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United States v. Anderson

August 10, 2005

UNITED STATES OF AMERICA,
v.
WALTER ANDERSON, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION AND ORDER

This matter is before the Court on defendant's second motion for reconsideration of the Court's March 16, 2005 Opinion and Order denying defendant's motion to impose conditions of release. For the reasons set forth below, the Court denies defendant's motion.

I. BACKGROUND

On March 16, 2005, the Court issued an Opinion and Order denying defendant Walter Anderson's Motion to Impose Conditions of Release. See Opinion and Order (March 16, 2005) ("March 16 Opinion"). Upon careful consideration of the indictment returned by the grand jury, the briefs and other papers submitted by the parties, bond proceedings before Magistrate Judge Kay, Judge Kay's findings of fact and conclusions of law, and the evidence and proffers before this Court, as well as the legal standards governing pretrial detention under the Bail Reform Act of 1984, 18 U.S.C. §§ 3141, et seq. ("BRA"), the Court found by a preponderance of the evidence that Mr. Anderson posed a serious risk of flight and that no condition or combination of conditions would reasonably assure his appearance as required for trial.

On March 21, 2005, defendant filed a motion for reconsideration proposing additional conditions of release, which the Court denied on April 1, 2005, primarily on the grounds that defendant's proposal did not constitute a comprehensive and workable plan for ensuring his appearance at trial. See Memorandum Opinion and Order (April 1, 2005).

On May 2, 2005, defendant filed a second motion for reconsideration, challenging the evidence previously put forth by the government and proposing an elaborate plan for confining Mr. Anderson to his home while awaiting trial. The motion was fully briefed and the parties presented evidence and oral argument on May 17 and 31, and June 1 and 3, 2005. The government presented the testimony of IRS Special Agent Matthew Kutz; Daniel Litt, Esq. of Dickstein Shapiro; John William Little, secretary of the Board of Directors of Mr. Anderson's condominium association; and Donald Howard Paul, internal affairs investigator at the Correctional Treatment Facility in Washington, D.C. Defendant called Sheldon Werb, a friend and business associate of Mr. Anderson; and Bart M. Schwartz, a partner in the firm of Nardello Schwartz, which had developed the plan for Mr. Anderson's home confinement.

On August 1, 2005, Chadbourne & Parke moved for leave to withdraw as Anderson's counsel on the basis that Anderson was unable to pay his legal bills. They represented that he also could no longer pay for the Nardello Schwartz release plan. At a status conference on August 8, 2005, Chadbourne & Parke further represented that they would soon file on Anderson's behalf a motion for the appointment of counsel under the Criminal Justice Act, 18 U.S.C. § 3006A.

II. DISCUSSION

Although defendant has succeeded in showing, through the testimony and other evidence presented in briefing and during the four-day hearing, that the government's factual assertions in prior proceedings in this case are in some respects not as well-substantiated as they had once appeared, the relevant facts remain substantially unchanged. The evidence now before the Court still shows that Mr. Anderson presents a substantial risk of flight and that none of the proposed conditions or combination of conditions would reasonably assure his appearance as required for trial.*fn1

The standards for pretrial confinement under the Bail Reform Act are set forth in greater detail in the the Court's March 16, 2005 Opinion and Order. See March 16 Opinion at 2-3. In brief, however, the BRA provides for pretrial detention if the government establishes by a preponderance of the evidence that the defendant is likely to flee before trial if released and that no condition or combination of conditions will reasonably assure the appearance of the defendant as required. See 18 U.S.C. § 3142(e); United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987) (citing United States v. Vortis, 785 F.2d 327, 328-29 (D.C. Cir.), cert. denied, 479 U.S. 841 (1986)). In making this decision, the Court is to consider the available information concerning (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or to the community that would be posed by the defendant's release. See 18 U.S.C. § 3142(g).

