DEFENDANT: Anderson Judgment - Page) o_o
CASE NUMBER: 99 cR 850-1

I IMPRISONMENT
The defendant!s heraby committed to the custody of the United States Bureau of Prisons tobe Imprisoned for

\ atotal term of _forty-one (41) months.

| G ‘The court makes the following recommendations to the Bureau of Prisons:

That the defendant be allowed to serve his sentence at Oxford, Wisconsin

(J The defendant is remanded to the custody of the United States Marshal.

oO The defendant shall surrender to the United States Marshal for this district
Oa a.m/p.m. on
(C] asnotified by the United States Marshal.

Ci The defendant shall surrender for Service of sentence at the institution designated by the Bureau of Prisons:

(BQ before 2p.m. on 20/2/2000
(J asnotified by the United States Marshal.
(CJ asnotied by the Probation or Pretrial Services Office.

RETURN
(have executed this judgment as follows:

to

Defendant delivered on
. with a cartified copy of this judgment.

at

UNITED STATES MARSHAL

By

Deputy U.S, Marshal



(citing Menza). Had this issue been brought to my attention before
or during the sentencing hearing, I would not have ordered
restitution for the Kern and Wasserbauer relevant conduct. I see
no tactical reason for failing to raise this issue, and
consequently, Mr. Morrissey’s failure to do so was both deficient
performance and prejudicial to Mr. Anderson. As a result, the

restitution order is vacated.

II. Ineffective Assistance of Counsel on Appeal

Mr. Anderson’s argument that he received ineffective
assistance of counsel on appeal is essentially a claim that Mr.
Morrissey failed to adequately communicate with Mr. Anderson and
that he failed to raise certain issues on appeal as requested by
Mr. Anderson. Mr. Anderson specifically points to Mr. Morrissey’s
failure to raise the issue of the Government’s reliance on false
and unreliable information and his failure to raise the restitution
issue. With respect to the former, as I explained in Part I.E
above, the failure to object at the sentencing hearing to the
Government’s use of allegedly false and unreliable testimony was
not prejudicial to Mr. Anderson. Failure to raise the issue before
the appellate court was likewise not prejudicial. With respect to
the restitution issue, Mr. Morrissey did raise the issue before the
appellate court, although it appears to have been limited to a

footnote calling the issue “a minor point” and “moot.” (Def.’s

13


Judgment - Page & ot _&

' )EFENDANT: , Anderson
1ASE NUMBER’ 99. CR 850

STATEMENT OF REASONS

34 The cout adopts the factual findings and guideline application in the presentence report.

OR
7 The court adopts the factual finding and guideline application In the presentence report except (see attachment,

if necessary):

Suldeline Range Determined by the Court:

Total Offense Level:_ 22000

Criminal History Category;

imprisonment Range:___41 to S1 months
Supervised Release Range:_3.
Fine Range: $7500
(Fine waived or below the guideline range because of Inability to pay.

Total Amount of Restitution: ¢ _©2 627.58

to $_75,000

(Restitution is not ordered because the complication and prolongation of the sentencing process resu
of a restitution aide ouwalgne the ned 1 wovide resthalon i oay victine, poser se

fashie
18U.S.C. § 3663(d).

o For offenses thatrequire the total amount of loss to be stated, pursuant to Chapters 109A, 110, 110A, and 113A of Titie
18, restitution Is not ordered because the economic circumstances of the defendant do not allow for the payment of

any amount of a restitution order, and do not allow for the payment of any or some; lon of a restitution order
foreseeable future under any reessonabte schedule of payments. Pont inthe

(C2 Pattal restitution is ordered for the fottowing reason(s):

QO ‘The sentence is within the guideline range, that range does not exceed 24 months, and the court finds no reason to depart
from the sentence called for by the application of the guidelines.
: OR
&) The sentence is within the guideline range, that range exceeds 24 months, and the sentence Is Imposed for the following
reasons: The court finds no reason to depart from the guideline range.

