Join Date: Dec 2003
Location: Las Vegas
Government Sentencing Memo
I overlooked this government sentencing memo on the court files. It is long but contains some interesting insights. It claims that Steele tried to get his wife to say that it was not his voice on the recordings before he had even listened to them to know how good that they were.
There are several quotes from the recordings which were played for the jury which have not been published before. This includes him threatening to kill Fairfax if he didn't get Cyndi killed soon. The prosecutor fails to note that the magnet that Fairfax used to try to attach the pipe bomb to Cyndi's truck was not strong enough. He had to wire it on the frame to get it attached firmly.
WENDY J. OLSON, IDAHO STATE BAR NO. 7634
UNITED STATES ATTORNEY
D. MARC HAWS, IDAHO STATE BAR NO. 2483
TRACI J. WHELAN, IDAHO STATE BAR NO. 4416
ASSISTANT UNITED STATES ATTORNEY
DISTRICT OF IDAHO
WASHINGTON GROUP, PLAZA IV
800 E. PARK BLVD., SUITE 600
BOISE, IDAHO 83712
TELEPHONE: (208) 334-1211
FACSIMILE: (208) 334-1413
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
EDGAR J. STEELE,
Cr. No. 10-148-N-BLW
GOVERNMENT’S SENTENCING MEMORANDUM
The United States of America, by and through United States Attorney, Wendy J. Olson, and Assistant United States Attorneys Traci J. Whelan and D. Marc Haws, now submits this Sentencing Memorandum in the above-captioned case.
Following an eight-day trial, the jury convicted Defendant Edgar J. Steele on all four counts charged against him:
COUNT I – Use of Interstate Commerce Facilities in the Commission of Murder
for Hire, 18 U.S.C. § 1958;
COUNT II – Use of Explosive Materials to Commit Federal Felony, 18 U.S.C. § 844(h);
COUNT III – Possession of a Destructive Device in Relation to a Crime of Violence, 18 U.S.C. § 924(c)(1)(B)(ii); and
COUNT IV – Tampering with a Victim, 18 U.S.C. § 1512(b)(3).
SUMMARY OF FACTS PROVEN AT TRIAL
The jury’s verdict was based on testimonial and tangible evidence that between December 2009 and June 11, 2010, in the District of Idaho, Defendant Edgar Steele hired and plotted with Larry Fairfax to murder Edgar Steele’s wife, Cyndi Steele, and then also Steele’s mother-in-law, Jacqueline Kunzman. Specifically, the evidence showed that Edgar Steele caused another to travel in interstate commerce with intent that a murder be committed in violation of the laws of Oregon and Idaho.
Knowing that his wife would be traveling in her car from Idaho to Oregon, Steele took advantage of her travel as an opportunity to murder Cyndi with a pipe bomb attached to her car. Later, he caused Fairfax to travel between Idaho and Oregon to ascertain what happened to the pipe bomb since it did not explode; thus causing Fairfax to travel in furtherance of the plan to kill Cyndi Steele. Moreover, the automobile used by the victim and the automobile used by his co-Defendant were instrumentalities of interstate commerce on public highway systems.
Evidence showed that the first method Steele used for committing the murder was to hire Fairfax for $10,000, paid in silver, to construct and place two pipe bombs—“explosive or destructive devices” as charged in Counts II and III—on vehicles owned by the Steeles, so that when Cyndi Steele drove from Idaho to Oregon on or about May 28, 2010 the first bomb would explode and kill her.
The plan was devised so that the second bomb would be discovered on Edgar Steele’s car, un-detonated, diverting suspicion from Edgar Steele. The bomb on Cyndi’s car did not go off; so Edgar Steele sent Fairfax to Oregon to check on and remove the bomb from Cyndi’s vehicle to avoid the murder plot from being discovered. Thus, the evidence showed that the murder plan was ongoing, and the travel by Larry Fairfax was in furtherance of Steele’s murder plot.
