The opinion of the court was delivered by: JOSEPH E. IRENAS
David Friedland has moved for reconsideration of his sentence pursuant to Fed. R. Crim. P. Rule 35(b) and has also petitioned the court for a writ of Habeas Corpus pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 2241. Friedland argues that (i) the government failed to honor a commitment to move for a reduced sentence based on his substantial cooperation in pursuing other criminal investigations and (ii) the United States Parole Commission ("Commission") extended his incarceration beyond the date allowed by the parole guidelines contained in 28 C.F.R. § 2.20. Because the decision of the government not to move for a sentence reduction and the decision of the Commission to exceed the parole guidelines were proper exercises of discretionary power the motion and petitions will be denied.
In 1980 David Friedland ("Friedland"), a New Jersey State Senator and an attorney for Teamsters Local 701 Pension Fund ("Pension Fund"), was convicted in the New Jersey District Court of receiving over $ 300,000 in "kickbacks" related to the Pension Fund, filing false income tax statements, and obstruction of justice. He was sentenced to seven years in federal prison ("Friedland I").
Friedland never began service of his sentence. Instead, he entered into a cooperation agreement with the United States Attorney's Office for the District of New Jersey.
Between 1982 and 1985, while cooperating with the government, Friedland entered into another scheme to siphon off Pension Fund assets. According to the presentence report Friedland conspired to defraud the Pension Fund by (i) investing twenty million of its money with Omni Funding Group, Inc., ("Omni") a Florida mortgage broker firm and (ii) arranging for kickbacks of profits made on that investment. Omni made non-insurable, high risk investments, notwithstanding that the contract between Omni and the Pension Fund prohibited such activity. In 1984 Friedland began liquidating Omni and moving his money into offshore accounts in the Bahamas held by the Corniche and Scorpio Corporations, both of which he controlled. Approximately $ 1,200,000 of Omni's profits were wired to these accounts on Friedland's behalf. Friedland also split approximately $ 400,000 in cash and $ 600,000 in gold coins with Joseph J. Higgins, a co-conspirator in the Omni scheme.
Friedland's trial on the Omni related indictment started on September 28, 1988, and on the next day he pled guilty to conspiring to solicit and receive kickbacks under RICO, travelling with the intent to promote and facilitate bribery, endeavoring to influence a grand jury, and falsifying income tax returns (Friedland II). On December 2, 1988, Friedland was sentenced by Judge John F. Gerry, as a pre-Sentencing Guidelines offender, to serve an aggregate sentence of fifteen years, eleven months and six days to run concurrently with the sentence imposed in Friedland I. Judge Gerry also imposed a $ 25,000 fine. Friedland was incarcerated in the Federal Correctional Institute ("FCI") at Raybrook, New York. Subsequently, he was transferred to FCI Petersburg, Virginia and then to FCI Fort Dix, New Jersey, where he is presently an inmate.
On March 30, 1989, Friedland filed a timely motion for reduction of sentence under Fed. R. Crim. P. 35(b), claiming that the court had imposed an excessive sentence and offering additional evidence in mitigation of that sentence. Judge Gerry denied this motion on May 24, 1989.
While in prison Friedland developed a "program" to persuade other prisoners to supply him with information relating to illegal drug activities - information which he hoped to exchange for a government motion to reduce his sentence. However, Michael Chertoff, then the United States Attorney for the District of New Jersey, did not consider Friedland's "brokering" of information to be an appropriate basis for reducing his sentence. Having been frustrated in his attempt to procure a reduction of sentence for this information, Friedland looked for other outlets.
In the summer of 1990, Friedland contacted Special Agent Longarzo of the Drug Enforcement Administration, told him about the program, and indicated he had information relating to the importation of narcotics. According to Friedland, Longarzo promised that the sentencing court and the Commission would be apprised of the nature and scope of any assistance provided and that he would recommend that Friedland be granted a reduction in sentence.
Thereafter, Friedland relayed information to Longarzo from a confidential informant referred to as "Hajib," which resulted in the interception of five kilograms of heroin at Kennedy Airport and the prosecution of one individual. Hajib later directly provided additional information which resulted in additional seizures and the arrest of six more people. Friedland also provided the name of a second individual, referred to as "Hajib II," whose information resulted In the arrest of three other people in 1991. At this point, according to Friedland, Longarzo again promised that the sentencing court and the Commission would be apprised of the nature and scope of any assistance provided and that he would recommend that Friedland be granted a reduction in sentence despite any opposition from the United States Attorney in New Jersey.
