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July 26, 1978

Thomas J. WHELAN and Thomas Flaherty

The opinion of the court was delivered by: BIUNNO


Pursuant to mandate of the Court of Appeals after the decision in Addonizio v. U. S. (Appeals of Whelan and Flaherty), 573 F.2d 147 (CA-3, 1978), the dismissal of the motions of Whelan and Flaherty for reduction or modification of sentence under 28 U.S.C. § 2255 was reversed, and the matter remanded for reconsideration because in this court's ruling, 427 F. Supp. 379 (D-N.J., 1977), it had taken the law to be that there was no jurisdiction.

 At the time of the initial ruling, the Court of Appeals had found § 2255 jurisdiction, after the 120-day limit set by Rule 35, by collateral attack on the ground that application by the Parole Commission of the guidelines that took effect in late 1973 frustrated the expectations and intentions of the sentencing judge, in very limited circumstances.

 The first case, U. S. v. Salerno, 538 F.2d 1005 (CA-3, 1976) involved a defendant sentenced to 3 years, with parole eligibility under 18 USC § 4208(a) (2) (now, § 4205(b)(2)), before the guidelines existed. Because of delay for appeal of his conviction, the defendant did not start serving his sentence until July 1, 1974. He was told then that these indicated 45 to 55 months of incarceration (longer than his entire sentence).

 On petition for Rehearing, 542 F.2d 628 (CA-3, 1976) it was emphasized that the holding was a narrow one, applicable only to sentences setting eligibility for parole under § 4208(a)(2), and that motions under § 2255 did not vest the courts with power of a super parole board.

 The second case, U. S. v. Somers, 552 F.2d 108 (CA-3, 1977) also involved § 4208(a)(2) parole eligibility, and the court restated "the admonition . . . that the . . . doctrine is a most narrow and inelastic principle which will not be expanded beyond its strict confines," 552 F.2d at 114.

 In the third case, U. S. v. Solly, 559 F.2d 230 (CA-3, 1977) the Salerno doctrine was extended to a sentence with parole eligibility established under § 4208(a)(1).

 Application of the Salerno doctrine was barred, by Musto v. U. S., 571 F.2d 136 (CA-3, 1978) in a case where the judge was aware of the parole guidelines at the time of sentence.

 In Addonizio, for the first time, the Salerno doctrine was extended to any case of frustration of the original intention and expectation of the sentencing judge by the application of later-adopted guidelines, regardless of the source of parole eligibility, whether under § 4202, § 4208(a)(1) or § 4208(a)(2).

 Finally, in Geraghty v. U. S. Parole Comm'n, 579 F.2d 238 (CA-3, 1978), the court ruled that a class action could be brought for a declaratory judgment, in which the validity of the guidelines themselves and the method of their administration are challenged. The case was remanded to the trial court of the district where the prison is located, and the eventual outcome is not known at this time.

 It may be useful to record the results of an analysis of data compiled in respect to sentences imposed by the late Judge Robert Shaw, who imposed sentence in this case, during his service here, even though the present motion is moot.

 What was done involved having the clerk identify all sentences imposed by Judge Shaw for terms of 5 years or more, and then have gathered information showing the date when service of each sentence began and the date when each defendant was released from custody, on parole or otherwise.

 Given the starting and release dates, the number of days served was determined with a Hewlett-Packard HP-80 calculator with a programmed calendar to the year 2100 AD. The number of days served was divided by 365 and multiplied by 12 to convert the time served to months, and the result was then divided by the term sentence (in months) to obtain the percentage of the sentence imposed that was served.

 In one case, the defendant was credited with time served before sentence, and this was added to the time served after sentence to obtain total time served.

 In several cases the defendant is still in custody, and in such cases the time served and percentage of sentence served was calculated to June 30, 1978 to reflect time and percentage served to that date.

 The tabulation set out below presents the results of these calculations, arranged in an order to reflect a sequence running from the smallest to the largest percentage. For each entry, only the criminal docket number is shown without giving the name of the particular defendant, in order to provide the statistical data without intruding into the privacy rights of any individual.

 For each entry, the sentence imposed is expressed in months, as is the time served. The basis for release (i. e., parole granted, mandatory release, full term, executive clemency, etc.) is noted for each entry.

 Judge Shaw did not specify parole eligibility under § 4208(a)(1) in any of these cases. He specified parole eligibility under § 4208(a)(2) in only two cases, one a sentence for 20 years and the other a sentence for consecutive terms totalling 30 years. In three cases, straight sentences imposed by Judge Shaw were modified after his death by another judge to specify parole eligibility under § 4208(a)(2); all three were so modified before the parole guidelines took effect in December, 1973. In one of the three, the surviving judge also reduced the term from 10 years to 8 years. All of these instances are identified in the tabulation.

