Free Response to Motion - District Court of Arizona - Arizona

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BEFORE:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ ) ) Plaintiff, ) ) vs. ) ) MICHAEL CRAIG ANDERSON, ) ) Defendant. ) ___________________________________) UNITED STATES OF AMERICA,

CR 04-01281-PHX-DGC Phoenix, Arizona March 3, 2006

THE HONORABLE DAVID G. CAMPBELL, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS CHANGE OF PLEA

For the Government:
U.S. Attorney's Office By: JOHN Z. BOYLE, ESQ.

By:

MARY BETH PFISTER, ESQ.

40 North Central Ave., Ste 1200 Phoenix, AZ 85004

For the Defendant: Law Office of David L. Lockhart PC By: DAVID L. LOCKHART, ESQ. 1440 E. Washington St., Ste 10 Phoenix, AZ 85034 Official Court Reporter: Patricia Lyons, RPR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 41 Phoenix, Arizona 85003-2150 (602) 322-7257 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

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P R O C E E D I N G S

THE COURTROOM CLERK:

Criminal case 2004-1281, United

States of America versus Michael Craig Anderson, on for change of plea hearing. MR. BOYLE: Good afternoon, Your Honor. John Boyle

and Mary Beth Pfister on behalf of the United States. THE COURT: Afternoon. Good afternoon, Your Honor. David Sir, he

MR. LOCKHART:

Lockhart appearing, along with Mr. Michael Anderson.

is present and out of custody, seated at the table to my left. We're ready for a change of plea proceeding. approach the podium? THE COURT: You may. May I please

Mr. Anderson, will you please come forward as well. Afternoon. THE DEFENDANT: THE COURT: Afternoon.

Counsel for the government and for the

defendant, have you considered the fact that if Mr. Anderson pleads guilty to these charges today I'm required to take him into custody today? MR. BOYLE: We discussed it. We believe there is

some discretion on your part under 18-3143 section (a)(2)(B). THE COURT: (a)(2)(B) applies to a person who has

been sentenced and who has appealed.

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MS. PFISTER:

We may have an older statute book, Your

We're looking at the section entitled Release or

Detention of the Defendant Pending Sentence or Appeal. THE COURT: No, that's old. That's outdated.

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MS. PFISTER: THE COURT:

He's got the rule book.

Would you hand this current version -Your Honor, may I approach?

MR. LOCKHART: THE COURT:

You may.

The statute or the section 3143(a) is now Release or Detention Pending Sentencing. Detention Pending Appeal. MR. BOYLE: THE COURT: MR. BOYLE: THE COURT: together. If you look at (2)(A)(i), I have to find there is a substantial likelihood that a motion for acquittal or new trial will be granted, or you are recommending that there be no sentence of imprisonment, and, that in addition to one of those two conditions, I find by clear and convincing evidence that he's not likely to flee. And I don't think either of those two first conditions apply. MR. BOYLE: They do not. Clearly they do not. There You have a copy with you? I do. Bottom of page 987, last paragraph -Well, no, you've got to read them And 3143(b) is Release or

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is -- there is a bit of wiggle room -THE COURT: MR. BOYLE: THE COURT: There is a what? There's another statute -The other statute you're probably

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thinking of is 3145(c)? MR. BOYLE: THE COURT: Yes. Yeah, that's it.

Well, as you can see, I can release

somebody under that provision if there are exceptional reasons. If it is clearly shown there are exceptional reasons So I

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why such person's detention would not be appropriate.

need to make a finding of exceptional reasons if I am not going to take Mr. Anderson into custody today. MR. BOYLE: All right. When you make that decision,

I can just tell you at that point the government's position will be that these events happened several years ago, the defendant in the eyes of the FBI is not viewed as a flight risk by them, and he has complied, to our knowledge, with all of his release conditions. the Court. We leave it to the discretion of

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I just tell you that so everyone knows what our

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position will be when we come to that juncture. THE COURT: All right.

Mr. Lockhart. MR. LOCKHART: Yes, Your Honor. I would certainly In

echo the statements that have just been made by Mr. Boyle. addition, I don't think I'm overstepping my boundaries in

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indicating I don't think there was a contemplation that my client would be taken into custody at this point. THE COURT: That's why I raised it. I understand, sir. Also, he is the He

MR. LOCKHART:

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major breadwinner, if you will, for the family.

understands it is going to be a substantial prison term he is looking at. Again, he is not a flight risk and there are

other matters I would respectfully request the Court to take into consideration allowing Mr. Anderson to stay released in order for which he can prepare for a future date in which he will be sentenced to the Bureau of Prisons. THE COURT: Here's the problem I have, and I've I'm obligated to

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wrestled with it in similar situations: follow the statute.

And as I read 3143(a), if I find by clear

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and convincing evidence that Mr. Anderson is not a flight risk and is not a danger to the community, that's not enough. In addition to that, under 3143(a), I either have to be of the view that he's likely to be granted a new trial, which is not relevant here -MR. LOCKHART: THE COURT: Correct.

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-- or it has to be a case where the Obviously

government is not recommending imprisonment. neither of those apply. MR. LOCKHART: THE COURT: Right.