None of the evidence presented in connection with defendant's recent motion presents a different picture either of the nature and circumstances of the offense charged or of the weight of the evidence against Mr. Anderson. It is still the case that a grand jury returned an indictment charging Mr. Anderson with corruptly obstructing, impeding and impairing the due administration of the Internal Revenue Laws in violation of 26 U.S.C. § 7212(a), and with evasion of federal income taxes in violation of 26 U.S.C. § 7201, all in relation to Anderson's alleged execution of a sophisticated scheme to avoid payment of federal taxes on nearly half a billion dollars of investment income earned over a five-year period. These federal offenses carry a maximum combined penalty of 23 years. The indictment also charges Anderson with six D.C. Code counts of fraud in the first degree. Because these facts have not changed, and because the Court's denial of defendant's earlier motion for pretrial release was not predicated on a finding of dangerousness, the Court now considers only whether the newly introduced evidence so changes the Court's assessment of defendant's history and characteristics that reconsideration of the Court's finding that defendant poses a substantial risk of flight is warranted.

The evidence now before the Court still indicates that Mr. Anderson has the motive and inclination to flee the country if afforded the opportunity. Among the facts on which the Court relied in making a similar finding in its March 16, 2005 Opinion and Order was defendant's habitual use of multiple false identities. Although defendant argues that some of these aliases have been used solely to protect his privacy and have never appeared on any false identification ("Robert Zzylch," for example, appears to have been used only for the purpose of obtaining telephone service in Washington, D.C.), this simply is not the case with all of Mr. Anderson's aliases. See Transcript of Motions Hearing (May 31, 2005) ("May 31 Transcr.") at 32-35. The alias "William Prospero," for example, though used (according to the evidence available) only to obtain utility service for a property owned by Gold & Appel, nonetheless appeared with Anderson's photograph on a forged visa document. See id. at 35-38. Even assuming that the use of a false identity to obtain utility service for a corporate property is an "innocent" act not relevant to whether Anderson presents a flight risk, the Court nonetheless finds it unlikely that Anderson would go to the trouble of forging an international travel document for that purpose alone. It is more reasonable to infer that a potential intended use of this forged travel document is indeed travel.

The Court also found in its March 16 Opinion and Order that other materials seized by the government pursuant to search warrants executed on March 19, 2002 and November 7, 2003 indicate Anderson's strong interest in leaving the country and establishing an identity and a residence overseas. See March 16 Opinion at 8-11. Despite the defendant's attempts to "contextualize" some of these documents and to show that they reflect nothing more than a legitimate personal or professional interest in such matters, some of these materials cannot be explained away. For example, the Court is unable to conjure up an innocent use for the aforementioned identity document bearing Mr. Anderson's photograph and the name "William Prospero." See March 16 Opinion at 8-9; Gov't Ex. 8; Transcript of Motions Hearing (February 28, 2005) at 23-24. And defendant offers no explanation for the blank forms for the creation of a United Nations-issued "International Driving Permit" and "private investigator" identification cards, or for the blank "certificate of baptism" from the Military Ordinariate of the United States of America found in Mr. Anderson's residence. See Gov't Ex. 11, 12.

The books seized in the execution of search warrants on Mr. Anderson's premises also remain troubling. Defendant attempts to offer alternative explanations for Mr. Anderson's possession of some of these books, stating that Mr. Anderson is "understandably intrigu[ed]" by books about persons living underground and that he reads books on identity theft and "the games people play with foreign corporations" because he wants to protect himself from the activities of such persons. See Walter Anderson's Second Brief in Support of Reconsideration of His Motion to Impose Conditions of Release ("2d Mot. Reconsid.") at 21. That may be true with respect to some of these books. Such explanations ring hollow, however, with regard to the several books ordered by Mr. Anderson immediately after the execution of the first search warrant ("Stolen Lives," "The ID Forger," "Bulletproof Privacy," and "Who Are You?"), which appear more akin to instruction manuals than to the historical accounts of outlaws, Jewish families who avoided Nazi persecution during World War II, or ...


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