II. FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are taken from the opinion in U.S. v. Friedman (2d Cir.2002) 300 F.3d 111, 116-119: "Gary Friedman was an attorney who practiced in New York. The evidence at trial showed that, in 1991, Friedman began committing crimes, including robbery, extortion, kidnapping, and drug dealing. Friedman's primary associate in committing these crimes was his
brother, Kenneth. Howard Bloomgarden was a nightclub owner and a friend of Gary Friedman. [¶] From 1992-1993, Bloomgarden sold marijuana in Miami. His supplier was Jorge Aguilar, a dealer based in California. Aguilar would obtain the marijuana in California and ship it to Bloomgarden in Florida by Federal Express. As shipments became larger and more frequent, Bloomgarden enlisted the help of his friend, Peter Kovach, who traveled to California and
began arranging for shipments to travel by courier. Bloomgarden also expanded his marijuana trafficking to New York, where his longtime friend, Gary Friedman, led the operation. [¶] In April 1993, a shipment of approximately 800 pounds of marijuana sent from California by Kovach was intercepted and seized by the authorities in Illinois en route to Florida. Kovach used the seizure as an opportunity to break free from Bloomgarden: he arranged a meeting with Aguilar and Jeff Tobin, a major marijuana customer, at which they decided to cut Bloomgarden and the Friedmans out of the operation. Bloomgarden was forcefully notified of his exclusion from the marijuana operation on June 8, 1993, during an aborted attempt — presumably, by agents of Aguilar — to kidnap him. Bloomgarden never forgave Kovach for the April 1993 seizure and its fallout. [¶] In August 1994, Bloomgarden and Gary Friedman decided to reestablish Bloomgarden's marijuana business by kidnaping Kovach to obtain money and to reestablish a drug connection. Gary and Kenneth Friedman offered Gary's driver, Ruben Hernandez — who would eventually cooperate with the Government and serve as its star witness at trial — $10,000 and a cut of any future business if he would accompany Kenneth to California, where they would confront Kovach, try to obtain money from him, and reestablish contact with Aguilar. Hernandez testified that Kenneth told him that Gary would make the necessary travel arrangements and also would arrange to have a car and guns waiting for them when they arrived in California. [¶] Later that month, Gary asked one of his clients — Bruce Wolosky, who worked in a car dealership — to run a credit check on Kovach in an attempt to locate Kovach. Wolosky told Gary that Kovach was listed as working at a business called Galleria Telecom in Torrance, California. [¶] On September 6, 1994, another of Gary Friedman's clients, defendant-appellant Carlos Rodriguez, received a forty-three-minute telephone call from his childhood friend, Gus Malave, who was then living in San Diego, California. Two additional phone calls from Malave's house to Rodriguez's house of less than two minutes each were placed on September 13 and 14, 1994. Between September 7 and 24, 1994, Malave made multiple calls to a beeper number used by Edwin Torres, also known as `Q,' an associate both of Rodriguez and of Kenneth Friedman. The Government stipulated at trial that there were no calls between Malave's house and Rodriguez's house after September 14, 1994. [¶] On September 23, 1994, `Tracey Stewart' wired $3,000 from Queens, New York, to Gus Malave in San Diego. The parties stipulated at trial that Stewart was on Rodriguez's approved visitor list for the detention facility where he was being held at the time of trial, but no evidence was introduced as to their relationship during 1994. Hernandez testified at trial that, before the California trip, he heard from either Kenneth or Gary that Bloomgarden and Gary were to arrange for Rodriguez to wire money to Gus Malave. [¶] The same day — September 23, 1994 — Gary, Kenneth, and Hernandez traveled to Torrance, California. Two days later, Malave arrived in Torrance with a car, and Malave provided guns
to them later that week. As soon as Malave arrived with the car, the four men (Gary
Kenneth, Hernandez, and Malave) drove to the Galleria Telecom store. Malave entered the store, identified Kovach (from an old photograph), and took some store brochures as he left. [¶] Over the next several days, the four men took turns stalking Kovach at the store, looking for an opportunity to kidnap Kovach while he was alone at night, near closing time. During this time period, Gary purchased duct tape, rubber gloves, and tinting sprays to use in the crime. Gary also arranged for further financing from Bloomgarden. [¶] Gary left California near the end of September to attend to a court appearance in New York. From New York, Gary continued to provide direction and financing to the remaining men. To take Gary's place, Kenneth and Hernandez recruited Juan Galindo. [¶] On October 10, 1994, Kenneth, Hernandez, and Galindo were arrested after their car was pulled over by the police and none of them was able to produce a driver's license or other identification. [Fn. omitted] After their arrest, they were taken to the Torrance County Jail, where they provided false names. [¶] ... [¶] Kenneth used the pay telephone in his cell to call Gary eight times; during some calls, Gary included Bloomgarden or a California attorney in a conference call. During the calls, Kenneth told Gary (in cryptic language) of the circumstances of the arrest and of their intention to kidnap Kovach. In discussing the possibility of bail, Gary told Kenneth that he would obtain a Los Angeles address for the jailed men to use: [¶] K. FRIEDMAN: So, if I could get out on bail here, I could finish that. [¶] G. FRIEDMAN: I understand. I'll have, I'll have an address for you there. [¶] K. FRIEDMAN: Yeah. [¶] G. FRIEDMAN: In L.A., that you can use. [¶] K. FRIEDMAN: Um-hum. [¶] G. FRIEDMAN: Okay? [¶] K. FRIEDMAN: Yeah. What from Carl? [¶] G. FRIEDMAN: Nope, from Betty. [Citation.] [¶] Gary further instructed Kenneth to call `Betty' at her home in the morning. [Citation.] Gary eventually arranged for the California attorney to post bond so that Kenneth, Hernandez, and Galindo could be released before the California authorities realized that Kenneth was on work release from a previous sentence and that there was an outstanding warrant for Galindo's arrest. The men were released from jail on bail later that same day (October 10, 1994).[¶] The next day — October 11, 1994 — Kenneth called Malave, who returned to Torrance to provide a new car and replacement guns. At trial, Hernandez testified that `Gary and Carlos [Rodriguez]' sent the money to Malave to buy the replacement car and guns. Hernandez admitted on cross-examination, however, that he had consistently told investigators in proffer sessions prior to trial that Kenneth arranged for the replacement items directly with Malave, and that the money for these items had been sent to Malave by Bloomgarden, not Rodriguez. [¶] To avoid being arrested again (for lack of a driver's license) if their car was stopped, Kenneth, Hernandez, and Galindo asked Malave to become their driver, and he agreed. The four men then resumed stalking Kovach. [¶] On October 26, 1994, Kenneth, Hernandez, and Galindo burst into the Galleria Telecom store
and kidnapped Kovach and Ted Gould, a bystander who happened to be in the store at the time. With Malave acting as driver, the men took Kovach and Gould to a nearby motel. There, they tied up the victims and called Gary to update him. Gary told them that Bloomgarden would call. While they waited, they beat Kovach while asking for money, and thwarted an attempt by Kovach to escape. [¶] Shortly thereafter, Bloomgarden called, spoke to Kovach, and demanded money. Kovach pleaded that he had none. Bloomgarden then spoke with Kenneth and approved the murder of
Kovach and Gould. Kenneth, with the assistance of Hernandez and Galindo, then choked Kovach and Gould to death. Those three men placed the bodies of Kovach and Gould in the trunk of the car driven by Malave. [¶] The next day, Kenneth called Gary, told him of the murders,...