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I have a hard time concluding that even

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if I do find by clear and convincing evidence that Mr. Anderson is not likely to flee or pose a danger to the community, that I can release him on that basis as an exceptional circumstance when Congress has specifically told me you can't. That's why I raise it. I expected Mr. Anderson was And yet

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coming today not expecting to be taken into custody.

it also it seems to me that a finding that he's not going to flee or be a danger to the community doesn't allow me, under the statute, to release him today. Now, I've never looked into the question, Mr. Lockhart, about whether or not him being the breadwinner for the family constitutes exceptional circumstances. In

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fact, I -- I don't think I've seen any cases interpreting exceptional circumstances. They're probably out there. I don't think I can just

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That's the problem I have. disregard the statute. MR. LOCKHART: THE COURT:

May I speak to Mr. Boyle for a second?

Yeah. Then I'll bring it to the Court's

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MR. LOCKHART: attention as well. THE COURT:

That's fine.

You can.

(Counsel confer.) MR. LOCKHART: Judge, I'm going to have this to ask

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this question because, to be honest, I don't know if there's a

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possibility or mechanism.

I know I've done a great deal of

state work and we have done plea agreements of this nature in which you deal with defendants such as my client who at a later date at sentencing knows they're going in custody for prison. They have a mechanism by which the Court goes through

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the allocution and there's -- we go through laying the factual basis and at some point what the Court does over there is they defer acceptance to the time of the plea until sentencing occurs. What that does is it essentially suspends, under 7.2(b) is what it is over in state court, in which the judge or court in that instance will not have to take him into custody. And when they present for sentencing -- and this

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usually occurs when you have a situation such as this, where you have an individual who's not really a flight risk or something of that nature. Then when he presents, the plea is

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then accepted and then the attachment occurs. And I was wondering is there -- because I haven't seen it -- and, candidly, I did not research it. haven't seen it in the federal system. But I

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So I'm inquiring to

see, is that something that is available to the Court under this particular set of circumstances? THE COURT: It's not our practice, typically, And the

Mr. Lockhart, to defer acceptance of guilty pleas.

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reason we don't is because when we take a plea, we cancel a

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trial date.

And as you know, trial dates are pretty hard to

come by around here with the number of cases that we have pending. And so we don't want to lose a trial date and lose a

trial unless we know for certain that there's binding guilty plea. MR. LOCKHART: THE COURT: Understand that, Judge.

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Obviously, if I don't accept the guilty

plea today and I defer that to the time of sentencing, I don't know that there's going to be a guilty plea. I mean I

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understand you may fully intend to do that, but if I don't accept it today, then the defendant can withdraw between now and the time of sentencing. Our practice is that's not a wise course for the court to take because then you lose a trial date and you may lose a guilty plea and what you've done is you've just lost all of the time that would have been devoted to that trial. MR. LOCKHART: THE COURT: If I may, Your Honor?

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Yeah, please. I understand the concerns of the Court Is there anything that my

MR. LOCKHART:

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and I appreciate the comments.

client can say to you that maybe would allow the Court to perhaps entertain it under this special set of circumstances? I can tell you, without disclosing totally everything that I would consider attorney-client, the Court can certainly ask him, my client has no intentions of going to trial. He

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does not desire a trial.

Frankly, he will tell you on the

record here, in light of what -- the evidence that we reviewed, and he just can't risk that and believes that this is obviously in his best interest. But he does want the And for

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benefit, obviously, to be still out of custody. whatever that's worth, Your Honor. THE COURT:

Hold on a minute, Mr. Anderson.

Mr. Boyle, any thoughts on this issue? MR. BOYLE: Well, the only options I see are, aside

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from taking him today, are to bifurcate the change of plea and perhaps do almost all of it today and then maybe save a sentence or two for Monday or Tuesday of next week. That way

the defendant could just come in next week, we can finish the last four minutes of the change of plea process, he can be detained. The only other option is to continue the trial date and then finish this process in a week or two. But other than that, I don't see any process where we don't accept the change of plea today. THE COURT: All right. Let me ask you a couple

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questions, Mr. Anderson.

Will you explain to me your current

work and financial situation with your family. THE DEFENDANT: THE COURT: I own a business called Line-X.

Called what? Line-X Bed Liners. Currently I pay

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THE DEFENDANT:

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myself every week, and I didn't expect to be taken in, so I'm not prepared financially or businesswise to be from my family for I don't know how long. My wife, she works part-time for her father, which doesn't really pay the bills. I do. If I'm not there, I

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don't know how we're going to be able to keep the family going. The money coming in, until I can re- -- arrange some

situation to where the business is taken care of when I have to go to prison. THE COURT: Are you aware that if we take the guilty

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plea today, that the sentencing would be set about 70 days from now -THE DEFENDANT: THE COURT: Yes, sir.

-- so that you would be going into

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custody probably in a little over two months. THE DEFENDANT: THE COURT: I would be going in over two months?

Well, in a little over two months would

be the time you would be sentenced and taken into custody. Have you understood that? THE DEFENDANT: THE COURT: Yes.

