Richard Wilson Sentencing Transcript

Vernon & Associates Court Reporters, LLC3641 N. Pearl, Unit D, Tacoma, WA 98407 (253) 627-2062

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UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA ))No. CR09-232 RAJ

Plaintiff, ))

v. )Seattle, Washington)

RICHARD WILSON, )June 11, 2010)10:45 a.m.

Defendant. )______________________________)EXCERPT OF VERBATIM REPORTED PROCEEDINGS FOR: FELONY SENTENCING

BEFORE THE HONORABLE RICHARD A. JONES

UNITED STATES DISTRICT COURT JUDGE

APPEARANCES:

For the Plaintiff: ANDREW FRIEDMAN, ESQ.Assistant U.S. Attorney700 Stewart Street, Suite 5220Seattle, Washington 98101

For the Defendant: PETER OFFENBECHER, ESQ.Skellenger Bender PS1301 5th Avenue, Suite 3401Seattle, Washington [email protected]

Court Reporter: DONNA HUNTER, CCR, RPRVernon & Associates Court Reporters3641 N. Pearl, Unit DTacoma, Washington 98402

Case 2:09-cr-00232-RAJ Document 162 Filed 09/16/10 of 42

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(Defendant present.)

THE CLERK: Please rise. United States District Court

for the Western District of Washington is now in session, the

Honorable Richard A. Jones presiding.

THE COURT: Good morning. Please be seated.

THE CLERK: We are here for sentencing in the matter

of United States v. Richard Wilson, Cause No. CR09-232 assigned

to this Court. Counsel, please rise and make your appearances,

and also the probation officer.

MR. FRIEDMAN: Good morning, Your Honor, Andrew

Friedman for the United States.

THE COURT: Good morning.

MR. OFFENBECHER: Peter Offenbecher appearing with Mr.

Wilson who is present in court out of custody. Good morning,

Your Honor.

THE COURT: Morning, both of you.

MS. BOLLE: Morning, Your Honor, Lorraine Bolle for

the United States Probation Office.

THE COURT: Good morning. As indicated we are here

for the sentencing of the Defendant. For purposes of sentencing

it is my practice to always identify the documents that have

been submitted for my consideration and that I have reviewed and

they include the following: The presentence report prepared by

Probation Officer Lorraine Bolle with attachments; the

government's sentencing memorandum and motion to order to seal


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the sentencing memorandum which the Court has signed and

provided to the in-court deputy for filing; the Defendant's

sentencing memorandum with exhibits and motion in order to seal

the Defendant's sentencing memorandum, which order the Court has

signed and is submitting for the in-court deputy for filing.

I have also reviewed the United States Pretrial Services

release status report and the sealed plea agreement. Counsel

for the government, are you aware of any additional documents

submitted for my consideration that I did not state for the

record?

MR. FRIEDMAN: No Your Honor.

THE COURT: Counsel for the defense, same question for

you.

MR. OFFENBECHER: I just want to make sure that the

Court has received a -- an amendment to the probation report.

There was a one-page insert.

THE COURT: Yes.

MR. OFFENBECHER: Other than that, no, nothing.

THE COURT: Okay. And, Mr. Offenbecher, I am assuming

also that you've had the opportunity to review the presentence

report with your client?

MR. OFFENBECHER: Yes, Your Honor.

THE COURT: Counsel, there are a few objections that

you had. First of all, I note that you had clarifications. I

don't treat the clarifications as something that requires Court


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resolution or Court intervention; is that correct?


THE COURT: Now the next, Counsel, you had a few

objections which the Court wishes to address. The first

objection dealt with the drug quantity and the calculation of

the drug quantity. First of all, I'll let you know that I am

inclined to grant your objection in light of the fact that it

does not appear to be fair to sentence some defendants under

mixture and some defendants under pure quantities of drugs, and

I'll certainly give the government the opportunity to make

objection against that, but I believe it's appropriate to treat

all defendants similarly situated the exact same way and not

give benefit to those that have the benefit of pleading guilty

and being sentenced before the laboratory reports come out. So

just on that objection, Counsel for the government, do you wish

to weigh in at all?

MR. FRIEDMAN: Your Honor, I would just ask to

preserve my objection for the record. I guess I would say that

I think it is appropriate to sentence based on the record as it

exists. I have no further argument to offer.

THE COURT: Your objection is noted. Next, Counsel,

is Mr. Offenbecher's objection regarding role in the offense.

Counsel for the defense, I will give you the opportunity to take

further argument if you wish. Mr. Offenbecher.

MR. OFFENBECHER: Your Honor, I am not sure that I


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need to argue to the Court. I think the Court probably has in

mind the facts in the case, and during the course of our arguing

the case to the Court since it is a proposed 11(c)(1)(C)

agreement with the three to five year range, I would like to

address the Court on Mr. Wilson's role in the offense as

compared to the others. And we were simply suggesting that in

calculating the guideline range, that weighing one factor that

it ought to be as Mr. Friedman's suggested a two level downward

adjustment. I simply suggested a four level downward

adjustment. If the Court, and for the reasons I've stated, and

I don't think I have any further argument, if the Court accepts

that, the 11(c)(1)(C) agreement, the range will be below the

guideline range in any case, so I think the -- the argument that

I make here is sufficient.

THE COURT: Okay. Any supplementation that you wish

to make, Counsel for the government, on that issue?

MR. FRIEDMAN: No, Your Honor. The government agrees

with the Probation Office. The facts here in the record negate

minor but not minimal adjustment.

THE COURT: Mr. Offenbecher, with that specific

objection which the Court is going to rule on in my overall

calculations, do you have any other objections that require

Court intervention or resolution?

MR. OFFENBECHER: No, Your Honor.

THE COURT: Counsel for the government, I assume that


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you have no other objections to the presentence report that

require Court intervention; is that a correct statement?

MR. FRIEDMAN: That is correct, Your Honor.

THE COURT: All right. Then I will announce my

conclusion as to the appropriate offense level and criminal

history category. We begin with the Court noting first of all

that I have used the November 2009 edition of the Sentencing

Guidelines for these calculations. The Defendant has entered a

plea of guilty to Count 1, conspiracy to export firearms without

a license and Count 2, distribution of cocaine. The guideline

for a violation of Title 18, United States Code, Section 371 is

found at guideline section 2X1.1. The base offense for Count 1

is level 26. There are no other adjustments appropriate for

offense characteristics, victim related adjustments, role in the

offense or for obstruction of justice as it relates to that

particular count, therefore, the adjusted offense level remains

a 26.

