidelines, would be disparate from Zanardelli‘s 24-

month sentence, which had already been imposed by the 

District Court.

Friedman also moved for a downward departure from 

the Sentencing Guidelines, arguing that he had committed the 

offense because of ―serious coercion, blackmail or duress, 

under circumstances not amounting to a complete defense.‖ 

U.S.S.G. § 5K2.12. The District Court sentenced Friedman to 

a 34-month term of imprisonment and a $25,000 fine. 

The District Court began the sentencing proceeding by 

discussing the loss calculation. The District Court

acknowledged that both the Presentence Report and the 

Government concluded that the total offense level should be 

22 and a term of imprisonment for that level would be 41 to 

51 months, based on a net value of the benefit of $67,647. 

Friedman‘s counsel argued that the only certain figure was 

the $5,000 bribe; as such, the total offense level should be 16, 

with a term of imprisonment of 21 to 27 months. 

In response to the parties‘ arguments, the District 

Court stated
14

Neither calculation, it 

seems to me, is perfect or 

altogether satisfying. [Defense 

counsel] is correct when he says 

that when you start going into the 

facts and try to determine, well, 

what was the . . . building going 

to sell for with or without that 

apartment, going at it backwards, 

forwards, is not a totally 

satisfying exercise . . . . Mr. 

Friedman has a criminal history of 

1, and so everything in terms of 

where in the guidelines one would 

find the correct and accurate 

number depends on how one 

determines the net value of the 

benefit here. 

I think it‘s somewhere in between, 

quite frankly. I think there‘s no 

question but the $5,000 bribe just 

in and of itself does not adequate 

[sic] and fairly produce the value, 

and the guideline language of the 

manual suggests that only if that‘s 

the last alternative, would you 

turn to the amount of the exact 

bribe.

(Id. at 957-58.) 

Later, the District Court stated, ―it seems to me that 

something less than the 22 is fair in this case, but I do think 
15

that a custodial sentence should be imposed, and I do think 

that a sentence of 34 months is a fair sentence in this case. 

And the Court intends to impose it.‖ (Id. at 962.) 

At the end of the sentencing proceeding, the 

Government requested clarification on the District Court‘s 

Guideline calculation, explaining that it had ―inferred from 

[the District Court‘s] comments, Your Honor, that you had 

said that the value was somewhere between the 67 that we 

argued for and the 5 of the defense.‖ (Id. at 967.) The 

District Court replied, ―That‘s correct.‖ (Id.) The 

Government further inquired, ―[a]nd so the range that‘s in the 

middle of that is 10 to 30, which would be a plus 4 

enhancement, make [sic] him a Level 20 with a 33- to 41-

month range.‖ (Id.) The District Court concluded that, ―34 

would be a Level 20. Or it could be Level 19 because it 

would be in the middle of -- and it could be – yeah, it could 

be a 19 or a 20 . . . . If you‘d like me to say it‘s a specific 

number, it‘s either 19 or 20.‖ (Id. at 967-68.) 

The District Court, after hearing arguments regarding a

downward departure based on coercion, blackmail, or duress, 

stated at the sentencing proceeding: 

I am convinced based on 

the testimony at the trial, listening 

to it carefully, that the defendant 

thought about [the bribe], seemed 

to have no moral objection to it, 

seemed willing, but then wasn‘t –

couldn‘t – did nothing for a while. 

But I am absolutely persuaded 

from the testimony on the – the 

tape recordings and everything I 
16

heard, that he really wanted to sell 

this building when the opportunity 

appeared, and it was his 

anxious—anxiousness to sell that 

building to[o] quickly not [to] go 

the whole nine yards, but to 

quickly get that certificate of 

occupancy, which motivated him 

to just pay the bribe and get it

over with. And so he did, as we 

saw in the video. 

(Id. at 959.)

The District Court went on to say:

I think that 34 months is 

[a] fair sentence, and I‘ve 

considered the nature of the 

offense, I‘ve considered the 

offender himself, the full penalty 

of the trial. This is not a case in 

which I impose [the] sentence 

based on a guilty plea, where I 

don‘t get to know anything about 

the facts of the case. I sat here 

and listened to the witnesses 

testify. And so I sensed and 

became – was able to absorb the 

interior of this fact pattern. I 

considered that. I considered the 

seriousness of the offense and the 

other factors which have been set 

forth as the 3553 factors.
17

(Id. at 963.) The District Court also noted that it was required 

to ―consider a fairness with regard to other offenders who are 

sentenced by this Court.‖ (Id. at 961.) 

In the District Court‘s Statement of Reasons, it 

explained that it ―lowered the  ̳net value of the benefit‘ in the 

[Presentence Report] because of its uncertainty. Instead of 

imposing [a] sentence at level 22, [the District Court] 

imposed a sentence at a level 20 (although 34 months custody 

is also embraced within a level 19).‖ (Id. at 8.) Next, the 

District Court stated that it ―reject[ed] the notion that the 

$5,000 bribe figure should determine the offense level under 

the guidelines.‖ (Id.) 

The District Court entered the Judgment of Conviction

and sentence. Friedman filed a timely appeal. 