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What is there about the next two months

that would allow you to put your family in a better financial situation than they're in today? to do? THE DEFENDANT: Tie up loose ends, hire someone to What is it that you're going

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run the shop while I'm not there.

My wife, she's going to

come in and learn more about the books so she knows exactly what I'm doing. I need to train somebody in the shop so they

know what they're doing and they can keep it all running while I'm gone. THE COURT: How many dependents do you have? I have three.

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THE DEFENDANT: THE COURT:

They are who? My stepson, Justin; my daughter

THE DEFENDANT:

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Mallory; and daughter Savannah. THE COURT: How old are the children? They are 9, 11, and 11.

THE WITNESS: THE COURT:

Let me ask another question of you,

Mr. Boyle, that may have some effect on this. I was confused by paragraph 2(c) of the plea agreement, the last sentence, which says, "If the defendant does not meet the qualifications of the safety valve, he will not be entitled to withdraw from the plea agreement." That means to me if he doesn't meet the requirements of the safety valve, he can't get out of the plea agreement and he's subject to the statutory minimum sentence of ten years, which is greater than the length of time you've stipulated to in the plea agreement. So if he doesn't meet the safety valve, he may not be able to withdraw from the plea agreement, but I can't accept

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the plea agreement because you've stipulated to a sentence below the statutory minimum. MR. BOYLE: THE COURT: way, but -MR. BOYLE: paragraph. It's the normal language in that I agree. So I don't know why it was written that

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But in this case the Court would certainly have to

reject the plea agreement stipulation because he would have to get 120 months. THE COURT: So because that's a stipulation in the

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plea agreement, there's no way under this plea agreement that I can sentence the defendant to ten years or more. agree? MR. BOYLE: THE COURT: answer. I agree. Well, it seems to me that might be the Do you

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Because under 3143, the crimes for which I have to

take a defendant into custody are those for which he could receive life imprisonment, which he's not going to receive, or a drug crime for which he'll receive ten years or more, which he's not going to receive. Now, I suspect the statute was written not in terms of a plea agreement but in terms of what the statutory provision would be. But the reality in this case is he's not

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going to get more than ten years, so neither of those provisions apply. Do you agree?

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MR. BOYLE:

I agree with both of your statements.

I

don't think that was what the statute was intending, but I agree that you can interpret it that way. THE COURT: Well, the combination of the reality that

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in this case the defendant is not going to get ten years or more, plus his family responsibilities, cause me to conclude that I can apply the exceptional circumstances provision in 3145(c) and not take Mr. Anderson into custody. going to go ahead with the plea agreement. But I would encourage you, Mr. Boyle, when you get back to your office, to send out an e-mail. I've had this So we're

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issue come up twice in the last three weeks in plea agreements where folks just haven't thought about this statute and the fact that it requires me to take somebody into custody in drug cases. And it's not fair to Mr. Anderson to walk in today and

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be confronted with the prospect of being taken into custody when he hasn't thought about it. And I would encourage you to

make sure that's discussed before we get to changes of plea. I think given this plea agreement it's unusual. the last one we didn't have the same circumstances. would encourage you to do that, if you would. MR. BOYLE: THE COURT: I will. Thank you. In

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But I

All right.

Mr. Anderson, in order for me to accept your guilty plea, I need to ask you questions. When you answer my

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questions you'll be giving up your right to remain silent. you also understand that? THE DEFENDANT: THE COURT: Yes, sir.

Do

I'm also going to place you under oath,

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which means your answers will be sworn statements and if you make a false statement under oath you will be guilty of another crime. Do you understand that? Yes, I do.

THE DEFENDANT: THE COURT: under oath? THE DEFENDANT: THE COURT: you under oath.

Are you willing to answer my questions

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Yes, I am.

All right, I'll ask the clerk to place

(Defendant sworn.) THE COURT: name. THE DEFENDANT: THE COURT: Michael Craig Anderson. Would you state your true and complete

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How old are you, Mr. Anderson? I'm 42.

THE DEFENDANT: THE COURT:

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How many years of school have you had? 13.

THE DEFENDANT: THE COURT:

Do you read and understand English? Yes, I do.

THE DEFENDANT: THE COURT:

Have you had any drugs, alcohol, or

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medicine in the past 48 hours?

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THE DEFENDANT: THE COURT:

No, I have not.

Have you been treated recently for any

mental illness or for addiction to any drugs? THE DEFENDANT: THE COURT: No, sir, I have not.

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Mr. Boyle, is there anything the

government has learned that would suggest that Mr. Anderson is not competent to understand this proceeding and enter a guilty plea? MR. BOYLE: THE COURT: No, Your Honor. Mr. Lockhart, is there anything you have

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learned that would lead to you believe your client is not competent to proceed with a change of plea? MR. LOCKHART: THE COURT: No there's not, Your Honor.

Have you had a chance, Mr. Anderson, to

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discuss your case thoroughly with your lawyer? THE DEFENDANT: THE COURT: of you in this case? THE DEFENDANT: THE COURT: Yes, sir, I am. Yes, I have.

