1 PRECEDENTIAL No. 10-2235 UNITED STATES OF AMERICA v. Herman Friedman

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PRECEDENTIAL
_____________
No. 10-2235
_____________
UNITED STATES OF AMERICA,
v.
HERMAN FRIEDMAN,
Appellant
_____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF NEW JERSEY
___________
(D.C. Crim. Action No. 09-cr-00132)
District Judge: Honorable Anne E. Thompson
______________
Argued on April 25, 2011
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Before: SLOVITER and GREENAWAY, JR., Circuit Judges,
and POLLAK, Senior District Judge*
* Honorable Louis H. Pollak, District Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.

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(Opinion Filed: September 28, 2011)
Lawrence S. Lustberg (argued)
Kevin McNulty
Joshua C. Gillette
Gibbons P.C.
One Gateway Center
Newark, NJ 07102
Counsel for Appellant
Caroline A. Sadlowski (argued)
Paul Fishman
United States Attorney
970 Broad Street
Newark, NJ 07102
Counsel for Appellee
______________
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 (1972); and (5) Friedman‘s sentence is

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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

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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

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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.

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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

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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

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when you asked for [bribes] and people refused to pay them?‖
(Id. at 388).
Additionally, the District Court permitted cross-
examination of Acosta generally regarding his fifty-four
building code violations, but did not permit questioning of
each of the fifty-four violations, individually. When the
District Court instructed Friedman‘s counsel to ask general
questions about the issue but avoid specific questions with
regard to every single violation, Friedman‘s attorney
responded that he ―wasn‘t planning on it.‖ (Id.)
Prior to trial, the Government had provided the defense
with a disclosure letter, pursuant to Giglio, which included
the following paragraph:
Silvio Acosta has identified
approximately 11 properties for
which he was told by Zanardelli
or Thomas O‘Malley, who was
Zanardelli‘s successor, to
disregard apparent violations.
The properties include
Zanardelli‘s residence, although
Acosta is not aware that the
property belongs to Zanardelli.
Acosta states that this behavior
started approximately two years
ago.
(Appellant‘s Br. at 42.) At trial, Acosta testified that
Zanardelli or his successor, O‘Malley, never told him to
ignore violations for eleven properties and the Government
did not identify eleven properties for which Acosta was told

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to ignore apparent violations. The Government represented to
the District Court that Mr. Acosta had not retracted his
statement during witness preparations and that ―[t]he first
time we heard about it was when Mr. Acosta testified. It
came as a surprise to us just like it came as a surprise to
[Appellant].‖ (App. at 195.) The District Court denied a
motion for mistrial, explaining that there was not sufficient
prejudice and that Appellant had every opportunity to cross-
examine Acosta on the issue. Notably, the District Court also
stated that ―[w]hatever [was] said during [Friedman‘s
counsel‘s] opening statement with regard to this had so little
traction I don‘t remember it. I daresay most of the jurors
wouldn‘t have remembered it.‖ (Id.)
The Government also submitted discovery to Friedman
of a statement made by Friedman‘s real estate broker, Scott
Callahan (―Callahan‖), to the FBI that Friedman told Callahan
that the town did not consider one of Friedman‘s apartments
to be legal. The Government concedes that it interviewed
Callahan at a later date and at that time, he denied having
made the above-mentioned statement. At trial, Callahan
testified that Friedman had not immediately disclosed the
illegal apartment to Callahan.
On November 19, 2009, the District Court gave the
government‘s proposed instruction on the theory of defense:
It is not a defense to the
crime of bribery that a defendant
claims he was coerced or extorted
into paying a bribe. Extortion and
coercion are not a defense to
bribery. The reason for this is that
giving a bribe to an official

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undermines governmental
integrity, even where an official
solicits money to do acts that the
official is obligated to do anyway.
The correct decision in such a
situation is to refuse the elicit [sic]
overture and to report it to the
appropriate authorities, not to pay
the bribe.
In addition, it is not a defense to
bribery that the official action that
was the subject of the bribe might
have been lawful. It makes no
difference whether the official
action sought to be influenced
was right or wrong. That is, it
makes no difference that the bribe
giver may have paid the official to
perform an act to which the bribe
giver was legally entitled.
(Id. at 683.)
Friedman‘s proposed instruction with respect to the
theory of defense:
It is not a complete defense to the
crime of bribery that a defendant
claims he was coerced or extorted
into making a payment to a public
official. That is, you cannot find
the defendant not guilty of the
bribery charged simply because

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he was the victim of extortion by
the public official whom he paid.
However, the fact that the
defendant was extorted or
coerced, while it is not alone a
defense to the charge, may bear
upon whether the defendant ever
formed the intent required to
commit the crime of bribery,
specifically upon whether he
committed the act, ―willfully,‖
that is, with a purpose to disobey
or disregard the law.
―Extortion‖ means obtaining
property from another, with his
consent, in either one of two
ways: [] inducing or bringing
about this consent through the use
of actual or threatened force,
violence or fear, which can
include fear of economic harm or
hardship, which exists if a victim
experiences anxiety, concern, or
worry over expected personal
economic harm, and which fear
must be reasonable under the
circumstances existing at the time
of the defendant‘s actions.
As I also explained to you earlier,
a person may be guilty of bribery
whether or not the official action
sought to be influenced was right

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or wrong. That is, a bribery
defendant may be guilty even if
he paid the official to perform an
act to which the defendant was
legally entitled.
However, you may consider
whether the defendant believed
that he was paying the official to
perform an act to which he
believed he was legally entitled in
evaluating whether the
government has proven that the
defendant had the intent required
to commit the bribery at issue,
that is, whether the government
has proven that he had the
purpose to disobey or disregard
the law.
(Appellant‘s Br. at 19-20.) The District Court rejected
Friedman‘s proposed instruction, stating, ―I think that‘s
confusing. I have thought about it. I‘ve read your
submission. I reject it. I think it‘s confusing.‖ (App. at 649-
50.)
The jury convicted Friedman of bribery. Following
the conviction, Friedman filed a motion for a new trial based
on the District Court‘s denial of Jaeger‘s testimony, the
limitation on Acosta and Zanardelli‘s cross-examination, and
the Government‘s failure to disclose Giglio and Brady
material to the defense regarding Acosta and Callahan. The
District Court denied the new trial motion.

