U.S. v. Friedman

• Decision Date: 28 September 2011
• Docket Number: No. 10–2235.,10–2235.
• Citation: 658 F.3d 342
• Parties: UNITED STATES of America,v.Herman FRIEDMAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

658 F.3d 342

UNITED STATES of America,

v.Herman FRIEDMAN, Appellant.

No. 10–2235.

United States Court of Appeals, Third Circuit.

Argued on April 25, 2011.Filed: Sept. 28, 2011.

Lawrence S. Lustberg (argued), Kevin McNulty, Joshua C. Gillette, Gibbons P.C., Newark, NJ, for Appellant.Caroline A. Sadlowski (argued), Paul Fishman, United States Attorney, Newark, NJ, for Appellee.Before: SLOVITER and GREENAWAY, JR., Circuit Judges, and POLLAK, Senior District Judge.^*

OPINION

GREENAWAY, JR., Circuit Judge.

Herman Friedman (“Friedman”) was convicted of bribery, in violation of 18 U.S.C. § 666(a)(2) and sentenced to 34 months of imprisonment. Friedman argues on appeal that (1) the District Court abused its discretion in rejecting Friedman's proposed jury instruction; (2) the District Court erred in excluding witness testimony; (3) the District Court improperly limited Friedman's cross-examination of certain witnesses; (4) the District Court erred in denying Friedman's motion for mistrial based on violations of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); and (5) Friedman's sentence is procedurally and substantively unreasonable. Friedman appeals the final judgment of conviction and sentence imposed by the District Court on April 26, 2010. For the reasons discussed below, we will affirm the judgment of conviction and remand to the District Court for resentencing.

I. BACKGROUND

Friedman was part owner of an apartment building at 235 56th Street West New York (“WNY”), New Jersey. On March 2, 2007, Building Inspector Silvio Acosta (“Acosta”) conducted a routine inspection of the apartment building that Friedman owned and concluded that, in addition to the building's fifteen legal units, it contained a sixteenth illegal unit. On March 27, 2007, Acosta issued a Notice of Violation instructing Friedman to remove the illegal apartment unit. Friedman did not comply and Acosta issued a Municipal Court complaint on May 25, 2007, claiming that Friedman was in violation of § 106.1 of the International Property Maintenance Code.

On or around July 5, 2007, Friedman met with Construction Code Official, Franco Zanardelli (“Zanardelli”). At the time of the meeting, Zanardelli had been cooperating with the Federal Bureau of Investigation (“FBI”), as a result of his June 25, 2007 arrest for bribes he had previously accepted. Zanardelli confirmed that the computerized tax records showed only fifteen legal units in the building and informed Friedman that he needed to either seek a variance from the Board of Adjustment or remove the illegal apartment. Friedman followed Zanardelli's admonition and filled out an “Application for Variance/Denial Letter,” the first step in the variance application process. (App. at 1515.) In essence, Friedman claimed that the building contained sixteen rental units when he bought it in 2006 and that there was no indication that the unit was a recent addition.

On July 11, 2007, Friedman appeared in the Municipal Court in response to the complaint. The Municipal Court advised Friedman to work with the town's Building Office to devise a resolution out of court because the violation could accrue a daily penalty of up to $500.

Friedman called Zanardelli on July 12, 2007, urging him to grant a Certificate of Occupancy (“C.O.”), without going through the process of the variance. Zanardelli said that “maybe” there was a way to do so and said, “let me look at all the records I have in there. What, what do you want to do? You just want to legalize the unit?” and Friedman responded, “Yes I want to legalize it and take out permits, and just redo it, to make, to make a new unit out of it.” (App. at 979–80.) Zanardelli said, “Oh. I don't care. Without going through the, without going through the—”; Friedman interjected and said “Without going through the whole nine yards.” ( Id. at 980.) Zanardelli replied, “Without going through the nine yards. Uh-huh. Alright, let me see what I can do.” ( Id.)

The parties disagree as to which documents Zanardelli reviewed. According to Zanardelli's testimony, he requested all tax documents associated with the tax property and reviewed the paper tax file for WNY to confirm the computerized records. He found that, as of 1962, the apartment building was reported to contain fifteen units. Assistant tax assessor Michael Jaeger (“Jaeger”) testified at a Federal Rule of Evidence 104 hearing before the District Court that the property record card showed that the building had sixteen physical units, was the most current and accurate record maintained by the Tax Department, and was the record upon which the WNY Building Department relied to determine the number of units in a building. Jaeger could not attest to whether Zanardelli had reviewed this document. Zanardelli testified that he did not review this property record card. According to Friedman, Zanardelli intentionally overlooked the property record card, which indicated that the building had sixteen physical units.