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction, pursuant to 28 

U.S.C. § 3231. We have jurisdiction to review challenges to 

a conviction under 28 U.S.C. § 1291 and challenges to the 

sentence under 28 U.S.C. § 3742(a). We review the District 

Court‘s refusal to give specific jury instructions for abuse of 

discretion, but exercise plenary review over whether the 

District Court gave a correct statement of law in its jury 

instructions. United States v. Jimenez, 513 F.3d 62, 74 (3d 

Cir. 2008). Evidentiary rulings are reviewed for abuse of 

discretion, United States v. Starnes, 583 F.3d 196, 213-14 (3d 

Cir. 2009), but even erroneous rulings only require a new trial 

if the ruling affects a ―substantial right of the party,‖ FED R.

EVID. 103(a). An error in an evidentiary ruling is harmless 

error when ―it is highly probable that the error did not affect 

the result.‖ Hill v. Laeisz, 435 F.3d 404, 420 (3d Cir. 2006).
18

This Court will only reverse a district court‘s 

limitation on cross-examination where the limitation ―is so 

severe as to constitute a denial of the defendant‘s right to 

confront witnesses against him and it is prejudicial to 

substantial rights of the defendant.‖ United States v. Casoni, 

950 F.2d 893, 918-19 (3d Cir. 1991) (internal quotation 

marks and citations omitted). The District Court‘s decision 

to limit cross-examination is reviewed for abuse of discretion. 

United States v. Ellis, 156 F.3d 493, 498 (3d Cir. 1998).

When a motion for a new trial is based on a Brady

claim, we ―conduct a de novo review of the district court‘s 

conclusions of law as well as a  ̳clearly erroneous‘ review of 

any findings of fact.‖ United States v. Pelullo, 399 F.3d 197, 

202 (3d Cir. 2005) (citation omitted). 

III. ANALYSIS

1. Jury Instructions

Friedman maintains that the District Court abused its 

discretion in rejecting his proposed jury instruction because 

Friedman argues that an instruction that coercion bears upon 

the defendant‘s state of mind is required. 

This Court has established that ―[a] defendant is 

entitled to a theory of defense instruction if (1) he proposes a 

correct statement of the law; (2) his theory is supported by the 

evidence; (3) the theory of defense is not part of the charge; 

and (4) the failure to include an instruction of the defendant‘s 

theory would deny him a fair trial.‖ United States v. 

Hoffecker, 530 F.3d 137, 176 (3d Cir. 2008) (citation and 

internal quotation marks omitted); see also United States v. 

Davis, 183 F.3d 231, 250 (3d Cir. 1999) (―A court errs in 
19

refusing a requested instruction only if the omitted instruction 

is correct, is not substantially covered by other instructions, 

and is so important that its omission prejudiced the 

defendant.‖). We have cautioned that a defendant is ―not 

entitled to a judicial narrative of his version of the facts, even 

[if] such a narrative is, in one sense of the phrase, a  ̳theory of 

defense.‘‖ Hoffecker, 530 F.3d at 176 (citation and internal 

quotation marks omitted). 

Friedman has not established that his proposed jury 

instruction was a correct statement of the law—that coercion 

or extortion bears upon the defendant‘s state of mind for 

bribery. Friedman presents no support for his proposition that 

coercion bears upon the specific intent, or lack thereof, for 

bribery. 

Friedman concedes that it is a matter of first 

impression in this Circuit whether the defendant is entitled to 

an instruction that extortion or coercion, while not a complete 

defense to bribery under § 666, may bear upon whether the 

defendant ever formed sufficient intent to commit the crime. 

Nothing in Supreme Court precedent, this Court‘s precedent 

or the Third Circuit Model Jury instructions for bribery under 

§ 666(a)(2) requires an instruction that coercion or extortion

be considered by the jury for the defendant‘s intent to bribe.1 

 

1

The Third Circuit Model Jury Instructions for 18 U.S.C. 

§ 666(a)(2) is as follows: 

Count (No.) of the 

indictment charges the defendant 

(name) with (describe offense; 

e.g., bribing an agent of a 
20

 

federally funded program), which 

is a violation of federal law. 

In order to find the 

defendant guilty of this offense, 

you must find that the government 

proved each of the following five 

elements beyond a reasonable 

doubt:

First: That at the time 

alleged in the indictment, (name 

of agent) was an agent of (specify 

organization, government, or 

agency); 

Second: That (specify 

organization, government or 

agency) received federal benefits 

in excess of $10,000 in a one-year 

period; 

Third: That (name) [(gave) 

(agreed to give) (offered)] 

something of value to (name of 

agent); 

Fourth: That (name) acted 

corruptly with the intent to 

influence or reward (name of 

agent) with respect to (the 

business) (a transaction) (a series 
21

Friedman asserts that his proposed instruction is 

correct law in the United States Court of Appeals for the 

Second Circuit. Hence, although a correct statement of law in 

that Circuit, its value within the confines of Hoffecker, is 

limited. Moreover, the instruction approved in the Second 

Circuit is more limited in scope than Friedman‘s proposed 

instruction. Specifically, the Second Circuit has found that

coercion can bear on the intent required for the commission 

of bribery only where: (1) the defendant is paying the official 

to perform an act to which he is legally entitled and (2) the 

official threatens the defendant with ―serious economic loss‖ 

unless the bribe is paid. See United States v. Barash, 365 

F.2d 395, 401-02 (2d Cir. 1966). 