Now as it relates to the calculation for the second count,

which is distribution of cocaine, the Court has already noted

for the parties that I will sentence the Defendant under the

calculation, and that is the calculation that is provided in the

response to the objections, and the parties look at page three

of the response to the objections attached to the presentence

report, the Court believes that is an accurate statement with

the Court treating the drug amount as a mixture to make sure


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there is consistency in sentencing for all defendants. In that

regard with that conversion, the base offense level should be

34. The Defendant in this regard the Court will find him to be

a minor participant, and under 3B1.2(b), the base offense level

is reduced by three levels in the Court's sentencing guideline

2D1.1A5. In this regard it goes from a 34 to a 31.

Under specific offense characteristics, the Court finds

that the Defendant did appear with, at least on May 9th, the

Defendant showed an undercover officer several weapons and body

armor he had in his possession, additionally provided security

to law enforcement officers during a cocaine transaction on the

date, same date. On June 10th the Defendant was arrested in

possession of a loaded .38 special pistol and a loaded .357

revolver when he provided security for an undercover officer

during a cocaine and methamphetamine transaction. And the Court

believes under these total circumstances a two level adjustment

upwards for possession of a firearm pursuant to guideline

section 2D.1.1(b)1 is appropriate.

The Court also believes that the adjustment for role in the

offense should be at a level -- two level reduction. The Court

finds that the Defendant was an enforcer to drug transactions

and he was armed with a firearm. The Court finds that under

these circumstances his conduct does not warrant this being

treated as a minimal participant but does find that it

constitutes a minor adjustment, therefore, a two level


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adjustment downwards is appropriate. The adjusted offense level

is therefore 31, no adjustments for obstruction of justice. The

multiple count adjustment under guideline section 3D1.4 is

appropriate. Combine the two offense, the Court believes there

is an increase in the offense level of one. This leaves us with

a combined adjusted offense level of 32. The Defendant has

timely entered a plea of guilty which has given the government

the opportunity to more efficiently and effectively utilize its

resources. The Court is also satisfied based upon the level of

cooperation provided by the Defendant and the statement to this

Court that it warrants a three level reduction for acceptance of

responsibility. This leaves us with an offense level subtotal

of 29. Without Chapter 4 enhancements the offense level remains

at 29. The Defendant has a criminal history category of one,

which leaves this Court with a range of imprisonment of 87 to

108 months. Counsel for the government, how do you wish to

respond to the calculations made by the Court?

MR. FRIEDMAN: The government agrees with those

calculations, Your Honor.

THE COURT: Counsel, I also need to note that in

addition to that, the supervised release range is three years,

probation range not eligible and the fine range is 15,000 to $1

million. Any objection to that additional calculation, Counsel

for the government?

MR. FRIEDMAN: I'm sorry, you said the supervised


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release range is?

THE COURT: Three years.

MR. FRIEDMAN: No objection, Your Honor.

THE COURT: Counsel for the defense, how do you wish

to respond to the calculations made by Court subject to the

objection that you made?

MR. OFFENBECHER: Subject to the objections, those are

seem accurate, Your Honor.

THE COURT: Then in that regard, Counsel for the

government, your sentencing recommendation.

MR. FRIEDMAN: Your Honor, the government is

recommending a sentence of 48 months imprisonment in this case.

There is really -- I'd largely like to rely on the sentencing

memorandum that I filed. There are really two factors that I

would like to address. First I think, and I think the defense

is going to argue, and the defense sentencing memorandum

certainly argues, there is a question of what the Defendant's

role was and the conduct for which he is being sentenced. And I

think Mr. Offenbecher will make arguments that the Defendant was

kind of led into a lot of the conduct for which he is being

sentenced here and the conduct that drives this guideline range

by an undercover officer. And I wanted to make clear that when

we look at the offenses for which the Defendant is being

sentenced, he did play a very active role in those offenses.

First as regards to Count 1, which is the conspiracy to


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smuggle firearms to Mexico without a license, that occurs before

there is any undercover officer involved, so that -- that is

basically entirely Mr. Wilson's conduct, his own volition. And

second when we turn to the drug charge, Count 2, Mr. Wilson had

made some very small, really personal use quantity sales of

drugs by himself to the undercover agent and to other people

before the whole question of what was his role and who was

providing the motivation for it occurs, so he is engaged in some

sales of much smaller quantities than the sales that ultimately

led to his arrest. Really it is his own conduct again as

opposed to entrapped or partially entrapped and then he does --

and then that is all before we get to the question of what is

Mr. Wilson's conduct versus what is he being lured or brought

into by the undercover agent. So there is a lot of conduct here

that that issue doesn't even apply to, and then once the

undercover agent starts playing sort of a very significant role,

that's when we have the transaction, the drug transaction

becomes much larger and Mr. Wilson providing security, providing

advice of how to do it, showing up with guns, so he is engaging

in additional conduct there that is serious even once he is

having sort of very -- having dealings with the undercover agent

leading to that. But when you look at the whole pattern, we

have a pattern that goes for four years, or five years really,

where the majority of the conduct is Mr. Wilson's conduct

without any question of whether he is legally entrapped or


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whether he is enticed or lured into this conduct. I think that

is an important distinction for the Court to remember.

If the Court does, we're looking at two serious crimes

here, one, the effort to smuggle firearms to the Zapatista, and

I think in some sense it's important for the Court to look at

Mr. Wilson's motivation because most people who smuggle firearms

abroad are probably doing that to make money. They found

smuggling guns more valuable, more valuable in Canada. They

smuggle them up there to try to make money. They're not

worrying about the fact that they're being used for drug

distribution and causing violence. Mr. Wilson's motivations are

not that, he was not trying to make money. In fact, he spent

money doing this and he believed that he was doing something

that would help the Zapatista, a group with whom he had sympathy

and whom he helped in peaceful ways in addition, and so, that is

somewhat mitigating. At the same time sending firearms into a

conflict is going to have all kinds of ramifications and likely

lead to loss of life in ways that you cannot predict. That --

no one can predict it. We can't even know what happened, so

that is very serious conduct. It is criminal conduct and that

is why we're here on that count.