OR
QO The sentence departs from the guideline range:
(upon motion of the goverment, 8 a result of defendant's substantial assistance.

C2 forthe following specific reason(s):


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


BY ors yerey

DEFENDANT: Anderson Judgment - Page DAag_qe
CASE NUMBER: 99 CR 850

SUPERVISED RELEASE

Upon ratease from imprisonment, the defendant shall be on supervised release for a tem of four (4) years. _.
As special conditions, defendant shall (1) provide the re i
: with access to any requested financial informations and’ (2) he anes cer
_any financial penalty that is imposed by this judgment, and that remains
unpaid at the commencement of the terms of supervised release. The defendant
shall make restitution payments from any wages he May earn in prison in
accordance with the Bureau of Prisons Financial Responsibility Program.

The defendant shall report to the probation office in the district to which the defendant is released within 72 hours
of release from the custody of the Bureau of Prisons.
‘The defendant shall not commit another federal, state or local crime.
The defendant shall not itlegaltly possess a controlled substance,

| For offenses committed on or after September 13, 1994:
i The defendant shall refrain from any unlawful use of a controtled substance. The defendant shall submit to
one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as directed by
the probation officer. :
The above testing Condition is suspended based on the court's determination that the defendant

Cl Tiowrsx ot titre sussance abuse, (Checks i applicebie) Poses

&] The defendant shail not possess a firearm as defined in 18 U.S.C. § 921. (Check, if applicable.
ifthis judgment imposes 4 fine or a restitution obligation, it shall be a co. dition of supervised release that the

defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervised

release In accordance with the Schedule of Payments set forth In the Criminal Monetary Penalties sheet of this

Judgment. .

The defendant shall comply with the standard conditions that have been adopted by this coust (set forth below). The
defendant shall also comply with the additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

the defendant shalt not leave the judicial district without the pennission of the court or probation officer;
the defendant shall report to the probation officer and shall submit a truthful and complete written report within

sd the first five days of each month;

the defendant shall answer tuthfully all inquiries by the probation officer and follow the Instructions of the probation

officer,

the defendant shall support his. or har dependents and mest other family responsibilities;

the defendant shall work regularly at a lawful occupation unless excused by ths probation officer for schooling,

training, or other acceptable reasons:

6) the defendant shall notify the probation officer ten days prior to any change In residence or employment;

7) the defendant shall refrain from excessive use of alcohol;

8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or
administered;

9} the defendant shall not assoclate with any persons engaged In criminal activity, and shall-not associate with any
person convicted of a felony unless granted permission to do so by the probation officer,

10) the defendant shall permit a probation officer to visit him or har at any time at home or elsewhere and shall permit
confiscation of any contraband observed in plain view of the probation officer;

11) the defendant shall notify the probation officer within seventy-two hours of being arested or questioned by

@ law enforcement officer,

the defendant shait not enter into any agreement to act as an informer or a special agent of a law enforcement

agency without the permission of tha court; ’

as directed by the probation officer, the defendant shail notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history or characteristics, and shail permit the probation officer to make such

Notifications and to confinm the defendant's compliance with such notification requirement.

12)

13)


000 P
oO

Sy ew

DEFENDANT: Anderson Judgment - Page we
| CASE NUMBER?99 CR 850 —2—
SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1) assessment; (2) restitution; (3) fine principal; (4) cost of prosecution;

'5) interest; (6) penaities.
Payment of the total fine and other criminal monetary penalties shail be due as follows:

CG) intutt immediately, oF

Ds immediately, balance due (In accordance with C, O, or E); oF

not later than
ia} In installments to commence ____ days after the date of this judgment. inthe event the entire amount of criminal
aid prior to the commencement of supervision, the U.S. probation officer shall

monetary penatties Imposed Is not p.
pursue collection of the amount due, and shall request the court to establish a payment schedule if appropriate; or

