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WAS STANLEY GENE ELLIS GIVEN A DEAL TO TESTIFY AGAINST PHILIP ARTHUR THOMPSON?

by Kathryn Joanne Dixon

Thirty-four years after the murder of Betty Cloer, whose body was found on June 19, 1971 in Cameron Park, Stanley Gene Ellis, a federal prisoner, came forward to testify against Philip Arthur Thompson. Thompson is going trial on February 19, 2008, on a first degree murder charge generated by a DNA cold hit on a pair of panties allegedly connected to the victim which were found 30 feet from the body. How did Ellis become the prime witness for the prosecution?

On April 26, 2005 Stanley Gene Ellis talked to Rick Fitzgerald, El Dorado County detective. Fitzgerald wrote in his June 16, 2005 Supplemental Report:

Ellis told me he doesn’t want anything from our county for this information.

Sometime in March 2005, Fitzgerald wrote that he had responded to a call from Toni Pisani, investigator for the Oregon Federal Public Defender’s office, who told him that Ellis wanted to talk about the murder of Betty Cloer. At the April 26, 2005 meeting, Ellis provided a description of a stranger who came to the door of the apartment where Betty Cloer was staying in Sacramento the night of her murder. Betty Cloer left with the stranger who, according to Ellis, was promising to take Betty to the Tahoe area. Ellis had given a description of the stranger and the car he drove. In 1971, Ellis gave a different description of the stranger to Detective Mergen.

What federal sentence was Ellis facing that could have compelled him to attempt to implicate Thompson in Cloer’s murder?

On December 12, 2003, Ellis, age 54, and his accomplice John Curtis Bedford, date of birth 6/16/66, were caught after burglarizing the home of Donald Wayne Baughman, who possessed 63 guns that they had stolen. Initially Ellis was charged with gun possession, which carried a minimum 10 year sentence. However on April 21, 2004, the grand jury returned a superseding indictment charging Ellis with being a career criminal pursuant to 18 U.S.C Section 922(g) (1); 924(e), a charge which carried a sentence of 15 years to life. The grand jury found the requisite three prior offenses, a bank robbery in the Eastern District of California in 1984 and two robberies in the second degree in the County of Sacramento. The guns which the grand jury specified in the superseding indictment linked to the December 12, 2003 burglary included 12 gauge pump-action shotguns, and rifles such as a Marlin, Model 81B, and a .22 caliber bolt-action rifle. The grand jury found guns had been shipped in interstate commerce.

What range of sentence was Ellis facing when charged with the superseding indictment?

The 2004 federal sentencing guidelines are based on a sentencing table which tabulates on axes the Offense Level and the Criminal History Category to obtain the number of months of the sentence. The offenses level ranges from 1 to 43 and the Criminal History Category Points range from Level I (0-1), Level II, (2 or 3) Level III, 4,5,6), Level Vi (10,11, 12) Level VI (13 or more).

In regard to Criminal History Points, an armed career criminal is not automatically placed in the highest Criminal History Category VI. Nevertheless, an armed career criminal cannot receive a score below category IV. See Sentencing Guidelines §4B1.4(c). Ellis would reach the highest Level VI, if he fit the following category under the Sentencing Guidelines Section §4B1.4 (2) which provides:

(2) Category VI, if the defendant used or possessed the firearm or ammunition in connection with either a crime of violence, as defined in §4B1.2(a), or a controlled substance offense, as defined in §4B1.2(b), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a)....

Ellis stole and possessed 63 firearms. Were any of them of a type described in 26 U.S.C. Section 5845(a)? If so, Ellis could have been sentenced in Category VI.

Section 5845(a) provides:

(a) Firearm The term “firearm” means

(1) a shotgun having a barrel or barrels of less than 18 inches in length;

(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;

(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

(5) any other weapon, as defined in subsection (e);

(6) a machinegun;

(7) any silencer (as defined in section 921 of title 18, United States Code); and

(8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.

Were any of the weapons possessed by Ellis in the superseding indictment firearms of the type described in Section 5845(a) so that Ellis qualified to be sentenced in the highest category VI? That question is not addressed in the public record. However, the answer is “yes! Several of the guns listed in the superseding indictment fit that category. On the other hand, the minimum category regarding Criminal History for an armed career criminal is IV.

In regard to Ellis’ Offense level, pursuant to Sentencing Guidelines, Section 4B1.4, Ellis was looking at Level 34 or Level 33:

(3) (A) 34, if the defendant used or possessed the firearm or ammunition in connection with either a crime of violence, as defined in §4B1.2(a), or a controlled substance offense, as defined in §4B1.2(b), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. §5845(a)*; or

(B) 33, otherwise.

The public cannot directly know the Offense Level and Criminal History of Ellis because the presentencing report of the federal Probation Officer is confidential and sealed.

On January 25, 2005, Ellis entered a guilty plea to the Superseding Indictment, which the Court accepted. The Court set a sentencing date of April 26, 2005.