The second thing is the government spent a lot of time in

this case trying to come up with an appropriate recommendation.

I think one of the hardest factors for the Court is coming up

with a fair punishment, both in this case as against the general


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background cases -- both against the general background cases

that the Court sees and also the Court already alluded to trying

to come up with a punishment that is fair relative to Mr.

Wilson's co-defendants in this case.

Three of those co-defendants have been sentenced who were

basically purely drug trafficking have been sentenced to

mandatory minimum sentences, and that is Mr. Zavala-Bustillo who

was sentenced this morning to ten years and Mr. Fletes and Mr.

Canterero-Arteaga who each received five year sentences and

obviously we're asking for a lower sentence than that. I think

that is appropriate in light of all the factors in this case.

So the closest comparison when you really look at it to Mr.

Wilson is probably Mr. Reinsch in terms of saying what is an

appropriate thing, how do we sentence Mr. Wilson in a way that

is fair and is not -- doesn't create a unwarranted disparity

with Mr. Reinsch. And in looking at those two defendants, there

are several -- it comes out fairly close and that's why the

government is recommending 48 months as opposed to the 42 months

that Mr. Reinsch received.

There are really three factors that drive that, one is the

longer period of time of Mr. Wilson's conduct here. Mr. Reinsch

also had a sympathetic story as the Court will remember, he was

basically a productive member of society until probably three to

six months before the events that led to his arrest here. He

had a job. He had a business he was trying to start. He was


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probably using drugs recreationally on the side, but he was not

distributing drugs and then his life just fell apart and he went

from being a small scale drug dealer to suddenly being a huge

drug dealer, and so, when you compare those two, Mr. Wilson's

conduct spans a longer period of time that Mr. Reinsch.

The second is firearms, and I think involving firearms in

crimes is always a serious thing and Mr. William -- Mr. Wilson

has that in two ways here, one, the firearms were exported to

Mexico, and two, the firearms that were providing security at

the drug transaction. The third is the fact that as the Court

knows, Mr. Reinsch's conduct probably led to the successful

conclusion of the case against Mr. Fletes. The information that

he provided is what turned the case that was going to trial into

one in which Mr. Fletes plead guilty. And without taking away

from the matters discussed in the government's filing concerning

Mr. Wilson, there is not a similar result or benefit in this

case, and so, the government is trying accord some way to that.

So looking at those three factors, I think it comes out

fairly close, but in weighing those, the government believes a

slightly longer sentence is appropriate and that's why we're

recommending the 48 month sentence. Thank you, Your Honor.

THE COURT: Before I come to you, Ms. Bolle, is there

anything else you wish to add?

MS. BOLLE: Let me mention he was originally charged

with some very serious class A and B felonies which would have


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subjected him to mandatory minimums, so I think the resolution

in this case as far as culpability with the other defendants is

a very fair one and I agree with the 11(c)(1)(C) agreement and

we would recognize that he get 48 months imprisonment.

THE COURT: Thank you. Mr. Offenbecher?

MR. OFFENBECHER: Thank you, Your Honor. Your Honor,

at the -- we're recommending a sentence of 36 months. At the

risk of undercutting my recommendation, I think I should say at

the beginning that I think it's appropriate to thank Mr.

Friedman for his conduct in this case. This in my mind was an

unusual case and I think the Court can see that and in some ways

a difficult case for both parties to resolve. It took some time

do that.

Mr. Wilson was targeted by the government for some specific

information and as it turns out he did not have exactly the

information that the government had hoped for, and as the Court

is aware from its own experience, a federal prosecutor can

sometimes put -- can lead to untoward results that are

unintended, and in this case I believe that Mr. Friedman acted

always in good faith and was always willing to listen and he was

acting in the highest tradition I believe of the United States

Attorney's Office for the Western District of Washington, an

office in which I have great respect. So Mr. Wilson and I, and

Mr. Wilson has specifically asked me to thank Mr. Friedman for

his consideration in this case and for being thoughtful and


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always listening to the information which was not exactly -- the

case did not come out exactly the way the government had hoped

for in the beginning, and so, we thank him for that and I think

the Court should know that Mr. Friedman has gone the extra mile.

At the same time we disagree with his recommendation for

the reasons that I am going to state now, and we agree that this

was serious conduct, serious crimes and that guns are involved.

It's obviously a serious matter. But at the same time, Your

Honor, I think it's appropriate to put Mr. Wilson's conduct in

context. As Mr. Friedman points out in his letter to Ms. Bolle,

the -- if you were punishing Mr. Wilson for the amounts of

methamphetamine or cocaine that he, himself, was involved with

when he was doing these poker games, you would have a level 12

in federal court, which after acceptance of responsibility would

yield a six to 12-month range. That is the level of criminal

activity that Mr. Wilson was involved in, and admittedly he was

involved in during these poker games. His drug dealing, if you

would, was essentially the undercover officer saying, hey, can

you get me some cocaine or can you get me some meth and giving

these very small gram amounts. That is the amount, so Mr.

Wilson said, sure, and he got it for him. He was not a drug

dealer. He was not making a living as a drug dealer as

everybody else in this case was. They were all drug

traffickers, including Mr. Reinsch.

So the -- to put the case in context, that was Mr. Wilson's


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level of activity, about a six to 12-month range until the

undercover officer encouraged Mr. Reinsch and Mr. Wilson to

become involved in these much larger kilo transactions. In a

real sense, and as Mr. Friedman accurately points out in his

letter to Ms. Bolle, the -- Mr. Wilson had no role at all in

negotiating the size of these transactions. He was simply an

add-on, an extra person added to the sting. It was Mr. Reinsch

whom negotiated the amounts, who went and gave the samples, who

showed up and coordinated everything. He did everything. Mr.

