U.S. v. Anderson, CR. 02-10102-MLW.

• Decision Date: 21 April 2003
• Docket Number: No. CR. 02-10102-MLW.,CR. 02-10102-MLW.
• Citation: 260 F.Supp.2d 310
• Parties: UNITED STATES of America v. William H. ANDERSON
• Court: U.S. District Court — District of Massachusetts

260 F.Supp.2d 310

UNITED STATES of America v. William H. ANDERSON

No. CR. 02-10102-MLW.

United States District Court, D. Massachusetts.

April 21, 2003.

Michael A. Collora, Daniel M. Rabinovitz, Dwyer & Collora, LLP, Boston, for William H. Anderson (1), Defendant.

Stephen G. Huggard, United States Attorney's Office, Boston, for U.S. Attorneys.

MEMORANDUM AND ORDER

WOLF, District Judge.

For the reasons described in detail at the March 18, 2003 hearing, and summarized in this Memorandum, the following rulings were made in connection with the sentencing of defendant William Anderson.

1. Because the current Guidelines Manual, with the Amendments effective November 1, 2002, does not provide for more punishment than the November 1, 2000 Guidelines Manual that was in effect at the time of Anderson's crime of making a false statement to a government investigator, in violation of 18 U.S.C. § 1001, the current Manual was applied.

More specifically, in the 2000 Manual violations of § 1001 were addressed in U.S.S.G. § 2F1.1. Application Note 14 to § 2F1.1 then stated, in pertinent part, that:

Where the indictment or information setting forth the count of conviction (or a stipulation as described in § 1B1.2(a)) establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2F1.1.

In this case the undisputed facts demonstrated that on October 30, 2001 Anderson knowingly made a false material statement under oath¹ when he denied that he had received a telephone call from alleged murderer Gary Sampson on July 23, 2001. Thus, Anderson committed perjury, in violation of 18 U.S.C. § 1621, although he was not charged with that offense. See Dunn v. United States, 442 U.S. 100, 108-09, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) ("Congress was aware that statements under oath were embraced by the federal perjury statute without regard to where they were given."). In these circumstances U.S.S.G. § 2J1.3 is the "more apt" guideline for Anderson's Offense. See United States v. Kurtz, 237 F.3d 154, 156 (2d Cir.2001); cf. United States v. Scungio, 255 F.3d 11, 16-17 (1st Cir.2001); United States v. Duranseau, 19 F.3d 1117, 1123 (6th Cir.1994).

The 2002 Manual moved § 1001 offenses to U.S.S.G. § 2B1.1. Section 2B1.1(c)(3)(C) states, in pertinent part, that:

If ... the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two (Offense Conduct), apply that other guideline.

Application Note 11 to § 2B1.1(c)(3) reiterates the guidance given previously in Application Note 14 to § 2F1.1. It states, in pertinent part, that:

Subsection (c)(3) provides a cross reference to another guideline in Chapter Two (Offense Conduct) in cases in which the defendant is convicted of a general fraud statute, and the count of conviction establishes an offense more aptly covered by another guideline,

(emphasis added). Thus, the 2002 Manual also directs that U.S.S.G. § 2J1.3 be used to calculate the Offense Level in this case. Section 2J1.3 is the same in the 2000 and 2002 Manuals.

The 2002 Amendments relating to § 1001 offenses merely clarified the previously existing Guidelines. They did not involve a substantive change in them. Nor did they raise the Guideline range for Anderson's Offense or otherwise change the consequences of his crime. Therefore, the Ex Post Facto Clause of the Constitution does not require the use of the 2000 Manual. See Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Accordingly, the current Manual was employed to calculate Anderson's sentence. See United States v. Harotunian, 920 F.2d 1040, 1041-12 (1st Cir.1990).

Pursuant to § 2J1.3, the Base Offense Level for Anderson's crime under both the 2000 and 2002 Manuals is 12, rather than 6 as it would have been if § 2F1.1 of the 2000 Manual or § 2B1.1 of the 2002 Manual alone prescribed the Guideline range. However, for the reasons explained below, the application of the cross-reference ultimately made no difference whatsoever in the sentence imposed. The parties advocated a Guidelines analysis that would have resulted in a 0-6 month range for Anderson's sentence. The court's calculation resulted in a 6-12 month range for Anderson's sentence. The court sentenced Anderson to 6 months in prison and, for the reasons described at the hearing and summarized below, would have imposed the same sentence in every respect if the Guideline range had been 0-6 months. See United States v. Bermingham, 855 F.2d 925, 935 (2d Cir.1988); United States v. Ticchiarelli 171 F.3d 24, 35 (1st Cir. 1999); United States v. Ortiz, 966 F.2d 707, 718 (1st Cir.1992).