Friedman‘s proposed instruction, in contrast, did not 

limit the consideration of coercion to situations in which the 

defendant was legally entitled to the act. While his proposed 

instruction did include an explanation that the jury could 

consider whether the defendant believed that he was paying 

Zanardelli for an act to which he was legally entitled, it would 

have charged the jury that extortion or coercion ―may bear 

upon whether the defendant ever formed the intent required to 

commit the crime of bribery,‖ even when the defendant was 

not legally entitled to the act. (Appellant‘s Br. at 19.) 

 

of transactions) of (specify 

organization, government or 

agency);

Fifth: That the value of the 

(business) (transaction) (series of 

transactions) to which the 

payment related was at least 

$5,000.
22

Friedman argues that his proposed instruction is 

supported by the language of the federal statute for bribery 

under which he was convicted, 18 U.S.C. § 666. The bribery 

statute criminalizes the actions of an individual who 

―corruptly gives, offers, or agrees to give anything of value to 

any person, with intent to influence or reward‖ a government 

agency involving anything of value of $5,000 or more. 18 

U.S.C. § 666(a)(2). According to Friedman, forming corrupt 

intent can be negated by coercion, because coercive conduct 

by Zanardelli could have influenced Friedman‘s state of 

mind, and that the jury should have been charged accordingly. 

We reject this argument. 

In Hoffecker, this Court was faced with a similar 

argument, namely that a theory of defense to negate intent in 

a material misrepresentation case should have been permitted 

in a jury charge to explain that the defendants lacked intent. 

530 F.3d at 177. However, this Court rejected that argument 

on the basis that it duplicated other instructions that the 

District Court gave on the subject of criminal intent, such as 

instructions on ―knowingly and willfully‖ and the ―good faith 

defense‖ to fraud. Id.

Likewise, in this case, Friedman‘s argument is that his 

proposed theory of defense instruction would negate the 

intent requirement set forth in 18 U.S.C. § 666(a)(2). But, the 

District Court provided thorough instructions as to the 

elements of bribery under the relevant statute, defining 

―knowingly,‖ ―corruptly,‖ and ―willfully.‖ (App. at 679-80.) 

In particular, the District Court instructed the jury that it may 

consider ―all the other facts and circumstances shown by the 

evidence that may prove what was in his mind at the time‖ 

and whether Friedman had intended a lawful or unlawful end. 

(Id. at 679.) Thus, the jury was free to consider all 
23

circumstances and arguments set forth by Friedman as to why 

the element of intent was not satisfied and the District Court 

did not abuse its discretion in denying a separate instruction

on intent. 

Even if Friedman‘s proposed jury instruction was a 

correct statement of the law, Friedman‘s instruction on

coercion or extortion is not supported by the evidence in the 

record. The facts in this case do not constitute coercion or 

extortion. Friedman did not bribe Zanardelli in exchange for 

an act to which he was legally entitled. He gave the bribe to 

Zanardelli in exchange for the illegal act of Zanardelli 

legalizing the sixteenth unit without a variance. Additionally, 

Zanardelli did not threaten Friedman with economic loss. 

Zanardelli frequently clarified that Friedman could proceed 

through the normal route of applying for a variance. 

Although obtaining a variance requires time and money, it is 

the correct legal process that should have been followed and 

informing someone of the correct, legal steps they should 

take, in itself, is not threatening serious economic loss. That 

Friedman would likely lose a potential buyer for his 

apartment building is also not Zanardelli threatening 

Friedman with serious economic loss. There is no evidence 

that the potential buyer‘s threat to pull out of the deal was 

influenced by Zanardelli‘s action. 

In light of our conclusion that Friedman‘s proposed 

instruction was not a correct statement of law, nor was his 

theory supported by the facts, we need not discuss whether 

the failure to include an instruction would have denied 

Friedman a fair trial. 

2. Exclusion of Witness Testimony
24

Friedman asserts that the District Court erred in 

precluding assistant tax assessor Michael Jaeger‘s testimony. 

As a result, he requests reversal of the conviction and remand 

for a new trial. We disagree. 

Federal Rule of Evidence 402 provides that ―[a]ll 

relevant evidence is admissible, except as otherwise provided 

by the Constitution of the United States, by Act of Congress, 

by these rules, or by other rules prescribed by the Supreme 

Court pursuant to statutory authority. Evidence which is not 

relevant is not admissible.‖ FED. R. EVID. 402. Under 

Federal Rule of Evidence 401, ― ̳[r]elevant evidence‘ means 

evidence having any tendency to make the existence of any 

fact that is of consequence to the determination of the action 

more probable or less probable than it would be without the 

evidence.‖ FED. R. EVID. 401. 

Evidence that is relevant may still be excluded ―if its 

probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.‖ FED. R. EVID. 

403. The District Court‘s discretion is ―construed especially 

broadly in the context of Rule 403.‖ United States v. Kemp, 

500 F.3d 257, 295 (3d Cir. 2007) (citation and internal 

quotation marks omitted). 

Jaeger testified at a Federal Rule of Evidence 104

hearing that the property record card showed that the building 

had sixteen units, was the most current and accurate record 

maintained by the Tax Department, and was the record upon 

which the WNY Building Department relied to determine the 

number of units in a building. The District Court excluded 

this testimony because it was distracting and not relevant. 
25

Friedman argues that Jaeger‘s testimony shows that 

Zanardelli induced Friedman‘s payment by claiming that the 

records showed that the building had only fifteen units, when 

the records actually reflected sixteen units. From this 

evidence, Friedman contends, the jury could have inferred 

that Zanardelli induced Friedman‘s payment. 