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In Friedman‘s sentencing memorandum he raised
several arguments. Most prominently, he raised the issue of
unwarranted disparities in sentences, pursuant to §
3553(a)(6). In particular, he emphasized that based on his
proposed Guidelines sentence, there would be a significant
disparity in his sentence as compared to Anthony Lam, who
was convicted of the same offense—making a cash payment
of $5,000 to Zanardelli, in violation of 18 U.S.C. §
666(a)(2)—and received a sentence of three years‘ probation.
Likewise, Friedman contended that his sentence, as proposed
by the Guidelines, would be disparate from Zanardelli‘s 24-
month sentence, which had already been imposed by the
District Court.
Friedman also moved for a downward departure from
the Sentencing Guidelines, arguing that he had committed the
offense because of ―serious coercion, blackmail or duress,
under circumstances not amounting to a complete defense.‖
U.S.S.G. § 5K2.12. The District Court sentenced Friedman to
a 34-month term of imprisonment and a $25,000 fine.
The District Court began the sentencing proceeding by
discussing the loss calculation. The District Court
acknowledged that both the Presentence Report and the
Government concluded that the total offense level should be
22 and a term of imprisonment for that level would be 41 to
51 months, based on a net value of the benefit of $67,647.
Friedman‘s counsel argued that the only certain figure was
the $5,000 bribe; as such, the total offense level should be 16,
with a term of imprisonment of 21 to 27 months.
In response to the parties‘ arguments, the District
Court stated

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Neither calculation, it
seems to me, is perfect or
altogether satisfying. [Defense
counsel] is correct when he says
that when you start going into the
facts and try to determine, well,
what was the . . . building going
to sell for with or without that
apartment, going at it backwards,
forwards, is not a totally
satisfying exercise . . . . Mr.
Friedman has a criminal history of
1, and so everything in terms of
where in the guidelines one would
find the correct and accurate
number depends on how one
determines the net value of the
benefit here.
I think it‘s somewhere in between,
quite frankly. I think there‘s no
question but the $5,000 bribe just
in and of itself does not adequate
[sic] and fairly produce the value,
and the guideline language of the
manual suggests that only if that‘s
the last alternative, would you
turn to the amount of the exact
bribe.
(Id. at 957-58.)
Later, the District Court stated, ―it seems to me that
something less than the 22 is fair in this case, but I do think

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that a custodial sentence should be imposed, and I do think
that a sentence of 34 months is a fair sentence in this case.
And the Court intends to impose it.‖ (Id. at 962.)
At the end of the sentencing proceeding, the
Government requested clarification on the District Court‘s
Guideline calculation, explaining that it had ―inferred from
[the District Court‘s] comments, Your Honor, that you had
said that the value was somewhere between the 67 that we
argued for and the 5 of the defense.‖ (Id. at 967.) The
District Court replied, ―That‘s correct.‖ (Id.) The
Government further inquired, ―[a]nd so the range that‘s in the
middle of that is 10 to 30, which would be a plus 4
enhancement, make [sic] him a Level 20 with a 33- to 41-
month range.‖ (Id.) The District Court concluded that, ―34
would be a Level 20. Or it could be Level 19 because it
would be in the middle of -- and it could be – yeah, it could
be a 19 or a 20 . . . . If you‘d like me to say it‘s a specific
number, it‘s either 19 or 20.‖ (Id. at 967-68.)
The District Court, after hearing arguments regarding a
downward departure based on coercion, blackmail, or duress,
stated at the sentencing proceeding:
I am convinced based on
the testimony at the trial, listening
to it carefully, that the defendant
thought about [the bribe], seemed
to have no moral objection to it,
seemed willing, but then wasn‘t –
couldn‘t – did nothing for a while.
But I am absolutely persuaded
from the testimony on the – the
tape recordings and everything I

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heard, that he really wanted to sell
this building when the opportunity
appeared, and it was his
anxious—anxiousness to sell that
building to[o] quickly not [to] go
the whole nine yards, but to
quickly get that certificate of
occupancy, which motivated him
to just pay the bribe and get it
over with. And so he did, as we
saw in the video.
(Id. at 959.)
The District Court went on to say:
I think that 34 months is
[a] fair sentence, and I‘ve
considered the nature of the
offense, I‘ve considered the
offender himself, the full penalty
of the trial. This is not a case in
which I impose [the] sentence
based on a guilty plea, where I
don‘t get to know anything about
the facts of the case. I sat here
and listened to the witnesses
testify. And so I sensed and
became – was able to absorb the
interior of this fact pattern. I
considered that. I considered the
seriousness of the offense and the
other factors which have been set
forth as the 3553 factors.