Are you satisfied with his representation

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Is there anything you think your lawyer

should have done for you that he has not done? THE DEFENDANT: THE COURT: in this case? THE DEFENDANT: Yes, I have. No, sir.

Have you read the indictment against you

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THE COURT: indictment?

Have you talked to your lawyer about the

THE DEFENDANT: THE COURT:

Yes, I have.

Do you understand the charges against

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THE DEFENDANT: THE COURT:

Yes, I do.

Counsel, have there been any changes made

to the plea agreement from what was sent over to my office earlier? MR. BOYLE: No, sir. Excuse me, Your Honor. Yes? That is the

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MR. LOCKHART:

original you just received, correct? THE COURT:

That's fine.

Yeah, I got one that was faxed over I

earlier that is the one I reviewed to prepare for today. just wanted to make sure it hadn't been changed. MR. LOCKHART: THE COURT: All right, sir.

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There is in front of me, Mr. Anderson, a

plea agreement that shows your signature at the top of page 11, with the date of March 2nd, 2006, which is yesterday. you sign this plea agreement yesterday? THE DEFENDANT: THE COURT: you signed it? THE DEFENDANT: THE COURT: Yes, I did. Yes, I did. Did

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Did you read the plea agreement before

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Were you able to talk to your lawyer

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about it before you signed? THE DEFENDANT: THE COURT: the plea agreement? THE DEFENDANT: THE COURT: plea agreement? THE DEFENDANT: THE COURT: it differently. Is there anything about the plea agreement that you do not understand? THE DEFENDANT: THE COURT: No, sir, there's not. Yes, it is. Yes, he did. Yes, I was.

Did he answer all of your questions about

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Is this your signature on page 11 of the

Did you discuss -- I'm sorry, let me ask

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Does the agreement contain everything

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that you and the government have agreed to in this case? THE DEFENDANT: THE COURT: Yes, sir, it does.

Have any promises been made to you or

commitments made that are not contained in the plea agreement? THE DEFENDANT: THE COURT: No, sir.

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Other than the plea agreement, has there

been any promise made to you about what your final sentence will be? THE DEFENDANT: THE COURT: No, sir.

Were any threats made or force used to

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get you to enter into this plea agreement?

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THE DEFENDANT: THE COURT:

None.

Do you understand that you do not have to

enter into this plea agreement if you do not want to? THE DEFENDANT: THE COURT: Yes, I do.

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Are you entering the agreement

voluntarily and of your own free will with the advice of your lawyer? THE DEFENDANT: THE COURT: Yes, I am.

As you know, Mr. Anderson, if you plead

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guilty today and enter this plea agreement, you will not have a trial. Which means you'll be giving up certain trial rights

that you need to understand. You have the right in this case to plead not guilty and to maintain your innocence. THE DEFENDANT: THE COURT: Do you understand that?

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Yes, I do.

You would then have the right to a speedy

and public trial before a jury of 12 people and you could not be convicted unless all 12 members of the jury agreed that you are guilty beyond a reasonable doubt. THE DEFENDANT: THE COURT: Yes, I do. Do you understand that?

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Do you understand you would have the

right to be represented at trial and at all other stages of the proceeding against you by an attorney and that one would be appointed to represent you if you could not afford a lawyer?

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THE DEFENDANT: THE COURT:

Yes, I do.

Do you understand you would be presumed

innocent, which means you would not have to prove your innocence? THE DEFENDANT: THE COURT: Yes.

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Do you understand you have the right to

have your lawyer confront and question any witnesses called by the government? THE DEFENDANT: THE COURT: Yes, I do.

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Do you understand you would have the

right to present evidence on your behalf and compel witnesses to testify at trial in your defense? THE DEFENDANT: THE COURT: Yes.

Do you understand that you would have the

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right to testify at trial if you chose to do so, or you could remain silent, in which event your silence could not be used against you? THE DEFENDANT: THE COURT: Yes.

If you plead guilty today, Mr. Anderson,

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you will be giving up each of these important trial rights. Do you understand that? THE DEFENDANT: THE COURT: Yes, I do.

Are you willing to give up these rights

and enter a guilty plea? THE DEFENDANT: Yes, sir, I am.

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THE COURT:

The plea agreement also says that you're

giving up your right to appeal or collaterally attack the judgment of this court. That means that if I impose a

sentence that is consistent with the plea agreement, there is no other court you can go to to get it changed. understand that? THE DEFENDANT: THE COURT: Yes, I do. Do you

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Are you willing to give up your right to

appeal or collaterally attack the judgment of this court? THE DEFENDANT: THE COURT: Yes, I am.

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Do you understand, Mr. Anderson, that the

offense to which -- the offenses to which you are pleading guilty are felonies; that you will be adjudged guilty of a felony because of your guilty plea; and that you thereby will lose valuable civil rights, such as the right to vote, right to hold public office, right to serve on a jury, and the right to possess any kind of firearm? THE DEFENDANT: THE COURT: Yes, I do.

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The plea agreement says that you are Counts 2,

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pleading guilty to four counts in the indictment: 4, 6, and 8.

Do you understand that those are the counts to

which you are pleading guilty? THE DEFENDANT: THE COURT: Yes, I do.