When the first plan failed, Steele thought of a second plan and attempted to persuade Fairfax to carry out the murder of not only Cyndi Steele, but also her mother, Jacqueline Kunzman, in Oregon by whatever effective—even violent—means that Fairfax could devise. Steele offered Fairfax an additional $10,000 if the murder included Steele’s mother-in-law. He offered an additional $5,000 if the murders were successfully accomplished in Oregon in such a way that it would appear they were killed in an automobile accident.
Fairfax took the stand at trial and testified candidly. He told how his financial desperation induced him to participate in Edgar Steele’s murder-for-hire plan. Fairfax’s testimony held up well against strong cross-examination. He said that he was desperately in need of money, and that he had accepted $10,000 in silver coins and bullion in exchange for building and placing a pipe bomb on Cyndi Steele’s car to murder her. When Fairfax realized how deeply and dangerously he was involved with Steele, he sought out federal law enforcement officers.
He told them about Steele’s upcoming plot and helped the FBI to foil it. However, Fairfax admitted he had not been completely candid since he had not initially mentioned anything about the pipe bombs. He assumed it fell off Cyndi’s car; and he had dismantled the other pipe bomb in his garage. At trial, the Defendant unsuccessfully attempted to cast all of the responsibility for the attempted murder plot on Fairfax. Steele’s defense contended that Fairfax was a mischievous neighbor trying to steal money from Edgar and Cyndi Steele.
Defendant Steele also tried at trial to discredit the audio recordings of June 9 and June 10, 2011 in which Steele is heard urging Fairfax to get the murder job done, offering additional money, and agreeing to pay Fairfax travel money to go to Oregon to commit the murders on June 11, 2010. The jury’s verdict shows that they believed Fairfax’s testimony and the authenticity of the audio recordings.
The evidence at trial further established that although the pipe bomb placed on Cyndi’s car did not detonate, its construction showed an intent on the part of the killers that the bomb not fail. It had a double ignition design. It had redundant methods for assuring that it would remain attached to the frame—just below the driver’s seat—of her Mitsubishi Endeavor.
The jury also convicted Steele on Count IV, attempting to corruptly persuade a witness—his wife and intended victim, Cyndi Steele—to give misleading testimony to the FBI investigating the case. Besides establishing the crime of witness intimidation, his recorded phone call to Cyndi Steele on June 13, 2011 confirmed Steele’s consciousness of guilt in plotting to kill her, and his knowledge of the damning evidence in the audio recordings which, at that
point, he had not heard.
The Ninth Circuit has set a basic framework which the district courts should follow in compliance with the Supreme Court's ruling in United States v. Booker, 543 U.S. 220 (2005):
(1) Courts are to begin all sentencing proceedings by correctly determining the applicable sentencing guidelines range, precisely as they would have before Booker.
(2) Courts should then consider the § 3553(a) factors to decide if they support the sentence suggested by the parties. Courts may not presume that the guidelines range is reasonable. Nor should the guidelines factors be given more or less weight than any other. They are simply to be treated as one factor among the § 3553(a) factors that are to be taken into account in arriving at an appropriate sentence.
(3)If a court decides that a sentence outside the guidelines is warranted, then it must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.
(4) Courts must explain the selected sentence sufficiently to permit meaningful appellate review. United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008). In fashioning the appropriate sentence, the Court should take into consideration the USSG in light of the factors listed in 18 U.S.C. § 3553(a). United States v. Armstrong, 620 F.3d 1172, 1178-1179 (9th Cir. 2010). The Government will discuss each of these factors as they relate to the Steele case.
A. 18 U.S.C. § 3553(a) Factors
Title 18, section 3553(a) of the Criminal Code says that “(t)he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2),” which are set out below.
1. 18 U.S.C. § 3553(a)(1)—Nature and Circumstances of the Offense and
History and Characteristics of the Defendant
The first part of subsection one of 18 U.S.C. §3 553, considers the nature and
circumstances of the offense. The facts presented at trial show that Edgar Steele devised two chillingly calculated murder plans. To plan the murder of an innocent spouse is unthinkably heartless. To manipulate a financially desperate neighbor to commit the murder with a violent car bomb explosion is depraved. Cold, coveted silver—$10,000 worth of silver—was the value Steele placed on the death of Cyndi, his wife. Despite Steele’s claims—and even Fairfax’s claims—that the pipe bomb was designed not to function, the facts are clearly to the contrary.