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(Id. at 963.) The District Court also noted that it was required
to ―consider a fairness with regard to other offenders who are
sentenced by this Court.‖ (Id. at 961.)
In the District Court‘s Statement of Reasons, it
explained that it ―lowered the ‗net value of the benefit‘ in the
[Presentence Report] because of its uncertainty. Instead of
imposing [a] sentence at level 22, [the District Court]
imposed a sentence at a level 20 (although 34 months custody
is also embraced within a level 19).‖ (Id. at 8.) Next, the
District Court stated that it ―reject[ed] the notion that the
$5,000 bribe figure should determine the offense level under
the guidelines.‖ (Id.)
The District Court entered the Judgment of Conviction
and sentence. Friedman filed a timely appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction, pursuant to 28
U.S.C. § 3231. We have jurisdiction to review challenges to
a conviction under 28 U.S.C. § 1291 and challenges to the
sentence under 28 U.S.C. § 3742(a). We review the District
Court‘s refusal to give specific jury instructions for abuse of
discretion, but exercise plenary review over whether the
District Court gave a correct statement of law in its jury
instructions. United States v. Jimenez, 513 F.3d 62, 74 (3d
Cir. 2008). Evidentiary rulings are reviewed for abuse of
discretion, United States v. Starnes, 583 F.3d 196, 213-14 (3d
Cir. 2009), but even erroneous rulings only require a new trial
if the ruling affects a ―substantial right of the party,‖ FED R.
EVID. 103(a). An error in an evidentiary ruling is harmless
error when ―it is highly probable that the error did not affect
the result.‖ Hill v. Laeisz, 435 F.3d 404, 420 (3d Cir. 2006).

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This Court will only reverse a district court‘s
limitation on cross-examination where the limitation ―is so
severe as to constitute a denial of the defendant‘s right to
confront witnesses against him and it is prejudicial to
substantial rights of the defendant.‖ United States v. Casoni,
950 F.2d 893, 918-19 (3d Cir. 1991) (internal quotation
marks and citations omitted). The District Court‘s decision
to limit cross-examination is reviewed for abuse of discretion.
United States v. Ellis, 156 F.3d 493, 498 (3d Cir. 1998).
When a motion for a new trial is based on a Brady
claim, we ―conduct a de novo review of the district court‘s
conclusions of law as well as a ‗clearly erroneous‘ review of
any findings of fact.‖ United States v. Pelullo, 399 F.3d 197,
202 (3d Cir. 2005) (citation omitted).
III. ANALYSIS
1. Jury Instructions
Friedman maintains that the District Court abused its
discretion in rejecting his proposed jury instruction because
Friedman argues that an instruction that coercion bears upon
the defendant‘s state of mind is required.
This Court has established that ―[a] defendant is
entitled to a theory of defense instruction if (1) he proposes a
correct statement of the law; (2) his theory is supported by the
evidence; (3) the theory of defense is not part of the charge;
and (4) the failure to include an instruction of the defendant‘s
theory would deny him a fair trial.‖ United States v.
Hoffecker, 530 F.3d 137, 176 (3d Cir. 2008) (citation and
internal quotation marks omitted); see also United States v.
Davis, 183 F.3d 231, 250 (3d Cir. 1999) (―A court errs in

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refusing a requested instruction only if the omitted instruction
is correct, is not substantially covered by other instructions,
and is so important that its omission prejudiced the
defendant.‖). We have cautioned that a defendant is ―not
entitled to a judicial narrative of his version of the facts, even
[if] such a narrative is, in one sense of the phrase, a ‗theory of
defense.‘‖ Hoffecker, 530 F.3d at 176 (citation and internal
quotation marks omitted).
Friedman has not established that his proposed jury
instruction was a correct statement of the law—that coercion
or extortion bears upon the defendant‘s state of mind for
bribery. Friedman presents no support for his proposition that
coercion bears upon the specific intent, or lack thereof, for
bribery.
Friedman concedes that it is a matter of first
impression in this Circuit whether the defendant is entitled to
an instruction that extortion or coercion, while not a complete
defense to bribery under § 666, may bear upon whether the
defendant ever formed sufficient intent to commit the crime.
Nothing in Supreme Court precedent, this Court‘s precedent
or the Third Circuit Model Jury instructions for bribery under
§ 666(a)(2) requires an instruction that coercion or extortion
be considered by the jury for the defendant‘s intent to bribe.1
1 The Third Circuit Model Jury Instructions for 18 U.S.C.
§ 666(a)(2) is as follows:
Count (No.) of the
indictment charges the defendant
(name) with (describe offense;
e.g., bribing an agent of a

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federally funded program), which
is a violation of federal law.
In order to find the
defendant guilty of this offense,
you must find that the government
proved each of the following five
elements beyond a reasonable
doubt:
First: That at the time
alleged in the indictment, (name
of agent) was an agent of (specify
organization, government, or
agency);
Second: That (specify
organization, government or
agency) received federal benefits
in excess of $10,000 in a one-year
period;
Third: That (name) [(gave)
(agreed to give) (offered)]
something of value to (name of
agent);
Fourth: That (name) acted
corruptly with the intent to
influence or reward (name of
agent) with respect to (the
business) (a transaction) (a series

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Friedman asserts that his proposed instruction is
correct law in the United States Court of Appeals for the
Second Circuit. Hence, although a correct statement of law in
that Circuit, its value within the confines of Hoffecker, is
limited. Moreover, the instruction approved in the Second
Circuit is more limited in scope than Friedman‘s proposed
instruction. Specifically, the Second Circuit has found that
coercion can bear on the intent required for the commission
of bribery only where: (1) the defendant is paying the official
to perform an act to which he is legally entitled and (2) the
official threatens the defendant with ―serious economic loss‖
unless the bribe is paid. See United States v. Barash, 365
F.2d 395, 401-02 (2d Cir. 1966).
Friedman‘s proposed instruction, in contrast, did not
limit the consideration of coercion to situations in which the
defendant was legally entitled to the act. While his proposed
instruction did include an explanation that the jury could
consider whether the defendant believed that he was paying
Zanardelli for an act to which he was legally entitled, it would
have charged the jury that extortion or coercion ―may bear
upon whether the defendant ever formed the intent required to
commit the crime of bribery,‖ even when the defendant was
not legally entitled to the act. (Appellant‘s Br. at 19.)
of transactions) of (specify
organization, government or
agency);
Fifth: That the value of the
(business) (transaction) (series of
transactions) to which the
payment related was at least
$5,000.