On August 30, 2007, Friedman and Zanardelli met at the apartment building. Friedman said to Zanardelli that the apartment was “existing” and “not something that was created yesterday or a year ago.” ( Id. at 988.) Zanardelli responded that “[i]t's not on your paperwork and it's not on anything.” ( Id.) Friedman said, “so you found an existing apartment which wasn't there, you, you put it on. It's not, it's not the first time this happens.” ( Id.) Zanardelli answered, “No ... this unit was-wasn't here. Wasn't there” and that “[y]ou're gonna have to go for a variance. That's it. I mean, I mean what are you gonna do.” ( Id. at 989.) Friedman replied, “Well, you know what you could do, what you can do?” and Zanardelli asked, “So what are you suggesting here?” ( Id. 989–990.) Friedman responded with, “You tell me ... Whatever it is.” ( Id. at 990.) Zanardelli replied, “I can't tell you, you tell me.” ( Id.)

Friedman used hand gestures to indicate that Zanardelli should write down a monetary amount; Zanardelli refused to write anything down and Friedman used hand gestures to offer a bribe of $2,000, then $3,000 and ultimately of $5,000. The parties agree that Friedman offered to pay $5,000 to Zanardelli, in lieu of seeking a variance from the zoning board. In return, Zanardelli would issue a C.O. approving the undocumented apartment.

After the agreement was brokered, Zanardelli held the violation in abeyance and dismissed the complaint. Zanardelli called Friedman on September 10, 2007, September 13, 2007, and October 18, 2007. Friedman did not return his calls. In November 2007, Zanardelli reinstated the complaint against Friedman, at the direction of the FBI, to pressure Friedman. Zanardelli called Friedman again on February 6, 2008, March 10, 2008, March 14, 2008, and March 24, 2008. Friedman, again, did not respond.

Meanwhile, Friedman placed the building on the market for $1,350,000. In February 2008, he had located a potential buyer, Steven Steiner (“Steiner”), who was willing to pay $1,150,000, but only if the sixteenth apartment was properly approved by the municipality. With the sale in jeopardy, Friedman sent an associate to persuade Zanardelli to issue the C.O. Zanardelli responded that Friedman had two weeks to remove the illegal apartment, seek a variance from the board, or “let him ... know what he want[s] to do.” ( Id. at 1011–12.)

On March 25, 2008, Steiner's attorney threatened to abandon the sale unless Friedman was able to deliver the building with sixteen approved units. That same day, almost seven months after Friedman agreed to the bribe, he paid Zanardelli $5,000 in cash and asked that the C.O. be issued immediately. Friedman called Zanardelli numerous times that day to inquire about the C.O., but Zanardelli never issued it. Friedman did not make the sale to Steiner.

On February 26, 2009, Friedman was indicted on one count of bribery, in violation of 18 U.S.C. § 666(a)(2). A jury trial commenced on November 16, 2009. During the trial, the District Court excluded Jaeger's testimony that the property record card showed that the building had sixteen units and was the most current record maintained and used by the WNY Building Department. The District Court excluded the testimony as it was “distracting ... it's a whimsical argument that this is somehow related to entrapment” and “Mr. Jaeger's testimony doesn't seem to me to be pertinent or relevant because I just don't see any relevance to it, quite frankly.” ( Id. at 627, 639.)

During trial, the District Court also limited the testimony of Zanardelli and Acosta. The Government's disclosure listed twenty-two properties for which Zanardelli had received money to facilitate building approvals. Zanardelli testified about these bribes during direct examination. During cross-examination, the District Court allowed Friedman to question Zanardelli generally about the twenty-two properties, but did not allow counsel to continue Zanardelli's cross-examination with respect to details about each individual property and bribes solicited once Zanardelli had indicated that he did not remember specific details. The District Court reasoned: “I just want to make sure that we make the best use of our time. Now, to go through every one of those, the point has been made. The details of that is really not this case.” ( Id. at 373.)

Friedman was permitted to question Zanardelli generally on the bribes and whether he had solicited the bribes or had been approached about the bribes. Zanardelli was asked on cross-examination, “but there were bribes that you solicited, right? That's what you pleaded guilty to.” ( Id. at 378.) Later, Zanardelli was asked at least three more times: “Were people just coming in and offering you bribes?” ( Id. at 386), “Were there times when you solicited bribes and people refused to pay them?” ( Id. at 387), and “Were there times when you asked for [bribes] and people refused to pay them?” ( Id. at 388).

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