> or

over a period of

(e.g., equal, weekly, monthly, quarterly) Installments of $
days after the date of this judgment.

e O
year(s) to commence
The National Fine Center wit! credit the defendant for all payments previously made toward any criminal monetary penalties -

imposed.
Special Instuctions regarding the paymert of criminal monetary penalties:

(The cotendant shalt pay the cost of prosecution.
QO ‘The defendant shail forfeit the defendant's interest in the following property to the United States:

Unless the court has expressly orderad otherwise in the special instructions above, If this judgment imposes a period of
payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary
Courts National Fine Center, Administrative Office of the United States

imprisonment

perity payments are to be made to the United States

Courts, Washington, DC_20544, except thase payments made through the Bureau of Prisons’ Inmate Financial Responsibility
Program. ifthe National Fine Center Is not operating in this district, all criminal monetary penalty payments are to be made as
directed by the court, the probation officer, or the United States attomey.


AO MSC (Rev. 3/01) Amended Judgment in a Criminal Case

+ Sheet 5 Criminal Monetary Penalties (NOTE: Identify Changes with Asterisks (+))

Judgment — Page — 2) of
<=

DEFENDANT: Anderson

CASE NUMBER:99 cR 850
CRIMINAL MONETARY PENALTIES

The defendant shail pay the following total criminal monetary penalties in accordance with the schedule of Payments set forth
on Sheet 5, Part B. .
Assessment Fine Re: tio:
TOTALS g150.00 $ 5 Vacated
$100.00

© The determination of restitution is deferred until

. An Amended Judgment in a Criminal Case (AQ 245C) will be
entered after such determination. :

(1 The defendant shall make restitution (including commaunity restitution) to the following payces in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximatel: tioned payment, unless specified otherwise i
jority order or percentage payment column below. However, pursuant to 18°U.S.C. § 3664(i), ict erwise in
sae Por fo the Umied Stateereceiving payment, Sr Pus § 3664(1), all nonfederal victims must be paid
Prio Ord
“Total Amount of or Perveutose
Name of Payee Amount of Loss Restitution Ordered of Payment

TOTALS

© ‘[f applicable, restitution amount ordered pursuant to plea agreement $

The defendant shall pay interest on any fine or restitution of more than $2,500, unless the fine or restitution is paid in full

a

. before the fifteenth day after the date of the judgment, pursuant to [8 U.S.C. § 3612(f). All of the Payment options on Sheet 5,
Part B may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

= The court determined that the defendant does not have the ability to pay interest, and it is ordered that:

© the interest requirement is waived forthe (fine CO srestitution.

01 the interest requirement forthe  fineand/or () restitution is modified as follows:

* Findings for the total amount of losses are required uncer Chapters 109A, 110, 110A, and 113A of Title 18, United State
commited on or afer September 13, 1994 bul before April 25,1996. nies Code, Tor offenses

enennneneeee _..



both I and the appellate court relied on the fact that Ms. Shehadi
and Ms. Mullen could not have completed $1,000 withdrawals without
a supervisor’s authorization. Mr. Anderson claims that this is not
true, and that tellers can perform $1,000 withdrawals on their own.
Even if Mr. Anderson is correct,? there was much additional
evidence supporting the finding that Mr. Anderson ordered these two
withdrawals. As the appellate court noted, these withdrawals were
made by tellers supervised by Mr. Anderson on days in which he was
working at the bank, both Ms. Mullen and Ms. Shehadi indicated that
they often made similar withdrawals for Mr. Anderson, Ms. Shehadi
testified that she did not take money for herself from the
Wasserbauer account, and Mr. Anderson admitted to personally making
unauthorized withdrawals from the same account during that time
period. Anderson, 259 F.3d at 860. Thus, even if Mr. Morrissey
could have shown that tellers could perform $1,000 transactions
without supervisor authorization, his failure to do so was not
prejudicial.