The District Court did not abuse its discretion in 

precluding Jaeger‘s testimony. While Jaeger did testify as to 

the number of physical units reported on the card, his 

testimony was clear that the property record card indicated, in 

handwritten notes by Jaeger‘s secretary, that the number of 

physical units was sixteen. Nowhere in Jaeger‘s testimony 

does he say that the number of legal units was sixteen. It is 

undisputed that the building physically had sixteen units, thus 

testimony about the number of physical units is not relevant. 

Moreover, Jaeger testified at the Rule 104 hearing that 

that he did not have knowledge of whether Zanardelli had 

seen the property record card. This renders his testimony not 

relevant to support Friedman‘s theory that Zanardelli lied to 

Friedman about what the property record card reflected.

Zanardelli responded on cross-examination that he had not 

seen the tax records. Friedman could have argued, without 

Jaeger‘s testimony, that Zanardelli intentionally overlooked 

the tax records, thus Jaeger‘s testimony that he did not know 

whether Zanardelli saw the records is not relevant. There was 

no error here; thus, we need not determine whether the error 

was harmless. The District Court did not abuse its discretion 

in rejecting Jaeger‘s testimony. 

3. Limitation of Cross-Examination
26

The Confrontation Clause of the Sixth Amendment to 

the United States Constitution provides that, ―[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him . . . .‖ U.S. CONST. 

amend. VI. Yet, the Confrontation Clause does not grant 

unfettered rights to cross-examine witnesses. ―[T]he 

Confrontation Clause guarantees an opportunity for effective 

cross-examination, not cross-examination that is effective in 

whatever way, and to whatever extent, the defense might 

wish.‖ Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)

(citation and internal quotation marks omitted); United States 

v. Casoni, 950 F.2d at 919 (―Van Arsdall requires us to strike 

a balance between the constitutionally required opportunity to 

cross-examine and the need to prevent repetitive or abusive

cross-examination.‖). District courts have discretion to 

―impose reasonable limits on such cross-examination based 

on concerns about, among other things, . . . interrogation that 

is repetitive or only marginally relevant.‖ Van Arsdall, 475

U.S. at 679.2 

Friedman claims that his Sixth Amendment right to 

confrontation was violated because the District Court limited 

the scope of cross-examination regarding both Zanardelli and 

Acosta. While the District Court did limit the extent of 

Friedman‘s cross-examination, it was not violative of the 

 

2

Federal Rule of Evidence 611(a) states: ―The court shall 

exercise reasonable control over the mode and order of 

interrogating witnesses and presenting evidence so as to (1) 

make the interrogation and presentation effective for the 

ascertainment of the truth, (2) avoid needless consumption of 

time, and (3) protect witnesses from harassment or undue 

embarrassment.‖ FED. R. EVID. 611(a).
27

Constitution. The District Court permitted the full scope of 

cross-examination of Zanardelli regarding money he had 

received on twenty-two properties to facilitate building 

approvals but limited the specific details that could be delved 

into. Most important, Friedman was still permitted to 

question Zanardelli generally on these matters. 

Friedman‘s cross-examination of Zanardelli sought to 

obtain information regarding the amount of the bribes, what 

Zanardelli did with the bribe money he received, and the 

identities of multiple people from whom Zanardelli received 

bribes. Friedman argues that he should have been permitted

to show through cross-examination that Zanardelli solicited 

bribes, rather than merely accepted bribes. But the District 

Court allowed multiple opportunities to obtain this testimony. 

Friedman‘s counsel asked on cross-examination, ―but there 

were bribes that you solicited, right? That‘s what you 

pleaded guilty to.‖ (App. at 378.) Later, Zanardelli was 

asked: ―Were people just coming in and offering you 

bribes?‖ (Id. at 386); ―Were there times when you solicited 

bribes and people refused to pay them?‖ (Id. at 387); and 

―Were there times when you asked for [bribes] and people 

refused to pay them?‖ (Id. at 388). 

Zanardelli responded, on the record, to these questions. 

The jury heard direct evidence and admissions of Zanardelli‘s 

wrongdoing. The District Court‘s limitation was reasonable 

and did not deny Friedman his Sixth Amendment right to 

confront witnesses against him. The District Court did not 

abuse its discretion by limiting Friedman‘s ability to crossexamine Zanardelli. 

Similarly, the District Court permitted crossexamination of Acosta generally regarding fifty-four 
28

violations of the building code, that he failed to accurately 

report, as part of his inspection duties. On the other hand, the 

District Court did not permit questioning regarding each and 

every one of the individual fifty-four violations. Friedman 

asserts that this limitation prevented him from demonstrating 

that Acosta manipulated the building code rules that he 

should have been enforcing and that this manipulation 

pressured Friedman into bribing Zanardelli to get around the 

building code. This argument lacks merit. 

Friedman‘s counsel sought to solicit information 

during cross-examination regarding Acosta‘s citations for 

violations of the building code and that he had previously 

made misrepresentations regarding building units. However, 

Friedman‘s counsel‘s statement at trial undercuts the 

argument. When instructed to ask general questions about the 

violations, but to avoid questions regarding each and every

specific violation, Friedman‘s attorney stated candidly that he 

―wasn‘t planning on it.‖ (Id. at 171.) Friedman‘s counsel had 

not intended to cross-examine Acosta on the individual 

building code violations anyway. 

