motion, such promise might supersede the requirement that the government file a motion. Id. at 112 S. Ct. 1843. Friedland alleges both that the government obligated itself to file a new Rule 35(b) motion and that the government had an unconstitutional motive for its refusal to file.
a. Contractual Obligation
Friedland argues that Agent Longarzo's promises contractually obligated the government to file a Rule 35(b) motion. The analogy between Friedland's alleged agreement and a plea agreement is inapposite. Promises made by prosecutors in the course of plea agreements are strictly scrutinized because a defendant's plea of guilty to a criminal charge involves the waiver of many constitutional rights. See Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971); Mabry v. Johnson, 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984). The agreement alleged by Friedland involved no waiver of constitutional rights.
A defendant's waiver of constitutional rights is not the only factor which sets a plea apart from the agreement alleged by Friedland. Fed. R. Crim. P. 11 sets forth several very specific requirements for a valid plea. The court must address the defendant personally in open court. The court must inform the defendant of the rights that the defendant is waiving in making a guilty plea. The court must also inquire as to whether the plea is voluntary and whether the plea agreement is accurate.
Perhaps the most important distinction is that a plea agreement must be disclosed on the record. This record then becomes the embodiment of the deal reached between the defendant and the prosecution. See, e.g., United States v. Baylin, 696 F.2d 1030, 1037 n.16 (3d Cir. 1982); Martinez v. United States, 411 F. Supp. 1352 (D.N.J. 1976), aff'd mem., 547 F.2d 1162 (3d Cir. 1977). The purpose of Rule 11 is not only to detect and reject involuntary and unknowing guilty pleas but also to produce a suitable record of the plea and plea agreement. Martinez, 411 F. Supp. at 1357. This suitable record is notably absent in the case now before this court.
The Court in Wade referred only to contractual obligations which arose from a plea bargain. Wade, U.S. at , 112 S. Ct. at 1843. Friedland has not been able to provide the court a single case which supports his contention that the principle in Wade is equally applicable to agreements outside the context of a plea bargain. Wade only refers to plea agreements, and the interaction between Friedland and the government was neither a plea agreement nor sufficiently analogous to a plea agreement to invoke Wade. Cf. United States v. Carter, 454 F.2d 426 (4th Cir. 1972) (promises made by the United States Attorney for the District of Columbia in the course of plea bargaining binding on the United States Attorney for the Eastern District of Virginia); Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976) (promises during plea negotiations that defendant will receive early parole on previous sentence may be enforceable); Hernandez, 34 F.3d at 1000 (appeal of the denial of Rule 35 motion allowed "when the district court's ruling implicates the plea agreement" and is necessary to "make the terms of the plea agreement fully enforceable").
Even if Agent Longarzo made the statements alleged and even if those statements were specific enough to consider as promises upon which Friedland could have reasonably relied, there is no evidence that Longarzo had authorization to make those promises. A DEA Agent is not part of the prosecution team, and any promise made by Longarzo would not bind the United States Attorney. LaPorta v. United States, 651 F. Supp. 884, 890 (E.D. Pa. 1986).
Unauthorized plea bargain promises to a criminal defendant are not binding on the government absent exceptional circumstances. LaPorta, 651 F. Supp. at 890; see also United States v. Hudson, 609 F.2d 1326, 1328-28 (9th Cir. 1979) (government was not bound by Secret Service Agent's unauthorized promise to defendant); United States v. Lombardozzi, 467 F.2d 160, 162 (2d Cir. 1972) (government not bound by FBI agent's assurances). There is little indication that Longarzo's alleged promise was authorized by the government, and, in fact, Friedland clearly knew that the United States Attorney for the District of New Jersey did not and would not approve such a deal.
Friedland argues, based upon his reading of Wade, that the United States Attorney was acting selectively invidious in refusing to file a Rule 35(b) motion. Federal district courts do have the authority "to grant a remedy if they find that the refusal was based on an unconstitutional motive" such as race or religion. Wade, U.S. at , 112 S. Ct. at 1844. However, a generalized allegation of improper motive is insufficient to raise a cognizable claim of a constitutional violation. Id. Even where there is an appropriate claim of improper motive, there are no grounds for an evidentiary hearing unless the defendant makes a substantial threshold showing of invidious intent. Id. Finally, an appropriate claim of improper motive can be rebutted if a prosecutor's refusal to move for a reduction is rationally related to a legitimate government objective. Id.
Here Friedland has not clearly stated how the prosecutor's failure to file a Rule 35(b) motion was unconstitutionally motivated. He has made no claim that he has been discriminated against because of his membership in a protected class or for his exercise of a constitutionally protected freedom. His claim appears to be that he was discriminated against "not because of his race or religion, but because he is in the class of individuals who have offended the United States Attorney." This is a generalized allegation of improper motive and not the constitutional violation required to allow relief under the principles enunciated in Wade.