Mr. Anderson also argues that various statements made by Agent
Reddy in her testimony were false and unreliable. Mr. Anderson’s

unsupported allegations, however, do not undermine confidence in

2 The only evidence Mr. Anderson cites for his claim that
tellers can perform $1,000 withdrawals on their own is testimony of
Ms. Shehadi when she agreed with the prosecution when asked “[I]s
it correct that tellers are only authorized to make withdrawals of
$1,000 or less without a supervisor’s signature?” (Tr. at 80-81.)
This testimony came during questioning about withdrawals from the
Kern account in the amounts of $1,500, $3,000, and $4,500. Id.

9


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


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 next argues that Mr. Morrissey’s performance was
deficient because he failed to request or obtain corroborative and
exculpatory bank records. First, he claims that certain bank
records would indicate the capacity in which the employees he
allegedly used in the Kern relevant conduct were working. But as
discussed above, the SSR/teller distinction is irrelevant here.
Second, he argues that bank records would show that he did not
change Ms. Wasserbauer’s address information. This is relevant, he
claims, because I found that Mr. Anderson had changed the address
information of Ms. Kern. Because he allegedly changed Ms. Kern’s
address, but did not change Ms. Wasserbauer’s, Mr. Anderson argues
that the Kern relevant conduct was not the “same course of conduct”
as the charged Wasserbauer embezzlement. Whether the Kern conduct
was performed in the exact same way as the charged Wasserbauer
conduct is irrelevant, however. I found--and the appellate court
affirmed--that Mr. Anderson engaged in the Kern relevant conduct.
The guidelines allow me to consider as relevant any conduct “that
occurred during the commission of the offense of conviction.” USSG
§1B1.3. The guidelines do not require the relevant conduct to be
the “same course of conduct.”

Mr. Anderson also argues that the fact that he allegedly


" UNITED STATES DisTRICr COURT

an Northern Illinois
District of:
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE
Vv. (For Offenses Committed On or After Novernber 1, 1987)

ye . Case Number: 99 CR 850
Thomas Anderson

Lawrence E. Morrissey
Defendant's Attomey

THE DEFENDANT:
(4 pleaded guitty to count’s)__On€ q)

contendere to
Cl gence crarerne sa

Q Le reat not gait. )

: Date Offense Count
| Title & Section - Nature of Offense Concluded

| 183656 Theft/embezzlement/misapplication
by bank officer or employee. May 20, 1999 one

The fondant ie srtonced sx provid in pages 2trougn _@ _ of this judgment. The sentence is imposed
pursuart to the Sentencing Reform Act of 1384.

(CD The defendant has been found not guilty on count(s)
(CD counts) {Is)(are) dismissed on the motion of the United States,

IV 18 FURTHER ORDERED that the defendant shall notify the United States Attomey for this district within 30 days of
change ofname, residence, or mailing address until all fines, restitution, costs, and special assessments Imposed by this

Judgment are fully pald.

322-78-1570 + 2, 2000
Defendant's Soc. Sec. No.. palngus: re
Defendant's Date of Bit: 4/15/1971 Le.

12115-424 ‘a
Defendant's USI No.: z
Defendant's Reskdence Address: Signature of Judicial Officer
216 Clinton Ave.
Oak Park, Il. 60302 Elaine E. Bucklo/ Judge
Name and Tite of Judicial Officer
e xa ro)

Defendant's Malling Addresa:
Same _as above Date



ineffective because he failed to interview and impeach the
testimony of Agent Reddy and Ms. Shehadi. The only testimony of
Agent Reddy that Mr. Anderson argues should have been contested by
Mr. Morrissey involves the irrelevant SSR/teller distinction. Mr.
Morrisey’s failure to pursue this line of questioning with Agent
Reddy was not prejudicial. Mr. Anderson also argues that Mr.
Morrissey should have contested Ms. Shehadi’s testimony regarding
her ability to access CD accounts. As noted above, however, Ms.
Shehadi simply testified that she herself needed a supervisor’s
code. Attempting to impeach her on this point would have been of
extremely limited value. Mr. Anderson also notes that Mr.
Morrissey should have impeached Ms. Shehadi’s testimony as biased
because she indicated in her 302 Statement that she disliked Mr.
Anderson. Failure to impeach Ms. Shehadi’s testimony on this
basis, however, hardly undermines confidence in the sentencing, and
Mr. Morrissey’s performance here was thus not prejudicial.

