Free Transcript - 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 October 11, 2006

THE HONORABLE DAVID G. CAMPBELL, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS SENTENCING

For the Government: U.S. Attorney's Office

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 04-1281, United This is the

States of America versus Michael Craig Anderson. time set for sentencing. MS. PFISTER: United States. THE COURT: Good afternoon.

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Mary Beth Pfister appearing for the

MR. LOCKHART:

Good afternoon, Your Honor.

David

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Lockhart appearing with Michael Anderson.

Sir, he is present

and out of custody now standing at the table to my left. THE COURT: All right. Good afternoon. Would you

come forward, please. MR. LOCKHART: may we please approach? THE COURT: For what purpose, Mr. Lockhart? There's going to be an issue that Your Honor, before we go any further,

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MR. LOCKHART:

needs to be placed on the record with respect to the plea agreement and a date that needs to be admitted in the position of the defense. THE COURT: Mr. Lockhart. MR. LOCKHART: Yes, Your Honor. There's an issue You lost me. Say that again please,

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that's come up with respect to the date in the plea agreement. Obviously it's going to end up on the record. I just want to

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discuss this with the Court if the Court's inclined to discuss it. THE COURT: sidebar. MR. LOCKHART: THE COURT: It will. Well, it will be on the record if it's at

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So is there a reason that other folks in

the courtroom can't hear it? MR. LOCKHART: no reason. THE COURT: Okay. Tell me what the issue is. No, Your Honor, candidly, no, there's

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MR. LOCKHART:

The issue is with respect to Count 4,

conspiracy to import more than 1,000 kilograms of marijuana -THE COURT: Mr. Lockhart, you need to speak more

slowly and pull the mike over. MR. LOCKHART: Okay. With respect to Count 4, which

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my client entered his plea to in March of '06, we have found an error with respect to the date of the involvement. Candidly, would it affect necessarily the outcome of sentencing if the Court was to follow all other matters within the plea agreement? No. But it is important because the

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factual basis is incorrect. Specifically speaking to the date of April of 2001. I can go into much further detail with respect to how this mistake came about, and more than happy to do that, but there is a mistake. I have brought that to the attention of

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actually Mr. Boyle.

He is -- it's my understanding he has It is his

discussed the issue briefly with Ms. Pfister.

position, or the government's position, that he is unwilling to change or agree to the amendment. But I'm bringing to the

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Court's intention that it's factually incorrect and not supported by any of the evidence we have at this time. It may be necessary at this point -- I'm suggesting Mr. Anderson be allowed to withdraw from this particular plea agreement because it is not correct. THE COURT: What's the date? The date of April 2001 as being the

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MR. LOCKHART:

latter date, or second date, if you will, with respect to that count. Actually, all the evidence that I have, without disclosing attorney-client privileged material, that date is incorrect. The date should be November or December of 2000.

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And I believe the confusion, at least on our part, started out with respect to a transcript that the Court has had an opportunity to review with respect to Ms. Anderson where there are dates or discussions being made. There were

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certain assumptions that were made by the defense and also Mr. Anderson in reviewing the transcript. But in looking at the totality of all the evidence, I'm very confident saying that that date of April 2001 is incorrect and is not supported by the evidence that has been

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provided through discovery by the government. THE COURT: Well, if you look at the top of page 9 of

the plea agreement, Mr. Lockhart, there's more than a date there. It doesn't just say April 2001. MR. LOCKHART: And I don't have that plea agreement

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in front of me at this time, Judge. THE COURT: You don't have a copy of it? No, I don't. Not in front of me at

MR. LOCKHART: this time, no. THE COURT:

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Do you have your file? I do not. I left my file there. I

MR. LOCKHART: had it on my desk. here.

I reviewed everything before coming over

I brought the presentence report. THE COURT: It specifically says, "Michael Craig

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Anderson received payments in excess of $25,000 in the year 2000 and in excess of $25,000 in the year 2001." specific in saying that. MR. LOCKHART: THE COURT: So it's very

You're saying that's wrong?

That's wrong.