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22
Friedman argues that his proposed instruction is
supported by the language of the federal statute for bribery
under which he was convicted, 18 U.S.C. § 666. The bribery
statute criminalizes the actions of an individual who
―corruptly gives, offers, or agrees to give anything of value to
any person, with intent to influence or reward‖ a government
agency involving anything of value of $5,000 or more. 18
U.S.C. § 666(a)(2). According to Friedman, forming corrupt
intent can be negated by coercion, because coercive conduct
by Zanardelli could have influenced Friedman‘s state of
mind, and that the jury should have been charged accordingly.
We reject this argument.
In Hoffecker, this Court was faced with a similar
argument, namely that a theory of defense to negate intent in
a material misrepresentation case should have been permitted
in a jury charge to explain that the defendants lacked intent.
530 F.3d at 177. However, this Court rejected that argument
on the basis that it duplicated other instructions that the
District Court gave on the subject of criminal intent, such as
instructions on ―knowingly and willfully‖ and the ―good faith
defense‖ to fraud. Id.
Likewise, in this case, Friedman‘s argument is that his
proposed theory of defense instruction would negate the
intent requirement set forth in 18 U.S.C. § 666(a)(2). But, the
District Court provided thorough instructions as to the
elements of bribery under the relevant statute, defining
―knowingly,‖ ―corruptly,‖ and ―willfully.‖ (App. at 679-80.)
In particular, the District Court instructed the jury that it may
consider ―all the other facts and circumstances shown by the
evidence that may prove what was in his mind at the time‖
and whether Friedman had intended a lawful or unlawful end.
(Id. at 679.) Thus, the jury was free to consider all

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23
circumstances and arguments set forth by Friedman as to why
the element of intent was not satisfied and the District Court
did not abuse its discretion in denying a separate instruction
on intent.
Even if Friedman‘s proposed jury instruction was a
correct statement of the law, Friedman‘s instruction on
coercion or extortion is not supported by the evidence in the
record. The facts in this case do not constitute coercion or
extortion. Friedman did not bribe Zanardelli in exchange for
an act to which he was legally entitled. He gave the bribe to
Zanardelli in exchange for the illegal act of Zanardelli
legalizing the sixteenth unit without a variance. Additionally,
Zanardelli did not threaten Friedman with economic loss.
Zanardelli frequently clarified that Friedman could proceed
through the normal route of applying for a variance.
Although obtaining a variance requires time and money, it is
the correct legal process that should have been followed and
informing someone of the correct, legal steps they should
take, in itself, is not threatening serious economic loss. That
Friedman would likely lose a potential buyer for his
apartment building is also not Zanardelli threatening
Friedman with serious economic loss. There is no evidence
that the potential buyer‘s threat to pull out of the deal was
influenced by Zanardelli‘s action.
In light of our conclusion that Friedman‘s proposed
instruction was not a correct statement of law, nor was his
theory supported by the facts, we need not discuss whether
the failure to include an instruction would have denied
Friedman a fair trial.
2. Exclusion of Witness Testimony

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24
Friedman asserts that the District Court erred in
precluding assistant tax assessor Michael Jaeger‘s testimony.
As a result, he requests reversal of the conviction and remand
for a new trial. We disagree.
Federal Rule of Evidence 402 provides that ―[a]ll
relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by Act of Congress,
by these rules, or by other rules prescribed by the Supreme
Court pursuant to statutory authority. Evidence which is not
relevant is not admissible.‖ FED. R. EVID. 402. Under
Federal Rule of Evidence 401, ―‗[r]elevant evidence‘ means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.‖ FED. R. EVID. 401.
Evidence that is relevant may still be excluded ―if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.‖ FED. R. EVID.
403. The District Court‘s discretion is ―construed especially
broadly in the context of Rule 403.‖ United States v. Kemp,
500 F.3d 257, 295 (3d Cir. 2007) (citation and internal
quotation marks omitted).
Jaeger testified at a Federal Rule of Evidence 104
hearing that the property record card showed that the building
had sixteen 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. The District Court excluded
this testimony because it was distracting and not relevant.

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25
Friedman argues that Jaeger‘s testimony shows that
Zanardelli induced Friedman‘s payment by claiming that the
records showed that the building had only fifteen units, when
the records actually reflected sixteen units. From this
evidence, Friedman contends, the jury could have inferred
that Zanardelli induced Friedman‘s payment.
The District Court did not abuse its discretion in
precluding Jaeger‘s testimony. While Jaeger did testify as to
the number of physical units reported on the card, his
testimony was clear that the property record card indicated, in
handwritten notes by Jaeger‘s secretary, that the number of
physical units was sixteen. Nowhere in Jaeger‘s testimony
does he say that the number of legal units was sixteen. It is
undisputed that the building physically had sixteen units, thus
testimony about the number of physical units is not relevant.
Moreover, Jaeger testified at the Rule 104 hearing that
that he did not have knowledge of whether Zanardelli had
seen the property record card. This renders his testimony not
relevant to support Friedman‘s theory that Zanardelli lied to
Friedman about what the property record card reflected.
Zanardelli responded on cross-examination that he had not
seen the tax records. Friedman could have argued, without
Jaeger‘s testimony, that Zanardelli intentionally overlooked
the tax records, thus Jaeger‘s testimony that he did not know
whether Zanardelli saw the records is not relevant. There was
no error here; thus, we need not determine whether the error
was harmless. The District Court did not abuse its discretion
in rejecting Jaeger‘s testimony.
3. Limitation of Cross-Examination

