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United States v. Anderson

United States District Court, W.D. North Carolina, Charlotte Division

March 12, 2019

GREGORY D. ANDERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Max O. Cogbum Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner's pro se Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 8).

         I. BACKGROUND

         Petitioner was indicted for bank fraud, HUD fraud, wire fraud, and concealment money laundering on December 15, 2010, and an arrest warrant issued that same day. (3:10-cr-260, Doc. Nos. 1, 2). The Government filed a Superseding Indictment on May 19, 2011, adding a count of assaulting and causing bodily harm to persons assisting the United States in connection with Petitioner's April 26, 2011, arrest. (Id., Doc. No. 9).

         Petitioner filed a Motion to Suppress, (Id., Doc. No. 25), and a Motion to Dismiss, (Id., Doc. No. 32), through appointed counsel Richard Tomberlin. Petitioner argued in the Motion to Dismiss that the Government breached the Proffer Agreement by indicting him based on information solicited during his debriefings and grand jury testimony and without first informing him that it considered the Proffer Agreement to have been breached.

         The Motions to Suppress and Dismiss came before the Court for hearing on November 7 and 8, 2011. (Id., Doc. No. 49). Special Agent Rymill testified that he received information from a state regulatory agency (NC Commissioner of Banks) in December 2009 regarding approximately five loans involving a specific lender and particular loan officer that had red flags that were potential indicators of mortgage fraud. (Id., Doc. No. 49 at 20). He performed a document analysis in January 2010 at which point he had not yet met Petitioner. (Id., Doc. No. 49 at 27). He obtained FHA case binders including loan applications, collateral documents, and underwriting programs. He continued the investigation with assistance from FBI Agent Karen Walsh. (Id., Doc. No. 49 at 28). Borrower interviews occurred in January through March 2010. (Id., Doc. No. 49 at 29-30). Borrowers' employer Work Solutions, Inc., was investigated in January 2010. (Id., Doc. No. 49 at 29). The investigation then focused on Amy Smith, a borrower, who is homeless. Smith said that Petitioner provided the documents and money needed to get the loan and the down payment, ostensibly made by her cousin, was actually from Petitioner. (Id., Doc. No. 49 at 32-33). This classified Petitioner as a promotor.

         Agent Rymill went on to testify that, in April 2010, Walsh and Rymill contacted Petitioner on the phone. Petitioner responded favorably and said he wanted to consult with counsel about cooperating. (Id., Doc. No. 49 at 34). Petitioner hired Rawls and a meeting was scheduled for May 24, 2010. (Id., Doc. No. 49 at 35). Petitioner signed the Proffer Agreement at Rawls' office. (Id., Doc. No. 49 at 37).

         The Proffer Agreement provides that Petitioner would provide the United States with “complete and truthful information about all criminal activity within his knowledge” in exchange for the Government's agreement that:

[N]o statements made by [Petitioner] will be used against your client in the Government's case-in-chief at trial, except as follows: (1) in any criminal prosecution for crimes of violence and/or murder; (2) to make derivative use and pursue any investigative leads suggested by any statements made or other information provided by your client and to use the evidence or information obtained therefrom against your client in any manner; and (3) for purposes of impeachment, rebuttal, or countering a defense (whether presented through opening statements, cross-examination, or otherwise), including any circumstance in which your client is a witness at any stage of any civil or criminal proceeding and offers testimony different from statements or information provided by your client during the interview session.

(Id., Doc. No. 32-1) (emphasis added).

         The Proffer Agreement provides as follows in the event that the Government determines that Petitioner breached the agreement:

It is further agreed that in the event it is determined by the United States that your client has violated any provision of this Agreement (including the provision that your client provide complete and truthful information), all statements made by your client shall be admissible in evidence during the Government's case-in-chief in any criminal proceeding against your client, including a prosecution for false statements, perjury, or obstruction of justice.

(Id., Doc. No. 32-1) (emphasis added).

