U.S. v. Anderson
| Decision Date | 23 October 2002 |
| Docket Number | No. CR.02-10102-MLW.,CR.02-10102-MLW. |
| Citation | 229 F.Supp.2d 17 |
| Parties | UNITED STATES of America v. William H. ANDERSON |
| Court | U.S. District Court — District of Massachusetts |
Stephen G. Huggard, U.S. Attorney's Office, Washington, DC, for Plaintiff.
Michael A. Collora, Dwyer & Collora, Daniel M. Rabinovitz, Boston, MA, for Defendant.
The court recently received and read the Presentence Report ("PSR") concerning William H. Anderson in anticipation of his sentencing, which was scheduled for October 17, 2002. Neither party objected to any part of the PSR that relates to the calculation of the guideline range or possible sentence. However, the court questions whether Probation and the parties have properly calculated the guideline range for Anderson's sentence. In addition, the PSR does not include the information which the court provided to Probation and the parties on June 20, 2002 concerning factors that might warrant an upward departure in this case. Compare PSR ¶ 108 with June 20, 2002 Transcript ("Tr.") at 16-21. The October 17, 2002 sentencing hearing was cancelled so the court could give Probation and the parties fair notice of its concerns and an opportunity to address them prior to the sentencing hearing.
The court's questions and concerns are rooted in the following, apparent facts. On July 23, 2001, Gary Sampson called the Boston office of the Federal Bureau of Investigation ("FBI"). He spoke to Anderson, an employee of the FBI who was answering the telephones. Sampson claims that he said that he was a fugitive wanted for several bank robberies, was in Abington, Massachusetts, and requested that the FBI arrest him. Anderson disconnected the call.1 Sampson did not call back. Although he was reportedly seen waiting in Abington for several hours on July 23, 2001, the FBI did not come to take him into custody.
The next day, Sampson allegedly murdered two people in Massachusetts and stole their cars. After driving to New Hampshire, he allegedly murdered another person.
After being apprehended on July 31, 2001, Sampson reportedly confessed to committing the murders and told investigators about his July 23, 2001 call to the FBI. The FBI became involved in the case because state law does not authorize the death penalty for crimes committed in Massachusetts and the crime committed in New Hampshire might not be subject to that state's death penalty. However, federal law authorizes the death penalty for a car-jacking which results in death. See 18 U.S.C. § 2119.
It was widely reported that the FBI was investigating the car-jacking and murders as potential death penalty cases. Sampson's claim to have called the FBI before committing the three murders was publicly linked to the possibility that federal charges implicating the death penalty would be brought. For example, the August 2, 2001 Boston Herald (Exhibit A hereto) reported, in part, that:
Gail Marcinkiewicz, a spokeswoman for the FBI in Boston, said the probe "to date" has found no evidence the accused triple-murderer — who could ultimately face the death penalty — made the call July 24[sic] from an Abington pay phone as he claimed, but it will be several days before the investigation is completed.
In view of the extensive media coverage, a reasonable person would have realized in early August 2001 that the question of whether Sampson had called the FBI was relevant to whether he would be subject to the death penalty and ultimately executed.
Prior to October 30, 2001, Anderson, among others, was asked by an FBI official whether he had received a telephone call like that described by Sampson. Anderson denied receiving any such call. See Government's Sentencing Brief at 3. The PSR does not address whether this denial constituted an intentional false statement in violation of 18 U.S.C. § 1001 or, if it was made under oath, constituted perjury in violation of 18 U.S.C. § 1621.
In any event, the FBI's investigation of the alleged telephone call continued. The nature of that investigation is not described in the PSR. However, on September 15, 2001, The Boston Globe (Exhibit B hereto) reported that: "The FBI yesterday issued a statement confirming that Gary Sampson placed a telephone call to the Boston office of the bureau the day before he allegedly went on a rampage that left three people dead."
On October 30, 2001, Anderson was questioned under oath by Department of Justice investigators. See Defendant's Sentencing Memorandum at 4. As a result of that questioning, Anderson gave the investigators a sworn affidavit. Id. In that affidavit he again intentionally and falsely stated that he had not received a telephone call on July 23, 2001 from an individual wanting to surrender to the FBI. Id.; PSR ¶ 9; June 20, 2002 Tr. at 13-15.