The District Court‘s limitation was reasonable and did 

not deny Friedman his Sixth Amendment right to confront 

witnesses against him. The District Court did not abuse its 

discretion in limiting Friedman‘s cross-examination of 

Acosta. 

With respect to both Zanardelli and Acosta, Friedman 

had the opportunity to cross-examine them on their alleged 

wrongdoing and the limitation on cross-examination did not 

inhibit the argument that Acosta and Zanardelli engaged in 

malfeasance. The jury learned of the full extent of Acosta‘s 

and Zanardelli‘s malfeasance and criminal activity. The 
29

District Court‘s ruling on the scope of cross-examination with 

respect to Zanardelli and Acosta is consistent with Van 

Arsdall that Friedman does not have the unfettered right to 

cross-examination. 

4. Giglio

Friedman argues that the Government violated Brady

v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 

405 U.S. 150 (1972) because it concealed certain 

impeachment evidence related to Acosta and Callahan.

Brady stands for the proposition that ―the suppression 

by the prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is material 

either to guilt or to punishment, irrespective of the good faith 

or bad faith of the prosecution.‖ 373 U.S. at 87. Under 

Giglio, ―the government must disclose materials that go to the 

question of guilt or innocence as well as materials that might 

affect the jury‘s judgment of the credibility of a crucial 

prosecution witness.‖ United States v. Milan, 304 F.3d 273, 

287 (3d Cir. 2002) (citing United States v. Bagley, 473 U.S.

667, 676–77 (1985)). A defendant must prove three elements 

for a Brady violation: (1) ―the evidence at issue must be 

favorable to the defendant;‖ (2) ―it must be material;‖ and (3)

―it must have been suppressed by the prosecution.‖ United 

States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008) 

(citing Pelullo, 399 F.3d at 209; United States v. Perdomo, 

929 F.2d 967, 970 (3d Cir. 1991)).

Evidence is material ―only if there is a reasonable 

probability that, had the evidence been disclosed to the 

defense, the result of the proceeding would have been 

different.‖ United States v. Bagley, 473 U.S. 667, 682 (1985).
30

Material evidence can include evidence that may be used to 

impeach a witness. Id. at 676-77; Giglio, 405 U.S. at

154. However, ―impeachment evidence, if cumulative of 

similar impeachment evidence used at trial . . . is superfluous 

and therefore has little, if any, probative value.‖ Lambert v. 

Beard, 633 F.3d 126, 133 (3d Cir. 2011) (citations 

omitted). On the other hand, it does not follow ―that 

whenever a witness is impeached in one manner, any other 

impeachment becomes immaterial.‖ Id.

Here, Friedman argues that he was disadvantaged 

because the Government failed to disclose Acosta‘s change in 

testimony. Originally, Acosta had identified properties for 

which Zanardelli, or Zanardelli‘s successor, had told him to 

disregard apparent violations. Later, on cross-examination, 

Acosta denied this assertion. The defense argued that this 

change was material and a violation of Giglio and Brady to 

suppress it. The District Court found that the Government did 

not suppress the change in Acosta‘s testimony or intentionally 

mislead Friedman because the Government was not aware of 

the change in Acosta‘s testimony until Acosta was crossexamined at trial. This finding was not clearly erroneous. 

Friedman chose not to cross-examine Acosta on the 

inconsistency of his prior statement and the District Court 

noted that Friedman‘s opening statement regarding Acosta‘s 

pre-trial statements were not central to his defense. 

Therefore, the District Court did not abuse its discretion by 

holding that Friedman was not prejudiced by the lack of prior 

knowledge of the change of testimony. Further, the result of 

the trial would not have been different if the change had been 

disclosed. 
31

Next, Friedman requests a new trial based on the 

Government‘s failure to disclose a change in testimony by a 

real estate broker, Callahan. The Government provided 

discovery to Friedman that Callahan had told the FBI that 

early in the process of preparing the building for listing to 

sell, Friedman told Callahan that the Town of WNY did not 

consider one of the apartments to be legal. Callahan later 

denied ever making that statement. Friedman asserts that he

would have used Callahan‘s statement to argue that he did not 

have a corrupt intent in bribing Zanardelli because he was 

honest in his disclosure to Callahan about the illegal unit. 

According to Friedman, the Government‘s failure to disclose 

this change in testimony about whether Friedman disclosed to 

Callahan that the unit was illegal deprived Friedman of the 

opportunity to argue that he did not have a corrupt intent to 

bribe. The Government concedes that the change in

testimony may reflect on Callahan‘s credibility and that it 

should have been disclosed to Friedman.

The question that remains given the concession is 

whether the failure to disclose the change in testimony 

amounts to a constitutional deprivation requiring the ordering 

of a new trial. The District Court found that it did not. This 

finding is not clearly erroneous. Callahan‘s testimony 

regarding whether Friedman told him about the illegal 

apartment is not relevant regarding whether Friedman had a 

corrupt intent in bribing Zanardelli. The evidence implicating 

Friedman was that he bribed Zanardelli in exchange for a 

C.O. to legalize the sixteenth unit. Although the Government 

concealed evidence from Friedman that may have been

favorable to Friedman, the evidence was not material. There 

is not a reasonable probability that the result of the 

proceeding would have been different if the Government had 
32

disclosed Callahan‘s change in testimony regarding what 

Friedman had told Callahan about the illegal unit. The 

District Court did not err in denying Friedman‘s motion for 

mistrial. 