Friedland might be entitled to relief if he could establish that the prosecutor's refusal to file a Rule 35(b) motion was not rationally related to a legitimate government objective. Wade, U.S. at , 112 S. Ct. 1844. Although the government has proffered various motives for failing to file a Rule 35(b) motion on Friedland's behalf,
it is defendant's burden, not the government's, to produce evidence of an illicit government motive which would "rise to the level warranting judicial enquiry." Id. Given Friedland's prior conduct in dealing with the government and the understandable government reluctance to assist in the creation of a marketplace in which prisoners seek to barter information for sentence reductions, the "Government's decision not to move may be based not on a failure to acknowledge or appreciate [Friedland's] help, but simply on its rational assessment of the cost and benefit that would flow from moving." Id.
c. Is 5K1.1 Invalid?
In discussing relief under new Rule 35, Friedland spends considerable time arguing that USSG § 5K1.1 is invalid because the Sentencing Commission was authorized to promulgate Guidelines, and no Guideline relates to § 5K1.1. Friedland then reasons that because § 5K1.1 is invalid, the government motion requirement of new Rule 35 is not binding and the court may reduce his sentence without such a motion.
However, the requirement of a government motion under new Rule 35 does not arise from § 5K1.1, but from its own terms which condition relief "on motion of the Government." Thus, even if Friedland is correct in asserting that § 5K1.1 is invalid, a palpably silly argument, that determination would not effect the requirement of a government motion under new Rule 35.
2. Old Rule 35
Friedland has asked the court to consider his motion under old Rule 35 which provided, in pertinent part:
A motion to reduce sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation 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 or having the effect of upholding a judgment of conviction or probation revocation. .
Under old Rule 35 the court had jurisdiction to reduce a sentence only if the defendant filed a motion for reduction of sentence within 120 days of the court's imposition of a judgment of conviction. The 120 day limit is a jurisdictional and may not be extended. United States v. Addonizio, 442 U.S. 178, 189, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979); United States v. Dansker, 581 F.2d 69 (3d Cir. 1978). Friedland attempts to overcome this jurisdictional problem by styling his present motion as one for reconsideration of his earlier, timely Rule 35 motion which he filed on March 30, 1989.
A court cannot extend the 120 day window in old Rule 35 with a motion for reconsideration if that motion raises new grounds for relief. See United States v. Inendino, 655 F.2d 108 (7th Cir. 1981) (District court does not have jurisdiction to consider new evidence presented in defendant's untimely motion to reconsider district court's denial of his 35(b) motion.); United States v. Hetrick, 644 F.2d 752 (9th Cir. 1980) (Timely filing of motion to reduce sentence did not give district court jurisdiction to entertain subsequent, untimely motion to reduce sentence, and this defect was not cured by styling the second motion as a "motion for reconsideration."); United States v. Coonan, 750 F. Supp. 652, 657 (S.D.N.Y. 1990) (A district court only has jurisdiction where the defendant is not seeking to evade a jurisdictional defect by styling a subsequent Rule 35(b) motion for reduction of sentence as a motion for reconsideration.).
Friedland's first motion for reduction of sentence under old Rule 35(b), filed on March 30, 1989, was based primarily on claims that the court had imposed an excessive sentence. Although Friedland offered additional mitigation evidence, the court denied the motion on May 24, 1989. His program, the basis of his present "reconsideration" motion, did not exist at the time his initial motion was filed, and the court does not have jurisdiction to revisit Judge Gerry's 1989 decision denying relief.
B. 28 U.S.C. § 2255
28 U.S.C. § 2255 allows a prisoner to file a habeas corpus petition with the sentencing court alleging that his sentence was imposed in violation of the Constitution. If the court finds for the prisoner, it may, inter alia, resentence the prisoner in accordance with the Constitution or it may set the conviction aside. 28 U.S.C. § 2255.
Friedland argues that (i) the United States Attorney has been "selectively invidious" in failing to file a Rule 35(b) motion on his behalf and (ii) the government's failure to file a Rule 35(b) motion breached his contract with the government. As relief for these "injustices" Friedland asks the court to vacate his sentence and release him from prison. These claims are substantively identical to Friedland's motion pursuant to new Rule 35(b), discussed supra, and are therefore dismissed for the reasons stated above.