Why didn't you point that out at the time

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we did the plea colloquy? MR. LOCKHART: Again, because all the information --

the information compared against the transcript I had at that time, it looked like it was correct, and as Mr. Anderson and I was going over that information it looked correct. But when I

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received the objections and began to go over everything else,

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that is when I specifically began to look at the dates and match them up and found that to be incorrect. THE COURT: Ms. Pfister? It's the government's position that the

MS. PFISTER:

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defendant has not shown a fair and just reason for being allowed to withdraw from this plea agreement. There were discussions ad nauseam about the factual basis of this plea agreement and there is ample evidence to support the statements that are set forth in the paragraph that is now being disputed. The evidence regarding the illegal conduct that occurred in 2001 is set forth in the presentence report. specifically refer the Court's attention -- it begins at paragraph 15 where they discuss activities occurring in 2001. It appears as though Mr. Anderson now is -- has some remorse about entering into the plea agreement and making the admissions that he did. But there's no basis for his being I

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allowed to withdraw from this plea. Moreover, I don't understand two things. One, why If it

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he's bringing this to the Court's attention at all.

doesn't affect his guideline calculation, why this is such a concern to him that he would want to withdraw from the plea? And, second, why this is only discovered on the Friday before the sentencing. And the government's concern here is is that

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Mr. Anderson has attempted on numerous occasions to postpone

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his sentencing in what we believe is an effort to delay being taken into custody. And if anything occurs today other than his being sentenced and taken into custody, the government then asks that the Court reconsider the prior ruling under 18 U.S.C. Section 3143 that he be allowed to stay out of custody. should have been brought into custody as of the date he entered his guilty plea in this case and the government agreed to let him stay out so that he could get his business affairs in order. He's had ample time to do that. And this is just He

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one other kind of last -- at the last minute bringing up these issues to attempt to muddy the waters. plea calculation. It doesn't affect the

There's no fair and just reason for

withdrawing from the plea, and the government objects to that being made. THE COURT: Mr. Lockhart, are you requesting to

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withdraw from the plea agreement? MR. LOCKHART: I am if the Court is not inclined to Yes.

amend it, because it's factually incorrect. THE COURT: Okay.

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So you are making a formal request

to withdraw from this plea agreement? MR. LOCKHART: THE COURT: I discussed that with my client. Will the 2001 date in Yes.

All right.

paragraphs -- well, it's page 8, line 22, through page 9, line 4. Will the 2001 date have any effect on the final sentence

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in this case? MR. LOCKHART: THE COURT: It is my position it will not. If it will not have any effect

Okay.

upon the final sentence, what is the fair and just reason under Federal Rule of Criminal Procedure 11(d)(2)(B) for withdrawing from the plea agreement? MR. LOCKHART: Your Honor, I'm bringing it to the

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Court's attention based solely on the fact that it's factually incorrect. I rest on those comments there. If the Court is

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finding it's not unjust, the Court can make, obviously, that determination. THE COURT: All right. It's my determination under

Rule 11 that the alleged error in the plea agreement is not a sufficient basis for withdrawing the guilty plea or withdrawing from the plea agreement, so I'm not going to permit that to occur. MR. LOCKHART: THE COURT: All right, Your Honor.

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Our purpose today is to hold a sentencing He

on the charges to which Mr. Anderson pleaded guilty.

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previously pled guilty to counts 2, 4, 6, and 8 of the indictment. As part of the plea agreement, the government agreed to recommend a two-level reduction in the offense level if the defendant met the safety valve criteria in guideline section 5C1.2. The parties stipulate in the plea agreement that the

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sentence will be between 60 and 108 months.

The government

agrees to dismiss counts 1, 3, 5, 7, and 9, and the defendant agrees to waive his right to appeal the sentence if it is consistent with the terms of the plea agreement. The defendant's guilty plea was entered before this Court; I accepted the guilty plea at the point that it was entered. There having been a determination of guilt by virtue of that guilty plea, it is the judgment of the Court that the defendant is guilty of the charge alleged in Count 2 of the indictment, receiving a bribe by a public official, in violation of 18 United States Code Section 201(b)(2)(C); that he is also guilty of the charge in Count 4 of the indictment, conspiracy to import more than 1,000 kilograms of marijuana, in violation of 21 United States Code Section 952(a), 960(b)(1)(G) and 963; that he is also guilty of the charge in Count 6, money laundering, in violation of 18 United States Code Section 1957; and that he is guilty of the charge in Count 8, filing a false tax return, in violation of 26 United States Code Section 7206(1). Mr. Lockhart, I believe you've had a chance to review the presentence report, sentencing recommendation, and the addendum to the presentence report? MR. LOCKHART: THE COURT: That's correct, Your Honor.

