Andy Anderson

Free Herbert "Andy" Anderson 

Compassionate Release for Andy

Northern District of Texas

Fort Worth Division

Case No. 4:09-cr-115A (Judge McBryde)

How a First-Time Offender Received a Shocking, Three-Decades-Long Federal Prison for Borrowing $160,000 From a Longtime Friend/Drug Dealer, Then Paying It Back a Week Later.

In 2009, local businessman Andy Anderson had owned two lucrative businesses for 20 years when the IRS suddenly initiated seizure proceedings because of an IRS tax lien with the owner of one of the properties from whom he leased one of the buildings. If Andy did not come up with $300,000, he would lose his business and livelihood. Consequently, Andy borrowed $160,000 from a lifelong friend named Hammer. But oddly enough, when Andy went to pay the lien, he was told that the owner had taken care of it. A week later, Hammer called Andy and asked him for $60,000 of the $160,000 back, which Andy returned.

This was the government's case against Andy.

Unbelievably, at trial, the government said that when Andy returned the $60,000 to Hammer, Andy knew that Hammer was in the drug business and was likely going to use it to buy methamphetamine; thus, because Andy borrowed money from a lifelong friend who happened to be in the drug business (Hammer also owned many legitimate companies), then paid it back, Andy is guilty of being part of Hammer's methamphetamine conspiracy.

To be sure, in Hammer's large-scale, ongoing methamphetamine conspiracy, that was the only transaction ever mentioned. The government didn't accuse Andy of regularly financing Hammer's drug business—just that one transaction.

Importantly, the government prosecutors and the sentencing judge clarified that Andy was never involved in possessing, storing, using, or distributing methamphetamine. Equally telling, the government never accused Andy of profiting in any way.

For this crime, the infamous Judge McBryde crushed Andy with 30 years in federal prison, a system that does not offer parole.

Before prison, Andy was a longtime local business owner with zero criminal history; he is the father of five daughters. He spent decades competing professionally in mixed martial arts, a sport at which he excelled. First-time offender Andy, nearly 60 years old, is serving a shockingly high prison sentence that is grossly disproportionate to the severity of his offense.

Andy has served about 15 years in prison so far; he has engaged in extensive post-conviction rehabilitative efforts, has maintained an impeccable prison disciplinary status, and has serious medical issues. Incapacitating a first-time, nonviolent offender like Andy while cold-blooded killers, rapists, and child traffickers serve much less prison time screams injustice and is completely irrational. Andy's sentence embodies the flaws in the federal justice system, a system notorious for doling out soul-crushing sentences that are excessively punitive.

Additionally, Andy has numerous gravely serious medical issues. He has suffered multiple heart attacks. Andy also has spindle cell sarcoma, an extremely rare bone cancer. Andy also has type II diabetes, for which he is undergoing chronic care from the prison, requiring daily medications. He also has cirrhosis of the liver and non-alcoholic fatty liver disease.

What's more, Andy is also on medication for high blood pressure, high cholesterol, asthma, and kidney failure.

And if there weren't enough inequities at play, a large part of Andy's prison sentence is based on conduct the jury acquitted him of.  You heard that correctly. Below is a more detailed overview of Andy's case.

Hammer's Large Scale Methamphetamine Conspiracy

The government prosecuted Hammer, the head honcho, and about 20 of his associates for running a large-scale methamphetamine distribution ring encompassing 311 pounds of methamphetamine, worth approximately $7.5 million

The indictment did not allege that Andy sold drugs or profited from the drug distribution in any way. The many government witnesses, including the investigating federal agents who testified at Andy's trial and had intimate knowledge of the inner workings of the drug operation, did not allege that Andy sold drugs or profited from the drug distribution. During the trial, the government prosecutors did not allege that Andy sold drugs or profited from the distribution.

In fact, the prosecutors emphasized that he was not involved in the storing, possessing, or selling of drugs: "Andy Anderson did not distribute drugs. Andy Anderson did not hold the drugs." (The U.S. prosecutor's closing statement to the jury.)

In fact, to this day, not one person interviewed by law enforcement has ever so much as accused Andy of being involved in the possession, use, or distribution of drugs nor of profiting from Hammer's drug conspiracy.

Instead, at trial, prosecutors narrowed Andy's criminality to one issue.

To avoid losing his business to the IRS, Andy scrambles to raise $160,000 to save it.

As was touched on earlier, Andy had owned and operated two local businesses for 20 years, which, according to tax records, generated a comfortable living. On June 5, 2009, Andy learned that if he could not come up with a large sum of money by the close of the business day, the IRS would seize his business and resell it at a fire sale price.

