U.S. v. Waldner

• Decision Date: 07 July 2008
• Docket Number: No. 06-CR-1019-LRR.,06-CR-1019-LRR.
• Citation: 564 F.Supp.2d 911
• Parties: UNITED STATES of America, Plaintiff, v. Roger WALDNER, Defendant.
• Court: U.S. District Court — Northern District of Iowa

564 F.Supp.2d 911

UNITED STATES of America, Plaintiff, v. Roger WALDNER, Defendant.

No. 06-CR-1019-LRR.

United States District Court, N.D. Iowa, Eastern Division.

July 7, 2008.

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Raphael M. Scheetz, Scheetz Law Office, Cedar Rapids, IA, for Defendant, Richard Martin.

Matthew J. Cole. U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

SENTENCING MEMORANDUM

LINDA R. READE, Chief Judge.

                TABLE OF CONTENTS
                I.    INTRODUCTION   ............................................ 917
                II.   RELEVANT PROCEDURAL BACKGROUND ............................ 917
                      A. Indictment ............................................. 917
                      B. "Eleventh Hour" Plea Agreement ......................... 918
                      C. Sentencing ............................................. 919
                III.  SENTENCING FRAMEWORK ...................................... 920
                IV.   FINDINGS OF FACT .......................................... 921                             
                      A. Outline of Defendant's Fraudulent Scheme ............... 921
                         1. H & W ............................................... 921
                         2. Defendant's fraudulent scheme ....................... 921
                         3. Baron's role ........................................ 922
                      B. Ongoing Efforts: Lex, Schueller & Eide ................. 923
                         1. Lex ................................................. 923
                         2. Schueller ........................................... 926
                         3. Eide ................................................ 926
                V.    PRIMARY LEGAL ISSUES ...................................... 928
                VI.   PRE-DEPARTURE ADVISORY SENTENCING GUIDELINES RANGE ........ 928
                      A.  Amount of Loss—USSG § 2B1.1(b)(1)(I) ................... 928
                          1. Law ................................................ 929
                          2. Arguments .......................................... 929
                          3. Analysis ........................................... 931
                          4. Conclusion ......................................... 933
                      B.  Number of Victims— § 2B1.1(b)(2)(B) ................... 933
                      C.  "Sophisticated Means"—USSG § 2B1.2(b)(8)(C) ........... 934
                      D.  Abuse of a Position of Private Trust—USSG § 3B1.3 ..... 935
                      E.  Obstruction of Justice—USSG & 3C1.1 ................... 937
                          1. Thompson Motors .................................... 937
                          2. Post-Plea Proffer .................................. 938
                          3. Disposition ........................................ 938
                      F.  Acceptance of Responsibility-USSG § 3E1.1 ........ 938
                      G.  Pre-Departure Advisory Sentencing Guidelines Range .... 939
                VII.  TRADITIONAL DEPARTURES .................................... 939
                      A.  General Principles .................................... 940
                      B.  Downward Departure-USSG § 5K2.0 ....................... 940
                      C.  Upward Departures ..................................... 941
                          1. USSG & 5K2.3—Extreme Psychological Injury .......... 941
                          2. USSG & 5K2.5—Property Damage or Loss ............... 942
                          3. USSG & 5K2.9—Criminal Purpose ...................... 943
                

                4. USSG & 5K2.21—Dismissed and Uncharged Conduct ...... 943
                      D.  Final Advisory Sentencing Guidelines Range ............ 944
                VIII. SENTENCE AND RESTITUTION ................................. 944
                      A. 18 U.S.C. § 3553(a) .............................. 944
                      B. Restitution ........................................... 945
                IX.   CONCLUSION ................................................. 945
                

I. INTRODUCTION

The matter before the court is the sentencing of Defendant Roger Waldner.

II. RELEVANT PROCEDURAL BACKGROUND

A. Indictment

On May 10, 2006, a grand jury returned a twelve-count Indictment (docket no. 2) against Defendant. Each count charged Defendant with knowingly and fraudulently making a false statement under penalty of perjury in relation to a bankruptcy proceeding, in violation of 18 U.S.C. § 152(3).¹

Count 1 charged that, on or about June 27, 2002, Defendant knowingly and fraudulently made the false statement in In re H & W Motor Express Co., No. 02-2017 (Bankr.N.D.Iowa Jun. 12, 2002) ("H & W Motor Express") under penalty of perjury that there were no "payments made within one year immediately preceding the commencement of the bankruptcy case to or for the benefit of creditors who are or were insiders." In truth, H & W Motor Express Co. ("H & W") paid over $1.8 million to or for the benefit of creditors who were or had been insiders.