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Have you had an opportunity to discuss

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those with Mr. Anderson? MR. LOCKHART: I have, Your Honor. And for the

record, I did file objections to the presentence report. THE COURT: Other than the written objections, do you

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have any objection to the presentence report? MR. LOCKHART: Yes, I do, Your Honor, with respect to

the recommendation of 108 months of custody in the Bureau of Prisons, yes, I do. THE COURT: inaccuracy? Well, are you alleging that there's an

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Or is it simply that you disagree that that's the

right sentence? MR. LOCKHART: It's more for argument. THE COURT: All right. Correct, Your Honor, I just disagree.

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With respect to the objections that are set forth in your written objections, it is my conclusion that the objections to the identifying data and to paragraphs 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 -- and 16 will not affect the sentence in this case, so I'm not going to attempt to resolve those factual issues. Now, with respect to paragraph 28, Mr. Lockhart, you object to the presentence report including cocaine in the calculation. MR. LOCKHART: THE COURT: I do, Your Honor.

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If -- the question I have for you is do

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you agree that if the cocaine is disregarded, the guideline calculation remains the same? MR. LOCKHART: right. THE COURT: Because that dispute won't affect the You're absolutely correct. That is

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sentence in this case, I'm not going to attempt to resolve paragraph twenty- -- the paragraph 28 dispute. And with respect to paragraphs 48, 49, and 61, those won't affect the sentence in this case, either, so I'm not going to resolve those issues. With respect to paragraph 71, it's my conclusion that I'm not going to require Mr. Anderson to pay a fine, given the financial condition his family will be in after his incarceration. MR. LOCKHART: THE COURT: objections. Thank you, sir.

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I think that addresses all of your

Is that correct? It does, Your Honor.

MR. LOCKHART: THE COURT:

I'm going to accept the plea agreement I'm

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and my judgment and sentence will be consistent with it. satisfied that the plea agreement adequately reflects the

seriousness of the actual offense behavior and that accepting it will not undermine the statutory purposes of sentencing or the sentencing guidelines. With an offense level of 31 and a criminal history

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category of I, the range of possible incarceration with respect to Count 2 and Count 4 is 108 to 135 months. respect to Count 6, it is 108 to 120 months. Count 8 it is 36 months. The term of supervised release with respect to Counts 2 and 6 is two to three years, with respect to Count 4 it is three to five years, and with respect to Count 8 it is up to one year. The fine range is $15,000 to $4.6 million. Restitution does not apply, probation is not available, and a special assessment of $400 is required for the guilty pleas. Do you agree, Mr. Lockhart, that those are the correct guideline ranges? MR. LOCKHART: THE COURT: I do, Your Honor. I'm happy to hear whatever With

With respect to

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All right.

comments you wish to make on the appropriate sentence, and then I'll hear from Mr. Anderson. MR. LOCKHART: Okay. Thank you, Your Honor.

We all realize that the Court does and is required to give consideration to the sentencing guidelines when imposing sentence to determine the appropriate sentence. However, Your

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Honor, I respectfully direct the Court to the attention of what stipulations were in the plea agreement with respect to a range. That range, as the Court was aware, was between 60 and Candidly, if the Court was inclined to follow the

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108 months.

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recommendation of 108 months, or that is what was contemplated by all parties that that would be the range that Mr. Anderson would be looking at, he simply would just not have entered into a plea agreement and would have gone on and proceeded to trial. The contemplation, at least on our part, is that the Court would be giving consideration to the stipulated range while also giving some consideration, obviously, to the United States guidelines. Otherwise it would make no sense. We

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would just go ahead and agree to serving anywhere from 9 to 10 years, with having no opportunity or no consideration with respect to a sentence much shorter than the 108 months that are recommended. Also, I find it inconsistent from the probation department with respect to its justification for what it was stating with respect to the appropriate range. Yes, the low But

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end of the range in the guideline sentence is 108 months.

taking that same reasoning and looking at the stipulated range of 60 to 108 months, it is also appropriate for the Court to perhaps consider the 60 months, and we're going to request the Court impose the 60 months, which is also within the stipulations and doesn't violate the stipulations of the plea agreement. It was determined by the probation department and we certainly concur that, one, Mr. Anderson has accepted

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responsibility for his actions.