Wilson was just an appendant, tagged on at the end as another

person to sting in the transaction. The truth is that he and,

you know, we didn't take this case to trial on an entrapment

defense, but there are elements of entrapment. You can call it

inducement. You can call it encouragement. Mr. Friedman and I

have discussed this on many occasions and he prefers to call it,

Mr. Wilson was presented with an opportunity to become involved

in this, and that's fine. We can -- that's a characterization,

but it's -- there is no question that Mr. Wilson was targeted

for this and that the -- the government, and it was not the

federal government frankly, it was the local government spent

two years insinuating a false friend to Mr. Wilson to the point

where by the time he was arrested, Mr. Wilson actually thought

this was his best friend, or one of his best friends, and he was

an undercover agent who was videotaping and audio recording all

the transactions with the goal of, you know, getting record of


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criminal activity.

So there are elements of inducement or encouragement. The

idea to go to a drug transaction with guns was not Rick Wilson's

idea. Mr. Friedman just indicated that he gave some advice. I

mean, the advice, Your Honor, was that this person, Brian, was

going to have a drug transaction and Mr. Wilson said, hey, that

could be really dangerous, and Brian said, hey, will you watch

my back? Will you cover my back? And foolishly, as he pointed

out to you in his letter, he agreed to do that out of a sense of

loyalty. This was not a situation like everybody else in this

case where Mr. Wilson was making any money off it. He got $200

for the first transaction, which is -- it's a token amount.

It's not -- it had nothing to do with the transaction. The

second transaction was almost a quarter of a million dollars and

they promised Mr. Wilson $500. I mean, these are token amounts.

They were done just to kind of complete the circle so they would

have a good case against Mr. Wilson.

The fact is this person also financed the Cafe Corsair,

brought it out of Rick's apartment. I mean, he was really

involved in all of the operation. The truth is that Rick would

not have been involved in this deal if he hadn't been targeted.

Now, that is not to say that Mr. Wilson is telling you that he

shouldn't be punished for this. Of course he is going to be

punished for it. He plead guilty to the crime and he knows that

you are going to impose a sentence, but it is fair to understand


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the context under which the undercover agents came to Rick

Wilson, got him into the deal. It was not because Rick Wilson

was known in the community as an enforcer of drug deals. He was

known in the community as a guy who had a rolling poker game and

you could go over and play poker and, you know, occasionally you

would get a small amount of illegal drugs. That's what he was

known about -- known as.

Also Your, Honor, in terms of his role in the offense, I

think it is appropriate to compare him to Mr. Reinsch and I

would like to offer the Court a slightly different perspective

on Mr. Reinsch when you compare it to Mr. Wilson's actual

conduct in the case. I mean, and I can't say this enough, Mr.

Wilson is not saying that he was drawn into this in the sense

that he has a defense to the case, but it is clear that his

brain during these past years has been fogged both by bipolar

disorder that Dr. Hunter describes and also by Mr. Wilson's own

efforts to kind of self medicate that with methamphetamine. I

mean, I've heard when I first sat down with Mr. Wilson he

described how he had these very specific small amounts of

methamphetamine that he would take each day to kind of keep

himself on an even keel as if he was apothecary and he was

describing the dose that was necessary to keep himself on an

even keel. Dr. Hunter -- even before he saw Dr. Hunter, he was

absolutely clear that this is what he was doing, and this is

what Ms. Bolle found as well.


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If you compare him in terms of role in the offense to Mr.

Reinsch, Your Honor, and I am not trying to create new facts.

I'm just looking at the facts that Mr. Reinsch admitted in the

complaint. The complaint includes both a description of the

events and also the agent's recitation of Mr. Reinsch's

confession so to speak about what Mr. Reinsch describes as his

own role in the offense, and it was not that he was in it for

such a short period of time. I mean, he began drug dealing in

2008, and Mr. Reinsch describes himself as being a cocaine

distributor at local nightclubs. He developed a Honduran drug

connection and he quickly evolved into a half a kilogram a week

drug dealer in Seattle starting in 2008. That is what he said

to the agents in the complaint, so he was a person who was

getting along as a drug dealer with all these -- with the half a

kilogram a week. Then it increased to one kilogram amounts,

then the large transactions which were set up by the sting by

the undercover.

Mr. Reinsch was clearly an essential part of all of these

transactions. He directed where they were going to occur. He

changed the location on one occasion from one restaurant to

another. He negotiated the amounts. He negotiated the price.

He brought samples of the illegal drugs. He had a trap car with

secret compartments in it. That was Mr. Reinsch's role, and it

was not simply that, you know, he happened to be standing next

Mr. Wilson when this all occurred, that was his business being a


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drug dealer. Mr. Wilson on the other hand was a totally non

essential part of the deal. He had absolutely no functional

role at all. He was asked to come along and bring, you know, a

gun. He was so tangential, he was asked by the undercover

officer, and he would have never done this before as opposed to

anything he had done before. He was so tangential to the deal

that the undercover officer had Mr. Wilson on the second deal,

they had him wait at a restaurant half a mile away from where

the drug deal was really going to happen. They had him wait on

West Lake. The drug deal was supposed to happen Joeys and then

it was changed to Daniel's on Mercer by Mr. Reinsch by the way.

They him wait in a different place and he was arrested before

the drug deal even happened. He had no clue. He was clueless.

They could have had him waiting at a restaurant in Bellevue,

which is not to say that he didn't agree to be part of the drug

deal. He did and that's why we're here today and that's why he

plead guilty. But functionally if you look at the facts, he had

no functional role in the transaction. If you compare that to

Mr. Reinsch, you will see that Mr. Reinsch was a critical part

of the transaction.

So other comparisons with Mr. Reinsch, Mr. Reinsch was

released on Pretrial Services release just as Mr. Wilson was at

about the same time. Within two weeks Mr. Reinsch had a dirty

UA. He was brought in by his pretrial services officer. He

promised that he would never use methamphetamine again on


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Pretrial Services release and a no action memo was sent to the

Court, which the Court signed off on. He promised in effect

that he would not re-offend. A few weeks after that Mr. Reinsch

had another dirty UA. He was brought into court that time. He

was brought in front of the magistrate judge. They had a

hearing on that and the magistrate judge released Mr. Reinsch

again on the promise that he would not use methamphetamine

again. He promised the Court. He promised everybody in court.

He promised the pretrial services officer and was released

again. A few weeks after that Mr. Reinsch had yet another dirty

UA, the third UA dirty with methamphetamine, came into court and

finally the magistrate judge revoked him and put him in jail.