Longarzo then approached the office of the United States Attorney for the Eastern District of New York, and the matter was assigned to Assistant United States Attorney ("AUSA") Patricia Notopoulos. Friedland's attorney, Brian Shaughnessy, met with Notopoulos and told her that Friedland wanted to cooperate with the government. In return Friedland wanted the United States Attorney's Office to advise the sentencing court of his cooperation, but he was concerned that Chertoff would frustrate this effort. According to Shaughnessy, Notopoulos told him that, if Friedland continued to cooperate, her office would inform the court of Friedland's cooperation regardless of Chertoff's intervention. However, Friedland declined at this point to render further assistance to the authorities.
On March 10, 1993, Friedland attended an initial parole hearing before a Hearing Examiner Panel of the Commission at FCI Petersburg. Friedland was represented by his attorney, Brian Shaughnessy, and Paul Kurtz, Executive Director of the National Correctional Counselling Center. The Deputy Chief of the Special Prosecution Division of the United States Attorney for the District of New Jersey, and a Special Agent from the Department of Labor also attended the meeting and opposed Friedland's request for parole. The members of the Hearing Examiner Panel referred Friedland's case to the Regional Commissioner for an original jurisdiction decision and provided an alternate recommendation that he serve 84 months with a special financial disclosure provision.
On April 19, 1993, the Commission issued a notice of action in which it ordered that Friedland continue his sentence to expiration with the special financial disclosure condition. The Commission stated in its decision:
Your offense behavior has been rated as category six severity because it involved fraud in excess of $ 1 million. Your salient factor score (SFS-81) is 8. You have been in federal confinement as a result of your behavior for a total of 63 months. . . . The Guidelines indicate a range of 40-52 months to be served before release for cases with good institutional adjustment and program achievement. After review of all relevant factors and information presented a decision above the guidelines appears warranted because: your behavior involved the following aggravating factors: The fraudulent behavior to have $ 20 million transferred from funds which you than [sic] used to make speculative high risk investments (ultimately causing a loss of $ 4.5 million), took place over an extended period of time (2 years) 1982-84. The offense was also committed while you pretended to cooperate with officials and while you were on appeal bond from another federal offense. In addition you attempted to evade taxes on money received unrelated to your criminal behavior and also attempted to influence testimony before a Grand Jury. You are a poorer risk than indicated by your salient factor score because you attempted to conceal your profits and escape from punishment by faking your death.
As required by law, you have also been scheduled for a statutory interim hearing during March, 1995.
Friedland appealed the Commission's action. On July 27, 1993, the Commission issued a Notice of Action on Appeal in which it affirmed the previous decision by stating that:
All relevant factors have been considered and no new or significant information is presented which would justify a more lenient decision.
F. Friedland's Subsequent Efforts
After the parole hearing Friedland went back to the United States Attorney's Office for the Eastern District of New York to solicit their assistance in reducing his sentence, and on July 18, 1994, Friedland met with Eastern District AUSAs Notopoulos and Valerie Caproni. At that meeting Friedland's attorneys were advised that: (a) they should be discussing the matter with the United States Attorney for the District of New Jersey, (b) the Eastern District of New York had no jurisdiction to file a motion for reduction in New Jersey, (c) they would not change the substance of Notopoulos's March 7, 1993 letter, but (d) they would, if requested, make available to New Jersey authorities the complete details (names of those arrested and convicted, sentences imposed and quantities of drugs seized) of all prosecutions that flowed from Friedland's assistance. However, the United States Attorney's Office in New Jersey indicated that it had no desire to even discuss the matter.
The Sentencing Act of 1987 states that Rule 35(b) as it existed prior to November 1, 1987, ("old Rule 35") applies to all crimes committed before that date. Pub. L. 100- 182, § 22, 101 Stat. 1271. However, courts have held that Rule 35 as it exists today ("new Rule 35") is also applicable to offenses committed prior to November 1, 1987. United States v. Hernandez, 34 F.3d 998, 999 n.1 (11th Cir. 1994); United States v. Weaver, 884 F.2d 549, 550 (7th Cir. 1989).