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U.S. v. ANDERSON
December 24, 2002
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Thomas Anderson pled guilty to one count of embezzlement, and was
sentenced to 41 months imprisonment and ordered to pay restitution. Mr.
Anderson appealed various aspects of his sentence, which was upheld. He
now brings a motion to vacate, set aside, or correct the sentence under
28 U.S.C. § 2255. I grant the motion in part, and deny the motion in
The facts of this case are more fully set out in United States v.
Anderson, 259 F.3d 853, 856-57 (7th Cir. 2001), but are essentially as
follows. As an assistant branch manager at TCF National Bank ("TCF") in
Hickory Hills, Illinois, Mr. Anderson embezzled $30,650 from the account
of TCF customer Lottie Wasserbauer. Mr. Anderson pled guilty to a charge
of embezzlement arising from this conduct. At the sentencing hearing, I
found that Mr. Anderson also made unauthorized withdrawals from the
account of another TCF customer ("Kern relevant conduct"), as well as two
additional withdrawals from the Wasserbauer account ("Wasserbauer
relevant conduct"). Some or all of these withdrawals were made with the
help of unwitting TCF employees, including one who was a minor at the
time. I also found that Mr. Anderson lied under oath at the sentencing
hearing and that he did not accept responsibility for his actions. As a
result of these findings, I sentenced Mr. Anderson to 41 months
imprisonment, four years of supervised release, and a $100 special
assessment. I also directed Mr. Anderson to pay $62,627.58 in restitution
for the Kern and Wasserbauer relevant conduct.*fn1 This sentence was
upheld by the Seventh Circuit. Id.
Mr. Anderson, acting pro se, now seeks relief under § 2255. His
brief is lengthy and overlapping, but I will try to address each of his
claims in the order in which he presents them. Essentially, he makes
three broad claims for relief: ineffective assistance of counsel at
sentencing, ineffective assistance of counsel on appeal, and a due
process argument that he was sentenced based on false and unreliable
information. Additionally, he asks me to reconsider my findings that he
lied under oath at the sentencing and failed to accept responsibility for
1. Ineffective Assistance of Counsel at Sentencing
In order to prevail on a claim of ineffective assistance of counsel,
Mr. Anderson must show that the performance of his attorney, Lawrence
Morrissey, was deficient, and that he was prejudiced by the deficient
performance. Kitchen v. United States, 227 F.3d 1014, 1019-20 (7th Cir.
2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Judicial
review of attorney performance is highly deferential, and there is a
strong presumption that the attorney's performance was reasonable.
Strickland, 466 U.S. at 689. Even if Mr. Morrissey's performance was
deficient, Mr. Anderson must show that there is a reasonable probability
that, but for the deficient performance, the result of the proceedings
would have been different. Id. at 694. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. Mr.
Anderson points to several instances of Mr. Morrissey's performance that
he argues are both deficient and prejudicial.
A. Failure to Submit Favorable Evidence
Mr. Anderson first argues that Mr. Morrissey's assistance was
ineffective because he failed to submit as evidence certain reports ("302
Statements") made by FBI agent Maureen Reddy following her interviews
with three TCF employees whom Mr. Anderson allegedly used to engage in
the Kern relevant conduct. Mr. Anderson argues that the 302 Statements
show that these employees were working as Sales and Service
Representatives ("SSRs" or "personal bankers"), not tellers. Mr. Anderson
argues that this distinction is relevant because, according to bank
policy, personal bankers are not permitted to perform cash withdrawals at
the direction of other bank employees unless the customer is physically
presented to the banker completing the transaction. Agent Reddy testified
at the sentencing hearing that several of the transactions in the Kern
relevant conduct involved Mr. Anderson presenting a withdrawal ticket to
an employee with access to a cash drawer who would withdraw money from
Ms. Kern's account and give the cash to Mr. Anderson, apparently assuming
that Ms. Kern was back in Mr. Anderson's office. (Tr. at 39.) Agent Reddy
referred to these employees as tellers, but even if they were actually
personal bankers as Mr. Anderson contends, the distinction is irrelevant
here. The fact that there was a policy in place prohibiting personal
bankers from performing cash withdrawals for other employees without
personally seeing the customer does not mean that the policy was strictly
adhered to and that it would have been impossible for Mr. Anderson to use
the employees in the manner presented by the United States. It is not
unreasonable to believe that the employees, even if personal bankers,
completed withdrawals for Mr. Anderson without personally seeing Ms. Kern
because they were under the mistaken impression that she was in Mr.
Anderson's office. The fact that Mr. Morrissey did not-submit as evidence
the 302 Statements from those employees does not undermine confidence in
the sentencing. Thus, even if Mr. Morrissey's performance was
constitutionally deficient in not submitting the statements — a
dubious proposition at best considering the strong presumption of
reasonable performance — the effect was not prejudicial.
B. Failure to Request or Obtain Favorable Evidence
Mr. Anderson also argues that the fact that he allegedly changed Ms.
Kern's address but not Ms. Wasserbauer's address is actually evidence
that he did not commit the Kern relevant conduct. Why, he asks, if he
were trying to hide his involvement in the Kern relevant conduct, would
he complete a change of address himself? He didn't in the case of Ms.
Wasserbauer, he argues. But my finding that he engaged in the Kern
relevant conduct had nothing to do with whether or not he ever changed
Ms. Wasserbauer's address information. Thus, any evidence that Mr.
Morrissey failed to obtain indicating that there was no address change
for Ms. Wasserbauer is not relevant, and the failure to obtain it was not
Finally, Mr. Anderson argues that bank records not obtained by Mr.
Morrissey would show that the bank had an ongoing internal theft problem
not attributable to Mr. Anderson. The fact that there may have been
others engaging in misconduct at TCF does not change the evidence that
supported my finding that Mr. Anderson engaged in the relevant conduct.
Thus, any failure to request and obtain evidence supporting this fact was
not prejudicial to Mr. Anderson.
C. Failure to Interview or Call Possible Defense Witnesses
Mr. Anderson next argues that Mr. Morrissey's assistance was
ineffective because he failed to call various defense witnesses.
Specifically, Mr. Anderson argues that Mr. Morrissey should have called
three TCF employees he allegedly used in the Kern relevant conduct to
testify. Mr. Anderson states that these employees would have testified as
to their status as personal bankers and the bank's policy regarding
transactions made for other employees. As discussed above, however,
whether these ...