E. Failure to Object to False and Unreliable Information

Mr. Anderson next argues that Mr. Morrissey’s assistance was
ineffective because he failed to object to the Government’s use of
false and unreliable information regarding the Wasserbauer relevant
conduct. The Wasserbauer relevant conduct involved two $1,000
withdrawals from the Wasserbauer account performed by Ms. Shehadi
and another teller, Laurie Mullen. Mr. Anderson argues that in

finding that he had engaged in the Wasserbauer relevant conduct,


te Order Form (06/97)

United States District Court, Northern District of Illinois

toe
air Magistrate Judge Elaine E. Bucklo “Than Asigted Judge
CASE NUMBER 02 C 1667 DATE 12/23/2002
CASE U.S.A. vs. Anderson
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)
DOCKET ENTRY:
qd) im] Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
G) Oo Answer brief to motion due___. Reply to answer briefdue____.
(4) D Ruling/Hearingon__setfor__—_—at
(5) QO Status hearing[held/continued to} [set for/re-set for]on__—s set ffor__—_att
(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on__—_ssetfor__—at__.
(o) Oo Trial[set for/re-set for]on___—_at
(8) Qo [Bench/Jury trial] [Hearing] held/continuedto__—__—at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClLocal Rule 41.1 CFRCP41(a\1) CI FRCP41(a)(2).

ao [Other docket entry] _ Enter Memorandum Opinion and Order granting in part and denying in part
Mr. Anderson’s motion to vacate, set aside, or correct the sentence under 28 U.S.C. section 2255. Mr.
Anderson’s request for relief is granted with respect to the restitution order, which is hereby vacated, and
denied with respect to all other aspects of his sentence, Enter Amended Judgment in A Criminal Case.

a1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2
No notices required. umber of novices
| Notices mailed by judge's staff. 4
Notified counsel by telephone. 0 PA ced
Docketing to mail notices.
f
~ | Mail AO 450 form. ‘sled reting Sty
: Lunada Lar dof keting deputy initials
Copy to judge/magistrate judge. yey | ae
courtroom 82 :S Hd €S Js ypepsmemsiatonee
MPI deputy’s Mei
initials T
Datetime reckida ih) J- U3 113 ; :
central Clerk's Office mailing deputy initials



believed it had “only hit the tip of the iceberg.” (Tr. at 113-
14). Mr. Anderson’s sentence was based on evidence presented at
the sentencing hearing, not argument by the prosecution that he may
have engaged in other, undiscovered illegal activity. Even if Mr.
Morrissey had objected to these statements at the sentencing
hearing, the outcome would have been the same. His failure to do
so was not prejudicial.
H. Failure to Advise Mr. Anderson Against Testifying

Mr. Anderson next argues that Mr. Morrissey’s counsel was
ineffective because Mr. Morrissey failed to advise Mr. Anderson
against testifying. Mr. Anderson was proceeding under a theory of
actual innocence as to the relevant conduct accusations. (Tr. at
82) (Mr. Morrissey: “My client wishes to testify, Judge. He didn’t
take this money and wants the Court to know that.”) Given the
strong presumption that an attorney’s performance was reasonable,
I cannot say that a tactical decision by Mr. Morrissey not to
advise his client against testifying as to his side of the story
and alternative theories of the transactions would constitute
deficient performance. Mr. Anderson is correct in noting that his
testimony was the basis for the obstruction of justice and failure
to accept responsibility adjustments. He lied under oath, That
Mr. Anderson chose to lie on the stand, however, and subject
himself to these additional penalties does not make Mr. Morrissey’s

alleged failure to advise Mr. Anderson against testifying, if that

11


|
|

the sentencing, and Mr. Morrissey’s failure to object to these
statements was not prejudicial.