He recognizes that he's going That

to serve a term of imprisonment, and has accepted that.

he's on the low -- excuse me, a low risk to offend, and that he's not a danger to the community. supports a sentence of such nature. Also, I think if the Court would also do a comparative, if you will, to what other people somewhat associated in this conspiracy and those dismissed from the conspiracy received as a punishment in connection with this case. Most of the evidence that was reviewed by the defense in this case were dealt with statements being made by individuals who were part of the conspiracy. Now, we all I think all of that

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understand that the government uses confidential informants in these types of investigations, but let's look at the proportionality here. The major CI, or confidential informant, here was a person who had a 25-count indictment dismissed. Served no jail time. was arrested in '01. Okay? Totally.

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Was first indicted back in '99, Must have

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I'm making assumptions here.

sat down with the government and said they had information they wanted to share. That primary confidential informant,

again, 25-count indictment, and I would venture to say, based upon my review of the evidence here, was far more involved in this conspiracy than even Mr. Anderson, who also stands before

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this Court wrong and being convicted of criminal activity. This individual, based upon review of the evidence, negotiated, partook in the actual setting up of the transportation, maybe escorted loads through. Your Honor. with this. THE COURT: to? MR. LOCKHART: Yes, sir. I was very being very Is this Mr. Tassinari you're referring Did all this,

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Received no sentence whatsoever in connection

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careful in disclosing names.

But, yes, Mr. Tassinari.

Another individual, Marie Newell it's my understanding that that is Mr. Tassinari's mother-in-law. THE COURT: Mother. Mother-in-law -- mother. Thank you.

MR. LOCKHART: Mother.

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She received nothing for her involvement.

And it is

pointed out in the presentence report that she was an individual in the car driving across the border, allegedly, with 46 pounds of marijuana. in connection with this case. Another individual, Jose, I believe his name was Arvisu-Montejo, I think I'm pronouncing that correctly. He Receives no type of punishment

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apparently is and obviously is involved, received a 50-month sentence in connection with this case. So I think if we're looking at proportionality and

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what everybody else is receiving in connection with this case, now to say Mr. Anderson, who is involved in the conspiracy and not as involved as the major player or the confidential informant here, Mr. Tassinari, is going to now be required to do twice to sometimes three times more time than anyone else. That is just totally unfair. And that's certainly one

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contemplated by the defendants when we're going through the negotiations with the government. We do take into account he was a sworn immigration officer who had taken an oath. But even if the Court

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sentences Mr. Anderson to 60 months, that exceeds any sentence that I'm pointing out to the Court right now with people involved in the same conspiracy. So that sentence would also

contemplate the fact that he was a sworn officer and there was an abuse of power and abuse of office and he would be sentence appropriately. Your Honor, there's no reason to sentence him to a range within the stipulated guideline range because, one, that is not contemplated, in my mind, by the parties here, and, two it is more appropriate to sentence him toward the lower end of the 60 months. He still has a family out there who loves him, who needs him. He realizes he needs to spend time away from them.

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And I think the punishment of 60 months will send the message that the Court would want to send to the rest of the

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individuals at the border for this type of criminal activity: If you get caught, you'll receive punishment, but that punishment will be fair and will be proportionate to what other people have received. Now, I will share with the Court what I have seen in other jurisdictions, other individuals involved in criminal activity at the border involving transportation of drugs. Specifically, I recall seeing a case in Texas. However, those

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particular border agents or inspection officers were also more involved, more along the lines of Tassinari. individuals were carrying weapons. We're not dealing with someone here, Mr. Anderson, being violent, he was not using weapons. Just the breadth of In fact, those

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his involvement doesn't fit a sentence of 108 months. For the reasons I articulated just now, Your Honor, I'm respectfully requesting that you follow or direct your attention more to the stipulated range in the sentence and sentence Mr. Anderson to the 60 months. Thank you, sir. THE COURT: All right. Thanks, Mr. Lockhart.