Sometime between January 25, 2005 and before the first sentencing date on April 26, 2005, the Probation Office issued its draft presentence report which recommended that the Armed Career Criminal enhancement apply and that Ellis be sentenced to 210 months. Ellis objected to the Probation Office regarding this report.

On February 4, 2005, the Court continued the sentencing date from April 26, 2005 to May 3, 2005. Apparently the Judge made this continuance of his own volition (sua sponte).

One can only imagine the panic that Ellis felt in February and March 2005 when he was facing a sentence of at least 210 months and the possibility that the United States Attorney would seek a higher sentence, even a life sentence.

On March 22, 2005, the United States filed its sentencing recommendation accepting the Probation Officer’s recommendation of 210 months.

It was also in March that Ellis communicated with Detective Fitzgerald about providing information on Thompson. The exact date of that call is not recorded in the Supplemental Report by Detective Rick Fitzgerald. It is key to the situation. Did it occur before March 22, 2005? If so, did the United States Attorney decide to go along with the 210 months rather that the high end of 235 months or even a life sentence because of Ellis’ cooperation with the El Dorado County prosecutor in the Betty Cloer murder case?

Just three days after Ellis met with Fitzgerald on April 26, 2005, Ellis made a Motion to Continue Sentencing filed on April 29, 2005. Then on May 4, the Motion was granted and the judge continued sentencing until June 14, 2006. Thus Ellis gained some time for himself. The Government replied to Ellis’ objections regarding the draft presentence report on June 8, 2005. Ellis submitted sentencing letters to the court on June 9, 2005 and June 10, 2005. Did these letters mention Ellis’ meeting with Detective Fitzgerald on April 26, 2005? These documents are sealed. In this reporter’s opinion, if Ellis did not mention his cooperation with the detective in an attempt to knock down his potential 210 month sentence he was foolish. At this point he needed all the help he could get.

No one can know for sure. In addition to sealing the presetencing report, Ellis’ objection and letters are also sealed. Although Judge Michael R. Hogan sentenced Ellis in a public hearing on July 26, 2005, the Judge’s “Findings of Fact and Order” of August 2, 2005 regarding the sentencing were sealed by the Judge and is “located in the non-public files of the U.S. Probation Office.”

Despite the sealing shroud, the following can be ascertained about Ellis’ Offense Level and Criminal History Category by examining the statement of the United States Attorney for the District of Oregon, Karin J. Immergut and the Assistant U.S. Attorney Frank R. Papagni, Jr.

On March 22, 2005, the U.S. Attorney filed the “Government’s Sentencing Memorandum”. It stated regarding “Sentencing Recommendation”:

U.S. Probation Officer Robb reasonably recommends a 210 month term of imprisonment which is within the advisory guidelines range and is 30 months more than mandated minimum 15-year term of imprisonment. The common factual thread through Defendant’s 30-year criminal career is deceit and possession of firearms and drugs.

The Government supports the Probation Office’s Sentencing Recommendation and does not request a high-end or 235 month term of imprisonment because, although Defendant attempt to elude the police, he did not brandish any of the firearms he had stolen.”

The Government’s Appellate Brief stated:

The Probation Office’s Final Presentence Report found Defendant to be an armed career criminal, and recommended that he be sentenced to a prison term of 210 months....

Defendant’s July 21, 2005, letter maintained the judicial documentation was still inadequate for the district court to find he had a third robbery conviction and had attached numerous letters in support of his receiving a lesser sentence.

Therefore, it is likely that Ellis’ Offense Level was Level 33. The Probation Officer probably found he had a criminal history of Level V, thus his range of sentence could have been 210 to 262 months. The high end sentence referred to by the US attorney of 235 months meant that the United States Attorney had in view the prospect that Ellis could be found to be a Level VI Criminal History Category which ranged from 235 to 293 months. However, the Probation Office or the United States Attorney could have argued for a life sentence for Ellis if they had found his offense level was at least 37 and his Criminal History was Level VI. They also could have increased his offense level to 34 if they had found the firearms he possessed from the burglary were those described in 26 USC Section 5845(a).

Instead, on March 21, 2005, the Government chose to go with the Probation Officer’s Recommendation of 210 months instead of requesting the high end of 235 months. Why? Was it because Ellis had a meeting set up on April 26, 2005 with detective Rick Fitzgerald about the Betty Cloer murder case?

At the June 14, 2005 sentencing hearing which involved only the matter of the government's proof of Ellis' three prior convictions, the Judge continued the sentencing hearing until July 26, 2005 to provide the Probation Office with an opportunity to locate a transcript of the plea or sentencing hearing for one of the Ellis’ third degree robbery convictions. The U.S. Attorney needed these documents to prove Ellis had three prior felony convictions punishable by a term of more than one year, in order to qualify him as an Armed Career Criminal.