Now, for Count 2, which is the crime of

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receiving a bribe by a public official, the maximum fine you

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could receive is $250,000, or three times the monetary equivalent of whatever you received. Or you could receive a Do you

maximum term of 15 years in prison, or both. understand that? THE DEFENDANT: THE COURT: Yes, I do.

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Do you understand that this crime would

also require you to be placed on supervised release for up to three years after you are released from prison? THE DEFENDANT: THE COURT: Yes, I do.

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Do you understand that supervised release

means that there will be a period of time during which you have to comply with certain rules and that if you fail to do so you can be sent to prison? THE DEFENDANT: THE COURT: Yes, sir, I do.

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Do you understand that you can also be

disqualified from holding any office of honor, trust, or profit under the United States as a result of the charge in Count 2? THE DEFENDANT: THE COURT: import marijuana. Yes, sir.

14:27:18 20 21 22 23 24

Count 4 charges you with conspiracy to

The maximum fine for that count is $4

million, there's a maximum term of life in prison, or both, and there's a minimum term of imprisonment of ten years. you understand that? THE DEFENDANT: Yes, sir. Do

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THE COURT:

Do you understand that there is a

supervised release term for this crime of at least five years? THE DEFENDANT: THE COURT: Yes, sir, I do.

Count 6 charges you with money

14:27:45

laundering, and for this crime you can receive a maximum fine of $250,000 or not more than twice the amount of the criminally derived property, and you could also receive a maximum term of ten years in prison, or both. understand that? THE DEFENDANT: THE COURT: Yes, sir. Do you

14:28:03 10 11 12 13 14

Do you understand that this crime

requires you to be placed on supervised release for up to three years? THE DEFENDANT: THE COURT: Yes, sir.

14:28:11 15 16 17 18 19

Count 8 charges you with filing a false

tax return, for which you could receive a maximum fine of $100,000, a maximum term of three years in prison, or both. Do you understand that? THE DEFENDANT: THE COURT: Yes, sir, I do.

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Do you understand that this requires a

supervised release term not to exceed one year? THE DEFENDANT: THE COURT: Yes, sir.

Do you understand that the government is

retaining the right in this plea agreement to seek forfeiture from you of any assets that were derived from or used in

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connection with the crimes? THE DEFENDANT: THE COURT: Yes, sir.

Do you understand that if any victim

sustained any economic loss as a result of your crimes, you will be required to pay restitution to those victims? THE DEFENDANT: THE COURT: Yes, sir.

14:29:00

And that you can be sent to prison if you

willfully fail to do so? THE DEFENDANT: THE COURT: Yes, sir.

14:29:09 10 11 12 13 14

Do you understand that there will be

special assessments of $400 for this plea agreement and guilty plea? THE DEFENDANT: THE COURT: Yes, sir.

Do you understand that by entering into

14:29:19 15 16 17 18 19

this plea agreement you and your immediate family members may be immediately ineligible for certain types of Social Security assistance and food stamp benefits under any federal or state food stamp program? THE DEFENDANT: THE COURT: Yes, sir, I do.

14:29:34 20 21 22 23 24

Mr. Anderson, are you on probation,

parole or supervised release from any other court at this time? THE DEFENDANT: THE COURT: No, sir, I'm not.

Have you talked to your lawyer about the

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Federal Sentencing Guidelines and how they might apply if you

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enter this plea agreement? THE DEFENDANT: THE COURT: Yes, I have.

Mr. Lockhart, do you believe Mr. Anderson

understands how the guidelines will apply? MR. LOCKHART: examples of them. THE COURT: Do you understand, Mr. Anderson, that the I do, Your Honor. We did go through

14:29:55

sentencing guidelines are only advisory, which means that I can impose a sentence different from what the guidelines require, provided that I'm still within the range that's been stipulated to in the plea agreement? THE DEFENDANT: THE COURT: Yes, I do.

14:30:07 10 11 12 13 14

There are some specific provisions of the

plea agreement that I want to make sure that you understand. Paragraph 2(a) states that if you accept responsibility through the time of sentencing you will either receive a two- or three-point reduction in the applicable offense level. Do you understand that? Yes, sir.

14:30:22 15 16 17 18 19

THE DEFENDANT: THE COURT:

14:30:36 20 21 22 23 24

Paragraph 2(b) says you and the

government are stipulating that your sentence in this case will be no less than 60 months and no more than 108 months. Do you understand that? THE DEFENDANT: THE COURT: Yes, I do.

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Do you understand that if I accept the

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plea agreement, my sentence will have to be within that range? THE DEFENDANT: THE COURT: Yes, I do.

But do you understand that I also will

have discretion to reject the plea agreement if I don't think this was the right result; but if I reject the plea agreement you'll be permitted to withdraw your guilty plea? THE DEFENDANT: THE COURT: Yes, I do.

14:30:59

Do you understand that if you are

eligible for what is called safety valve treatment under the guidelines, then the government will recommend that you receive a two-level decrease in your offense level? THE DEFENDANT: THE COURT: Yes.

