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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
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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?
MR. OFFENBECHER: Yes, Your Honor.
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.
(Page 23, 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
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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.
(Page 24, 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.
(Page 27, 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.
(Page 36, 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?
MR. OFFENBECHER: No, Your Honor.
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."
MR. OFFENBECHER: Yes, Your Honor.
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.
MR. OFFENBECHER: No, Your Honor.
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?
MR. OFFENBECHER: No, Your Honor.
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
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