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26
The Confrontation Clause of the Sixth Amendment to
the United States Constitution provides that, ―[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .‖ U.S. CONST.
amend. VI. Yet, the Confrontation Clause does not grant
unfettered rights to cross-examine witnesses. ―[T]he
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might
wish.‖ Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)
(citation and internal quotation marks omitted); United States
v. Casoni, 950 F.2d at 919 (―Van Arsdall requires us to strike
a balance between the constitutionally required opportunity to
cross-examine and the need to prevent repetitive or abusive
cross-examination.‖). District courts have discretion to
―impose reasonable limits on such cross-examination based
on concerns about, among other things, . . . interrogation that
is repetitive or only marginally relevant.‖ Van Arsdall, 475
U.S. at 679.2
Friedman claims that his Sixth Amendment right to
confrontation was violated because the District Court limited
the scope of cross-examination regarding both Zanardelli and
Acosta. While the District Court did limit the extent of
Friedman‘s cross-examination, it was not violative of the
2 Federal Rule of Evidence 611(a) states: ―The court shall
exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1)
make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue
embarrassment.‖ FED. R. EVID. 611(a).

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27
Constitution. The District Court permitted the full scope of
cross-examination of Zanardelli regarding money he had
received on twenty-two properties to facilitate building
approvals but limited the specific details that could be delved
into. Most important, Friedman was still permitted to
question Zanardelli generally on these matters.
Friedman‘s cross-examination of Zanardelli sought to
obtain information regarding the amount of the bribes, what
Zanardelli did with the bribe money he received, and the
identities of multiple people from whom Zanardelli received
bribes. Friedman argues that he should have been permitted
to show through cross-examination that Zanardelli solicited
bribes, rather than merely accepted bribes. But the District
Court allowed multiple opportunities to obtain this testimony.
Friedman‘s counsel asked on cross-examination, ―but there
were bribes that you solicited, right? That‘s what you
pleaded guilty to.‖ (App. at 378.) Later, Zanardelli was
asked: ―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).
Zanardelli responded, on the record, to these questions.
The jury heard direct evidence and admissions of Zanardelli‘s
wrongdoing. The District Court‘s limitation was reasonable
and did not deny Friedman his Sixth Amendment right to
confront witnesses against him. The District Court did not
abuse its discretion by limiting Friedman‘s ability to cross-
examine Zanardelli.
Similarly, the District Court permitted cross-
examination of Acosta generally regarding fifty-four

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28
violations of the building code, that he failed to accurately
report, as part of his inspection duties. On the other hand, the
District Court did not permit questioning regarding each and
every one of the individual fifty-four violations. Friedman
asserts that this limitation prevented him from demonstrating
that Acosta manipulated the building code rules that he
should have been enforcing and that this manipulation
pressured Friedman into bribing Zanardelli to get around the
building code. This argument lacks merit.
Friedman‘s counsel sought to solicit information
during cross-examination regarding Acosta‘s citations for
violations of the building code and that he had previously
made misrepresentations regarding building units. However,
Friedman‘s counsel‘s statement at trial undercuts the
argument. When instructed to ask general questions about the
violations, but to avoid questions regarding each and every
specific violation, Friedman‘s attorney stated candidly that he
―wasn‘t planning on it.‖ (Id. at 171.) Friedman‘s counsel had
not intended to cross-examine Acosta on the individual
building code violations anyway.
The District Court‘s limitation was reasonable and did
not deny Friedman his Sixth Amendment right to confront
witnesses against him. The District Court did not abuse its
discretion in limiting Friedman‘s cross-examination of
Acosta.
With respect to both Zanardelli and Acosta, Friedman
had the opportunity to cross-examine them on their alleged
wrongdoing and the limitation on cross-examination did not
inhibit the argument that Acosta and Zanardelli engaged in
malfeasance. The jury learned of the full extent of Acosta‘s
and Zanardelli‘s malfeasance and criminal activity. The

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29
District Court‘s ruling on the scope of cross-examination with
respect to Zanardelli and Acosta is consistent with Van
Arsdall that Friedman does not have the unfettered right to
cross-examination.
4. Giglio
Friedman argues that the Government violated Brady
v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States,
405 U.S. 150 (1972) because it concealed certain
impeachment evidence related to Acosta and Callahan.
Brady stands for the proposition that ―the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.‖ 373 U.S. at 87. Under
Giglio, ―the government must disclose materials that go to the
question of guilt or innocence as well as materials that might
affect the jury‘s judgment of the credibility of a crucial
prosecution witness.‖ United States v. Milan, 304 F.3d 273,
287 (3d Cir. 2002) (citing United States v. Bagley, 473 U.S.
667, 676–77 (1985)). A defendant must prove three elements
for a Brady violation: (1) ―the evidence at issue must be
favorable to the defendant;‖ (2) ―it must be material;‖ and (3)
―it must have been suppressed by the prosecution.‖ United
States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008)
(citing Pelullo, 399 F.3d at 209; United States v. Perdomo,
929 F.2d 967, 970 (3d Cir. 1991)).
Evidence is material ―only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.‖ United States v. Bagley, 473 U.S. 667, 682 (1985).

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30
Material evidence can include evidence that may be used to
impeach a witness. Id. at 676-77; Giglio, 405 U.S. at
154. However, ―impeachment evidence, if cumulative of
similar impeachment evidence used at trial . . . is superfluous
and therefore has little, if any, probative value.‖ Lambert v.
Beard, 633 F.3d 126, 133 (3d Cir. 2011) (citations
omitted). On the other hand, it does not follow ―that
whenever a witness is impeached in one manner, any other
impeachment becomes immaterial.‖ Id.
Here, Friedman argues that he was disadvantaged
because the Government failed to disclose Acosta‘s change in
testimony. Originally, Acosta had identified properties for
which Zanardelli, or Zanardelli‘s successor, had told him to
disregard apparent violations. Later, on cross-examination,
Acosta denied this assertion. The defense argued that this
change was material and a violation of Giglio and Brady to
suppress it. The District Court found that the Government did
not suppress the change in Acosta‘s testimony or intentionally
mislead Friedman because the Government was not aware of
the change in Acosta‘s testimony until Acosta was cross-
examined at trial. This finding was not clearly erroneous.
Friedman chose not to cross-examine Acosta on the
inconsistency of his prior statement and the District Court
noted that Friedman‘s opening statement regarding Acosta‘s
pre-trial statements were not central to his defense.
Therefore, the District Court did not abuse its discretion by
holding that Friedman was not prejudiced by the lack of prior
knowledge of the change of testimony. Further, the result of
the trial would not have been different if the change had been
disclosed.

