                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             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Precedential or Non-Precedential: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.
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           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 seven-
year 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 cover-
story 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 pre-
incarceration 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.