F. Failure to Object to Wasserbauer Relevant Conduct for

Insufficient Evidence

Mr. Anderson next argues that Mr. Morrissey should have
objected to the finding that Mr. Anderson engaged in the
Wasserbauer relevant conduct because there was insufficient
evidence to support this allegation. As discussed above, however,
even assuming that Mr. Anderson is correct that tellers could
perform $1,000 withdrawals without supervisor approval, there was
sufficient evidence to support the finding that Mr. Anderson was
responsible for the two additional unauthorized withdrawals from
the Wasserbauer account. Mr. Morrissey’s failure to raise an
insufficiency of the evidence argument was not prejudicial.

G. Failure to Object to Prosecution’s Improper Statements

Mr. Anderson next argues that Mr. Morrissey’s assistance was
ineffective because he failed to object to improper statements made
by the prosecution. He claims that the prosecution referred to
crimes not presented or even in existence in an effort to portray
Mr. Anderson as a serial embezzler. Specifically, Mr. Anderson
argues that Mr. Morrissey should have objected to prosecution
statements that the Government believed there were other victims,
that the bank was looking into other apparent instances of Mr.

Anderson changing customer addresses, and that the Government

10


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 employees were acting as
personal bankers or tellers is irrelevant, and the failure to call
them as witnesses was not prejudicial.

Mr. Anderson also argues that Mr. Morrissey should have called
TCF manager Ryan Connelly to testify about bank procedures. Mr.
Anderson claims that Mr. Connelly’s testimony would have
contradicted the testimony of Alia Shehadi, a teller allegedly used
in the Kern relevant conduct. Ms. Shehadi testified that she
needed a code from her supervisors to access certificate of deposit
{“CD”) accounts, the type of accounts involved in the Kern relevant
conduct. Mr. Anderson states that Mr. Connelly would have
testified that there is a way for tellers to access CD accounts
without a code. Whether or not tellers need a code, Ms. Shehadi
testified that she had only been working at the bank four or five
months and that she did not know how to access CD accounts without
a supervisor’s code. (Tr. at 71.) Thus, Mr. Connelly’s testimony
would have done little to contradict Ms. Shehadi’s testimony, and
Mr. Morrissey’s failure to call Mr. Connelly as a witness was not
prejudicial to Mr. Anderson.

D. Failure to Interview and Impeach Government Witnesses

Mr. Anderson next argues that Mr. Morrissey’s assistance was


i SS ——

DEFENDANT: Anderson
CASE NUMBER+99 CR 850-1

Judgment - Page fet a a

, CRIMINAL MONETARY PENALTIES
t ‘The defendant shall pay the following total criminal monetary penalties In accordance with the schedule of payments
set forth on Sheet 5, Part B. :
Assessment Fine Restitution
: s 100.00 $s $62,627.58
$62,727.58
Any interest is waived.

(CD trapplicante, restitution amount ordered pursuant to plea agreement .........

FINE

‘The above fine includes costs of incarceration and/or supervision in the amount of $
The defendant shall pay interest on any fine more than $2,500, unless the fine is paid in full before the fifteenth day
to 18 U.S.C, § 3612(f. All of the payment options on Sheet 5, Part B may be subject

after the date of judgment,
to penaities for default and delinquency pursuant to 18 U.S.C. § 3612(g).

| (me cout has determined that the defendant does not have the ability to pay interest and fis ordered that:

(The interest requirement !s walved.
(C1 The interest requirement Is modified as follows:

RESTITUTION
0 ‘The determination of restitution Is deferred in a case brought under Chapters 109A, 110, 110A, and 113A of Title 18
for offenses committed on or after 09/13/1994, untit . An Amended Judgment in a Criminal Case
will be entered after such a determination.

