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)
BEFORE: GREENBERG, ROTH, and ROSENN, Circuit Judges
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). *fn1
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. *fn2, 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. Section(s) 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." *fn3
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. Section(s) 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. Section(s) 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 ...