That is to be contrasted with Mr. Wilson. Mr. Wilson did

not have one relapse or two relapses or three relapse. He had

zero relapses, and this is a very, very difficult drug to kick.

The Court has a lot of experience with people with drug

addictions and methamphetamine after 13 years, particularly when

it is used to medicate another mental illness is a very, very

difficult drug to master. And Rick Wilson has done that for an

entire year now. That is a remarkable achievement and it is

something that the Court ought to take into consideration. I

know that the Court expects everyone to follow its orders, but

not everybody does, and in this case Marshall Reinsch did not.

Marshall Reinsch did not follow the Court's orders, but Rick

Wilson did.


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The one other fact, and this is getting a little bit ahead,

but I think the Court ought to consider that Mr. Reinsch -- I

know the Court recommended Mr. Reinsch get drug treatment in

prison, and he is eligible for the RDAP program, and Mr. Reinsch

will likely be able to participate in that. We can't predict

with any certainty. A person who participates in the RDAP

program will receive up to a year -- I just checked with Ms.

Bolle one this, up to a year off of their sentence if they

successfully complete all the substance abuse treatment. And I

am hoping that Mr. Reinsch is successful this time in completing

that treatment. Mr. Wilson will not be able to get any benefit

from the RDAP program because there are guns involved in his

crimes of conviction, so he can go to the treatment, he can get

the treatment and he looks forward to that, but he is not going

to get any time off his sentence because of the crime of

conviction, even though the fact is that both Reinsch and Wilson

in a lot of ways are here for the same crime. So the Court

ought to consider that, that Mr. Wilson has been out doing the

treatment. He has been walking the walk while Mr. Reinsch

failed, and yet, Mr. Reinsch is going to get some significant

time probably off his sentence.

The government argues, Your Honor, that the Court ought to

sentence Mr. Wilson more harshly because his misconduct was over

a longer span of time. I think that is not an exactly accurate

characterization of the conduct. In 2005 Mr. Wilson


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participated with another individual in sending some arms to the

Zapatistas. That is the end -- pretty much the end of that

transaction. It's one transaction, it's in 2005. Then the

conduct that is before the Court is in 2009, it's conduct that

occurred over a two-week period really. Again, if you were

sentencing him for what he really was up to in the months

leading up to that, it would be a six to 12 month range, but the

two events are one in 2005 and one in May and June of 2009.

It's not a -- I don't think it's a real fair characterization to

say that all of this was happening all over that period of time.

(, line 11 through first two words on line 13 redacted by

order of Judge Jones.)

It's been indicated in the pleadings that there was some

intelligence about an event like the, but not that Mr. Wilson

was ever involved in.

So in the absence of him telling the government about it,

you wouldn't even be sentencing him for it, but it wasn't a

continuous course of conduct and I don't think that is a fair

characterization. The fact that Mr. Reinsch's cooperation

produced a guilty plea is good. There may not be any similar

benefits. That is a matter that is, again, without Mr. Wilson's

control the government can choose to charge based on the

information it has or not. We have no control over that and it

sometimes happens with people who are not actually involved in a

serious crime when the government thinks that they are. It

Case 2:09-cr-00232-RAJ Document 162 Filed 09/16/10 Page 23 of 42

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produces somewhat of an inequity that the person who really is

involved in the crime gets a better sentence than the person who

just wasn't involved in this.

Your Honor, there are some other mitigating factors. First

of all, Mr. Wilson is 40 years old. He has no prior

convictions. He has led a somewhat rebellious life frankly in

the environmental movement, but he has never been arrested for

anything other than once he was arrested for the Rodney King --

for demonstrations around the Rodney King event, but I mean, he

has never been charged with a crime before, which speaks well

for his discipline and his integrity quite frankly.

(, last two words on line 11 through the first word on

line 14 redacted by order of Judge Jones.)

not just by pleading guilty or writing the letter, but by his

performance on Pretrial Services release. He has gone for 12

months of home detention, largely home detention and GPS

monitoring with no violations, which is -- there was one

violation where it was very minor. It was something he -- he

called in a little bit later. I can't remember exactly what it

was, but he has no substantive violations at all, and certainly

no dirty UAs like Mr. Reinsch had. And I think the Court in

imposing a sentence ought to understand that, and I know the

Court understands, but ought to consider the fact that up until

February, he was on home detention on GPS monitoring and that is

a significant -- you know, that is a significant restriction on


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a person's liberty. He has had this whole year of very close

supervision and demonstrates that he can follow your orders.

Another mitigating factor, Your Honor, is that Mr. Wilson

is suffering from what has up until now been an undiagnosed

mental disorder and it's characterized by Dr. Hunter as being

severe bipolar II disorder, and I know the Court has had an

opportunity to review that report. Dr. Hunter did a very

comprehensive examination, including a huge battery of tests, a

lot of collateral sources, and many hours of interviews with Mr.

Wilson, and I have every confidence that that is an accurate

diagnosis. And I have to say to the Court, you know, I have

represented people charged with crimes for 30 years in this

city, and when I first met Mr. Wilson, he is one of I would say

a handful of maybe I can count on one hand who weren't in the

hospital already who were so profoundly affected by the

depression that Dr. Hunter describes. I mean, there are days

when Mr. Wilson literally had difficulty getting his -- picking

his head up off of his hand or the table. He was so profoundly

depressed and his family has told Dr. Hunter about this as well.

But he has -- when he is in the depressed periods, he's just

extremely depressed.

At the same time he is a very intelligent person. He is a

person who has applied himself and he has some understanding of

his mental illness now in a way that will help him conquer that.

We're not suggesting that he had diminished capacity defense,


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although there are elements of that, but the fact is he has been

in a fog for the past 13 or 14 years, both as a mental illness

and with the methamphetamine. The good news is that Mr. Wilson

shows good insight into his addiction and has mental illness.

Your Honor, the case does involve guns and I think I should

address the fact guns are scary, they sound scary and they are

scary, but I think the -- to put it slightly in context for the

Court, the Court should understand that Mr. Wilson grew up in

Oklahoma. All his family is from Oklahoma, and the truth is

that it's not unusual for a person to have a bunch of guns in

Oklahoma. Most people in Oklahoma do have guns and, you know,

it's -- it may seem a little cavalier, but it is a different

community other than the community that we live here in Seattle.