5. Procedural and Substantive Unreasonableness in 

Sentencing

Friedman argues that his sentence is procedurally 

unreasonable because the District Court did not (1) follow the 

proper order of the steps set forth in Gunter; (2) compute a 

definitive loss calculation or offense level to reach the 

Guidelines range; (3) formally rule on Friedman‘s departure 

motion; or (4) meaningfully consider the § 3553(a) factors. 

Friedman also argues that his sentence is substantively 

unreasonable. 

Here, the District Court did not follow the correct 

order of the steps set forth in Gunter, did not compute a 

definitive loss calculation or offense level to reach its 

Guidelines range nor did it meaningfully consider § 

3553(a)(6), ―the need to avoid unwarranted sentence 

disparities among defendants with similar records who have 

been found guilty of similar conduct.‖ 18 U.S.C. § 

3553(a)(6). Based on these procedural errors, we will remand 

to the District Court for resentencing.

Following United States v. Booker, 543 U.S. 220

(2005), we directed district courts to follow a three-step 

sentencing process. United States v. Gunter, 462 F.3d 237, 

247 (3d Cir. 2006). During the first step, a district court must 

―calculate a defendant‘s Guidelines sentence precisely as they 

would have before Booker.‖ Id. (citation omitted). During 
33

the second step, district courts ―must  ̳formally rul[e] on the 

motions of both parties and stat[e] on the record whether they 

are granting a departure and how that departure affects the 

Guidelines calculation, and tak[e] into account [our] Circuit‘s 

pre-Booker case law, which continues to have advisory 

force.‘‖ Id. (alterations in Gunter) (citation omitted). During

the third step, district courts must ― ̳exercise [] [their] 

discretion by considering the relevant [§3553(a)] factors‘3in 

 

3

 The § 3553(a) factors include: 

(1) the nature and circumstances 

of the offense and the history and 

characteristics of the defendant; 

(2) the need for the sentence 

imposed - -

(A) to reflect the seriousness of 

the offense, to promote respect for 

the law, and to provide just 

punishment for the offense; 

(B) to afford adequate deterrence 

to criminal conduct; 

(C) to protect the public from 

further crimes of the defendant;

and 

(D) to provide the defendant with 

needed educational or vocational 

training, medical care, or other 
34

setting the sentence they impose regardless of whether it 

varies from the sentence calculated under the Guidelines.‖ Id. 

 

correctional treatment in the most 

effective manner; 

(3) the kinds of sentences 

available; 

(4) the kinds of sentence and the 

sentencing range established for -

-

(A) the applicable category of 

offense committed by the 

applicable category of defendant 

as set forth in the guidelines . . . ; 

(5) any pertinent policy statement 

. . . issued by the Sentencing 

Commission . . . [that] is in effect 

on the date the defendant is 

sentenced; 

(6) the need to avoid unwarranted 

sentence disparities among 

defendants with similar records 

who have been found guilty of 

similar conduct; and 

(7) the need to provide restitution 

to any victims of the offense.

18 U.S.C. § 3553(a).
35

(alterations in Gunter) (citation omitted). During the third 

step, district courts should engage in ―a true, considered 

exercise of discretion . . . including a recognition of, and 

response to, the parties‘ non-frivolous arguments.‖ United 

States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006) (citation 

omitted).

Appellate review is limited to determining whether the 

sentence is reasonable. United States v. Merced, 603 F.3d 

203, 213 (3d Cir. 2010) (citation omitted). Our review for 

reasonableness proceeds in two stages: (1) ―First, we ensure 

that the district court committed no  ̳significant procedural 

error,‘  ̳such as failing to calculate (or improperly calculating) 

the Guidelines rage, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence 

based on clearly erroneous facts, or failing to adequately 

explain the chosen sentence‖ and (2) ―if the district court‘s 

procedures are sound, we proceed to examine the substantive 

reasonableness of the sentence.‖ Id. at 214 (quoting United 

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009); Gall v. 

United States, 552 U.S. 38, 51 (2007)) (citation omitted); 

United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008) 

(―[W]e are to ensure that a substantively reasonable sentence 

has been imposed in a procedurally fair way.‖). At both the 

procedural and substantive stages, this Court reviews for 

abuse of discretion. United States v. Negroni, 638 F.3d 434, 

443 (3d Cir. 2011) (citation omitted). 

To demonstrate that a sentence is procedurally 

reasonable, a district court must show ―meaningful 

consideration of the relevant statutory factors and the exercise 

of independent judgment.‖ United States v. Grier, 475 F.3d 

556, 571-72 (3d Cir. 2007) (en banc), cert. denied, 552 U.S. 
36

848 (2007). A major variance from the sentencing Guidelines

may require a more significant justification than a minor one. 

Gall, 552 U.S. at 50.

We will affirm a procedurally sound sentence as 

substantively reasonable ―unless no reasonable sentencing 

court would have imposed the same sentence on that 

particular defendant for the reasons the district court 

provided.‖ Tomko, 562 F.3d at 568. We focus on the totality 

of the circumstances, and the party challenging the sentence 

bears the burden of proving the sentence‘s unreasonableness. 

Id. at 567. ―[W]hile reviewing courts may presume that a 

sentence within the advisory Guidelines is reasonable, 

appellate judges must still always defer to the sentencing 

judge‘s individualized sentencing determination.‖ Rita v. 