The investigation relating to the alleged telephone call continued after October 30, 2001. Once again, it is not clear from the PSR what that investigation involved.
On December 12, 2001, Anderson was given a polygraph examination. The PSR does not indicate whether he was questioned under oath. Anderson again denied receiving a telephone call such as that described by Sampson. After being informed that his answers to the multiple questions were deceptive, Anderson admitted that he had received the call in question and that his October 30, 2001 affidavit was false. See Government's Sentencing Brief at 3-4.
On June 20, 2002, Anderson waived indictment and, purportedly without any agreement with the government, pled guilty to a one-count information charging him with making a false statement on October 30, 2001, in violation of 18 U.S.C. § 1001. Although that false statement was made in a sworn affidavit, Anderson was not charged with perjury in violation of 18 U.S.C. § 1621.2 Nor was Anderson charged with obstructing justice in violation of 18 U.S.C. § 1512(b)(3). In addition Anderson was not charged with any crime based upon the statement(s) he made to the FBI prior to October 30, 2001 concerning Sampson's telephone call or based upon his false statements to the polygraph examiner on December 12, 2001.
At the June 20, 2002 hearing, Anderson acknowledged that he understood that acting intentionally was an element of a § 1001 offense and admitted that he knew that his October 30, 2001 affidavit was false when he gave it to the Department of Justice investigators. See June 20, 2002 Tr. at 11-15. However, on June 21, 2002, The Boston Globe (Exhibit C hereto) reported that: "`I really didn't recall to be honest with you,' Anderson told reporters after pleading guilty, insisting that his memory about the call wasn't jogged until he flunked a polygraph examination last December."
At the June 20, 2002 hearing the court stated that if the guideline range for Anderson's sentence was zero to six months as the parties predicted, there would be a substantial question as to whether an upward departure would be appropriate. June 20, 2002 Tr. at 18. As possible grounds for such a departure, the court noted that the false statement was made more than once, was not corrected until Anderson was informed that he had failed the polygraph examination, and would be relevant to a jury's decision whether to sentence Sampson to death. Id. at 18-21. As indicated earlier, the PSR does not reiterate this notice of these possible grounds for an upward departure. See PSR ¶ 108.
At the June 20, 2002 hearing the court also informed the parties that it had a question whether the Guideline range for Anderson's sentence would be higher if he had been charged with making a false statement to the polygraph examiner on December 12, 2001, after the November 1, 2001 amendments became effective. Id. at 16-17. In addition, the court raised the issue of whether the false statements that were not charged as crimes in the Information nevertheless constituted Relevant Conduct pursuant to U.S.S.G. § 1B1.3 and, if so, whether the guideline range would be altered. Id. at 17-18. These questions are not addressed in the PSR.
Accordingly, there are a number of issues that have not been addressed, or addressed adequately, in the PSR and memoranda of the parties. They include the following.
"Barring any ex post facto problem, a defendant is to be punished according to the guidelines in effect at the time of sentencing." United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.1990). The current guidelines became effective November 1, 2001.
The date of the offense of conviction in this case is October 30, 2001. Even assuming that Anderson's false statements to the polygraph examiner constitute Relevant Conduct, the date of conviction for Ex Post Facto Clause purposes is not altered. See United States v. Smith, 46 F.3d 1223, 1239 (1st Cir.1995); United States v. Bennett, 37 F.3d 687, 699 (1st Cir.1994); U.S.S.G. § 1B1.11, A.N.2. Therefore, the offense of conviction in this case was committed before the current guidelines came into effect. Thus, the court must decide if there is an Ex Post Facto Clause impediment to employing the current guidelines at sentencing.
The PSR is inconsistent on the issue of whether the November 1, 2000 Manual, which was in effect on October 30, 2001, or the current Manual, which became effective the next day, should be employed. Paragraph 19 states that "the most beneficial calculation results from the guidelines in effect at the time of the commission of the offense." PSR ¶ 19. However, paragraph 40 states that "[s]ince both calculations result in the same total offense level, the Probation Office is applying the 2001 edition of the Guideline Manual." PSR ¶ 40. The question of which Manual to apply must be resolved.
Moreover, the court questions whether Probation and the parties are correct in their conclusion that the Base Offense Level is 6 and the Total Offense Level is 4 under either Manual. Id.
With regard to the November 1, 2000 Manual, Probation properly began by focusing on ...
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