At the sentencing hearing on July 26, 2005, Assistant U.S. Attorney Papagni stated:

Back when we first began this proceeding, we went through the process of dealing with the requirement of the Supreme Court and the Ninth Circuit has regarding these prior convictions. Back on March 21st, I filed the government’s sentencing recommendation. The recommendation concurred with the recommendation of Ms. Robb, who did not ask for a high end recommendation. We didn’t ask for a life sentence. We asked for what Ms. Robb recommend because that made sense to us given the fact that Mr. Ellis, when arrested, did not attempt to brandish or use the firearms he had stolen.

Mr. Ellis is here today. The court is familiar with h is background. It is a melancholy job that we sometimes have when a 55-year-old man who has had a criminal career that he began at age 22 by committing robberies, he was in possession of a firearm used in a homicide, age 28-30, he was an accomplice in breaking into vehicles, committing forgeries. He used the money to support his drug addition. And I think Mr. Lessley, his attorney, has correctly attributed many of Mr. Ellis’ crimes to his usage of illegal drugs.

At the sentencing hearing Ellis’ attorney argued for a 180 month sentence. The Court, in sentencing the defendant, stated:

All right. I’ve considered the advisory sentencing guideline range as set forth in the presentence report. I find that it’s been appropriately determined, and have selected a sentence that addresses the nature and circumstances of the offense, and the history and characteristics of the defendant, protection of the public and to afford adequate deterrence to criminal conduct.

The defendant is committed to the Bureau of Prisons for a confinement for a period of 188 months.

Judge Hogan also ordered that that Ellis submit a DNA sample.

It is unknown whether the United States Attorney, the Judge, or the federal Probation Officer were influenced by any communication from Ellis or his attorney regarding Ellis' cooperation with Detective Rick Fitzgerald. It is also unknown whether the El Dorado County District Attorney assisted Ellis by putting in a good word on his behalf prior to sentencing.

The United States did not make a motion regarding Ellis’ cooperation. The court, on motion by the government, may “impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. §3553(e).” Furthermore, Part K authorizes a downward departure on the government’s motion if the defendant “has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” §5K1.1, p.s.; cf. 18 U.S.C. §§ 3553(b) (2) (A) (iii), 3553(e).

Finally, even if the Government does not make a cooperation motion, the court may do so of its own volition. Specifically, the court can consider cooperation in determining the placement of the sentence within the guideline range. It also can determine the extent of a departure based on other grounds, or as one of the factors justifying a lower sentence under §3553(a).

Ultimately, the Court sentenced Ellis to 188 months. The Court did not provide its reasons for doing so on the public record. The Court sentenced Ellis to less than the 210 months that the Probation Officer and the United States Attorney recommended. Why? One year was shaved off Ellis’ sentence. Did the Judge know that Ellis had cooperated with Fitzgerald? The Findings of Fact and Order regarding sentencing filed on August 2, 2005 are sealed.

Ellis’ prospects got better and better starting sometime in March 2005 because:

1) In its March 22, 2005 Sentencing Recommendation, the United States Attorney, who could have requested the “high end of 235 months” or even a “life sentence” as the United States Attorney mentioned at the July 26, 2005 sentencing hearing, went down to a much lower sentencing recommendation of 210 months in accordance with the Probation Officer’s recommendation. Did Ellis’ investigator communicate to Fitzgerald prior to March 22, 2005 thus indicating he wanted to cooperate, so that the March 22, 2005 recommendation was far more favorable than a life sentence or 235 month recommendation? We cannot tell. Fitzgerald did not note the date of the initial communication in his record.

2) The timing of events shows that Ellis may have requested time to convey his degree of cooperation to the authorities. The Judge continued the sentencing hearing set for April 26, 2005 on two occasions, first on the Court’s own motion on February 4, 2005 changing the date from April 26 to May 3, 2005, and then on the motion to continue by Ellis filed April 29, 2005 which was granted on May 4, 2005. Did Ellis need time, after the April 26, 2005 meeting with Fitzgerald to communicate with the United States Attorney, Probation Officer or Judge about his cooperation before the sentencing hearing?

3) Almost miraculously, at the sentencing hearing itself, Judge Hogan sentence Ellis to 188 months, knocking a year off the sentencing recommendation of the Probation Officer and the United States Attorney without any detailed explanation. The Judge did not mention cooperation. But he was not required to do so. His Findings of Fact and Order which may have revealed these reasons are sealed.

Ellis has gone much further regarding providing information against Thompson beyond that which he provided in his April 26, 2005 meeting with Fitzgerald. He has increased the detail in his eyewitness identification by picking out Thompson from a six pack. Ellis has alleged that Thompson’s attorney threatened him during a prison interview. Ellis is walking the plank to provide information against Thompson.

Even after a prisoner is convicted he can seek mitigation of his sentence or early release, by providing information to the authorities which helps to convict another person of a crime.

It is possible that Philip Arthur Thompson will go to trial, never knowing if Ellis cooperated with the authorities? The records are sealed and if the truth is not revealed, the public and more tragically, the victim’s family will never know the truth about Betty Cloer’s murder.

Kathryn Joanne Dixon © 1/13/08

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