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31
Next, Friedman requests a new trial based on the
Government‘s failure to disclose a change in testimony by a
real estate broker, Callahan. The Government provided
discovery to Friedman that Callahan had told the FBI that
early in the process of preparing the building for listing to
sell, Friedman told Callahan that the Town of WNY did not
consider one of the apartments to be legal. Callahan later
denied ever making that statement. Friedman asserts that he
would have used Callahan‘s statement to argue that he did not
have a corrupt intent in bribing Zanardelli because he was
honest in his disclosure to Callahan about the illegal unit.
According to Friedman, the Government‘s failure to disclose
this change in testimony about whether Friedman disclosed to
Callahan that the unit was illegal deprived Friedman of the
opportunity to argue that he did not have a corrupt intent to
bribe. The Government concedes that the change in
testimony may reflect on Callahan‘s credibility and that it
should have been disclosed to Friedman.
The question that remains given the concession is
whether the failure to disclose the change in testimony
amounts to a constitutional deprivation requiring the ordering
of a new trial. The District Court found that it did not. This
finding is not clearly erroneous. Callahan‘s testimony
regarding whether Friedman told him about the illegal
apartment is not relevant regarding whether Friedman had a
corrupt intent in bribing Zanardelli. The evidence implicating
Friedman was that he bribed Zanardelli in exchange for a
C.O. to legalize the sixteenth unit. Although the Government
concealed evidence from Friedman that may have been
favorable to Friedman, the evidence was not material. There
is not a reasonable probability that the result of the
proceeding would have been different if the Government had

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32
disclosed Callahan‘s change in testimony regarding what
Friedman had told Callahan about the illegal unit. The
District Court did not err in denying Friedman‘s motion for
mistrial.
5. Procedural and Substantive Unreasonableness in
Sentencing
Friedman argues that his sentence is procedurally
unreasonable because the District Court did not (1) follow the
proper order of the steps set forth in Gunter; (2) compute a
definitive loss calculation or offense level to reach the
Guidelines range; (3) formally rule on Friedman‘s departure
motion; or (4) meaningfully consider the § 3553(a) factors.
Friedman also argues that his sentence is substantively
unreasonable.
Here, the District Court did not follow the correct
order of the steps set forth in Gunter, did not compute a
definitive loss calculation or offense level to reach its
Guidelines range nor did it meaningfully consider §
3553(a)(6), ―the need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct.‖ 18 U.S.C. §
3553(a)(6). Based on these procedural errors, we will remand
to the District Court for resentencing.
Following United States v. Booker, 543 U.S. 220
(2005), we directed district courts to follow a three-step
sentencing process. United States v. Gunter, 462 F.3d 237,
247 (3d Cir. 2006). During the first step, a district court must
―calculate a defendant‘s Guidelines sentence precisely as they
would have before Booker.‖ Id. (citation omitted). During

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33
the second step, district courts ―must ‗formally rul[e] on the
motions of both parties and stat[e] on the record whether they
are granting a departure and how that departure affects the
Guidelines calculation, and tak[e] into account [our] Circuit‘s
pre-Booker case law, which continues to have advisory
force.‘‖ Id. (alterations in Gunter) (citation omitted). During
the third step, district courts must ―‗exercise [] [their]
discretion by considering the relevant [§3553(a)] factors‘3 in
3 The § 3553(a) factors include:
(1) the nature and circumstances
of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence
imposed - -
(A) to reflect the seriousness of
the offense, to promote respect for
the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence
to criminal conduct;
(C) to protect the public from
further crimes of the defendant;
and
(D) to provide the defendant with
needed educational or vocational
training, medical care, or other

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34
setting the sentence they impose regardless of whether it
varies from the sentence calculated under the Guidelines.‖ Id.
correctional treatment in the most
effective manner;
(3) the kinds of sentences
available;
(4) the kinds of sentence and the
sentencing range established for -
-
(A) the applicable category of
offense committed by the
applicable category of defendant
as set forth in the guidelines . . . ;
(5) any pertinent policy statement
. . . issued by the Sentencing
Commission . . . [that] is in effect
on the date the defendant is
sentenced;
(6) the need to avoid unwarranted
sentence disparities among
defendants with similar records
who have been found guilty of
similar conduct; and
(7) the need to provide restitution
to any victims of the offense.
18 U.S.C. § 3553(a).

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35
(alterations in Gunter) (citation omitted). During the third
step, district courts should engage in ―a true, considered
exercise of discretion . . . including a recognition of, and
response to, the parties‘ non-frivolous arguments.‖ United
States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006) (citation
omitted).
Appellate review is limited to determining whether the
sentence is reasonable. United States v. Merced, 603 F.3d
203, 213 (3d Cir. 2010) (citation omitted). Our review for
reasonableness proceeds in two stages: (1) ―First, we ensure
that the district court committed no ‗significant procedural
error,‘ ‗such as failing to calculate (or improperly calculating)
the Guidelines rage, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence‖ and (2) ―if the district court‘s
procedures are sound, we proceed to examine the substantive
reasonableness of the sentence.‖ Id. at 214 (quoting United
States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009); Gall v.
United States, 552 U.S. 38, 51 (2007)) (citation omitted);
United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008)
(―[W]e are to ensure that a substantively reasonable sentence
has been imposed in a procedurally fair way.‖). At both the
procedural and substantive stages, this Court reviews for
abuse of discretion. United States v. Negroni, 638 F.3d 434,
443 (3d Cir. 2011) (citation omitted).
To demonstrate that a sentence is procedurally
reasonable, a district court must show ―meaningful
consideration of the relevant statutory factors and the exercise
of independent judgment.‖ United States v. Grier, 475 F.3d
556, 571-72 (3d Cir. 2007) (en banc), cert. denied, 552 U.S.