And all of the guns he had were legal, legally owned, and when

we see a person with a bunch of guns in downtown Seattle, we

expect that sometimes that they may be involved in some kind of

criminal behavior with those kinds, and that is kind of our

experience, or my experience anyway, but it's not necessarily so

for a person from Oklahoma. And if you look at his record, you

can see that.

He has no history of violence of any kind of violence, no

history of any kind of gun violation. He has owned guns all his

life. It's part of his cultural identity, but the truth is he

hs no history of violence and the truth is he's never going to

possess a gun again, ever. He's never going to stand with a gun


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in his hand. He's never going to have a gun in his drawer or

under his again. Because of this felony conviction, that is

over with, and all of the guns that he owns at this time at

least were legally owned.

(, line 5 through the first six words of line 10 redacted

per order of Judge Jones.)

was revealing the Chiapas information, and as you can see

from the photos, Mr. Wilson taking an ambulance of medical

supplies and handing the keys over to the ambulance to the

medical staff there, that was a deeply held and a genuinely held

belief that those people were being oppressed and he was trying

to help them. The guns were also an attempt to help them and he

understands that it's legal, it's wrong and it's dangerous, and

I can tell you he believes every word of what he said in his

letter, that he wishes he had never done that and it was wrong.

At the same time what Mr. Friedman said is true, he was not

motivated by greed. Neither of these crimes frankly were

motivated by greed. They were motivated by in one sense to help

some people that he thought needed help, and in the other case

to try to help a person who he thought was a friend.

Your Honor, in the end the Court of course has to look at

the person before -- standing before them and decide whether 36

months is sufficient or whether 48 months is actually necessary.

By imposing a sentence of 36 months, you do not minimize the

conduct or the fact that guns are dangerous. Rick Wilson will


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never possess a gun again. He will never be involved in this

type of crime again. He will never be involved in he an illegal

drug deal again, but by imposing a 36 month sentence, you do

recognize that Mr. Wilson has been suffering from bipolar

disorder that has altered his judgment and his mood over the

past 15 years. You -- by imposing a 36 month sentence, you do

recognize that methamphetamine he has been using that to self

medicate and that that has also altered his judgment for the

past years. By imposing a 36 month sentence you do recognize

that, unlike Mr. Reinsch, he has followed the Court orders

faithfully for an entire year. You recognize by a 36 month

sentence that he has successfully completed an entire year of

substance abuse treatment and mental health treatment as Mr.

Reinsch has not. And you recognize by that sentence that he has

successfully in an entire year kicked a methamphetamine habit,

which Mr. Reinsch did not.

This drug deal would have happened with or without Rick

Wilson as Mr. Friedman candidly points out in his letter to Ms.

Bolle. It simply was going to happen one way or the other and

if he showed up for it, yeah, fine, if he didn't, they -- they

asked him to show up and he showed up. Mr. Wilson is not going

to have also the benefit of time off for the RDAP program.

Your Honor, if the Court imposed a 36 month sentence in

this case, and Mr. Wilson is going to go to prison in the next

month or so, if you impose the 36 month sentence, when Mr.


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Wilson got out of prison, he would have been drug free for four

years. He has spent the entire year doing substance abuse and

walking the walk. He will have gone through that entire period,

including the GPS home detention, at the end of the 36 months,

he will be drug free for four years, and he will have had his

liberty restricted for four years. When you look at it, you --

when I look at it, here is what I think. I think he's going to

go to prison some time in June and he is going to spend a whole

year through the holidays and come back in the next summer and

that's one year that will be done. And then he is going to look

forward to another year and he is going to go through the fall

and Christmas and the spring and that will be -- come back to

June and that will be the end of his second year. And then if

the Court imposed 36 months, he would have one more year that he

would go through the fall, the holiday season, the spring and

next summer some time the question is that that would be the

three years and the year that he has already served. The

question is, is it really necessary under the guidelines for at

the end of that three years for Mr. Wilson to say, okay, I have

one more year to do. And if you impose it, he will do the time.

There is no question about that. But is it really necessary

after the success that he has demonstrated to you on pretrial

services, on kicking the methamphetamine habit, on the fact that

he has been suffering from a mental illness, is it really

important after those four years, one year out and three years


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in, is it important and critical to the justice system that he

do yet one more year in prison?

I respectfully ask you to exercise your discretion and

determine that that extra year that will come three years from

now, that extra year in federal prison is not necessary. It's

not necessary because Mr. Wilson has demonstrated his resolve.

It's not necessary because he has demonstrated he will follow

your orders to the "T" and that he will not be a danger in the

community and that he will not relapse, and those are things

that you can count on based on his performance. Thank you, Your

Honor.

THE COURT: Thank you, Counsel. Mr. Wilson, your

lawyer has spoken for you. He's also filed several documents

which I have identified and I have reviewed for purposes of

determining the proper sentence. Sir, you are not required to

say anything at all at this point in time, but you do have a

separate independent right to tell me anything that you want me

to know before I decide your sentence. If there any comments

that you would like to make, please step up to the lectern and

address the Court from there.

THE DEFENDANT: I believe Mr. Offenbecher has said

everything very well and I agree with what he said and I

appreciate it very much. I just have a -- some very brief

personal notes to -- I've got personal things to say I guess. I

would like to apologize to my friends and family for any


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suffering that my behavior in this situation has caused. I say

that -- okay. Maybe I have to cut this short. I would like to

say I appreciate that in the last year the federal government

has made available and, in fact, helped fund my drug treatment

for the last year. Hopefully it be available in prison. I

would like to say that I used some pretty bad judgment and did

some stupid things and foolish. I have never been in a

situation like this before. I promise I will never be in this

kind of situation again, and yeah, I never expected this sort of

thing to happen like this. And regardless of whatever the

sentence is, I have spent the last year of in-house custody and

living at home trying to make the best of the situation, and I

intend to, regardless of whatever the sentence is, to make the

best of the next several years. I have already talked and

helped to make arrangements for trying to finish up my college

degree, so I hope to not waste -- regardless of what the

sentence is, not waste the next few years. Thank you very much.

