United States v. Friedman
2011 U.S. App. LEXIS 19671
| 3rd Cir. | 2011Background
- Friedman, part owner of a West New York building, was convicted of bribery under 18 U.S.C. § 666(a)(2) for paying a $5,000 bribe to a municipal official to obtain a certificate of occupancy for an undocumented unit.
- A variance process was pursued after the building inspector indicated the unit count; the record conflicted on whether the building had sixteen physical units and/or sixteen legal units.
- Zanardelli, a building code official with FBI connections, engaged with Friedman regarding obtaining the CO, and Friedman offered bribes; a pattern of communications followed including phone calls and follow-ups.
- The government introduced evidence of prior bribes to Zanardelli for other properties; the defense challenged cross-examination limits and the admissibility of certain witness testimony and documents.
- The district court excluded certain witness testimony (e.g., Jaeger on the property record card) and limited cross-examination, and it gave a jury instruction on the theory of defense that Friedman challenged as improper.
- Sentencing proceeded under Booker/Gunter framework; the court declined to apply Friedman’s proposed departure and ultimately sentenced Friedman to 34 months, with procedural issues later raised on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether coercion extortion instruction was required | Friedman | Friedman | Not required; not correct law; no abuse |
| Exclusion of Jaeger testimony on unit count | Friedman | Friedman | No error; testimony irrelevant to legal units; ruling affirmed |
| Limitation of cross-examination of Zanardelli and Acosta | Friedman | Friedman | Limitations reasonable; no denial of Confrontation Clause rights |
| Giglio/Brady material and mistrial | Friedman | Friedman | No Brady/Giglio violation; no mistrial required |
| Procedural and substantive reasonableness of sentencing | Friedman | Friedman | Remand for resentencing due to Gunter-step procedural errors and incomplete guideline calculation |
Key Cases Cited
- United States v. Hoffecker, 530 F.3d 137 (3d Cir.2008) (test for entitlement to a defense theory instruction)
- United States v. Davis, 183 F.3d 231 (3d Cir.1999) (defense theory instructions must be correct and not duplicative)
- United States v. Barash, 365 F.2d 395 (2d Cir.1966) (extortion coercion limits on intent to commit bribery)
- Van Arsdall v. United States, 475 U.S. 673 (1986) (limits on confrontation and cross-examination balancing test)
- United States v. Gunter, 462 F.3d 237 (3d Cir.2006) (three-step sentencing process after Booker)
- United States v. Tomko, 562 F.3d 558 (3d Cir.2009) (procedural review framework for sentences under Gunter)
- Gall v. United States, 552 U.S. 38 (2007) (reasonable sentence review after Booker; guidelines advisory)
- Rita v. United States, 551 U.S. 338 (2007) (meaningful consideration of § 3553(a) factors; explaining discretion)
- United States v. Merced, 603 F.3d 203 (3d Cir.2010) (remand when procedural sentencing error is found)
- United States v. Lofink, 564 F.3d 232 (3d Cir.2009) (separation and sequencing of Gunter steps; downward departure handling)
- United States v. Levinson, 543 F.3d 190 (3d Cir.2008) (meaningful consideration and procedural reasonableness)
- United States v. Pelullo, 399 F.3d 197 (3d Cir.2005) (Brady/Giglio material standard and evaluation)
- United States v. Reyeros, 537 F.3d 270 (3d Cir.2008) (Giglio materiality and Brady framework)