         Petitioner provided a statement to FBI Special Agent Karen Walsh and HUD Special Agent Brian Rymill the same day he signed the Proffer Agreement. (Id., Doc. No. 32 at 2). Petitioner met with Walsh for a second time without counsel on July 6, 2010. (Id.). On September 22, 2010, and October 19, 2010, Petitioner testified before a federal grand jury pursuant to a subpoena. (Id. at 3).

         Prosecutor Savage clarified that Petitioner was not to break the law or withhold any information or try to protect anyone by providing partial information. Savage told Petitioner that his cooperation could result in a motion by the Government and departure from the guidelines. Nobody at the meeting made Petitioner any promises re what sentence he would receive if he cooperated. (Id., Doc. No. 49 at 43). When Petitioner asked what he was looking at as far as sentencing, Savage, Walsh, and Rymill collectively explained the loss amount had not yet been determined, so sentence exposure could not be determined. (Id., Doc. No. 49 at 44). Savage told Petitioner that he would be federally indicted and prosecuted for his role in the offense. (Id., Doc. No. 49 at 44). Petitioner signed the Proffer Agreement and agreed to cooperate. (Id., Doc. No. 49 at 45). Savage and Rawls then left and Walsh and Rymill began to debrief Petitioner. There was a verbal agreement that this was an ongoing cooperation agreement, that it would extend as long as he continued to comply and provide information. (Id., Doc. No. 49 at 47). The information that Petitioner provided on May 24 was supportive of the information that the Government had obtained to that point in the investigation; they did not break any new ground. (Id., Doc. No. 49 at 48). Petitioner agreed to produce documentsd that corroborated his statements at the meeting, and would indicate other parties involved in the fraud. Rymill considered Petitioner to be cooperative at this point. They agreed to stay in contact and set up future meetings.

         Between May 6 and June 15, 2010, Petitioner failed to provide any documents and had broken some appointments with Rymill and Walsh, although he indicated that he still wanted to cooperate. (Id., Doc. No. 49 at 49). Petitioner also said that he wanted to get another lawyer, Harold Cogdell. Agents were finally able to schedule a meeting with Petitioner on July 6, and no lawyer accompanied Petitioner. (Id., Doc. No. 49 at 51). At that time, Petitioner said he was not represented. That concerned Rymill so he advised him of his Miranda[1] rights and ability to have counsel present during the meeting. (Id., Doc. No. 49 at 55-56). Petitioner asked why the Miranda form was necessary if they were still under the Proffer Agreement and the agents explained that he had indicated a desire to have counsel and they wanted to make him fully aware that he had the right to counsel and not to participate in the meeting if he so chose. (Id., Doc. No. 49 at 60). Petitioner signed the waiver form and said that he did not want a lawyer present at the meeting and was willing to answer questions voluntarily. Rymill understood that the statements made during the July 6 meeting would be covered by the Proffer Agreement. (Id., Doc. No. 49 at 59). Petitioner came to the meeting voluntarily, was free to leave, and never indicated that he wished to terminate the meeting. Petitioner was also presented with a False Statements form that explains it is a crime to provide false statements under the United States Code. (Id., Doc. No. 49 at 61). The form indicates that Petitioner verbally acknowledged that he understood but he refused to sign it. (Id., Doc. No. 49 at 61). The form was read to Petitioner because of the difficulty in scheduling a meeting and his failure to bring any records that he indicated he would bring pursuant to the Proffer Agreement. Agents feared that Petitioner might provide information that was not true and complete, so they warned him there would be consequence for doing so. The July 6 meeting was principally concerned with other subjects and targets rather than the case against Petitioner. (Id., Doc. No. 49 at 62). Agents explained during the meeting that they did not feel he had cooperated at that point and that his efforts needed to improve. He had an opportunity at that time to cure any default.

