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U.S. v. ANDERSON

December 24, 2002

UNITED STATES OF AMERICA
V.
THOMAS ANDERSON



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 part.

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 his actions.

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 prejudicial.

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 ...


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