C. 28 U.S.C. § 2241
Friedland has also brought a habeas petition against the Commission pursuant to 28 U.S.C. § 2241 which is a proper vehicle for a prisoner in federal custody to challenge a parole decision. United States v. Ferri, 686 F.2d 147, 158 (3d Cir. 1982), cert denied, 459 U.S. 1211 (1983). Commission decisions will be upheld if there is a rational basis in the record to support the Commission's findings. Bridge v. United States Parole Comm'n, 981 F.2d 97, 100 (3d Cir. 1992); Campbell v. United States Parole Comm'n, 704 F.2d 106, 110 (3d Cir. 1983). The district court must be satisfied that the Commission has followed criteria that are appropriate, rational, and consistent with its statute and that its decision is neither arbitrary nor capricious nor based on impermissible considerations. Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976).
1. Offense severity as level six
Friedland argues that the Commission improperly applied the Parole Guidelines when it rated his offense severity as level six rather than five. First, he claims that because he returned all assets wrongfully diverted from the Pension Fund the victim of his crime did not suffer a loss in excess of $ 1,000,000, the threshold for level six. Second, he asserts that the Commission improperly considered unadjudicated conduct in making its determination.
The Commission regulation in effect on March 10, 1993, the date of Friedland's hearing, provided:
The "value of the property" is determined by estimating the actual or potential replacement cost to the victim. The "actual replacement cost" is the value or money permanently lost to the victim through theft/forgery/fraud. The "potential replacement cost" refers to the total loss the offender specifically intended to cause by theft/forgery/fraud notwithstanding subsequent recovery by the victim. The highest of these three values is to be used in rating the offense on the guidelines.
28 C.F.R. § 2.20, Ch. 13, Sub. B (20) (1993). This regulation sets forth the common sense notion that the size of a theft, forgery or fraud is not diminished because the felon thereafter satisfies his legal obligation to restore the purloined property to its rightful owner.
The Commission properly considered the total which Friedland fraudulently siphoned from the Pension Fund. Not only did Friedland admit at his initial hearing that he had arranged for an improper transfer of $ 20,000,000 to Omni, but the presentence report also indicates that approximately $ 1,200,000 of Omni's profits were wired to the Bahamas on Friedland's behalf and another $ 1,000,000 in cash and gold coins were split by Friedland and another conspirator. There is a rational, if not overwhelming, basis in the record to support the Commission's rating of his offense as a fraud involving more than $ 1,000,000.
Friedland also contends that it was inappropriate for the Commission to consider information in the presentence report which referred to unadjudicated conduct. The Commission may rely on the presentence report in making its parole determination, including information with respect to related counts in an indictment on which the defendant has not been found guilty. United States ex. rel. Goldberg v. Warden, 622 F.2d 60, 64 (3d Cir. 1980); Campbell, 704 F.2d at 110. Friedland does not make clear in his briefs or affidavits what uncharged conduct was relied upon by the Commission. He was never separately indicted for his faked death and flight to the Maldive Islands, but this is precisely the type of conduct the Commission might and should consider in reaching a determination.
Relying on the Eighth Circuit's dictum in Wixom v. United States, 585 U.S. 920 (8th Cir. 1978), Friedland argues that the Commission may not consider information in the presentence report to which defense counsel has objected. However, the Eighth Circuit has declined to follow its own dictum and has held that the Commission may rely on disputed portions of the presentence report, even if the sentencing judge chose to disregard that disputed information. Blue v. Lacy, 857 F.2d 479, 481 (8th Cir. 1988). See also Ochoa v. United States, 819 F.2d 366, 372 (2d Cir. 1987); Kramer v. Jenkins, 803 F.2d 896, 900, clarified on reh'g, 806 F.2d 140 (7th Cir. 1986).
Friedland can point to very little in the presentence report which is factually inaccurate. He challenges the inclusion of a claim from the United States Attorney that "he will say anything to minimize his punishment and speed the day when he emerges from prison so he can rejoin his money overseas." Presentence Report P. 5 (December 2, 1988). He likewise objects to the United States attorney including a raft of newspaper clippings in its submission to the Commission. Suffice it to say that the record does not support the notion that either of these items influenced a decision based on a wealth of uncontested factual information.
2. Exceeding the guidelines
Friedland contends that the Commission improperly denied him parole because it exceeded the parole guidelines without good cause. The statute provides that, "the Commission may grant or deny release on parole notwithstanding the guideline . . . if it determines there is good cause for so doing. . . ." 18 U.S.C. 4206(c)
The Commission's listed five factors to support its decision to exceed the guidelines: (1) the fraudulent activity occurred over an extended period of time; (2) the offense was committed while Friedland was pretending to cooperate with government officials; (3) Friedland was released on bail from another federal offense at the time he committed the RICO offenses; (4) Friedland was involved in additional criminal behavior in attempting to evade taxes and attempting to influence testimony before a grand jury proceeding; and (5) Friedland attempted to conceal his profits and faked his own death to escape punishment. The Commission concluded that these factors render him a poorer risk then his "very good" salient factor score indicates.