2. After testimony from Special Agent Frank Hopkins of the Department of Justice Office of Inspector General, it was not proven that Anderson's perjury resulted in a "substantial interference with the administration of justice" by causing "the unnecessary expenditure of substantial government or court resources." U.S.S.G. § 2J1.3(b)(2) & A.N.1 (emphasis added). Cf. United States v. Butt, 955 F.2d 77, 88 (1st Cir.1992) (applying 3-level increase when perjury required government to locate more witnesses and immunize some who otherwise would have been prosecuted); United States v. Atkin, 29 F.3d 267, 268 (7th Cir.1994) (applying 3-level increase when grand jury had to summon to Indiana five additional witnesses from as far away as Texas). But see United States v. Lueddeke, 908 F.2d 230, 234 (7th Cir.1990) (holding that two weeks of additional investigation was "easily" enough to justify the enhancement). Because "substantial interference with the administration of justice" was not proven, a 3-level increase in the Offense Level was not applied.

3. Anderson knowingly lied to the polygraph examiner on December 12, 2003 when he claimed that he had not received a telephone call from Sampson. Thus, the court considered whether to increase the Offense Level by 2 pursuant to U.S.S.G. § 3C1.1 for a willful attempt to obstruct or impede the administration of justice during the course of the investigation of his false statement, in violation of 18 U.S.C. § 1001, on October 30, 2001. Anderson's false statement to the polygraph examiner was not made under oath. Pursuant to Application Note 4(g) to U.S.S.G. § 3C1.1, providing an unsworn materially false statement to a law enforcement officer justifies the 2-level enhancement only if it "significantly obstructed or impeded the official investigation or prosecution of the instant offense" (emphasis added). Anderson was told on December 12, 2001 that the polygraph indicated that his responses were deceptive and then promptly admitted that he had lied on October 30, 2001. Thus, his attempt to obstruct justice did not significantly impede the investigation. Therefore, a 2-level enhancement pursuant to U.S.S.G. § 3C1.1 was not appropriate. See United States v. Moreno, 947 F.2d 7, 10-11 (1st Cir.1991).

4. Anderson could have been charged with violating § 1001 by lying to the polygraph examiner on December 12, 2002, but was not.² The polygraph examination on December 12, 2001 was both a continuation of the Department of Justice Inspector General's investigation that began in August 2001 and included Anderson's sworn interview and affidavit on October 30, 2001, and also a related investigation concerning whether Anderson or anyone else had lied to the investigators. Accordingly, the false statement made on December 12, 2001 would not have raised the Guideline range for Anderson's Offense even if it had been charged as a separate crime. See U.S.S.G. § 3D1.2(b). Therefore, the court did not decide whether the December 12, 2001 statement was a second crime constituting Relevant Conduct under U.S.S.G. § 1B1.3. Compare United States v. Salas-Camacho, 859 F.2d 788, 790-91 (9th Cir.1988) with United States v. Graham, 60 F.3d 463, 466-67 (8th Cir.1995).

5. As described in the October 23, 2002 Memorandum and Order, 229 F.Supp.2d 17, 23 (D.Mass.2002), Anderson's reported statements to the media after his guilty plea raised a question whether he should receive a 2-level reduction in his Offense Level for Acceptance of Responsibility pursuant to U.S.S.G. § 3E1.1(a). Anderson chose not to speak at the sentencing hearing. However, in a letter dated September 24, 2002, written before the court expressed doubt about whether he should receive a reduction for Acceptance of Responsibility, Anderson expressed sufficient remorse to merit the reduction. It was, therefore, granted.

6. As a result of the foregoing rulings, Anderson's Total Offense Level was 10. His Criminal History Category was I. The Guideline ranges for his sentence, therefore, were: 6-12 months in prison; 24-36 months of Supervised Release; a $2000-$20,000 fine; and a mandatory $100 special assessment.

At Offense Level 10 and Criminal History Category I, Anderson was in Zone B of the Sentencing Table. Therefore, the court was authorized to sentence Anderson to prison or to probation if it substituted home detention for the minimum term of imprisonment. See U.S.S.G. §§ 5B1.1(a)(2), 5C1.1(c)(3) and (e)(3).

7. The government and Anderson each advocated a sentence of two years probation with the first six months to be served in home detention, which would have allowed Anderson to leave home for work and medical appointments. Anderson had requested a downward departure, if necessary, based primarily on his health, but emphasized that because he was in Zone B, the court did not have to depart to impose the requested sentence of probation.

The court recognized that the Guidelines permit downward departures based upon "an extraordinary physical impairment." U.S.S.G. § 5H1.4; United States v. Woodward 277 F.3d 87, 92-93 (1st Cir.2002); United States v. Hilton, 946 F.2d 955, 957-60 (1st Cir.1991). Anderson does have diabetes and certain other serious health problems. However, the Bureau of Prisons twice reviewed medical records and reports...