A The defendant shall make restitution to the following payees in the amounts listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportional payment unless
specified otherwise in the priority order or percentage payment column below.

Priority Order
or
* Total Amount of Percentage of
Name of Payee , Restitution Ordered = Payment
TCF Bank

880 Burr Ridge Parkway"
Burr Ridge, Il. 60521
Attn: Marcy Anderson 62,627.58

Totals: $ $62,627.58

* Findings for the total amount of losses ere required under Chaptere 109A, 110, 110A, and 113A of Title 18 for offenses
committed on of after September 13, 1994.

SE ES
a EEN EEeEEE———


on
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. Jd. 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 falied 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


Reply Ex. K.) Whether raising the issue in this manner is
sufficient to constitute reasonable performance by Mr. Morrissey is
immaterial, as I have already found his performance on this issue

at sentencing deficient and vacated the restitution order.

III. Sentenced Based on False and Unreliable Information

Mr. Anderson argues that he is entitled to relief because he
was sentenced on the basis of inaccurate information. His argument
here simply rehashes arguments made in claiming ineffective
assistance of counsel. Specifically, Mr. Anderson argues that his
sentence was based on a misunderstanding of the SSR/teller
distinction and false information about whether Ms. Shehadi and Ms.
Mullen needed supervisor authority to make the withdrawals in the
Wasserbauer relevant conduct. As discussed above, these issues
were irrelevant to my finding that Mr. Anderson had engaged in the
relevant conduct. Mr. Anderson thus presents no evidence that his

sentence was based on false and unreliable information.

IV. Obstruction of Justice and Failure to Accept Responsibility

Finally, Mr. Anderson urges me to reconsider my findings at
the sentencing hearing that he lied under oath and that he failed
to accept responsibility for his actions. Mr. Anderson claims that
based on the evidence and arguments presented in his brief, these

findings no longer apply. Given that the only argument of Mr.

14


1245C (Rev.7/01) Sheet t—Amended Judgment in a Criminal Case NOTE: Identify Changes with Asterisks (*)

Loo, UNITED STATES DISTRICT COURT
‘ Northern Districtof Illinois
UNITED STATES OF AMERICA AMENDED JUDGMENT IN A CRIMINAL CASE
Vv. (For Offenses Committed On or After November 1, 1987)
vhonas Anderson Case Number: 99 CR 850
Date of Original Judgment: 8/2/2000 Lawrence E. Morrissey
(Or Date of Last Amended Judgment) Defendant's Atiomey

Reason for Amendment:

C Correction of Sentence on Remand (Fed. R. Crim. P. 35(a)) 1) Modification of Supervision Conditions (18 U.S.C. §§ 3563(c) of 3583(e))
C7 Reduction of Sentence for Changed Circumstances (Fed, R. Crim. C1] Modification of Imposed Term of Inprisonment for Extraordinary and
P.35()) Compelling Reasons (18 U.S.C. § 3582(cX1))
{1 Conrection of Sentence by Sentencing Court (Fed. R. Crim. P. C1 Modification of imposed Term of Imprisonment for Retroactive Amendment(s)
C Correction of Sentence for Clerical Mistake (Fed. R. Crim P. 36) ta the Sentencing Guidelines (18 U.S.C. § 3582(cX2))
Direct Motion to District Court Pursuant to (J 28 U.S.C. § 2255 or

C] 18 U.S.C. § 3559(¢x7)
C1 Modification of Restitution Order (18 U.S.C. § 3664)

ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):

THE DEFENDANT:
£2) pleaded guilty to count(s) one (1)

pleaded nolo contendere to count(s)

which was accepted by the court,
(0 was found guilty on count(s)
after a plea of not guilty. ”
: D:
Title & Section Nature of Offense Cor cluded. Nom penis)
192656 Theft/embezzlement/misapplication
. by bank officer or employee 5/20/1999 one