THE COURT: Thank you, sir. You may be seated. If

there is nothing further from the parties, the Court will make

the following determinations. First of all, this Court is

mandated to calculate the appropriate guideline range, which I

have done then to look at each individual variances or

departures that might be applicable in view of all the facts and

circumstances. Now, in fashioning the sentence, sir, that I

will impose, I have specifically looked at and considered all of


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the Section 3553 factors and the sentencing guidelines. Now,

sir, when I look at all the different reports and all the

information that has come to this Court and the aggressive

advocacy that your lawyer has provided to you, and be very

thankful of the quality of representation that you received from

Mr. Offenbecher and the statements and arguments he has made on

your behalf, because I think in many ways your life has been

saved by the fact that you were charged and arrested. Because

but for this charge, but for this conviction, what labels were

associated with you and your lifestyle, rebellious, drug dealer,

facilitator of a gambling house and firearms distributor.

Now, how you wish to paint the circumstances, however you

wish to gloss and make them give a better appearance for you,

that is what your life looked like before you were charged and

before you were arrested. Now, sir, you have the benefit of so

many gifts that have been given to you. I've already sentenced

two people this morning, two ten years for each of the

defendants. Both of those individuals were involved in drug

dealing. Both of those individuals came from horrible

circumstances in terms of childhood, without parental guidance

whatsoever. They grew up in circumstances of extreme poverty.

They grew up without the benefit any level of education

whatsoever, and sir, up to the point in time before you were

arrested, most of the choices that you made in many ways were

bad choices. Now, when I look at your history and


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characteristics, I accept the fact that some of those bad

choices and some of those decisions were made because of the

mental deficiencies that you experienced and some of the fog

that your lawyer has characterized that you had to live and

endure.

But accepting that, sir, you were still making conscious

decisions and you were making conscious choices of which

direction that you wanted to take. No one forced you to do any

of those things. Those were all choices and all expressions of

your own personal desires. But I also see, sir, when I look at

the letters of support that have been provided on your behalf,

an individual who is a caring person, who has the ability and

capacity to make profound changes, and I also see based upon

what you have done since you have been charged, since you have

plead guilty, which demonstrates to this Court that you do have

the capacity to change. The fact that you were able to address

your drug addiction played a significant impact on the sentence

that you are going to receive today, because that tells me that

when given specifics, you know what to do, but in these

circumstances you had to be forced to do it. Whatever the

outcome is, it appears to be positive.

Now, sir, when I look at the nature and circumstances of

the particular offense, we have two different charges before

this Court and we can't emphasize just one over the other. If

you recall most of the strength of your lawyer's argument today


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was made over specific comparisons between your conduct and the

activities of Mr. Reinsch who was much more aggressively

involved in drug dealing, who had larger quantities of drug

dealing. But we can't ignore the fact, sir, of what you had

done in your past and the reasons why you are here today, that

is because you were involved in firearms transactions, and

whether you did it for profit or noble reasons, still doesn't

make a difference. Guns were transported illegally outside of

this country. Now, sir, you also have to put in perspective

what you did depending upon where you are in the planet, there

are some people who might even characterize your activities

despite the noble cause and your belief as being a terrorist.

Think of the words that your lawyer used this morning, your

lawyer used the words that you felt people were oppressed and

you wanted to give them guns to assist those individuals. Now,

sir, you could place those same labels on people who have

attacked other countries and other individuals who have caused

severe loss of life because a person thought it was the right

thing to do. Sir, you are not in a position to make that type

of value judgment, and I can't say that you can't, but you do

have to pay the consequences when you involve yourself like

that.

Now, sir, I saw pictures of the things that you were doing

in terms of -- at your own expense, going to other countries,

providing wonderful services and being deeply concerned about


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other human beings, and that is to be applauded, but sir, your

moral compass in terms of how far you can go and what you can do

somehow went askance and it caused you to be involved in these

particular activities. So I look at the nature and

circumstances of what you did in this particular offense, it is

very significant and it was very wrong. Now, who got you

involved in these particular activities? Some ways it really

doesn't make any difference, because ultimately you had to make

the choice of saying, I want to become involved. Now, how

deeply were you involved? Your lawyer characterized the fact of

just mere presence with the firearms in some of the drug deals

and the fact that you received just a small amount of money, but

sir, take out the fact of protection in most drug deals or a lot

of drug deals in this country, that plays a critical role of

someone playing the role of the enforcer or someone playing the

role of security. What happens if something goes awry with the

security? Security feels that they have to compel -- are

compelled to protect the person and they have to act and they're

motivated to act. And even though you are only being paid $500,

or even if it is just $50, an enforcer still puts the position

of a drug deal in a dangerous transaction.

In that regard, sir, the Court has to let you know that the

sentence that I impose has to reflect the seriousness of what

you were involved in. Now, a big factor for me is to try and

compare your activities with what you did compared with what


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other individuals did because I am the last person to want any

significant sentencing disparity to take place. I could go and

recount all the factors that the government has outlined and all

the factors that your lawyer has outlined to show the comparison

between you and the activities of Mr. Reinsch, because that is

the person overall who you are the closest compared to.

Sir, I also want you to understand that Mr. Reinsch did not

involve himself in the depth of activity with firearms as you

have, and that is a major significant factor. But at the same

time, Mr. Reinsch also provided specific information that

actually resulted in someone being prosecuted and someone

pleading guilty.

(, last nine words on line 16 through first three words

on line 21 have been redacted per the order by Judge Jones.)

So, sir, it's a combination of all those factors that the

Court has looked at to ensure that you have a respect for the

law, that you don't become involved in this type of activity

again in the future. Now, based upon the fact that you have not

been charged at least or convicted of anything in the past, the

fact that you have demonstrated to me that you can comply leads

me to believe that there is no real purpose in having to impose

a sentence to motivate you to deter you from committing further

criminal activity.