14:31:15 10 11 12 13 14

Counsel, I assume this is the same

two-level decrease that's provided by the guidelines for somebody who's safety valve eligible; is that correct? MR. BOYLE: THE COURT: MR. BOYLE: THE COURT: It is. It is not an additional two levels? Correct; it's the standard two levels. And you understand that, Mr. Lockhart? I do.

14:31:28 15 16 17 18 19

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MR. LOCKHART: THE COURT: Mr. Anderson? THE DEFENDANT: THE COURT:

And you understand that as well,

Yes, I do.

The government is agreeing in paragraph Do you

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3(a) to dismiss Counts 1, 3, 5, 7, 9, and 10.

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understand that? THE DEFENDANT: THE COURT: Yes, I do.

And do you understand that this office of

the United States Attorney is agreeing not to prosecute you for any offenses committed between January 1, 2000, and December 31, 2004, that are currently known to the government, but that this agreement doesn't restrict other offices, other U.S. Attorney's offices? THE DEFENDANT: THE COURT: Yes, I understand.

14:31:59

14:32:19 10 11 12 13 14

Do you understand, Mr. Anderson, that

neither your attorney, the government's attorney, nor I can tell you today what your sentence will be? THE DEFENDANT: THE COURT: Yes, sir.

Do you understand that if the sentence

14:32:29 15 16 17 18 19

turns out to be different than you expect, you will still be bound by your guilty plea if the sentence is consistent with the plea agreement? THE DEFENDANT: THE COURT: Yes, sir.

Are you willing to be interviewed by a

14:32:43 20 21 22 23 24

probation officer so that I can receive a presentence report to consider at sentencing? THE DEFENDANT: THE COURT: Yes, sir. Pages 6 and 7 and 8 contain

All right.

the elements of the crime that the -- the crimes to which you're pleading guilty. This is set forth so that you

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understand exactly what the government would have to prove before you could be found guilty of the crimes you are pleading guilty to today. So for Count 2, which is the bribery count, the government would have to prove that while in Arizona you were a public official, you agreed to receive something of value for being persuaded to do an act in violation of your official duty, and that you acted corruptly. to act in violation of your duty. Do you understand that you would -- pardon me, that the government would have to prove those things beyond a reasonable doubt before you could be found guilty under Count 2? THE DEFENDANT: THE COURT: Yes, sir. That is, with the intent

14:33:15

14:33:35 10 11 12 13 14

14:33:43 15 16 17 18 19

For Count 4, the government would have to

prove that while in Arizona there was an agreement between you and one or more other persons knowingly and intentionally to bring marijuana into the United States, that you knew it was marijuana or some other controlled substance, that you became a member of this conspiracy knowing at least one of its objectives and intending to help accomplish it, and that the substance was marijuana with a weight of 1,000 kilograms or more. Do you understand that? THE DEFENDANT: THE COURT: Yes, I do.

14:34:02 20 21 22 23 24

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Count 6 would require the government to

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prove that while in Arizona you knowingly engaged or attempted to engage in a monetary transaction, which would be exchange of cash through a financial institution; that the transaction -- that you knew the transaction involved criminally derived property; that the property had a value greater than $10,000; that the property was in fact derived from an illegal receipt of bribery payments; and that this transaction occurred in the United States. that would have to be proved? THE DEFENDANT: THE COURT: Yes, I do. Do you understand

14:34:35

14:34:52 10 11 12 13 14

For Count 8, the government would have to

prove that while in Arizona you made and signed a tax return for the year 2001 that you knew contained false information as to a material matter, that the return contained a declaration that it was being signed subject to penalties of perjury, and that you acted willfully in filing the false return. understand that? THE DEFENDANT: MR. LOCKHART: Yes, I do. Excuse me, Your Honor. May I have a Do you

14:35:07 15 16 17 18 19

14:35:18 20 21 22 23 24

moment with Mr. Boyle, please? THE COURT: Yeah.

(Counsel confer.) MR. BOYLE: If we may, Your Honor, we'd like to take

the plea back and just amend line 2 of that, because it is the year 2000. He signed it in the year 2001.

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THE COURT:

All right. May I approach, Your Honor?

MR. LOCKHART: THE COURT:

You may. Thank you, sir.

MR. LOCKHART:

14:36:34

Your Honor, may I please approach? THE COURT: Yes. Thank you. Mr. Anderson, the year 2001 Is that correct?

MR. LOCKHART: THE COURT:

All right.

on page 8, line 3, has been changed to 2000. THE DEFENDANT: THE COURT: Yes, sir, it has.

14:36:53 10 11 12 13 14

So you understand that the government

would have to make this showing with respect to a tax return for the tax year 2000? THE DEFENDANT: THE COURT: Yes, sir, I do. I need to be satisfied,

14:37:04 15 16 17 18 19

All right.

Mr. Anderson, that you really committed these crimes before I can accept your guilty plea, and so the plea agreement contains a factual basis which describes what you did to be guilty of the crimes. It begins on page 8, line 9, and it Do you have a copy there in

14:37:24 20 21 22 23 24

goes through page 9, line 22. front of you? THE DEFENDANT: THE COURT:

Yes, I do.

Have you read these paragraphs carefully? Yes, sir, I have.

