The opinion of the court was delivered by: BIUNNO
This is the second application made by Whelan and Flaherty seeking release under 28 U.S.C. § 2255 or, in the alternative, for resentencing under 18 U.S.C. § 4208 (now 4205). A summary of the prior proceedings is appended to this opinion for convenience. An analysis of the evidence adduced against them and their co-defendants in the conspiracy/extortion trial (Cr. 570-70) is fully set forth in U.S. v. Kenny, 462 F.2d 1205 (CA-3, 1972).
Suffice it to say here that the evidence established the existence of a deliberate, thoroughly organized and fully executed scheme and practice, on the part of public officials, to extort money from persons doing business with the City of Jersey City and the County of Hudson, with arrangements to share the loot among the participants.
Among other items, the evidence showed cash totalling $700,000 being used to buy bearer bonds for John V. Kenny, with the assistance of one Sternkopf (who was supposed to be the independent city auditor) to conceal the source of the money and the ownership of the bonds. It showed that Whelan and Flaherty arranged to open "numbered" bank accounts in a Florida bank, in which cash and bearer bonds totalling more than $1.2 million was deposited to their credit. See, for example, "The J. V. Kenny Bonds", discussed at 462 F.2d pp. 1219 to 1220, and "The Whelan and Flaherty Accounts", discussed at 462 F.2d pp. 1220 to 1221, including the fact that 4 checks totalling more than $84,000 had not been negotiated as of June 22, 1971.
No serious argument can be made that the 15 year jail sentences were unduly harsh, or even that they are not proper sentences. No claim can be advanced that Whelan and Flaherty were "Robin Hoods", taking from the rich to aid the poor. On the contrary, since the extorted funds could only come from the public treasury, what they did was to rob the poor to enrich themselves and their cohorts. Judge Shaw fully appreciated this and made explicit reference to it at sentence time.
The only point that is new is that the denial of parole by the Parole Commission is a frustration of Judge Shaw's intent when he imposed the 15 year sentences. This claim is grounded on U.S. v. Salerno, Appeal of Silverman, 538 F.2d 1005 (CA-3, 1976), reh. den. 542 F.2d 628 (CA-3, 1976). The issue so raised is whether this court, as a sentencing court, has any jurisdiction at all under 28 U.S.C. § 2255, or whether the only remedy available to the prisoner is by writ of habeas corpus under 28 U.S.C. § 2241, before the district court having jurisdiction over their place of incarceration, namely, the Middle District of Pennsylvania.
In that sense, the real issue is whether the Parole Commission's denial of parole was arbitrary and capricious. There is no doubt in this court's mind that the Commission's denial was affected, at least in part, by its concern that the wide public knowledge of the existence of the $1.2 million of loot withdrawn from the Florida bank, coupled with complete silence about its subsequent history, would preclude an affirmative finding that release on parole would not "depreciate the seriousness of his offense or promote disrespect for the law", 18 U.S.C. § 4206(a)(1), as added by Pub.L. 94-233, sec. 2.
The spectacle of Whelan and Flaherty being paroled and free to escape with their ill-gotten gains to some Costa Rican or other haven, to luxuriate in comfort, may have been more than the Parole Commission could stomach. But that question, if it has substance, is for a proceeding under 28 U.S.C. § 2241 in the Middle District of Pennsylvania. This court lacks jurisdiction to decide it. If it could, it would find the action of the Parole Commission proper, since the spectacle is revolting.
The Silverman case has no application here. It involved what was obviously intended to be a "light" sentence of 3 years, imposed under 18 U.S.C. § 4208(a)(2) [now 4205(b)(2)]. The parole guidelines, adopted after sentence, reflected the retrospective, statistical distribution on a Gaussian curve of the range of time in jail for that offense. The question would have better been decided as a review of parole action under 28 U.S.C. § 2241, but the consequences of the new guidelines were so much in contrast to the sentence imposed, in light of the explicit statement of the sentencing judge, that the Court of Appeals was moved to bring the issue within 28 U.S.C. § 2255. It made clear, however, that the circumstances of the case were unique, and that the decision did not establish the sentencing court as a super parole board.
Whatever the soundness of Silverman and like decisions may be, no basis for enlarging this court's jurisdiction is shown. The guidelines in these cases show no more than that thieving public officials in the past probably have gotten off too lightly. Judge Shaw's sentencing statements, and his denial of the Rule 35 motion, show that he had no intention of continuing that practice. The "way of life" which was reflected in the evidence was rotten to the core, and Judge Shaw clearly intended, by his sentences, to try to bring it to an end.
This court is satisfied, from a detailed review of the materials, that Judge Shaw would have experienced no sense of frustration at all from the denial of parole. At the time of sentencing, Whelan and Flaherty had to serve one-third of the 15 year sentences before being eligible to apply. Under that law, given full credit for "good time" allowances, they would not be entitled of right to be paroled until they had served somewhat more than 75% of their sentences. Under the 1976 amendments, they must be released on parole after serving 2/3 of their sentences, absent certain affirmative findings, 18 U.S.C. § 4206(d), as added by P.L. 94-233, sec. 2.
Being eligible, of course, merely allows the application to be made, but the grant of parole is a different matter which, as this court noted in its earlier ruling, is a matter placed by the Congress in the hands of the parole commission, where it belongs.
This is not a case which resembles Silverman, or like cases, where a unique aspect or narrow circumstances leads to a frustration of the intention of the sentencing judge. As the Court of Appeals observed, the sentences imposed on the various defendants in this case recognized the varying levels of participation in the conspiracy. See 462 F.2d at 1218, footnote 7, and the array of sentences listed in 462 F.2d at 1210, footnote 1. The range runs from the straight 15 year sentences imposed on three participants, down to a probationary sentence. In no instance did Judge Shaw employ the options under former 18 U.S.C. § 4208(a)(1) or (a)(2) [now 4205(b)(1) and (b)(2)], and nothing presented or reviewed carries the ...