         The Government had done more investigation and review of loan files since the first meeting and obtained confidential bank information including Petitioner's credit history including a bankruptcy. (Id., Doc. No. 49 at 64-65). They asked Petitioner questions about a house he owned and had bought for $850, 000 and false statements made in connection with that property. Petitioner answered the questions but did not volunteer the information. At one point he refused to identify two individuals. (Id., Doc. No. 49 at 66). Petitioner's statements indicated that there was a friend he knew at a bank who appeared to have violated federal law. This fell within the Proffer Agreement but Petitioner outright refused to provide the information. (Id., Doc. No. 49 at 68). Agents asked Petitioner for documents that had been discussed at the May 24 meeting and Petitioner said he would try to get them together but he failed to do so. (Id., Doc. No. 49 at 69). Walsh told Petitioner that he was not cooperating and he needed to decide if he was going to cooperate with the Government. (Id., Doc. No. 49 at 70). There were no further interviews. After Petitioner's lack of response or production of documents, they proceeded with the investigation against him. (Id., Doc. No. 49 at 71).

         The Government issued subpoenas to lenders to get loan folders and records associated with Petitioner and Work Solutions; they did not gain any of that information from Petitioner. (Id., Doc. No. 49 at 71-72).

         Serving subpoenas on Petitioner was difficult. They finally were able to serve a grand jury subpoena through Petitioner's lawyer at the time, Randy Lee. (Id., Doc. No. 49 at 74). The subpoena was not issued under the terms of the Proffer Agreement. Petitioner appeared before the grand jury on September 22, 2010, with Lee in response to the subpoena of Petitioner with regards to Work Solutions. (Id., Doc. No. 49 at 75). Petitioner produced documents during his appearance. Petitioner advised the grand jury that there were additional documents he did not bring. (Id., Doc. No. 49 at 77). Petitioner was directed to come back when he had the records. (Id., Doc. No. 49 at 78). Petitioner reappeared on October 20, 2010 with Lee and he again failed to produce the records. (Id., Doc. No. 49 at 79-80). The prosecutor told Petitioner at the second grand jury meeting that his appearance and production of evidence was not pursuant to the Proffer Agreement, it was pursuant to the subpoena, and there was no agreement at that time; Lee did not dispute this. (Id., Doc. No. 49 at 81). Petitioner was asked no questions in the grand jury on either September or October about the offenses and his involvement; only documents were discussed. (Id., Doc. No. 49 at 86-87).

         Additional investigation and interviews occurred in September, October, and November 2010. A number of witnesses testified in the grand jury regarding companies that appeared to be rehabilitation or repair companies that would receive a distribution at the settlement of home purchases. (Id., Doc. No. 49 at 82). These witnesses had not been interviewed prior to the grand jury on meeting on September 22, 2010. Investigators learned that Petitioner had approached these people to set up companies. (Id., Doc. No. 49 at 82). Independent of anything Petitioner told investigators, they got closing files to the transactions and found disbursement checks from the lawyers' trust account to the rehabilitation companies and cashed at a check casher and got a file of records regarding Petitioner. (Id., Doc. No. 49 at 83-84). Based on that and the other information, Rymill received in the investigation, he came before the grand jury on December 15, 2010 and presented a case for Petitioner's indictment. (Id., Doc. No. 49 at 85). In that presentation, Rymill did not make any reference to any statement made by Petitioner pursuant to the Proffer Agreement in May or July 2010, and Petitioner did not make any substantive statements to Rymill or the grand jury about the offenses at any time other than those two days. The information that Rymill presented to the grand jury came solely from his investigation, interviews of witnesses, and analysis of loan files and other records. (Id., Doc. No. 49 at 86-87).

         Mr. Rawls, Petitioner's counsel at the time he signed the Proffer Agreement, testified at the Motion to Dismiss hearing that Petitioner was made no promise about what an indictment would look like or the sentence he would receive for any offense he was prosecuted for, that they went over the agreement line by line, and that Petitioner was told the Government wanted truthful information. (Id., Doc. No. 49 at 96). It was understood that the agreement would extend to subsequent interviews Petitioner had with the Government so long as Petitioner complied with the agreement.