The testimony of the bomb squad witnesses was that the bomb removed from Cyndi’s car was large, as pipe bombs go. The evidence of lab and bomb experts was that the pipe bomb was constructed using smokeless double base powder, which—unlike black powder—is highly explosive. The bomb was fitted with two fuses to detonate it which were attached at different points to the catalytic converter of Cyndi’s car. The two-fuse attachment showed intent to make sure the bomb would ignite.
The bomb was attached to the frame of the car with wire and with a powerful magnet to make sure it stayed on Cyndi’s car. These facts show that the intent of the killers was to succeed in exploding the car. Lab and technical testimony showed that the hobby fuses were discolored from contact with heat from the exhaust system of the car. The fuses only failed to ignite because the killers miscalculated the intensity of the heat that the exhaust system would generate to ignite the hobby fuses.
When the pipe bomb on Cyndi Steele’s Mitsubishi Endeavor did not detonate, Edgar Steele was not overcome with relief and remorse. He did not have a change of heart or mind. On the contrary, Edgar Steele became heartlessly more insistent that Fairfax “get this job done” by another means—by a gun shot or an automobile accident. Steele had an opportunity to come to his senses, to change course, to re-think the stupid, callous plan he had set in motion. But he only rethought it to insist that the next plan be more dependable.
A few of Steele’s own words from transcripts of the June 9 and June 10, 2010 audio recordings, and his voice tones captured in the recorded conversations with Larry Fairfax, show he never had a change of heart. Steele says: “Go get, get this job done, Larry.” (6/9 Audio Recording Transcript, p. 3)
“I mean, you gotta get this job done, done. I mean seriously.” Id. “I want to give you a powerful incentive.” Id. “Larry I can count on you?” (6/9 Audio RecordingTr., p. 7)
“How can you be sure that its going to do the job? . . . Alright, well I’ll leave it up to you. I hope it works better than the last one.” Id. “Okay, I’m counting on it. I mean, Larry I am really up against it, it has to happen right now.” Id.
In response to Fairfax’s statement that he has everything lined up, Steele says again: “I’m counting on you.” (6/10 Audio Recording Tr., p. 10)
“Well, you better not get your f------ ass caught. You get . . . caught over there pulling something like this . . . the trail comes right back to me and there ain’t, we’ll be sharing a cell together.” Id. In response to Fairfax question whether Steele had any second thoughts, Steele says: “No second, ****, have you seen a second thought . . . in me yet?” (6/10 Audio Recording Tr., pp. 2-3)
“She gonna see you? ... You know I was watching something on TV, a guys wife got into an auto accident, she was turned into a paraplegic and he was left to take care of her the rest of her life with the kid kinda pitying him and he was, that he’s the one who had to do it. And I thought to myself that’d be awful. You know, ‘cause if I abandoned her at that point my kids would hate me forever, you know I couldn’t do that. I mean, this could actually become a much worse situation than it currently is. Do not, do not leave me like that.” (6/10 Audio Recording Tr., p. 5)
“So that when that, so when that black and white pulls into my driveway I hope to God I can answer the door and seem normal. Because I won’t know whether they’re ta, they’re here to notify me or they’re here to take me away, because you f----- up and got yourself f-------caught, and then it got pinned on me. ‘Cause if Cindy takes one look at you she’ll know exactly what the f--- ‘s goin’ on.” (6/10 Audio Recording Tr., p. 7)
“And I will lie myself out of it.” (6/10 Audio Recording Tr., p. 8)
“But you make sure you get the f------ job done. The worst thing you could do is not get the job done. Get your ass caught and you’ll be f------ swinging out there ... and there won’t be anything I can do, except the best, to throw you to the f------ wolves.” Id. “I’m pissed off, but, I don’t want her to suffer and I don’t want her to realize as the lights are going out what’s happened. I’d like that not to happen . . . I’d like it to be a mystery or a surprise, or better yet, happen so fast she, that she’s not even aware of what’s going on. That’s the way I’d like it, okay?” (6/10 Audio Recording Tr., p. 9)
“. . . I want, I want this over with . . . No, there ain’t no second thoughts pal.” (6/10 Audio Recording Tr., p. 10)
These few, chilling words from Steele’s own heart, mind and mouth establish the outrageous circumstances of his offenses.