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Mr. Anderson, is there anything you would like to

THE DEFENDANT:

Yes, sir, there is.

Wow, I don't know where to begin. I don't have a problem with accepting responsibility

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for what I have done.

But I do have a big problem with

accepting responsibility for something that I did not do, that's a lie. And I got my PSR report for the first time and

I saw it last Friday, and it was saying in there about things that I allegedly had done which are not true. And I just

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don't understand how something like that can be said on a document that's going to go against me forever, and I have to accept what it says. I just think that's wrong.

I do accept what I did was wrong, but there's a lot of stuff that I didn't do that the government's saying that I did. And I didn't. And I'm going to be punished for it,

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which is not right. When I took my plea, I was under the assumption that it was from 60 to 108 months and that the government was going to recommend I get the low end. To me, that's 60 months. I

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didn't have a problem with that because I knew I'm going to do time. I blew it. Okay. So I told myself, hey, I'll suck it As a matter of fact, we were at I've been so

up, I'll do it. a restaurant.

I signed it.

I signed it on the back of a car.

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out of the loop I just -- I don't know what's going on. Now I get the presentence, my attorney tells me, hey, I read it and it is 108 the low end. on here? I'm like, what's going

I would have just went to trial if the lowest I I'm thinking this is just -- this I just -- I

could have got was 108. isn't right.

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I'm getting everything last minute.

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don't know what's going on any more. turned upside down.

My life has completely

You, sir, told me -- excuse me. You asked me if a couple months would be enough time to get my -- I'm just really stressed out. THE COURT: You can take a minute, that's all right. You asked me to get my life, my I was

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THE DEFENDANT:

family life squared away and my business, everything. doing that. Getting ready to go to jail.

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During that time, a friend of mine was supposed to Now he's trying to -- he's trying to take my And if

business that I started, that keeps my family alive. I'm gone, I can't help them.

You know how that makes me feel,

that I can't support my family? And I did what you said, sir. order. I was ready to go. I got my affairs in

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I was ready to come here and go.

And then I get this -- he starts stealing money from me, everything, and I had to get another attorney. Now I have to And my

dissolve my business that I started five years ago.

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wife, she's not going to have no income from that business, unless I'm allowed to start another one. Which I can do. In

the same, you know, type of business, just a different name. If I'm allowed time to do that, I can do it. whatever happens, happens. And then

At least she'll have an

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established business where income will be coming into the

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family and I don't have to worry about her while I'm doing my time. I'll know she's taken care of, because she's capable of She's done it for me before. By me

running it.

I just -- I have to support my family somehow.

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taken into custody today or whatever you decide to do, if that's the case, and I can't get my business back in line, I know I can because I'm good at it, I'm doomed. doomed. I know you've heard stories of this before, but it's the truth. I've never been through something like this. Just My family's

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like she said, we're completely stressed out. been turned completely upside down. more.

My life has

I don't know who I am any I just want to

And I'm tired of being like that.

justify this, get it right, and move on. I don't know what to say. mistreated by the system. I just feel like I've been

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So I don't know what to say, sir.

I'm at a loss of for words. THE COURT: All right.

Anything further you'd like to say, Mr. Anderson? THE DEFENDANT: sir. THE COURT: Okay. I can't think of anything right now,

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Ms. Pfister? MS. PFISTER: With respect to the terms of the plea

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agreement, the parties' full and complete agreement and all of

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the terms relating to Mr. Anderson's potential sentence were set forth in the plea agreement, as was covered by the Court with Mr. Anderson at the time of the plea. Yes, the defense did ask that there be a possibility that they be allowed to argue for a sentence all the way down to as low as 60 months. And that is the range that is set There's no agreement in the plea And

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forth in the plea agreement.

that the government would make a low-end recommendation.

the reason for the range being as broad as it is because the government anticipated that the presentence report was going to come back quite high and that Mr. Anderson's guideline calculation was going to be far in excess of 60 months. With respect to the factors that are set forth in 18 U.S.C. Section 3553, the defense has called the Court's attention to one of those factors: The need to avoid

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unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. I submit that on the record that is available to the Court today that you cannot make the finding that there is anyone else here about which you have sufficient information to determine that they are guilty of similar conduct and that they received a lighter sentence. I personally do not know

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exactly what punishment the cooperators received for what they did. I do not have that information available to me today. I

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don't know it.

