Free Objection to Presentence Investigation Report - District Court of Arizona - Arizona

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LAW OFFICE OF DAVID L. LOCKHART
A PROFESSIONAL CORPORATION ATTORNEY and COUNSELLOR at LAW

3216 N. Third Street, 3rd Floor Phoenix, Arizona 85012 [email protected] _____________

(602) 424-6105 Fax (602) 248-2916

David L. Lockhart State Bar No. 018475 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. MICHAEL CRAIG ANDERSON, Defendant. No. CR 04-01281-001-PHX-DGC DEFENDANT ANDERSON'S OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT

DEFENDANT MICHAEL CRAIG ANDERSON, by and through undersigned counsel, hereby submits his objections to the Presentence Investigation Report disclosed on or about September 11, 2006. RESPECTFULLY SUBMITTED this 7th day of October, 2006.

By

s/David L. Lockhart David L. Lockhart, Esq. 3216 North Third Street, 3rd Floor Phoenix, AZ 85012-2682 Attorneys for Defendant

Case 2:04-cr-01281-DGC

Document 128

Filed 10/07/2006

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OBJECTIONS TO PRESENTENCE REPORT Defendant Michael Anderson objects to several of the findings and conclusions set forth in the Presentence Investigation Report (hereinafter "PSR"). The following are the specific objections with reference to the paragraph of the PSR. Identifying Data Mr. Anderson's true and only social security number is used any other social security number. PART A ­ THE OFFENSE The Offense Conduct Paragraph 5 Mr. Anderson objects to the statement that he agreed at the party in Somerton, Arizona to Mr. Anderson has never

LAW OFFICE OF DAVID L. LOCKHART

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allow a load (of drugs) to pass through his inspection lane. Specifically, Mr. Anderson recalls refusing to assist the government's primary confidential informant (hereinafter, "CI") in this matter, Dayan Tassinari with criminal activity at this point. Further, Mr. Anderson objects that he allegedly told CI Tassinari that he did not have the contacts to set up the passage of drug loads. However, Mr. Anderson does concur that at some point after his initial conversation with CI Tassinari, that he did agree to allow an unspecified number of drug loads to pass through his inspection lane at the port of

Paragraph 6 Mr. Anderson does not specifically recall the date of the event alleged to have occurred in or around April 2000, but does not dispute receiving $4,000 for his involvement in the passing of the drug load at issue. Regarding the allegation that CI Tassinari allegedly shared Mr. Anderson's concerns with Mr. Villegas regarding how to pass drug loads more efficiently, Mr. Anderson denies ever having had this 2 Case 2:04-cr-01281-DGC Document 128 Filed 10/07/2006 Page 2 of 10

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conversation with CI Tassinari. Further, Mr. Anderson has no knowledge as to whether CI Tassinari ever spoke to Mr. Villegas regarding this matter. To this day, Mr. Anderson has never met or spoken to Mr. Villegas. In addition, Mr. Anderson objects to the allegation that during a conversation he had with CI Tassinari that he (Mr. Anderson) agreed to "wear a strap on his sunglasses" or that he would use hand signals to alert drug load drivers if or when it was safe to approach his inspection lane. Finally, Mr. Anderson does not recall ever seeing CI Tassinari or any other individual riding a bicycle at anytime during the time he was involved in drug trafficking activity at the border. Paragraph 7 First, Mr. Anderson does not specifically recall the date of the event as alleged in the

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 marijuana at issue through his lane of inspection on the date as alleged in this paragraph. Further, Mr. 20 21 22 23 24 25 26 27 Anderson does not recall the exact amount discovered when this vehicle was searched. Thus, he cannot admit or deny whether 404 pounds of marijuana was discovered in the vehicle and denies the same. In addition, Mr. Anderson cannot admit or deny whether a camera mounted at the port of entry allegedly observed a vehicle similar to the one that was found to be transporting the 404 pounds of marijuana and a red truck passing through the lane he was assigned to at the border. Further, paragraph 7. However, he does recall an incident in which a load of approximately 700 pounds of marijuana was discovered during a subsequent search of the van at issue. Second, Mr. Anderson was not working lane #2 at the time of this incident. Further, there is absolutely no evidence that Mr. Anderson participated in any way in the subject incident. Paragraph 8 Mr. Anderson vehemently denies that he in any way participated in the passage of the load of

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Mr. Anderson cannot confirm or deny whether this "other vehicle" and truck were later observed by law enforcement surveillance at a drug stash house in San Luis, Arizona and thus denies the same. Regarding the allegation that Mr. Anderson was making "unusual" gestures after the crossing of both vehicles, Mr. Anderson objects and denies this allegation. Finally, Mr. Anderson has no knowledge as to whether the driver of one of the vehicles alleged to have been involved in the transportation of illegal drugs (on this particular date) across the border was interviewed or what he may have said during the interview and thus denies the same. Paragraph 9 Michael Anderson and Gina Anderson were married on April 8, 2000, not April 12, 2000. Paragraph 10