The second part of subsection one of 18 U.S.C. § 3553 requires consideration of the history and characteristics of the defendant. Edgar Steele has no significant prior criminal record. By profession, he was a long-time attorney handling civil cases. Anyone who seeks to know who Edgar Steele is, soon comes face-to-face with Edgar Steele’s political beliefs. Edgar Steele has attempted to suggest his ideologies were a motive for the Government to bring this prosecution. Nothing could be further from the truth. His political bent does not weigh in the balance either for or against him on this case. His ideologies were no reason to bring this case, and his ideologies were no dissuasion from bringing this case. This case was brought based upon its facts.
President Theodore Roosevelt said in his Third Annual Message to Congress, December 7, 1903: “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.” Edgar Steele’s history and ideology do not place him above the law. Nor do they place him below it. Incarceration is warranted in this case, not because of what Edgar Steele’s ideologies are, nor because of who Edgar Steele is, but because of what he did to commit these crimes.
The pre-sentence investigation will undoubtedly shed much more light on the Defendant’s past, as well as positive comments on his life by his friends and associates. Undoubtedly, many people may have many positive things to say about the Defendant; but the law exacts a price to be paid for his crimes which have been proven beyond a reasonable doubt.
2. 18 U.S.C. §3553(a)(2)—Need for the Sentence Imposed
(a) To Reflect the Seriousness of the Offense and Promote Respect for
the Law, and to Provide Just Punishment for the Offense
The sentence needs to reflect how serious these crimes are, and it needs to promote respect for the law by imposing just punishment. These federal crimes—Attempted Use of Interstate Travel to Commit Murder-for Hire, Attempted Use of and Explosive Devise, Possession of a Destructive Device, and Witness Tampering—are extremely serious. The facts presented during trial depicted an attorney who seemed to feel he was above the law, that he
could “get a way with murder,” to use the cliche. The facts show a person who manipulated, coerced, and intimidated others to do what he wanted done. The facts show a man who was desperate with self-pity. He was beset by his physical ailments. His marriage was not fulfilling.
He resented his wife’s absences; yet her very existence impeded him from reaching for the quality of life he wanted. He was trapped in a house on a ranchette property which were his wife’s dream; but not his. He fantasized about mail-order Russian brides. He had money; but not health. He had to pay his neighbor to do his handyman jobs. In his plotting, Edgar Steele
seems modeled on Raskolnikov : too far above the law, and too smart to get caught.[Raskolnikov is the main character in Fyodor Dostoyevski’s novel Crime and Punishment. The protagonist feels condescension toward the law and his intellectual superiority by committing the “perfect crime”—a murder.] Unless Edgar Steele serves federal prison time, and receives just punishment, there will not be due respect for the law, and the seriousness of his crimes will be diminished.
(b) To Afford Adequate Deterrence to Criminal Conduct
Related to the punishment objective of promoting respect for the law is the punishment objective of deterring criminal conduct. One goal of federal sentencing is to deter criminal conduct by others; in other words: general deterrence. The assumption is that others who might be inclined to disrespect the law and engage in violent crimes will “think twice,” and be deterred by the prison sentence imposed upon the Defendant. It would be wonderful if all American citizens felt allegiance to law to the extent of being voluntarily obedient to it. However, that is not the case. Some take into account the punishments of the criminal codes, weigh their chances of getting caught, then calculate their risks before undertaking criminal enterprises. This Court’s imposition of a sentence of incarceration on Edgar Steele will help deter others who might be inclined to commit such crimes.
(c) To Protection of the Public from Further Crimes of the Defendant
It is a specific statutory objective to protect the public from further crimes of the Defendant, Edgar Steele. It is reasonable to believe that given his life-long, clean criminal record, Edgar Steele would argue that it is not likely he will commit additional, serious crimes. The same would also have been reasonable to believe about Edgar Steele back in mid-2010.