Friedland contends that the Commission may not consider that his offenses took place over an extended period of time because a RICO offense necessarily Includes a pattern of racketeering activity occurring over time and is an inherent part of the offense itself. See Harris v. Martin, 792 F.2d 52, 55 (3d Cir. 1986) (improper to use the same factor in scoring prisoner pursuant to parole guidelines and as aggravating factor justifying decision above guidelines).
This argument is not persuasive. The level six severity rating was based on the size of the fraud, not its duration. Although RICO does require a pattern of illegal activity, the extensiveness of the conspiracy and the period over which it extends can vary widely from case to case. Both the scope and duration of a conspiracy in particular instances are proper considerations for the Commission in deciding whether to exceed the guidelines. See, e.g., Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir. 1987); Pilotto v. United States Parole Comm'n, 857 F.2d 474, 476 (8th Cir. 1988).
Friedland takes umbrage at the Commission's finding that he was only "pretending to cooperate" when he committed the offenses which were the subject of Friedland II. Friedland asserts that his cooperation was genuine and lists examples of his help to the government during this period. However, given his felonious behavior while rendering this assistance, there is more than a rational basis for the Commission's determination that his cooperation was only a pretense.
Friedland argues that the Commission improperly considered that he was out on bail when he committed the crimes underlying Friedland II. The defendant has not been deterred from criminal conduct by contact with the criminal justice system, and the Commission is not double counting when it relies on the defendant's poor behavior while on bail in fixing a release date beyond the guidelines. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987); Wiggins v. Nelson, 510 F. Supp. 666, 668 (D. Conn. 1981).
Friedland argues that the Commission erred in considering his convictions for tax evasion and attempting to influence testimony before the grand jury in their decision to exceed the guidelines, because these offenses were used to determine his offense severity level. Friedland simply ignores that the level six severity rating was based on his fraudulent diversions from the Pension Fund in excess of $ 1,000,000. There was no double counting when the Commission also weighed his other offenses.
Friedland questions whether there is a rational basis in the record for the Commission's conclusion that he attempted to conceal the profits from his illegal activities. However, the presentence report discloses that gold coins and cash, as well as a $ 1.2 million wire transfer to accounts controlled by Friedland in the Bahamas, were utilized to conceal the loot.
Finally, Friedland contends that it was impermissible for the Commission to consider his attempt to escape punishment by faking his death because that factor was used to lower his offender characteristic from "very good" to "good" and thus increase his guideline range from 40-52 months to 52-64 months. 28 C.F.R. § 2.20 (table captioned "Guidelines for Decision Making") and § 2.36. However, the Commission never in fact made that adjustment.
3. Use of Sentencing Guidelines
Friedland argues that the Commission improperly failed to calculate the applicable Sentencing Guidelines in this case and then apply the lesser of the Sentencing Guidelines or the Parole Guidelines.
The only support which Friedland cites as authority for this proposition is a footnote in the legislative history of the Sentencing Reform Act. Footnote 430 of the Senate Reports states, "the Committee intends that in the final setting of release dates under this provision, the Parole Commissioner gives the prisoner the benefit of the applicable new sentencing guideline if it is lower than the minimum parole guideline." S. Rep. No. 98-225 98th Cong., 189 n. 430, reprinted in 1984 U.S.C.C.A.N. 3372. However, this footnote was not included in the final version of the Sentencing Reform Act.
The footnote refers to § 235(b)(3) of the Sentencing Reform Act of 1984 which contains no language with regard to the Sentencing Guidelines.
The statute, as it was enacted, cannot reasonably be interpreted as Friedland suggests. Legislative history is meant to be instructive as to the interpretation of enacted legislation and not to create extra statutory law. Church of Scientology v. Internal Revenue Service, 792 F.2d 153, 164 n.4 (D.C. Cir. 1986). A particular iteration of a complex piece of legislation, which iteration is superseded by later versions, is not somehow incorporated in the legislation which is ultimately enacted.
4. Credit for superior program achievement
Friedland asserts that the Commission abused its discretion by failing to award him credit for superior program achievement. The relevant regulations provide, in pertinent parts:
Prisoners who demonstrate superior program achievement (in addition to a good conduct record) may be considered for a limited advancement of the presumptive date previously set according to the schedule below. . . . Upon a finding of superior program achievement, a previously set presumptive date may be advanced.
28 C.F.R. § 2.60.
The Commission may consider as a factor in the parole release decisionmaking a prisoner's assistance to law enforcement authorities in the prosecution of other offenders. . . . If the assistance meets the above criteria, the commission may consider providing a reduction of up to one year from the presumptive parole date that the Commission would have been warranted had such assistance not occurred.