Count 2 charged that, on or about June 27, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that there were "no inventories taken of the property of H & W." In truth, Defendant had ordered others to take an inventory of H & W's property in 2001.

Count 3 charged that, on or about June 27, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that there were no "distributions credited or given to an insider, including compensation in any form," in the one year immediately preceding the commencement of H & W Motor Express. In truth, H & W had paid Defendant in the form of stock positions with Nationwide Cartage ("Nationwide") and Solace Transfer ("Solace"), as compensation in lieu of a salary.

Count 4 charged that, on or about June 27, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that H & W had no office equipment, furnishings or supplies. In truth, H & W had office equipment, furnishings and other supplies in its various offices and terminals.

Count 5 charged that, on or about June 27, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that H & W had no machinery, fixtures, equipment or supplies used in its business. In truth, H & W had machinery, fixtures, equipment and supplies used in its business at its various offices and terminals.

Count 6 charged that, on or about June 27, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that H & W had no inventory. In truth, H & W had an inventory of parts and equipment, which it used to maintain its fleet of trucks and trailers.

Count 7 charged that, on or about July 18, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that H & W "didn't own any equipment." In truth, H & W had an inventory of parts and equipment, which it used to maintain its fleet of trucks and trailers.

Count 8 charged that, on or about July 18, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that he "never took any wages or salaries or anything else from the day [he] walked in the door there [at H & W]." In truth, Defendant received compensation from H & W in the form of stock positions with Nationwide and Solace in lieu of a salary.

Count 9 charged that, on or about July 18, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that Solace had "no relation at all" with H & W. In truth, H & W and Solace had some common officers and directors. Further, Defendant was the CEO and owner of both H & W and Solace.

Count 10 charged that, on or about July 18, 2002, Defendant knowingly and fraudulently made the following false statement in H & W Motor Express under penalty of perjury: "I don't know [what STRAC was]." In truth, Defendant formed STRAC on June 15, 2001. He also signed a resolution by the Board of Directors of H & W regarding paying $100,000 for a feasibility study for STRAC to acquire Midland Transportation Co. ("Midland").

Count 11 charged that, on or about July 18, 2002, Defendant knowingly and fraudulently made the following false statement in H & W Motor Express under penalty of perjury: "I have no ownership or affiliation with Nationwide." In truth, Defendant formed Nationwide on August 10, 2001, Nationwide and H & W shared the same office address and Defendant was CEO of Nationwide.

Count 12 charged that, on or about July 18, 2002, Defendant knowingly and fraudulently made the false statement in H & W Motor Express under penalty of perjury that he was "not aware" of any common officers between Solace, Nationwide and H & W. In truth, Defendant was an officer and director of Solace, Nationwide and H & W, and "G.S." was an officer of Solace, Nationwide and H & W.

B. "Eleventh Hour" Plea Agreement

On May 18, 2007, Defendant appeared before a United States Magistrate Judge for jury selection. On May 21, 2007, after the jury was selected but before opening statements, Defendant appeared before the undersigned and pled guilty to Counts 11 and 12 of the Indictment. Defendant pled guilty pursuant to a plea agreement ("Plea Agreement") (docket no. 49-2). In the Plea Agreement, Defendant stipulated to the following facts:

A. On June 12, 2002, [H & W] filed a petition for bankruptcy, under Chapter 11, in the United States Bankruptcy Court for the Northern District of Iowa [("Bankruptcy Court") ]. On June 27, 2002, [H & W] filed its Statement and Schedules [ ("Schedules") ] in support of its bankruptcy petition. The petition and Schedules were signed by [Defendant], as owner and [CEO] of [H & W].

B. On July 18, 2002, the Bankruptcy Court convened a First Meeting of Creditors [("§ 341 Meeting")], during which [Defendant] appeared on behalf of [H & W] as its owner and [CEO]. The [§ 341 Meeting] took place ... in the Northern District of Iowa. [Defendant] testified under oath and penalty of perjury during [§ 341 Meeting] on July 18, 2002.

C. During the [§ 341 Meeting], on July 18, 2002, [Defendant stated under penalty of perjury: "I have...