         After Petitioner was arrested on April 26, 2011, Agents discovered documents at a hotel where Petitioner had previously stayed and in the trunk of a repossessed car, which demonstrated that Petitioner had failed to provide information pursuant to the Proffer Agreement. (Id., Doc. No. 49 at 113, 132-33). On May 18, 2011, the grand jury met and issued a superseding indictment adding a count; no reference to any of Petititoner's proffered statements was made at that meeting. (Id., Doc. No. 49 at 147).

         The Court denied Petitioner's Motion to Dismiss because there was no evidence that the Government made anything other than derivative use of any of the statements Petitioner made, there was no evidence that the Government breached the Agreement in any way, and Petitioner breached the agreement by failing to tell the truth in the last interview, avoiding the Government, and failing to turn over documents he said he would provide. (Id., Doc. No. 49 at 314-15). The Court also denied Petitioner's Motion to Suppress the documents that Agents recovered from the hotel and repossessed car. (Id., Doc. No. 49 at 315-16)

         Petitioner filed a Supplemental Motion to Dismiss arguing that the Government committed anticipatory breach of the Proffer Agreement by presenting Miranda warnings to him at the second debriefing or, at least, created an ambiguity about the Government's intention to honor the proffer agreement, which excused any subsequent breach by Petitioner. (Id., Doc. No. 62). The Court held a second hearing and denied the Supplemental Motion to Dismiss. (Id., Doc. No. 120).

         The United States subsequently filed a Second Superseding Indictment that added two co-defendants and conspiracy counts. The counts pertaining to Petitioner were: Count (1), conspiracy to defraud the United States (bank fraud, wire fraud, and money laundering); Counts (2)-(14), bank fraud and aiding and abetting the same; Count (15), wire fraud and aiding and abetting the same; Counts (16)-(23), HUD fraud and aiding and abetting the same; Counts (24)-(34), concealment money laundering and aiding and abetting the same; Counts (35)-(45), money laundering and aiding and abetting the same; and Count (46), assaulting and causing bodily injury to a person assisting the United States. (Id., Doc. No. 76).

         Petitioner entered a conditional plea agreement in which he reserved appellate review of the Court's July 26, denial of his Supplemental Motion to Dismiss. (Id., Doc. No. 112); see (Id., Doc. No. 62). The Plea Agreement expressly waived Petitioner's right to appeal or collaterally attack the conviction on any grounds other than ineffective assistance of counsel or prosecutorial misconduct. He pled guilty to Counts (1), (2), (22), (33), and (46) on August 31, 2012, in exchange for the Government's dismissal of the remaining counts. (Id., Doc. No. 112 at 1). Petitioner acknowledged in the Plea Agreement that the statutory maximum and minimum sentences for each count. (Id., Doc. No. 112 at 2). The Plea Agreement states that Petitioner is aware that the Court will consider the United States Sentencing Guidelines in determining his sentence, the sentence has not yet been determined and any estimate of the likely sentence “is a prediction rather than a promise, ” the Court has final discretion to impose any sentence up to the statutory maximum for each count, the Court is not bound by any recommendations or agreements by the United States, and Petitioner may not withdraw his guilty pleas as a result of the sentence imposed. (Id., Doc. No. 112 at 2).

         The parties agreed to jointly recommend that the Court make several findings and conclusions with regards to the U.S. Sentencing Guidelines including the amount of the intended loss and that Petitioner inflicted bodily harm on three Charlotte-Mecklenburg Police Department officers during his arrest. However, the parties reserved their right to litigate the applicability of any U.S. Sentencing Guideline provisions that were not specifically reserved and to seek a departure or variance from the applicable advisory range, and the agreement acknowledges that the United States will inform the Court of all facts pertinent to the sentencing process. (Id., Doc. No. 112 at 2-3). Petitioner stipulated that there is a factual basis for the plea “as set forth in the Factual Resume filed with this plea agreement.” (Id., Doc. No. 112 at 5) (emphasis added). Petitioner acknowledged that his Factual Resume will be signed under oath and may not be contradicted after it is accepted by the Court. He also agreed that the Court may supplement Defendant's Factual Resume with the offense conduct set out in the Presentence Report.