The government did not dispute this. In fact, the government wiretaps—presented at Andy's trial—captured the entire story. With that, wiretaps intercepted Andy's many hectic phone calls and text messages that day as he was breathlessly endeavoring to raise $300,000 to save his business.

If the intercepted phone calls and text messages weren't enough, two attorneys testified about the dire situation at Andy's trial.

In particular, at trial, attorney Steven Swander, who had been practicing law for 33 years, testified that on June 5, Andy was frantic to save his business from IRS seizure. Attorney Swander tried to help Andy rescue his business. Similarly, a former Navy JAG officer and IRS agent with the U.S. Department of Justice Tax Division in Washington, D.C., testified that he represented Andy regarding the IRS lien. Both attorneys were involved in the urgent situation.

Andy's Lifelong Friend, Hammer, Loans Andy $160,000 So Andy Can Try to Save His Business

On that day, Hammer loaned Andy $160,000 so he could try to save his business. Strangely enough, after Andy attempted to pay the lien, the IRS informed him that the property owner had already taken care of it.

A Week After Hammer Loans Andy the $160,000, Hammer Calls Andy and Asks Andy to Repay Him $60,000.

About a week after Hammer loaned Andy the $160,000, Hammer needed $60,000 of the money back. Andy still had the money in his safe, so he returned it to Hammer. This was the crime that allowed the judge to bury Andy with a 30-year federal prison sentence.

The Government's Case Theory: Since Andy Knew That Hammer Was in the Drug Business When He Paid $60,000 of the $160,000 Loan Back, Andy is Guilty of Conspiracy to Possess and Distribute Methamphetamine

Not everyone person in a drug conspiracy has to touch the drugs to be guilty.  A personal who provides financing for the deals can be equally guilty.

But that's not the case here.

Andy was never accused of regularly financing Hammer's drug deals. Nor was he accused of profiting from the transactions. This was not an ongoing thing. Of the $7.5 million in methamphetamine sold by Hammer's conspiracy, this $60,000 transaction is the only transaction pinned on Andy, a revealing fact that speaks volumes: "On...June 5, 2009, at approximately 2:46 pm, defendant [Hammer] delivered...$160,000...to defendant Herbert Phillip Anderson [Andy]." Indictment at P.8. "On...June 11, 2009 [Hammer] obtained...$60,000...from [Andy]." Id at P.9. Independent of Andy, Hammer then bought methamphetamine.

That's it. That's the "crime." (In addition to a long line of government witnesses, more than 5,000 intercepted phone calls and text messages paint a clear picture of Andy's limited role.)

Sure, had Andy played the regular role as the financier we don't think the injustice would be the same. But we are talking about a man who borrowed money from a lifelong friend to save his business and who paid back the loan a week later. That's a much different scenario than, say, Andy making profits by acting as the money man in the drug conspiracy. This was more of a trap regarding an isolated event spurred by a desperate business situation. Andy didn't make a dime.

In sum, the government's case theory was simple: Andy borrowed $160,000 from Hammer = a week later, Andy gave $60,000 of the $160,000 back to Hammer = Andy knew that Hammer was going to use the money to buy drugs = Andy is guilty of conspiracy to possess with the intent to distribute methamphetamine = Andy, a father of five daughters and grandpa of six grandchildren with no criminal history, needs to sit in a cage for 30 years. This is precisely how the government put it: "Andy Anderson did not distribute drugs. Andy Anderson did not hold the drugs. Andy Anderson held the most important thing that they had, and that was the money. You got to have the money, honey, to make this thing go. He held the money. And when the money was needed to buy drugs, then he handed it back." Trial Trans.Vol. III at P.69.

The injustice is plain. Notably, Andy and Hammer received the same 30-year sentence, which is hard to reconcile given Hammer made millions of dollars as the drug kingpin who flooded the street with more than 300 pounds of methamphetamine over 15 months, had a lengthy criminal history, and had spent a considerable amount of time in prison, including a sentence for murder; and Andy, who had no criminal record, paid $60,000 of a $160,000 loan back.

People who enter into a criminal conspiracy to possess and distribute substantial amounts of drugs are in the business of profiting from the sale of those drugs; that's the nature and purpose of such an agreement—to make money. To this day, neither the government nor its witnesses have ever accused Andy of making $1 profit from his involvement in Hammer's drug conspiracy. That says it all, folks. Let that sink in.