United States, 551 U.S. 338, 364 (2007). ― ̳[I]t is not the role 

of an appellate court to substitute its judgment for that of the 

sentencing court as to the appropriateness of a particular 

sentence,‘‖ except to the extent specifically directed by 

statute. Williams v. United States, 503 U.S. 193, 205 (1992) 

(quoting Solem v. Helm, 463 U.S. 277, 290 n.16 (1983)).

a. Order of the Gunter Steps

Friedman argues that the District Court erred 

procedurally by analyzing the Gunter steps out of order. The 

District Court began its sentencing procedures with the first 

Gunter step by discussing the disputed loss calculation. 

Before resolving what the loss or offense level was, the 

District Court conducted the second step of Gunter and 

discussed the departure motion. The District Court then 

returned to a discussion of step one by resolving two other 

guidelines disputes: whether Zanardelli was a high-level 

official and whether Friedman accepted responsibility for the 
37

crime. Next, the District Court engaged in a discussion of 

some of the § 3553(a) factors, the third step of Gunter, and 

then stated that it would impose something less than a 

Guidelines level of 22 before continuing its discussion of § 

3553(a) factors. Finally, the District Court imposed a 34-

month sentence, stating it was at an offense level of either 19 

or 20. 

The Government concedes that the District Court 

should have completed its calculation of the Guidelines range 

prior to its § 3553(a) analysis, but contends that Friedman 

fails to show that the sentencing calculation was impacted by 

the order of analysis. 

The District Court in this matter strayed from our three 

step process in Gunter. District courts should consider the 

steps separately and sequentially. See United States v. 

Lofink, 564 F.3d 232, 242 (3d Cir. 2009) (holding that it was 

not harmless error for the district court to consider a motion 

for a downward departure together with the § 3553(a) factors 

in the third step, rather than as a discrete second step of the 

process); United States v. Brown, 578 F.3d 221, 226-27 (3d 

Cir. 2009) (remanding to the district court for conflating the 

Gunter steps and failing to specify whether the below 

Guidelines range sentence was a result of a departure or a 

variance). Following the process set forth in Gunter ensures 

that the District Court‘s decision-making process is both 

logical and fair. Departure and variance motions logically 

cannot be determined until the district court knows what the 

Guidelines calculation is. Likewise, the § 3553(a) factors 

cannot be consulted until after departure and variance 

motions are completed. The fact that the District Court failed 

to adhere to this process inhibits our ability to review the 

sentence for reasonableness and thus requires remand. 
38

b. Guidelines Calculation

While the District Court ultimately concluded that it 

was imposing a 34-month sentence, it did not make any 

determinations as to what the loss calculation and total 

offense level was to lead it to the appropriate Guidelines 

range. Rather, the District Court imposed a 34-month 

sentence and then stated that this corresponded to a Guideline 

range of 19 or 20. Under the Supreme Court and this Court‘s 

precedent, the District Court is required to calculate the 

Guidelines range. Gall, 552 U.S. at 597. A sentence 

rendered without a calculation of the Guidelines range 

constitutes procedural error. See id. In order to determine the 

appropriate Guidelines range under step one of Gunter, the 

District Court must determine the total offense level. Here, 

the record does not contain an explanation of how a 

Guidelines calculation of 19 or 20 was reached. The record 

merely indicates that the District Court believed the 

Guidelines calculation should be ―somewhere in between‖

what the Government proposed, 22, and what the defense

proposed, 16. (App. at 958.) 

The District Court did not ―adequately explain the 

chosen sentence.‖ Gall, 552 U.S. at 597. The ―failure to 

begin with a properly-calculated Guidelines range . . . 

preclude[s] this Court from concluding that [the procedural 

error] was harmless error.‖ United States v. Smalley, 517 

F.3d 208, 215 (3d Cir. 2008) (remanding to the district court 

to properly justify deviating eight months above the upperend of the properly calculated Guidelines range). For this 

reason, we will remand to the District Court to explain and 

determine a specific Guidelines calculation. 

c. Departure Motion
39

Next, Friedman challenges his sentence by asserting 

that the District Court did not formally rule on his motion for 

a downward departure for coercion, blackmail, or duress. 

Under Gunter, a district court must ―formally rule on the 

motions of both parties and state on the record whether [it is] 

granting a departure and how that departure affects the 

Guidelines calculation.‖ 462 F.3d at 247. This Court has 

emphasized the importance of ruling on departure motions: 

[W]e require that the entirety of 

the Guidelines calculation be done 

correctly, including rulings on 

Guidelines departures. Put another 

way, district courts must still 

calculate what the proper 

Guidelines sentencing range is, 

otherwise the Guidelines cannot 

be considered properly at 

Gunter‘s third step. The scenario 

is simple: error entering this 

sentencing step may presage the 

sentence ultimately set.

Lofink, 564 F.3d at 238-39 (citation omitted).

In Rita, the Supreme Court held that the district court

sufficiently rejected the defendant‘s request for a downward 

departure when it simply stated that without downward 

departure, the Guidelines range was not ―inappropriate‖ and 

the sentence was ―appropriate.‖ 551 U.S. at 358. The 

Supreme Court recognized that the judge could have 

explained more regarding why it rejected the defendant‘s 

downward departure motion, but noted that the ―context and 
40

the record make clear that this, or similar, reasoning underlies 

the judge‘s conclusion.‖ Id. at 359. 