         Petitioner expressly waived the right to be tried by a jury, to be assisted by an attorney at trial, to confront and cross-examine witnesses, and not to be compelled to incriminate himself. (Id., Doc. No. 112 at 6). Petitioner also expressly waived the rights to appeal and file a motion for post-conviction relief except with regards to the Court's adverse ruling on his Supplemental Motion to Dismiss, (Id., Doc. No. 62), and claims of ineffective assistance of counsel and prosecutorial misconduct. (Id., Doc. No. 112 at 6). The plea agreement contains a cooperation provision which will be within the Government's sole discretion. (Id., Doc. No. 112 at 7-8).

         The Plea Agreement's integration clause states:

There are no agreements, representations, or understandings between the parties in this case, other than those explicitly set forth in this Plea Agreement, or as noticed to the Court during the plea colloquy and contained in writing in a separate document signed by all parties.

(Id., Doc. No. 112 at 8) (emphasis added).

         Petitioner stated he understood that the only issue reserved for appellate review was whether the Government created an anticipatory breach by reading Petitioner his rights as set forth in the Supplemental Motion to Dismiss, (Id., Doc. No. 62). See (Id., Doc. No. 132 at 63-65). Petitioner acknowledged that he signed the Plea Agreement and Factual Resume, agreed to the facts set forth in the Factual Resume, and was knowingly and voluntarily entering a conditional guilty plea as set forth in those documents. (Id., Doc. No. 132 at 5-6, 81).

         The Factual Resume that accompanied the Plea Agreement is signed by Petitioner and defense counsel. (Id., Doc. No. 111). It states that the facts in it “are true and correct” and that “this Factual Resume may be used by the Court to determine whether to accept [Petitioner's] guilty pleas, by the United States Probation Officer drafting his Pre-Sentence Report and by the Court to determine[e] an appropriate sentence for the offenses to which he is pleading guilty.” (Id., Doc. No. 111 at 1).

         The Presentence Investigation Report (“PSR”) calculated the base offense level as 27 because the most serious offense is Bank fraud and HUD fraud, with base offense level of 7 and a 16-level enhancement for loss of more than $1 million but less than $2.5 million, a 2-level enhancement fore more than 10 victims, and a 2-level enhancement because Petitioner derived more than $1 million in gross receipts from one or more financial institutions, so the total offense level is 27. (Id., Doc. No. 214 at ¶ 70). Several enhancements were applied, including four levels for Petitioner's role as organizer of leader of a criminal activity involving five or more participants or was otherwise extensive (USSG § 3B1.1(a)). (Id., Doc. No. 214 at ¶ 74). Two levels were deducted for acceptance of responsibility and the total offense level was 37. (Id., Doc. No. 214 at ¶ 79, 81). Petitioner's criminal history score was five and his criminal history category was III. (Id., Doc. No. 214 at ¶ 99). The resulting guideline range was 262 to 327 months' imprisonment, at least one but not more than three years of supervised release, fines between $20, 000 and $1, 500, 000, and restitution. (Id., Doc. No. 214 at ¶¶ 136, 140, 146, 149).

         At sentencing, the Court eliminated a two-level enhancement for sophisticated means, (id., Doc. No. 214 ¶ 72), and the total offense level was therefore reduced to 35, (id., Doc. No. 242 at 1), and the guidelines imprisonment range became 210 to 262 months' imprisonment. (Id., Doc. No. 242 at 1). The Court varied two levels below the advisory guidelines pursuant to Petitioner's motion because “the 16 level increase for loss overstates the defendant's responsibility and gain in this matter” and the resulting level “produces a sentence that is sufficient but not greater than necessary to achieve the 3553 factors.” (Id., Doc. No. 242 at 3). In a Judgment docketed on September 3, 2014, the Court sentenced Petitioner to a total of 180 months' imprisonment consisting of 60 ...


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