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But there's not been any evidence brought to the Court's attention that would warrant a decision that Mr. Anderson is being treated unfairly based on the sentences received by the others involved. The other factors that are set forth in 3553, in addition to the need for avoiding unwarranted sentencing disparities, are factors that also should be considered, and, in the government's opinion, are factors on which the Court's decision should more reasonably be based because there is something and some evidence to support reliance on those other factors. And those factors are the following: nature and circumstances of the offense. First, the

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In this case the

government's concern is the defendant's blatant abuse of position and of the public trust in his position as a border patrol agent. It is crucial to the government's functioning and society's having some kind of confidence in our public officials that those people be held to a higher standard. there's no question here that he abused that trust. THE COURT: immigration? MS. PFISTER: I'm sorry, Your Honor. Yes. In a lot of You said border patrol. Did you mean And

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The other issue is the motivation here.

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cases you see people who are motivated by very dire family

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circumstances and they turn to criminal activity. case, the defendant's motivation was pure greed. own admission.

In this Even by his

The money that was made for waving through drug loads in this case was spent on an extravagant lifestyle, including for what we could find, expenses such as cosmetic surgery, boat, truck, vacations. This is not somebody who was driven

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by desperate circumstances to commit this crime, based on the evidence available to us. In addition, the report, the way that it was discovered that the defendant had accepted such large quantities of moneys was a cash analysis of all the cash that the defendant and his wife had been spending over the years at issue. The government does not believe that it found all of It would be impossible for us to

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the money that they spent.

know every place at which they spent cash. The calculation of over $200,000 in unaccounted for cash that we attribute to drug activity is only what we could find. Another factor to be considered is the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense. And we believe that that factor mitigates in It is the

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favor of a sentence much higher than 60 months.

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government's recommendation that the defendant be sentenced at

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the low end of the guideline. Another factor to be considered is the need for the sentence imposed to afford adequate deterrence to criminal conduct. Here we believe a message really needs to be sent to

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our public officials that conduct like this that undermines confidence in the government in general and in those especially responsible for our borders, that that won't be treated lightly. Another factor to be considered is the advisory sentencing guideline range, and that is something that in this case would weigh in favor of a sentence of 108 months. guideline range here is 108 to 135 months. The

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That's if all the

sentences run concurrently, as is usually the case. Taking that into account, that 108 recommendation and that 108 top of the range is not out of line with the offense conduct. I think that's all, Your Honor, factually that I wanted to respond to. But I just want the Court to understand

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that this case is unlike many other cases where we prosecute people at the border for waving through drug loads. In a lot

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of those cases, we can't prove that the money they have came from drugs. funds. In this case, what makes this case different and what makes this case stronger and what makes his conduct more We can only prove that they have unaccounted for

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egregious is that we can prove beyond a reasonable doubt that he engaged in a conspiracy to wave through drug loads at the border, and that is the source of the unaccounted-for money. And based on all the factors set forth in 18-3553, it's the government's recommendation that the defendant be sentenced at the low end of the guideline range. THE COURT: All right. Thank you, Ms. Pfister.

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Mr. Lockhart? MR. LOCKHART: If I may briefly respond.

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I don't know if the government read the same presentence report that I read, but I know Mr. Anderson's motivations for doing what he did, although wrong, are not necessarily all motivated by just greed here. This is an

individual who had just gone through a messy divorce, he was financially strapped for cash. And in fact Mr. Tassinari knew He was

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he was financially strapped for cash at the time.

suffering from a lot of debt, and he made a very bad, poor decision to get involved in this drug trafficking organization. He did not approach Mr. Tassinari, Mr. Tassinari approached him. That is how it is initially started.