In this case, the District Court clearly rejected 

Friedman‘s downward departure motion. The District Court 

explained that it was ―convinced based on the testimony at 

the trial‖ that Friedman had ―no moral objection‖ to the bribe 

and that Friedman was not the victim of extortion, but instead

was motivated to pay the bribe in order to sell the building 

quickly and to avoid proper procedures to legalize the 

sixteenth unit. (App. at 959.) The District Court did not 

commit procedural error in its resolution of the departure 

motion. 

d. Meaningful Consideration of § 3553(a) Factors

Friedman‘s final argument with respect to his sentence 

is that the District Court failed to give meaningful

consideration to the § 3553(a) factors. 

In Booker, the Supreme Court held that appellate 

courts should insure that district courts analyze the § 3553(a) 

factors when determining sentences for criminal enterprises. 

543 U.S. at 261. Sentencing courts must give ―meaningful 

consideration‖ to the factors in 18 U.S.C. § 3553(a). United 

States v. Olhovsky, 562 F.3d 530, 546 (3d Cir. 2009). A 

district court‘s fail[ure] to consider the § 3553(a) factors can 

create a procedurally unreasonable sentence. Levinson, 543 

F.3d 190, 196 (3d Cir. 2008). 

―[T]he district court need not discuss and make 

findings as to each of the § 3553(a) factors if the record 

makes clear that the court took the factors into account in 

sentencing . . . .‖ United States v. Kononchuk, 485 F.3d 199, 
41

204 (3d Cir. 2007). Still, ―[w]here one party raises a 

colorable argument about the applicability of one of the 

factors, [] the court should respond to that argument as part of 

its  ̳meaningful consideration of the relevant statutory factors 

and the exercise of independent judgment.‘‖ United States v. 

Merced, 603 F.3d 203, 221 (3d Cir. 2010) (quoting Grier, 475 

F.3d at 571-72). 

A mere recitation of the factors and a statement that 

counsel‘s arguments have been considered is insufficient, but 

―brevity is not error per se.‖ Jackson, 467 F.3d at 841-42 

(holding that the district court‘s statement that it considered 

the defendant‘s prior convictions for crimes of violence, 

circumstances of defendant‘s upbringing, and financial 

circumstances was sufficient discussion of the § 3553(a)

factors).

During the sentencing proceeding, the District Court 

stated that it considered the ―loving letters from family and 

friends,‖ the ―less-than-disciplined attitude‖ towards his 

income taxes, his various housing violations incurred through 

the years, and an indifference in abiding by the requirements. 

(Id. at 962.) The District Court also generally stated that it 

had considered the § 3553(a) factors. 

Friedman raised in his sentencing memorandum § 

3553(a)(6), ―unwarranted sentencing disparities.‖ 18 U.S.C. 

§ 3553(a)(6). He referred to the sentence of Anthony Lam, 

who was convicted of the same offense—making a cash 

payment of $5,000 to Zanardelli, in violation of 18 U.S.C. § 

666(a)(2). Anthony Lam received a sentence of three years‘ 

probation from District Court Judge Garrett E. Brown, Jr. 

Likewise, Friedman draws attention to the 24-month sentence 

that the District Court imposed on Zanardelli for accepting 
42

bribes as a public official. The District Court was intimately 

familiar with all of the facts as they relate to Zanardelli. 

Responding to Friedman‘s motion with respect to § 

3553(a)(6) was clearly within the District Court‘s knowledge 

of the case. 

The District Court‘s only discussion of this alleged

disparity in sentencing was that the District Court noted that it

was required to ―consider a fairness with regard to other 

offenders who are sentenced by the Court.‖ (App. at 961.) 

The District Court did not state whether there was a 

sentencing disparity or address whether comparing 

Friedman‘s sentence to Lam‘s sentence or Zanardelli‘s 

sentence demonstrated a sentencing disparity. The District 

Court must address whether there is a sentencing disparity

because there is no explicit discussion or indication in the 

record that it was considered. See Negroni, 638 F.3d at 446

(3d Cir. 2011) (―While the District Court identified the 

concern and stated it had considered that factor, it provided 

no explanation for why the sentence it imposed was justified 

despite the clear disparity it seemed to create.‖); Merced, 603 

F.3d at 225 (requiring remand where Merced‘s sentence was 

128 months less than what a similarly situated defendant 

could expect to receive under the circumstances and there was 

no explicit discussion or indication in the record that the 

district court considered this disparity); cf. United States v. 

Larkin, 629 F.3d 177, 196 (3d Cir. 2010) (finding no 

procedural error in the district court‘s discussion of the 

sentence disparity because the District Court explained the 

similarity in conduct between the defendant and the codefendant).
43

For the reasons discussed above, we will remand to the 

District Court for resentencing to cure the procedural errors in 

the sentence.4

IV. CONCLUSION

We will affirm the judgment of conviction, vacate the 

sentence, and remand for resentencing, in accordance with 

this opinion. 

 

4

In light of our decision to remand for procedural error, we

need not consider Friedman‘s arguments that the sentence 

was substantively unreasonable. See Merced, 603 F.3d at 214 

(―If the district court commits procedural error, our preferred 

course is to remand the case for re-sentencing, without going 

any further.‖ (citation omitted)).