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 information they have provided to the government in connection with this matter, just like any other 20 21 22 23 24 25 26 27 cooperating witness' information in any other investigation, is subject at best. As co-defendant counsel, Ms. Patricia Gitre stated in the objections she filed on behalf of her client, Mrs. Gina Anderson, undersigned has not received or reviewed the statements allegedly made by Mr. Arvizu-Montijo and Ms. Newel. Thus, Mr. Anderson is not in a position to object to whether the alleged statements were actually made by these individuals or whether these individuals had his telephone number in his possession at the time of their arrest and thus denies the same. Nonetheless, It is believed that the two (2) occupants that were arrested driving a vehicle that allegedly contained 46 pounds of marijuana are Jose Florencio Arvizu-Montijo and Maria De Lourdes Newel. However, they were arrested on April 18, 2001, not April 18, 2000. It is undersigned's understanding that Ms. Newel is the mother of the government's primary CI in this case, Dayan Tassinari. In exchange for their cooperation, undersigned has been credibly informed that these individuals received very favorable treatment from the government in the form of Plea Agreements. Thus, any

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Mr. Anderson did not personally provide Mr. Arvizu-Montijo or Ms. Newel with his telephone number. Further, Mr. Anderson denies that he entered into an agreement with Mr. Arvizu-Montijo or Ms. Newel regarding the transportation of illicit drugs through his inspection lane at the port of entry. Again, Mr. Anderson only spoke with CI Tassinari during his involvement with this drug trafficking organization at the border. Mr. Anderson also denies having ever told Mr. Arvizu-Montijo or Ms. Newel that he wanted to be paid $10,000 for allowing drug loads to pass through his lane of inspection at the port. He denies having knowledge as to the driver's representations that the first and second drug loads were passed on February 18, 2000 and February 21, 2000, respectively. Mr. Anderson has no knowledge

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 position that any evidence in support of these representations would be based solely upon speculation 20 21 22 23 24 25 26 27 and or supposition. Paragraph 12 Mr. Anderson agrees with the representations that are contained in paragraph 12 of the PreSentence Report (hereinafter, "PSR"). However, it is assumed that this information was offered to "suggest" to the Court that the amount of $26,000 at issue was derived from criminal activity or illor recollection of daily drug loads being passed through the port from February 21, 2000 to February 26, 2000. Finally, Mr. Anderson denies the representations that he was paid between $250,000 and $300,000 for his services. Further, the government cannot prove nor has it revealed any evidence that Mr. Anderson received between $250,000 and $300,000 or that all of the money received by Mr. Anderson during the breath of the conspiracy was derived from illegal activity. It is Mr. Anderson's

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gotten gains. If offered for the aforementioned reasons, Mr. Anderson objects and denies that any of the $26,000 was derived from his criminal activity at the border. Mr. Anderson accepts responsibility for his actions and demonstrated such by entering into the Plea Agreement with the government. However, it is disingenuous to suggest or insinuate in any way that all monies either earned or in the possession of Mr. Anderson were derived from criminal activity. During the relevant time of these events, Mr. Anderson owned Desert Kartz, a golf cart refurbishing business. Mr. Anderson purchased older model golf carts, refurbished them and then sold the golf carts. Most of these golf carts sold for approximately $2,500 to $5,000. Generally, Mr. Anderson was paid in cash for the golf carts. Some, however, not all of this income was reported as

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 down payment to purchase the family's residence in Yuma, Arizona were derived from the sell of 20 21 22 23 24 25 26 27 four of golf carts and from winnings both he and Mrs. Anderson saved from their gambling trips to the casino. Paragraph 13 Mr. Anderson has no information or knowledge that would allow him to challenge the truth or falsity of the statements contained in this paragraph and thus denies the same. taxable income. Further, and more importantly, the government was aware that Mr. Anderson owned Desert Kartz. However, they seem to continue to ignore this fact and are attempting to suggest that any money Mr. Anderson received above and beyond his salary as an Inspector at the border during the relevant time frame was derived solely from illegal drug activity. This position is simply untrue and untenable. Regarding the $26,000 at issue, Mr. Anderson states that the proceeds that were used as a

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Paragraph 14 Mr. Anderson does acknowledge and agree with the representation that he did request more money to allow the drug loads to pass through his lane at the port. However, Mr. Anderson denies receiving approximately $80,000 for his involvement in the drug trafficking. Paragraph 15 Mr. Anderson denies the representation that he informed anyone that he no longer wanted to participate in the illegal activity at the border specifically because he was fearful that he would experience the same fate of a "co-worker" who had been investigated and later indicted for engaging illegal activity at the border. Paragraph 16