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Now, it doesn't forgive him for the wrong or criminal activity, but it sheds more light here. This is not an extravagant lifestyle here. He has a

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modest home that he purchased using legal funds, and despite

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the recitations or representations made by the government, they cannot prove beyond a reasonable doubt how much money necessarily was associated to -- with the drug trafficking organization. And that is because the government has

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consistently ignored the fact that Mr. Anderson had a business, Desert Carts was the name of the business, in which he owned during the period of time or the relevant time. This was a company in which, as the Court was aware, I believe, from reading the -- our objections was a company which refurbished golf carts in which he got cash money. Now,

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he didn't report all the cash money and that has a lot to do with also why he's pleading guilty to filing false tax return. A lot of it was cash and cash done under the table. Also, over 200,000, we object and disagree with that and we raised those objections in the presentence report -in, excuse me, in our objections. We do know that he had money, he was able to do certain things. But all of this money is not attributed to

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illegal activity or participation into the drug trafficking organization. Adequate deterrence. I don't really see how the

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government can stand up and say this shows adequate deterrence unless she's speaking specifically to those who may work at the border by imposing 108 months. Is it adequate deterrence to dismiss a 25-count

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indictment on an individual who was far more involved in this? The government states they don't have any evidence to support any sentence. since March 6. I've been requesting that, Your Honor,

What was the sentence -- the information I was So a lot of information I provided the So if I actually

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supposed to get.

Court with, I had to actually get myself.

could get it, I know the government could have gotten it, too, and been able to share their comments with the Court. The fact of the matter, Your Honor, a sentence of 108 months is totally disproportionate to how others are being treated. Even, again, sentence him to the 60 months or lower

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end of the stipulated range, it sends the message it adequately disciplines and punishes those who may work at the border and who take an oath, but it's also proportionate to some individuals with respect to what they received in sentencing in connection with their involvement in drug trafficking organizations. THE COURT: All right, thank you.

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I have considered the arguments of the parties as well as the factors set forth 18 United States Code Section 3553(a). offense. Particularly, the nature and circumstances of the This was a drug trafficking offense and the

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guidelines, based on the volume of marijuana imported, which is admitted in the factual basis to be in excess of 1,000 kilograms, produce a sentencing range that is very high.

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But it is more than that. This is a case of a severe breach of public trust where the defendant took an oath to protect the country's borders, was stationed as an officer to do so, and violated that oath in exchange for bribes. trafficking offense. criminal offense. I've taken into account the history and characteristics of the defendant and the fact that this is the defendant's first offense. I have tried to evaluate the need to reflect the seriousness of this offense, promote respect for the law, and provide a just punishment, particularly in light of the severe violation of an oath that was taken by this public official. I have taken into account the need to afford adequate deterrence to those who are protecting our borders and who may be tempted to take bribes. And of course I looked at the So this is more than a drug

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And in that respect is a serious

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sentencing guideline range, which is 108 to 135 months. Nobody's talked today about the high end of that range or anything in it because there's a stipulation in the plea agreement that there won't be a sentence in this case higher than 108 months, which is at the low end. But the guideline

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range goes substantially higher than 108 months for this offense. And I've heard what you said, Mr. Lockhart, about the

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treatment of the co-defendants. And in wrestling with all of those decisions, I've tried to determine what is a reasonable sentence under 3553(a). I am influenced substantially by the fact this was not only a very large drug crime, but it was a bribed government officer who permitted it to happen on repeated occasions. And the seriousness of that offense not only as an

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improper importation of drugs, but as a breach of trust of the American people. And, therefore, it is my conclusion that a sentence of 108 months is the appropriate sentence in this case. Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that Michael Craig Anderson is hereby committed to the Bureau of Prisons for 108 months. This term consists of terms of 108 months on Count 2, 108 months on Count 4, 108 months on Count 6, and 36 months on Count 8, all to be served concurrently. The defendant shall pay a special assessment of $400, which shall be due immediately. While incarcerated, payment

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of criminal monetary penalties are due at a rate of not less than $25 per quarter and shall be made through the Bureau of Prisons Inmate Financial Responsibility Program. Upon release from imprisonment, the defendant shall be placed on supervised release for three years. This terms