So in that regard first of all, I am going to place you on

three years of supervised release and impose the standard


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conditions of supervised release. Sir, those conditions of

supervised release will be exactly as stated in the presentence

report, but I want you to hear from me from the bunch a summary

of what those conditions are, merely a summary. Please pay

close attention to what they -- how they're written in the

report. That includes first that you cooperate in the

collection of DNA as required by the probation officer. You are

prohibited from possessing a firearm. You should submit to drug

testing or alcohol testing as required. You will participate in

a drug or narcotic addiction treatment program as directed by

the probation officer, further that you abstain from the use of

alcohol or other intoxicants during your term of supervision;

that you'll submit your person, residence and identified

locations to a search at a reasonable time; that you be

participating in mental health program as required by the

Probation Office; that you provide access to any requested

financial information; that you not be self-employed or have any

type of employment other than what is provided in the report.

And the Court notes also that you do not have the ability to

currently pay a fine and no fine will be imposed.

The Court will, however, impose a special assessment fine

for both counts in the amount of $200 which amount is due

immediately. Now, having imposed all the other conditions of

sentence, the only remaining issue is the imposition of any

custodial time. I will note for the benefit of the parties that


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the Court does accept the 11(c)(1)(C) sentencing range as

proposed by the parties as identified in the plea agreement to

specifically sentence you somewhere in the range of 36 to 60

months, and that is in paragraph nine of the plea agreement. I

believe, however, that based upon all the factors identified by

this Court that the appropriate and just sentence is 40 months,

and 40 months will be imposed. In this regard, I believe the

overall sentence imposed is reasonable and sufficient but no

more than necessary to carry out the objectives of sentencing.

Counsel for the government, are you aware of any reason why the

sentence should not be imposed as stated by this Court?

MR. FRIEDMAN: No, Your Honor.

THE COURT: Counsel for the defense?


THE COURT: Counsel for the government, do you have a

judgment before you?

MR. FRIEDMAN: I do, Your Honor.

THE COURT: Please present it for review by the

defense. Now, Mr. Wilson, I want to advise you of your rights

to appeal. It's the Court's understanding that under paragraph

13 in the plea agreement you waived your rights of appeal and

any rights you have on appeal are exactly as stated in that

document. In addition to those rights, I wish to advise you

that you the right to challenge your counsel's effectiveness.

If you wish to appeal the sentence, it is very important that


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you tell your lawyer that is exactly what you wish to do. He

can explain to you the issues that are appealable and those

issues that may survive. Now, if you wish to appeal the

sentence and you cannot afford the filing fee for the Court of

Appeals, you can ask me to waive that fee and the clerk of the

court will prepare and file a notice of appeal upon your

request. Now, please know with few exceptions any notice of

appeal must be filed within ten days of the entry of judgment.

Do you understand each of these rights, sir?

THE DEFENDANT: Yes, sir, I do.

THE COURT: Lastly, the waiver does not preclude you

from bringing an appropriate motion pursuant to Title 28, United

States Code, Section 2241 to address the conditions of your

confinement or the decisions of the Bureau of Prisons regarding

the execution of your sentence. Now, Counsel, a few other

matters, one, I am not certain with respect to Counsel's

preference regarding specific designation. Mr. Offenbecher, do

you wish to make any specific recommendation or request to the

Court?

MR. OFFENBECHER: Your Honor, can I hand up the

judgment and have just a moment with my client? Your Honor, Mr.

Wilson would like to remain on the west coast and either

probably -- again, we're just guessing about this, but either

Sheridan or Lompoc would be appropriate.

THE COURT: Why don't we do this, Counsel, unless


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there is an objection by you is to include the language that

says "near as family as possible."


THE COURT: To be honest, Counsel, that is the one

recommendation that the Bureau of Prisons does engage in their

best efforts to follow. And I want Mr. Wilson to know, sir,

that all that means is that it is a recommendation. It is up to

the Bureau of Prisons regarding the exact location where you

will serve your time, but it's -- will be included in the

judgment. Next, Counsel, it's the Court's understanding that

there has been no specific motion made by the government for the

Defendant to be taken into custody at this point. Let me hear

from Counsel.

MR. FRIEDMAN: That's correct, Your Honor.

THE COURT: Obviously I don't think Mr. Offenbecher is

going to make that recommendation to the Court.


THE COURT: So I will allow the Defendant to self

report. What that means, Mr. Wilson, is that you will receive

notice from the Bureau of Prisons regarding where you will serve

your sentence and the location of where you serve your sentence.

Now please make sure that you provide Probation current, always

accurate statement of exactly where you are living, even for a

day or two if there is any kind of change, because if you fail

to appear on the date designated for any reason, that can result


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in this Court imposing additional sanctions and penalties

against you and can result in the government filing separate

criminal charges against you; do you understand that, sir?

THE DEFENDANT: Yes, sir, I do.

THE COURT: Counsel, the language now reads on page

two under the Court makes the following recommendation to the

Bureau of Prisons reads, "FCI designation as near to family as

possible." Counsel, if you would like to inspect the judgment,

you certainly have the opportunity to do so.

MR. OFFENBECHER: That's fine, Your Honor. Thank you.

THE COURT: With that, any objection to the judgment

or its form?


THE COURT: If there is nothing further, I have

reviewed the judgment, it does reflect the Court's oral ruling

and I have signed it and it's the Court's understanding there

are no counts to be dismissed; is that correct, Counsel?

MR. FRIEDMAN: That's correct, Your Honor.

THE COURT: With that, Mr. Wilson, good luck to you

sir. That will conclude this proceeding.

MR. OFFENBECHER: Thank you, Your Honor.

THE DEFENDANT: Thank you, sir.

THE CLERK: Please rise.

(Proceeding concluded 12:04 p.m.)


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C E R T I F I C A T E

STATE OF WASHINGTON )

) SS

COUNTY OF KING )

I, Donna Hunter, Certified Court Reporter and Notary Public

duly and qualified in and for the State of Washington do hereby

certify that the foregoing transcript is a true and correct

transcript of my original stenographic notes.

I further certify that I am neither attorney or counsel

for, nor related to or employed by any of the parties to the

action in which this testimony is taken; and furthermore, that I

am not a relative or employee of any attorney or counsel

employed by the parties hereto or financially interested in the

action.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed

my Notarial Seal this 9th day of August, 2010.

/S/Donna Hunter

NOTARY IN AND FOR THE STATE OF

WASHINGTON, RESIDING IN SEATTLE


Richard Wilson Sentencing Transcript

Documents

Transcript of Richard Wilson Sentencing Transcript