THE DEFENDANT: THE COURT:

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Are they true and correct?

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THE DEFENDANT: THE COURT:

Yes, they are.

Is there anything you saw in any of these

paragraphs with respect to counts 2, 4, 6, and 8, which is inaccurate? THE DEFENDANT: THE COURT: No.

14:37:50

In paragraph -- in the paragraph

concerning Count 2, it stated that while you were an inspector for the INS at the San Luis Port of Entry in Arizona, you accepted payment of $4,000 from a drug trafficker in exchange for allowing a vehicle containing drugs to pass through your lane at the port of entry without inspection. Is that a true statement? THE DEFENDANT: THE COURT: to pass through? THE DEFENDANT: The guy who was passing came through Yes, it is, Your Honor.

14:38:13 10 11 12 13 14

How did you know which vehicle to allow

14:38:29 15 16 17 18 19

and it was right behind him. THE COURT: Is that what's meant by the last sentence

which says you were given directions to identify the load vehicle and to allow it to come through? THE DEFENDANT: THE COURT: Yes, sir. Count -- the factual basis

14:38:47 20 21 22 23 24

All right.

for Count 4 states that while you were an INS inspector at San Luis in Arizona, you agreed with two other individuals to import marijuana and that the agreement was that you would

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allow vehicles loaded with drugs to pass without inspection through your lane at the port of entry, and that you received cash payments in excess of $20,000 -- pardon me, $25,000 in the year 2000, and $25,000 in the year 2001 to allow drugs to come into the U.S. without inspection. THE DEFENDANT: THE COURT: Yes. Is that true?

14:39:31

Do you agree that the amount that was

imported as part of this agreement was more than 1,000 kilograms of marijuana? THE DEFENDANT: THE COURT: Yes.

14:39:44 10 11 12 13 14

In Count 6 it states that you purchased a Is that true?

1998 Ford F150 truck for $12,259.20 with cash. THE DEFENDANT: THE COURT:

Yes, Your Honor, it is.

Where did you buy it? At Ford Bell Alexander in Yuma,

14:40:07 15 16 17 18 19 Arizona.

THE DEFENDANT:

THE COURT:

Where did you get the money? From the load.

THE DEFENDANT: THE COURT:

So it was the bribery payment? Yes, sir.

14:40:17 20 21 22 23 24

THE DEFENDANT: THE COURT:

Count 8, the factual basis says that you

signed a tax return for the year 2000, knowing that it was signed under penalty of perjury, stating the total amount of income you had for 2000 was $24,403 when in reality you had additional income in excess of $25,000 for that year. Is that

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true? THE DEFENDANT: THE COURT: Yes, sir.

Did you sign this return voluntarily and

intentionally with the intent to disobey the law by hiding this additional income from the IRS? THE DEFENDANT: THE COURT: Yes, I did.

14:41:00

Is there anything in the factual basis

portion of this plea agreement on pages 8 and 9 that is not accurate? THE DEFENDANT: THE COURT: No, sir.

14:41:11 10 11 12 13 14

Mr. Lockhart, do you know of any valid

defense that would likely prevail at trial or any other reason why your client should not be permitted to plead guilty? MR. LOCKHART: to plead guilty. THE COURT: me. Mr. Boyle, is there anything -- pardon No, Your Honor, he should be allowed

14:41:23 15 16 17 18 19

Is the government satisfied with the factual basis and

voluntariness of the plea? MR. BOYLE: THE COURT: Yes, Your Honor. Have you understood the things we talked

14:41:35 20 21 22 23 24

about today, Mr. Anderson? THE DEFENDANT: THE COURT: Yes, sir, I have.

I'm going to ask for your plea on each of

these counts separately. First, with respect to Count 2, charging you with

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receiving a bribe as a public official in violation of 18 United States Code Sections 201(b)(2)(C), how do you plead? Guilty or not guilty? THE DEFENDANT: THE COURT: Guilty.

14:41:59

And are you pleading guilty to this crime

because you are, in fact, guilty? THE DEFENDANT: THE COURT: Yes.

With respect to Count 4, charging you

with conspiracy to import more than 1,000 kilograms of marijuana in violation of 21 United States Code Sections 963, 952(a), and 960(b)(1)(G), do you plead guilty or not guilty? THE DEFENDANT: THE COURT: Guilty, Your Honor.

14:42:11 10 11 12 13 14

Are you pleading guilty to this crime

because you are guilty? THE DEFENDANT: THE COURT: Yes, sir.

14:42:32 15 16 17 18 19

With respect to Count 6 charging you with

money laundering in violation of 18 United States Code Section 1957, do you plead guilty or not guilty? THE DEFENDANT: THE COURT: Guilty.

14:42:41 20 21 22 23 24

And are you pleading guilty to this crime

because you are guilty? THE DEFENDANT: THE COURT: Yes.

With respect to Count 8 charging you with

filing a false tax return in violation of 26 United States Code Section 7206(1), do you plead guilty or not guilty?

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THE DEFENDANT: THE COURT:

Guilty.

Are you pleading guilty to this crime

because you are guilty? THE DEFENDANT: THE COURT: Yes, sir.

