United States v. Fredericks

787 F. Supp. 79, 1992 U.S. Dist. LEXIS 3198, 1992 WL 51331
CourtDistrict Court, D. New Jersey
DecidedMarch 9, 1992
DocketCrim. A. No. 90-134 (SSB)
StatusPublished

This text of 787 F. Supp. 79 (United States v. Fredericks) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fredericks, 787 F. Supp. 79, 1992 U.S. Dist. LEXIS 3198, 1992 WL 51331 (D.N.J. 1992).

Opinion

OPINION

BROTMAN, District Judge.

Presently before the court is Government’s motion for reduction of the sentence of defendant James J. Fredericks pursuant to Rule 35(b) for his “substantial assistance to law enforcement authorities subsequent to his sentencing.” For the reasons set forth below this motion is denied.

I. BACKGROUND

Beginning in about 1981 James J. Freder-icks developed a scheme to solicit money from investors who believed they were investing money in Montgomery National Bank repurchase, or repo agreements. Repo agreements represent money loaned to the bank from its customers; they are a common investment vehicle offering a higher rate of interest than that allowed on the more tightly regulated certificates of deposit. Fredericks was the Senior Vice-President, Executive Vice President, Cashier, and Corporate Secretary of Montgomery National Bank. Fredericks’ co-conspirator, Michael Schneiderman, the Assistant Vice-President of Montgomery, would solicit the money for the fraudulent repo agreements in return for a commission.

The investors were provided with legitimate looking repo letters on bank stationary most of which were signed by Freder-icks as an officer of Montgomery National Bank. Unlike legitimate bank repos, the fraudulent repos were unsupported by securities set aside at Montgomery and no deposit of monies was made with the bank. Instead, Fredericks invested the money in stocks and ventures such as race horses, billiards statistics compilations, and equipment leasing. The ventures failed, the losses grew and ultimately the bank faced liabilities in excess of $10 million. The bank failed as a direct result of the scheme, causing further losses to repo holders, shareholders, and the FDIC which liquidated the Bank’s assets.

In August of 1989, Fredericks went to the United States Attorney’s Office and related the entire scheme. Thereafter, Fredericks continued to explain the scheme to law enforcement personnel and assisted in identifying the defrauded investors.

Then, on March 29, 1990, Fredericks entered a plea of guilty to a two count Infor[81]*81mation. Counts One and Two of the Information charged that from as early as August, 1983, to as late as August 1989, defendant Fredericks did knowingly and wil-fully conspire with others to defraud Montgomery National Bank in Rocky Hill, and did knowingly and willfully commit mail fraud.

On May 24, 1991, after a thorough and lengthy review of the presentencing report, the sentencing briefs and letters received from victims of the crimes, this court sentenced Fredericks to a term of imprisonment of fifty-four (54) months.1 From that sentence, Fredericks filed a notice of appeal on June 10, 1991.

Subsequent to sentencing, at the request of the F.B.I., Fredericks spoke at three seminars. On June 17, 1991 Fredericks addressed a group of certified public accountants; on June 26, 1991, Fredericks spoke to a group of F.B.I. agents, regulators and federal prosecutors at a bank failure seminar. Fredericks also spoke at a white collar crime conference held on June 27, 1991. At each of these seminars, Fred-ericks explained how the repo scheme at Montgomery National Bank developed and operated.

On October 30, 1991, while the appeal was still pending, the government moved for a reduction of Fredericks fifty-four month sentence pursuant to rule 35(b) for “substantial assistance” to law enforcement authorities subsequent to his sentencing. Because the appeal was still pending, the court felt that it was without jurisdiction to entertain the motion to reduce sentence. See United States v. Batka, 916 F.2d 118,120 (3d Cir.1990); see also United States v. Davis, 924 F.2d 501, 504 (3d Cir. 1991) (once appeal is filed, district court may not exercise jurisdiction under Rule 35); Government of the Virgin Islands v. Leonard, 922 F.2d 1141, 1146 (3d Cir.1991) (district court did not abuse its discretion in denying reduction of sentence where court had no jurisdiction to consider motion as appeal was pending).

On December 31, 1991, before the hearing on the government’s motion, however, Fredericks consented to the withdrawal of his appeal. Because of the withdrawal of this appeal, the court now has jurisdiction to entertain the motion to reduce sentence based on Fredericks’ post sentence cooperation. Therefore, the only issue before this court is whether Fredericks’ speaking at these three seminars provided “substantial assistance” as required by Rule 35(b) and whether his actions will justify any reduction of sentence.

II. DISCUSSION

Rule 35(b) of the Federal Rules of Criminal Procedure2 provides, in relevant part:

The court, on motion of the Government made within one year after the imposition of 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 ...

Motions for reduction are “addressed entirely to the discretion of the district judge.” Diggs v. United States, 740 F.2d 239, 249 (3d Cir.1984); see also United States v. Smith, 839 F.2d 175, 181 (3d Cir.1988). The court is not divested of its broad discretion when considering motions to reduce because the motion is made by the Government. United States v. Hamrick, 741 F.Supp. 103, 107 (W.D.N.C.1990); see also United States v. Smith, 839 F.2d 175, 180-81 (3d Cir.1988) (court upheld denial of reduction even though government joined in motion). The Third Circuit has stated that “the judge can deny such motions for virtually any reason or for no reason at all.” Diggs, 740 F.2d at 249.

In ruling on a Rule 35(b) motion the court may make a broad inquiry, “largely unlimited either as to kind of information [82]*82[the sentencing judge] may consider, or the source from which it may come.’ ” United States v. Vento, 700 F.Supp. 823, 824 (E.D.Pa.1988) (quoting United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978)).

A. SUBSEQUENT SUBSTANTIAL ASSISTANCE

The Government, in its brief, argues that Fredericks’ sentence should be reduced pursuant to Rule 35(b) because of Fredericks’ “substantial assistance provided prior to his sentencing and that provided following his sentencing.” (Brief at 4). This court, however, fully considered Fredericks’ presentence cooperation at the original sentencing:

This court always credits cooperation, and will give a. certain credit to that cooperation. Not to the extent that the U.S.

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Related

United States v. Grayson
438 U.S. 41 (Supreme Court, 1978)
Alfred B. Diggs v. United States
740 F.2d 239 (Third Circuit, 1984)
United States v. James Massa, (Two Cases)
804 F.2d 1020 (Eighth Circuit, 1986)
United States v. William T. Smith, Jr.
839 F.2d 175 (Third Circuit, 1988)
United States v. Vincent G. Howard
902 F.2d 894 (Eleventh Circuit, 1990)
United States v. Batka, Francis Joseph
916 F.2d 118 (Third Circuit, 1990)
Government of the Virgin Islands v. A., Leonard
922 F.2d 1141 (Third Circuit, 1991)
United States v. Vento
700 F. Supp. 823 (E.D. Pennsylvania, 1988)
United States v. Hill
611 F. Supp. 854 (D. Rhode Island, 1985)
United States v. DiSalvo
738 F. Supp. 920 (E.D. Pennsylvania, 1990)
United States v. Hamrick
741 F. Supp. 103 (W.D. North Carolina, 1990)

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Bluebook (online)
787 F. Supp. 79, 1992 U.S. Dist. LEXIS 3198, 1992 WL 51331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fredericks-njd-1992.