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36
848 (2007). A major variance from the sentencing Guidelines
may require a more significant justification than a minor one.
Gall, 552 U.S. at 50.
We will affirm a procedurally sound sentence as
substantively reasonable ―unless no reasonable sentencing
court would have imposed the same sentence on that
particular defendant for the reasons the district court
provided.‖ Tomko, 562 F.3d at 568. We focus on the totality
of the circumstances, and the party challenging the sentence
bears the burden of proving the sentence‘s unreasonableness.
Id. at 567. ―[W]hile reviewing courts may presume that a
sentence within the advisory Guidelines is reasonable,
appellate judges must still always defer to the sentencing
judge‘s individualized sentencing determination.‖ Rita v.
United States, 551 U.S. 338, 364 (2007). ―‗[I]t is not the role
of an appellate court to substitute its judgment for that of the
sentencing court as to the appropriateness of a particular
sentence,‘‖ except to the extent specifically directed by
statute. Williams v. United States, 503 U.S. 193, 205 (1992)
(quoting Solem v. Helm, 463 U.S. 277, 290 n.16 (1983)).
a. Order of the Gunter Steps
Friedman argues that the District Court erred
procedurally by analyzing the Gunter steps out of order. The
District Court began its sentencing procedures with the first
Gunter step by discussing the disputed loss calculation.
Before resolving what the loss or offense level was, the
District Court conducted the second step of Gunter and
discussed the departure motion. The District Court then
returned to a discussion of step one by resolving two other
guidelines disputes: whether Zanardelli was a high-level
official and whether Friedman accepted responsibility for the

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37
crime. Next, the District Court engaged in a discussion of
some of the § 3553(a) factors, the third step of Gunter, and
then stated that it would impose something less than a
Guidelines level of 22 before continuing its discussion of §
3553(a) factors. Finally, the District Court imposed a 34-
month sentence, stating it was at an offense level of either 19
or 20.
The Government concedes that the District Court
should have completed its calculation of the Guidelines range
prior to its § 3553(a) analysis, but contends that Friedman
fails to show that the sentencing calculation was impacted by
the order of analysis.
The District Court in this matter strayed from our three
step process in Gunter. District courts should consider the
steps separately and sequentially. See United States v.
Lofink, 564 F.3d 232, 242 (3d Cir. 2009) (holding that it was
not harmless error for the district court to consider a motion
for a downward departure together with the § 3553(a) factors
in the third step, rather than as a discrete second step of the
process); United States v. Brown, 578 F.3d 221, 226-27 (3d
Cir. 2009) (remanding to the district court for conflating the
Gunter steps and failing to specify whether the below
Guidelines range sentence was a result of a departure or a
variance). Following the process set forth in Gunter ensures
that the District Court‘s decision-making process is both
logical and fair. Departure and variance motions logically
cannot be determined until the district court knows what the
Guidelines calculation is. Likewise, the § 3553(a) factors
cannot be consulted until after departure and variance
motions are completed. The fact that the District Court failed
to adhere to this process inhibits our ability to review the
sentence for reasonableness and thus requires remand.

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38
b. Guidelines Calculation
While the District Court ultimately concluded that it
was imposing a 34-month sentence, it did not make any
determinations as to what the loss calculation and total
offense level was to lead it to the appropriate Guidelines
range. Rather, the District Court imposed a 34-month
sentence and then stated that this corresponded to a Guideline
range of 19 or 20. Under the Supreme Court and this Court‘s
precedent, the District Court is required to calculate the
Guidelines range. Gall, 552 U.S. at 597. A sentence
rendered without a calculation of the Guidelines range
constitutes procedural error. See id. In order to determine the
appropriate Guidelines range under step one of Gunter, the
District Court must determine the total offense level. Here,
the record does not contain an explanation of how a
Guidelines calculation of 19 or 20 was reached. The record
merely indicates that the District Court believed the
Guidelines calculation should be ―somewhere in between‖
what the Government proposed, 22, and what the defense
proposed, 16. (App. at 958.)
The District Court did not ―adequately explain the
chosen sentence.‖ Gall, 552 U.S. at 597. The ―failure to
begin with a properly-calculated Guidelines range . . .
preclude[s] this Court from concluding that [the procedural
error] was harmless error.‖ United States v. Smalley, 517
F.3d 208, 215 (3d Cir. 2008) (remanding to the district court
to properly justify deviating eight months above the upper-
end of the properly calculated Guidelines range). For this
reason, we will remand to the District Court to explain and
determine a specific Guidelines calculation.
c. Departure Motion