The defendant is seutenced as provided in pages“ Gne- and.two of this judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984. Other than the amendments or modifications stated in this judgment, the judgment

entered 8/2/2000 is to stand (see attachment).
{) The defendant has been found not guilty on count(s)
1 Count(s) 0 is Dare dismissed on the motion of the United States,

IT IS ORDERED that the defendant shall notify the United States Attomey for this district withi
¢ of name, residence, or mailing address until all fines, restitution, costs, and special sessment posed Syne ey went are fully paid.
‘economic

cl
if fered to pay restitution, the defendant shall notify the court and United States attomey of any mat change in the defendant's
Defendant's Soc. Sec. 322-78-1570 12/23/02
Date of Imposition of Judy
Defendant's Date of Binh: 4/15/1971 Seiimpositon Of dgment
Defendant's USM No: _42115-424 cz
Signature of Judicial Officer

Defendant's Residence Address;
216 Clinton Ave.

Jak Park, Il. 60302

Elaine E. Bucklo/ Judge
Name and Title of Judicial Officer

f2-as- OX
Date

‘efendant’s Mailing Address:
jame as above



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.' 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.

I. 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

1 The original $30,650 that had been removed from the
Wasserbauer account had already been repaid. (Tr. at 6-7.)

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA

No. 02 C 1667

DOCKETED

DEC 2 4 2002

)
)
v. )
)
THOMAS ANDERSON )

)

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


was indeed the case, unreasonable.
I. Failure to Object to Restitution Order

Mr. Anderson next argues that Mr. Morrissey’s assistance was
ineffective because he failed to object to the restitution order
that Mr. Anderson now argues was improper. Mr. Anderson claims
that restitution for the Kern relevant conduct and the Wasserbauer
relevant conduct was not authorized by 18 U.S.C. § 3663 and that
ordering such restitution was contrary to the Supreme Court’s
decision in Hughey v. United States, 495 U.S. 411 (1990), holding
that restitution may not be ordered for anything other than the
offense of conviction. See also United States v. Menza, 137 F.3d
533, 537 (7th Cir. 1998) (citing Hughey). Here, Mr. Anderson’s
offense of conviction was embezzlement. This offense was based on
nine unauthorized withdrawals from Ms. Wasserbauer’s account. The
two additional unauthorized withdrawals from her account and the
unauthorized withdrawals from Ms. Kern’s account for which Mr.
Anderson was ordered to pay restitution were not part of the
offense of conviction. Mr. Anderson is thus correct in arguing
that restitution was not warranted here. See United States v.
Scott, 250 F.3d 550, 553 (7th Cir. 2001) (“Although [the conduct
for which the district court ordered restitution] was surely
‘relevant conduct,’ it was not ‘charged conduct,’ so without
covering the topic in a plea agreement (recall, [defendant] pled

guilty without an agreement), restitution ... cannot be awarded.”)

12


\
|
|

Anderson’s that had any success here involved the restitution
order, which had nothing to do with my findings that Mr. Anderson
lied under oath and failed to accept responsibility, there is no
reason to reconsider those findings, which were upheld by the

appellate court. See Anderson, 259 F.3d at 860-62.

V. Conclusion

Excepting the failure to raise the issue of the restitution
order, Mr. Anderson received effective assistance of counsel, both
at sentencing and on appeal. Additionally, he was not sentenced
based on false and unreliable information, and there is no reason
to reconsider my findings on obstruction of justice and failure to
accept responsibility. Mr. Anderson’s request for relief is
therefore GRANTED with respect to the restitution order, which is

hereby VacateD, and DENIED with respect to all other aspects of his

sentence.
ENTER ER:
Elaine E. Bucklo
United States District Judge
Dated: December a3 1 2002

15