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consists of three years on Count 2, three years on Count 4, three years on Count 6, and one year on Count 8, all to run concurrently. While on supervised release, the defendant shall comply with the standard conditions of supervision adopted by this court in general order 05-36, and of particular importance is the requirement, Mr. Anderson, that you not commit another federal, state, or local crime during the term of supervision. Within 72 hours of release from custody of the Bureau of Prisons, the defendant shall report in person to the probation office in the district to which the defendant is released. The defendant shall comply with the additional conditions that you shall submit your person, property, residence, office, or vehicle to a search conducted by a probation officer at a reasonable time and in a reasonable manner, including but not limited to computers, electronic devices, and storage media. You shall provide the probation officer access to any requested financial information. You are prohibited from

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making major purchases, incurring new financial obligations, or entering into any financial contract without the prior approval of the probation officer. And you shall cooperate with the Internal Revenue

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Service and pay all tax liabilities and shall file timely, accurate and lawful income tax returns, and provide proof to the probation officer. As mentioned, I find that this is a reasonable sentence under 18 United States Code Section 3553(a) given the volume of drugs involved, the severe breach of trust, as well as the money laundering and tax return violations. Mr. Anderson, do you understand the sentence that's been imposed? THE DEFENDANT: THE COURT: Yes, I do, Your Honor.

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Because it is consistent with the plea I need to tell

agreement, you've waived your right to appeal.

you, however, that if you choose to file a notice of appeal, you need to do so within 10 days of my judgment. And my If you

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judgment will come out within the next couple of days.

decide you want to file a notice of appeal, you need to talk to Mr. Lockhart about that to make sure it gets filed, but I believe you have waived your right in the plea agreement and that the Court of Appeals would agree with that. Is there a motion to dismiss Ms. Pfister? MS. PFISTER: Yes. The government moves to dismiss

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Counts 1, 3, 5, 7, and 9. THE COURT: I'll grant the motion and dismiss those

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It is my conclusion under 18 United States Code

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Section 3343 that the defendant is required to be taken -- I'm sorry, 3143, that the defendant must be taken into custody immediately. Mr. Anderson, there's two ways that that can happen. One way is for the marshals to come up and take you into custody. Another way is for you to self-surrender. If you

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self-surrender, I think that affects your classification and therefore it's more favorable to you, and I'm willing to have you do that. THE DEFENDANT: THE COURT: Okay.

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The marshals are here.

But, marshals, I want this to be deemed as a self-surrender. Is that all right? You can take him

downstairs with that understanding? THE MARSHAL: THE COURT: Yes.

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Okay.

That way you'll get credit for having self-surrendered today rather than being taken into custody. THE DEFENDANT: though? THE COURT: Yes. So I'm going into custody today,

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Are there additional matters we need to take up, Mr. Lockhart? MR. LOCKHART: THE COURT: No, Your Honor.

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Anything from you, Ms. Pfister?

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MS. PFISTER: THE COURT:

No, Your Honor.

Thank you.

Good luck to you, Mr. Anderson. What happened to the 60 months I was

THE DEFENDANT:

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THE COURT:

I'm sorry? I was told 60 months, sir. I just

THE DEFENDANT:

MR. LOCKHART: THE DEFENDANT: THE COURT:

I'll talk to him, Your Honor. I don't understand.

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Well, Mr. Anderson, I understand that you The sentence is It's in my view the You can certainly talk

are disappointed with the sentence. consistent with the plea agreement.

appropriate sentence given the crimes.

to Mr. Lockhart about if you think something improper has happened here today. That is entirely your right and you can

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do that, but this is my best judgment about the appropriate sentence in this case. Hold on just a second. (The Court and the courtroom deputy confer.) THE COURT: I'm going to go ahead and say something I did not impose

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on the record that Lisa has pointed out.

what was the final sentence in the recommendation, which would be a forfeiture of federal benefits. recognize your family. And I did so because I

I don't know if they're going to be

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applying for federal benefits, but I'm concerned about the

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financial condition of the family, and for that reason I did not impose that condition. All right, we'll be adjourned. Ms. Gitre? MS. GITRE: Your Honor, I just ask the marshals if Thank you.

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Ms. Anderson may hug her husband before she leaves. THE COURT: Yes, she can hug Mr. Anderson, but then

he's going to depart out the side door with the marshals.
(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.

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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 9th day of January, 2008.

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s/ Patricia Lyons, RPR, CRR Official Court Reporter

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