14:43:02

I find that Mr. Anderson is competent to

enter a guilty plea; that he understands his right to trial and related rights; that he understands the charges against him and the possible consequences of his guilty plea, including the possible range of sentences and the nature of the sentencing guidelines; and that his guilty plea is knowingly, intelligently, and voluntarily made and is supported by factual basis. I will accept the guilty plea and enter it of record and I will defer acceptance of the plea agreement to the time of sentencing. Sentencing will be set for May 8th, 2006, at 2:30 p.m. I'm going to order the probation department to perform a presentence investigation and prepare a report. we will vacate the trial date of March 14th, 2006. MR. LOCKHART: respect. Excuse me, Your Honor, with all due And

14:43:18 10 11 12 13 14

14:43:32 15 16 17 18 19

14:43:53 20 21 22 23 24

Did you say May 8th, sir? THE COURT: Yes. I have a contested severance trial in

MR. LOCKHART:

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juvenile court that day, Your Honor, at 9:30 and it should

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proceed all the way to the 5th [sic] and we are -- it's two days that week, and also I have it set for May 11th. THE COURT: on May 8th? MR. LOCKHART: going to go. THE COURTROOM CLERK: THE COURT: May 15th at 11:30. I am, sir. And it looks like it's So you're saying you're in trial all day

14:44:26

That's going to be too many for that day.

(The Court and the courtroom deputy confer.) THE COURT: All right. The next available date we

14:46:10 10 11 12 13 14 time.

have is June 5th, 2006, at 2:30. MR. LOCKHART: MR. BOYLE: THE COURT: That's fine, Your Honor.

That's fine, thank you. Okay. We'll set sentencing for that

14:46:20 15 16 17 18 19

I'm going to also order that while the presentence report is being prepared and while I consider the plea agreement, the time will be excluded under 18 United States Code Section 3161(h)(1)(L). I would remind you, Mr. Lockhart, that anything you want me to consider in connection with sentencing needs to be filed six court days before the sentencing. MR. LOCKHART: Yes, Your Honor, after the last

14:46:35 20 21 22 23 24

experience I will never forget that. THE COURT: All right. Anything else we need to

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address today? MR. LOCKHART: Your Honor, if I may briefly bring to He's

the Court's attention a request on behalf of my client. requesting the plea agreement remain sealed.

I've spoken with

14:46:56

the government about this and certainly they can go on record. Although they may have an objection, the reasons for asking this is that my client does -- and his wife, live in Yuma, Arizona. It's a very small community with Ms. Anderson having

been raised all of her life, practically, in Yuma, Arizona. They do have very young children that reside with them. Certainly they have been experiencing some of the negative implications or effects, if you will, in the media in Yuma and have shared information with me that it's been placed in the periodicals, journals, and newspapers that were speaking of this case and comments being made to the fact of teaching people a lesson and things of that nature. Frankly he's accepting responsibility for his actions. I certainly can understand the public having some

14:47:14 10 11 12 13 14

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interest in what is going on here, but at some point enough is enough. Again, he's taking responsibility for his actions and They have

14:47:48 20 21 22 23 24

he's being before the Court as of right now.

already suffered the brunt of having a lot of this information already disclosed to the public. And, again, I'm just

requesting for on their before that, again, they be given some peace, some silence, as they continue to deal with this.

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THE COURT: Mr. Lockhart?

So what is it that you're proposing,

MR. LOCKHART: THE COURT: Mr. Boyle? MR. BOYLE:

That the plea agreement be sealed.

Be sealed.

14:48:21

Your Honor, the government objects.

This

defendant is no different than any other defendant who lives in Yuma who might be part of a high-profile case. Certainly the citizens of Yuma are entitled to know what happens in their community. seal this matter. I see no other reason to

14:48:32 10 11 12 13 14

And like other defendants in cases like

this, I think the public's entitled to know what happens. Especially in a case like this where a case like this sends a message to the people at the port of entry who are guarding our borders. I know it's a high priority at the FBI and our office to make sure the citizens and law enforcement officials know we're holding people accountable. I don't see any reason why this case in that instance would be different than any other. sealing this. THE COURT: Well, the information in the plea It's not The I see no justification for

14:48:50 15 16 17 18 19

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agreement will become public at some point.

something that can be kept confidential indefinitely. result of the case is going to become public.

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I can understand why the defendant and his family don't want it to become public, but it's going to. Sealing a document is an unusual step. It's

typically taken to protect a confidential witness or a cooperating defendant. It's not something that we do as

14:49:31

normal course, nor do I think we should do it, and so I'm not going to seal this plea agreement. MR. LOCKHART: All right. Your Honor, my client

asked me to make that request -THE COURT: All right. I understand. We'll see you in June, Mr. Anderson. Okay, sir.

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THE DEFENDANT:

(End of transcript.) * * * * *

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C E R T I F I C A T E

I, PATRICIA LYONS, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona.

14:49:48

5 6 7 8 9

I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control, and to the best of my ability.

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DATED at Phoenix, Arizona, this 10th day of January, 2008.

s/ Patricia Lyons, RPR, CRR Official Court Reporter

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