United States District Court, W.D. North Carolina, Charlotte Division
GREGORY D. ANDERSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Cogbum Jr. United States District Judge
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).
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).
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.
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.
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).
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).
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).
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).
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
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 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
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).
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).
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).
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).
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.
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).
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)
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).
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.
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).
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.
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).
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).
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).
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).
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).
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 ...