 The dates were gathered and the calculations were made and tabulated, but the court has made no interpretation to ascertain Judge Shaw's original intentions and expectations in view of the fact that the pending motions are moot. The material is set out for publication merely to preserve it for potential future use, all of the work having been done before mootness appeared.


 BIUNNO, District Judge.

 After the signing and entry of the Memorandum dated July 26, 1978 it came to the attention of the court that the U.S. Parole Commission had postponed the effective date, originally set for August 10, 1978, on which Mr. Whelan and Mr. Flaherty were to be released on parole, pending a hearing in October on the question whether they had given the Commission false information in respect to the disposition of the.$ 1.2 million which the evidence at trial showed they had deposited in numbered accounts in a Florida bank, and then withdrawn when the extortion investigation was under way.

 In these circumstances the seeming mootness of the issue of release from imprisonment was eradicated. Although the order entered to accompany the July 26, 1978 Memorandum granted leave to reinstate the § 2255 motions on 5 days' notice in the event that the prisoners were not released on parole as scheduled, their counsel did not serve and filed any such motion. Instead, he sought to obtain an order to show cause setting an immediate hearing, and for release on bail "instanter" pending the ruling on the motions. He presented these papers to the only judge then available in the Newark vicinage at the time, who could not sign any papers in the case because of his disqualification; he was the U.S. Attorney who conducted the investigation and who signed the indictment. See 28 U.S.C. § 455(b)(3), and § 455(e).

 Accordingly, on August 17, 1978, the court entered an order sua sponte setting the matter down for hearing on August 23, 1978, at which time the parties were heard.

 This is not a routine case or a routine motion. It is quite a perplexing one. It has occupied a considerable amount of time on the part of the Court not only in reviewing the line of cases, but also in examining everything it could find to help cast light on the key question in this case.

 As gradually developed in the line of cases from U. S. v. Salerno, 538 F.2d 1005 (3d Cir. 1976), to U. S. v. Addonizio, 573 F.2d 147 (3d Cir. 1978), the major principle expounded to support jurisdiction under 28 U.S.C. § 2255, as well as orders thereunder to correct the sentence, is:

"That a sentencing judge's intent and probably expectations should be vindicated to the fullest extent possible." That is from the Addonizio opinion.

 From this principle, and from the moral considerations listed by the Court of Appeals in the Addonizio case, the ruling observes that there arises,

"a right of the prisoner to relief upon proof that the sentencing judge's intentions and expectations regarding the prisoner's incarceration have been frustrated by a post-sentencing change in criteria governing parole determinations."

 This principle, it was emphasized, has no dependence on the particular statute which controls eligibility for parole. Even though Salerno expressly limited the jurisdiction and relief to cases where parole eligibility was governed by former § 4208(a)(2), it was extended in U. S. v. Solly, 559 F.2d 230 (3d Cir. 1977) to cases where parole eligibility was governed by former § 4208(a)(1), and in Addonizio it was extended to cases governed only by former § 4202; that is, where the sentence was a "straight" sentence with no statement or provision dealing with parole eligibility in the sentence itself.

 In the earlier cases, so far as proof of frustration is concerned, there was either a statement of the sentencing judge on the record at the time of sentence to reflect his expectation or intent, as in the Salerno case, or else, even though there was no statement at sentence, there was a statement of intent by the same judge in his findings sitting as a § 2255 Judge, as in U. S. v. Somers, 552 F.2d 108 (3d Cir. 1977). In that case the Court of Appeals said, "There can be no better evidence of a sentencing judge's expectations or intent than his own statement of those facts," even though the statement be made on the § 2255 motion rather than at sentence.

 The same situation is true in the case of U. S. v. Addonizio. Nothing was said at sentence about parole expectations and intentions. The statement in this regard was made on the § 2255 motion.

 In this case, what was said when the 15-year sentences were imposed is entirely silent on this subject. The record gives no clue or indication at all in regard to Judge Shaw's expectations or intent in regard to parole at that time, namely, August 10, 1971.

 Later, in 1972, after Mr. Whelan and Flaherty had abandoned their pending appeals, had pleaded guilty to the two income tax indictments, and had appeared for sentence, the Court said:

"THE COURT: Very well. I am satisfied that rehabilitation has begun. The voluntary admission of guilt and the withdrawal of appeal indicate that Mr. Whelan has recognized the gravity of his offense, and, of course, civil liabilities ...

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