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39
Next, Friedman challenges his sentence by asserting
that the District Court did not formally rule on his motion for
a downward departure for coercion, blackmail, or duress.
Under Gunter, a district court must ―formally rule on the
motions of both parties and state on the record whether [it is]
granting a departure and how that departure affects the
Guidelines calculation.‖ 462 F.3d at 247. This Court has
emphasized the importance of ruling on departure motions:
[W]e require that the entirety of
the Guidelines calculation be done
correctly, including rulings on
Guidelines departures. Put another
way, district courts must still
calculate what the proper
Guidelines sentencing range is,
otherwise the Guidelines cannot
be considered properly at
Gunter‘s third step. The scenario
is simple: error entering this
sentencing step may presage the
sentence ultimately set.
Lofink, 564 F.3d at 238-39 (citation omitted).
In Rita, the Supreme Court held that the district court
sufficiently rejected the defendant‘s request for a downward
departure when it simply stated that without downward
departure, the Guidelines range was not ―inappropriate‖ and
the sentence was ―appropriate.‖ 551 U.S. at 358. The
Supreme Court recognized that the judge could have
explained more regarding why it rejected the defendant‘s
downward departure motion, but noted that the ―context and

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40
the record make clear that this, or similar, reasoning underlies
the judge‘s conclusion.‖ Id. at 359.
In this case, the District Court clearly rejected
Friedman‘s downward departure motion. The District Court
explained that it was ―convinced based on the testimony at
the trial‖ that Friedman had ―no moral objection‖ to the bribe
and that Friedman was not the victim of extortion, but instead
was motivated to pay the bribe in order to sell the building
quickly and to avoid proper procedures to legalize the
sixteenth unit. (App. at 959.) The District Court did not
commit procedural error in its resolution of the departure
motion.
d. Meaningful Consideration of § 3553(a) Factors
Friedman‘s final argument with respect to his sentence
is that the District Court failed to give meaningful
consideration to the § 3553(a) factors.
In Booker, the Supreme Court held that appellate
courts should insure that district courts analyze the § 3553(a)
factors when determining sentences for criminal enterprises.
543 U.S. at 261. Sentencing courts must give ―meaningful
consideration‖ to the factors in 18 U.S.C. § 3553(a). United
States v. Olhovsky, 562 F.3d 530, 546 (3d Cir. 2009). A
district court‘s fail[ure] to consider the § 3553(a) factors can
create a procedurally unreasonable sentence. Levinson, 543
F.3d 190, 196 (3d Cir. 2008).
―[T]he district court need not discuss and make
findings as to each of the § 3553(a) factors if the record
makes clear that the court took the factors into account in
sentencing . . . .‖ United States v. Kononchuk, 485 F.3d 199,

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41
204 (3d Cir. 2007). Still, ―[w]here one party raises a
colorable argument about the applicability of one of the
factors, [] the court should respond to that argument as part of
its ‗meaningful consideration of the relevant statutory factors
and the exercise of independent judgment.‘‖ United States v.
Merced, 603 F.3d 203, 221 (3d Cir. 2010) (quoting Grier, 475
F.3d at 571-72).
A mere recitation of the factors and a statement that
counsel‘s arguments have been considered is insufficient, but
―brevity is not error per se.‖ Jackson, 467 F.3d at 841-42
(holding that the district court‘s statement that it considered
the defendant‘s prior convictions for crimes of violence,
circumstances of defendant‘s upbringing, and financial
circumstances was sufficient discussion of the § 3553(a)
factors).
During the sentencing proceeding, the District Court
stated that it considered the ―loving letters from family and
friends,‖ the ―less-than-disciplined attitude‖ towards his
income taxes, his various housing violations incurred through
the years, and an indifference in abiding by the requirements.
(Id. at 962.) The District Court also generally stated that it
had considered the § 3553(a) factors.
Friedman raised in his sentencing memorandum §
3553(a)(6), ―unwarranted sentencing disparities.‖ 18 U.S.C.
§ 3553(a)(6). He referred to the sentence of Anthony Lam,
who was convicted of the same offense—making a cash
payment of $5,000 to Zanardelli, in violation of 18 U.S.C. §
666(a)(2). Anthony Lam received a sentence of three years‘
probation from District Court Judge Garrett E. Brown, Jr.
Likewise, Friedman draws attention to the 24-month sentence
that the District Court imposed on Zanardelli for accepting

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bribes as a public official. The District Court was intimately
familiar with all of the facts as they relate to Zanardelli.
Responding to Friedman‘s motion with respect to §
3553(a)(6) was clearly within the District Court‘s knowledge
of the case.
The District Court‘s only discussion of this alleged
disparity in sentencing was that the District Court noted that it
was required to ―consider a fairness with regard to other
offenders who are sentenced by the Court.‖ (App. at 961.)
The District Court did not state whether there was a
sentencing disparity or address whether comparing
Friedman‘s sentence to Lam‘s sentence or Zanardelli‘s
sentence demonstrated a sentencing disparity. The District
Court must address whether there is a sentencing disparity
because there is no explicit discussion or indication in the
record that it was considered. See Negroni, 638 F.3d at 446
(3d Cir. 2011) (―While the District Court identified the
concern and stated it had considered that factor, it provided
no explanation for why the sentence it imposed was justified
despite the clear disparity it seemed to create.‖); Merced, 603
F.3d at 225 (requiring remand where Merced‘s sentence was
128 months less than what a similarly situated defendant
could expect to receive under the circumstances and there was
no explicit discussion or indication in the record that the
district court considered this disparity); cf. United States v.
Larkin, 629 F.3d 177, 196 (3d Cir. 2010) (finding no
procedural error in the district court‘s discussion of the
sentence disparity because the District Court explained the
similarity in conduct between the defendant and the co-
defendant).

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For the reasons discussed above, we will remand to the
District Court for resentencing to cure the procedural errors in
the sentence.4
IV. CONCLUSION
We will affirm the judgment of conviction, vacate the
sentence, and remand for resentencing, in accordance with
this opinion.
4 In light of our decision to remand for procedural error, we
need not consider Friedman‘s arguments that the sentence
was substantively unreasonable. See Merced, 603 F.3d at 214
(―If the district court commits procedural error, our preferred
course is to remand the case for re-sentencing, without going
any further.‖ (citation omitted)).

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