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 to have known what drugs were being passed through his inspection lane in the year 2001, in that Mr. 20 21 22 23 24 25 26 27 Anderson no longer participated in the drug trafficking organization in 2001. It is again assumed that the government is relying on the representations of cooperating witnesses regarding the allegations contained in paragraph 16. To undersigned's knowledge, other than the representations made by these cooperating witnesses, the government has no evidence to corroborate any of the allegations made herein regarding the type and weight of drugs that Mr. Anderson knowingly assisted in allowing to cross the border. Mr. Anderson cannot confirm or deny whether he specifically assisted in the importation of more than 5 kilograms of cocaine and more than 1,000 kilograms of marijuana between January 2000 and April 2001 and thus denies the same. Mr. Anderson was never informed of the amounts of the drug loads that were allowed to pass through his assigned inspection lane at the port of entry. Further, he was never informed of what type of drug was being transported through his inspection lane. Finally, it is impossible for Mr. Anderson

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Further, based upon the discovery that undersigned has received to date in connection with this matter, Mr. Anderson had abandoned the drug trafficking organization in or around November or December 2000.1 Paragraph 28 Mr. Anderson objects to the Court giving any consideration to the speculative cocaine weight/amounts mentioned under paragraph 16 of the PSR to determine the applicable base level offense in this matter. It is believed that the government is again primarily relying on the statements of cooperating witnesses to determine the type and weight of the drugs that were being transported across the border during the relevant time in this matter. In paragraph 16 of the PSR, it specifically states that "[i]t is

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 the marijuana offense and notes that nowhere in the factual basis did the government specifically 20 21 22 23 24 25 26 27 The Court should be aware that the factual basis to Count 4 of the Plea Agreement entered into by Mr. Anderson needs to be amended regarding the dates in which Mr. Anderson was involved in the 8 Case 2:04-cr-01281-DGC Document 128 Filed 10/07/2006 Page 8 of 10
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estimated that the defendant assisted in the importation of more than 5 kilograms of cocaine and more than 1,000 kilograms of marijuana". Thus, it is assumed that these aforementioned weight/amounts were used to calculate the base level offense. Mr. Anderson did not plead to an offense involving the importation of cocaine. Mr. Anderson pled guilty to, among other things, Conspiracy to Import More than 1000 kilograms of Marijuana. Undersigned counsel has reviewed the factual basis supporting Mr. Anderson's plea to

mention cocaine. Further, the factual basis states that the amount of marijuana (and no other drug) was in excess of 1000 kilograms. Therefore, it is Mr. Anderson's position that the amount of cocaine believed to have been illegally imported into the United States while he participated in the drug trafficking organization should not be considered in determining the applicable base level offense.

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Paragraph 48 Mr. Anderson objects to several of the allegations contained in the summary regarding his arrest for assault on October 15, 2000. First, Mr. Anderson denies that he assaulted the alleged victim. Mr. Anderson struck the alleged victim in self-defense after the alleged victim initiated a fight with him. Regarding the allegation that Mr. Anderson began stalling when the police stated that they wished to speak to his wife, Gina Anderson, Mr. Anderson denies this allegation. Mr. Anderson recalls complying with the request of the responding police officer. Further, Mr. Anderson contends that his wife had in fact been sleeping when the police arrived at his residence. Paragraph 49

LAW OFFICE OF DAVID L. LOCKHART

11 12 13 14 15 16 17 18 19 significant negative monthly cash flow problem. Further, Mr. Anderson is currently involved in very 20 21 22 23 24 25 26 27 drug trafficking organization. 9 Case 2:04-cr-01281-DGC Document 128 Filed 10/07/2006 Page 9 of 10 contentious litigation with his business partner concerning Line-X, a spray-on bed liner business Mr. Anderson owns in Yuma, Arizona. To impose a fine of any sort on Mr. Anderson would place further financial burdens on Mr. Anderson and his family. Thus, Mr. Anderson respectfully requests that the Court not impose a fine upon him. Defendant denies any and all allegations that he hit his stepson across the face. Paragraph 61 Mr. Anderson reports that when he consumes alcohol, he consumes 6 to12 beers a week. Paragraph 71 Mr. Anderson objects to the determination that he can pay a fine. As the probation department's examination of Mr. Anderson's financial situation reveals, Mr. Anderson has a

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PART F ­ OTHER SENTENCING FACTORS PURSUANT TO 18 U.S.C. § 3553(a). Defendant is still exploring whether he intends to file a Sentencing Memorandum for the Court prior to Sentencing. However, at a minimum, Defendant will present oral argument, if necessary, at the time of Sentencing for the Court to consider in determining the appropriate disposition in accordance with the Advisory Sentencing Guidelines.

I certify that on October, 2006, I electronically transmitted this document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clerk of the Court The Honorable David G. Campbell United States District Court Judge 401 W. Washington Phoenix, Arizona 85003 John Z. Boyle, Esq. Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue Suite 1200 Phoenix, Arizona 85004-4408 Patricia A. Gitre, Esq. 331 N. First Avenue, Suite 150 Phoenix, Arizona 85003 Attorney for co-defendant Gina D. Anderson By: s/Carol Rosales

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