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United States v. Fredenburgh

decided as amended august 2 1979.: July 23, 1979.

UNITED STATES OF AMERICA, APPELLEE
v.
FREDENBURGH, ALLISON, APPELLANT (D.C. CRIM. NO. 76-00144-03)



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Weis and Garth, Circuit Judges, and Bechtle,*fn* District Judge.

Author: Garth

Opinion OF THE COURT

Allison Fredenburgh had been convicted on thirteen counts of willful misapplication of bank funds in violation of 18 U.S.C. § 656, on one count of conspiracy in violation of 18 U.S.C. § 371, and on two counts of making false statements in bank loan applications in violation of 18 U.S.C. § 1014. Thereafter he had been sentenced on all counts. On appeal, the convictions on all counts other than those for making false statements in bank loan applications were reversed. Although the judgments of conviction on the false statement counts were affirmed, the sentences were vacated and the case remanded for resentencing on those counts. United States v. Gallagher, 576 F.2d 1028 (3d Cir. 1978) (Gallagher I ).

Fredenburgh contends that the sentences thereafter imposed by the district court violate his rights under the double jeopardy clause and the equal protection guarantee of the constitution. He also contends that it violates the "law of the case" doctrine.

We conclude that the sentences imposed by the district court after remand are in contravention of our directive in Gallagher I and in violation of Fredenburgh's rights under the double jeopardy clause. We therefore vacate Fredenburgh's sentences and remand to the district court for resentencing.

I

Fredenburgh, along with co-defendant Anthony Gallagher, was found guilty by a jury of numerous counts of misapplication of bank funds, 18 U.S.C. § 656, of one count of conspiracy, 18 U.S.C. § 371, and of two counts of making false statements in bank loan applications, 18 U.S.C. § 1014.*fn1 The evidence at trial showed that Gallagher and McCarthy needed money to finance the operation of their business but were unable to qualify for bank loans. In order to obtain funds, they arranged to have Fredenburgh, a branch manager of Commercial Trust Company of New Jersey, grant bank loans to various individuals whose names were furnished by Gallagher. For this service, Fredenburgh would receive a kickback from Gallagher, who collected the proceeds of the loans. On occasion, loans were made in the names of persons who had not even applied for them.

Pursuant to the jury's verdict of guilty, the district court judge originally sentenced Fredenburgh as follows:

The defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment as follows:

A. For a period of 5 years on each of Counts 1, 22, 24, 18 and 4, said terms of imprisonment to be concurrent with each other;

B. For a period of 5 years on each of Counts 30, 14, 38 and 12, and 2 years on Count 41, said terms of imprisonment to be concurrent with each other and consecutive to the sentence under A;

C. For a period of 5 years on each of Counts 13, 27, 16, 36 and 35, and 2 years on Count 43, said terms of imprisonment to be concurrent with each other and consecutive to the sentences under A and B.

Execution of sentences under C and B is hereby suspended, and defendant is placed on probation for a period of 5 years to follow ...


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