Undoubtedly, many of his friends and supporters would have said then—and may say now—that Steele poses no threat to family, friends or the public. The facts of this crime, however, demonstrate the fallacy of such thinking. Precisely because Steele had a clean record, and he was a long-time attorney at law, he calculated that he would not be suspected of serious crimes. Undoubtedly, he calculated that his good criminal record and his sound reputation among friends would shield him from suspicion.
Some who attempted to offer inadmissible testimony at trial, probably still cannot accept that Steele could commit the crimes he has been convicted of. The point is: Steele’s prior law-abiding character is not a good predictor of his penchant to commit or not to commit more crimes. Incarceration is the surest way to be confident that society will be safe from further crimes by Edgar Steele.
(d) To Provide the Defendant with . . . Corrective Treatment
It is possible there may be prison resources to benefit the Defendant. Without having the insights which will be provided by a pre-sentence report, and a better understanding of Steele’s physical and mental health, it is impossible to say how the Defendant will benefit from prison programs. What is certain is that the Defendant will have time to think and reflect on his actions while in prison.
3. The Kinds of Sentences Available
The starting point for analyzing the kinds of sentences available, is to consider the punishments prescribed in the statutes. The punishment under 18 U.S.C. § 1958(a), murder-forhire, is incarceration for not more than ten (10) years—assuming no personal injury results—and a fine of not to exceed $250,000. The punishment under 18 U.S.C. § 844(h), using an explosive
device to commit murder-for-hire, is a sentence of imprisonment for ten (10) years consecutive to the underlying felony, and a fine of not to exceed $250,000. The punishment under 18 U.S.C. §924(c)(1)(B)(ii), possession of a destructive device during and in relation to any crime of violence—murder-for-hire—is imprisonment for not less than 30 years. Like the sentence under 18 U.S.C. § 844(h), this term of imprisonment must be consecutive to the sentence for the underlying offense. The punishment under 18 U.S.C. §1512(b)(3), tampering with a witness or victim, is imprisonment for not more than 20 years and a fine not to exceed $250,000.
Putting this all together, it means that the minimum sentence the Defendant could receive by statute is 480 months. However, that is not the sentence which the Defendant should receive; such a sentence would not adequately reflect the totality of the Defendant’s actions in plotting to kill his wife, commissioning pipe bombs, and obstructing or tampering with a witness into consideration; it would punish him only for the use of an explosive or destructive device.
The Government’s recommendation starts with USSG §2K2.4: the mandatory minimums of 18 U.S.C. § 844(h) and 18 U.S.C. § 924(c)(1)(B)(ii) must be imposed. His offenses were serious, cruel and interfered with the administration of justice; therefore, the United States recommends the Court sentence the Defendant to a term of federal incarceration of ten (10) years
for his convictions under 18 U.S.C. § 1958(a) and 18 U.S.C.§1512(b)(3), with these terms of imprisonment running concurrently with each other.
The Defendant should then be sentenced consecutively to a term of ten (10) years imprisonment pursuant to the mandatory language of 18 U.S.C. § 844(h). Consecutively to that, the Defendant should be sentence to a term of thirty (30) years imprisonment pursuant to the mandatory language of 18 U.S.C. § 924(c)(1)(B)(ii). These recommendations result in a total term of imprisonment of 600 months incarceration. This is the penalty which accurately accounts for all of the Defendant’s actions and for which Congress has deemed consecutive sentences appropriate.
A sentence of 600 months (50 years) of federal incarceration should be imposed upon Edgar Steele.
Respectfully submitted this 24th day of October, 2011
WENDY J. OLSON
UNITED STATES ATTORNEY
/s/ Marc Haws
Traci J. Whelan
Assistant United States Attorney
CERTIFICATE OF SERVICE
I CERTIFY that I am an employee of the United States Attorney's Office for the District of Idaho, and that a copy of GOVERNMENT’S SENTENCE MEMORANDUM was served on all parties listed in CM/ECF this 24th day of October, 2011.
Wesley W Hoyt hoytlaw @ hotmail.com
/s/ M. Wahl