AMERICAN FRAUD and The Tylenol Murders

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THE SUSPECTS
 

 
FIVE SUSPECTS
 
Five individuals were publicly referred to by officials as suspects in the 1982 Tylenol murders. All but one suspect had access to Tylenol during distribution. Some were also known to have had access to cyanide.
 
  1. The first suspect was a relative of one of the Tylenol murder victims.

  2.  The second suspect, Jerome Howard, worked at a hospital just blocks from Jewel's warehouse in Melrose Park. The hospital received bulk shipments of Tylenol that were dispensed through its unit-dose pharmacy. The founder of the Louis Zahn Drug Co. was on the hospital's Board of Governors. Howard wrote an extortion note demanding $8,000, but was dismissed as a suspect because officials didn't believe he had the intellect to carry out the crime.

  3. Roger Arnold, the third suspect, had access to Tylenol during distribution because he worked at Jewel's distribution warehouse in Melrose Park. He had purchased cyanide five months before the Tylenol murders. Arnold said he had disposed of the cyanide in August 1982.
  4. Suspect number four, Kevin Masterson, supposedly held a grudge against Jewel Food because of a confrontation between his ex-wife and a security guard at one of Jewel's stores. Officials said he blamed Jewel for the break up of his marriage.
  5. The fifth suspect, James Lewis, became a suspect after sending an extortion letter to J&J demanding that the company deposit $1 million into an account at the Continental Bank of Illinois if they wanted "the killings to stop." However, Lewis had no access to that account, which was a business account, closed five months earlier, for Frederick Miller McCahey, heir to the Miller Brewing Fortune. Court documents state that Lewis wrote the extortion letter to expose what he believed were McCahey's "fraudulent business dealings." Lewis had moved from Chicago to New York City three weeks before the Tylenol murders.

Jerome Howard and Vernon Williams also wrote extortion letters seeking payment to stop the Tylenol poisonings; yet they were never considered suspects.

 
 
 
 
James Lewis garnered most of the attention in the search for a character that fit the FBI's fictional profile of the Tylenol killer. Lewis foolishly made himself a suspect with a misguided extortion attempt. However, it is patently absurd that he was ever a viable suspect. Some proponents of the "approved theory" of the Tylenol murders still consider him a suspect, but the factual evidence clearly shows that James Lewis was not involved in the Tylenol murders. Also see: Cyberlewis.com
 
 

 

Police admitted that they had no evidence to prove that Lewis did more than piggyback on the notoriety of the deaths. Chicago Police Superintendent Richard Brzeczek said:

"It appears unlikely Lewis will ever be linked to the seven murders."

 
Lewis was guilty of having certain characteristics attributed to him that fit the FBI's fictional profile of the Tylenol killer. He was a convenient distraction used by authorities to divert the public's attention away from the actual killer(s) who had access to Tylenol in the channe of distribution.
 
Lewis was sentenced to 10 years in prison for attempted extortion after writing a letter to Johnson & Johnson demanding $1 million to "stop the killing." U.S. District Judge Frank  McGarr sentenced Lewis, then 37 years old, to serve the 10-year sentence for attempted extortion after completing a 10-year sentence for an earlier credit card fraud conviction.
 
 
Lewis was released from prison in 1995 after serving nearly 13 years. - James Lewis 2007 Interview
 
It's interesting that the person who wrote an extortion letter after the 1986 Tylenol murder was treated much more leniently than Lewis. In February 1986, Dewitt Gilmore sent an extortion letter, demanding $2 million, to Bronxville Police Chief Carl Steinmuller and a copy of the letter to the Yonkers police commissioner. Gilmore claimed responsibility for poisoning the cyanide-laced Tylenol capsules that killed Diane Elsroth in Yonkers, NY. He pleaded guilty later that year and was sentenced to two years in jail.
 
Ten years later Gilmore was sent to prison again after pleading guilty to a bank scam that involved passing counterfeit checks. Gilmore began writing books during his second prison stint, and at the time of his release in 2003, Gilmore had written 30 novels. He began selling his books on the street for $10 a copy and in 2006 Gilmore landed a stunning 14-book contract with St. Martin’s Press. Later that same year, the 41-year-old author locked up a development deal with Hollywood director and veteran actor Bill Duke to option "Push," his hot-selling novel about a Harlem vigilante, into a feature film. - Relentless Aaron
 
 
James Lewis Extortion Letter
 

 
 
 

The judge in Lewis's extortion trial stated:

There was not a "shred of evidence" that Lewis committed the Tylenol murders.

 
 
 
 
 
 
On Monday, October 11, 1982, authorities brought in Roger Arnold, a 48-year-old dockhand and amateur chemist, for questioning after police received a tip that he kept cyanide in his South Side Chicago home. For the previous 13 years Arnold had worked on the loading dock of the Jewel Food warehouse in suburban Melrose Park.
 
At least five of the bottles found to contain cyanide laced Tylenol, probably all eight, were packaged at a Jewel Foods repackaging facility, but Investigators only linked two bottles of the poisoned Tylenol to Jewel Foods. In addition, in July 1982, the same Jewel Foods distribution facility shipped Extra-Stength Tylenol to an Osco Drug store in Wyoming.  A young man died from cyanide poisoning shortly after taking  Extra-Strength Tylenol capsules that had been purchased at the Wyoming Osco Drug store.
 
During questioning Arnold admitted that he had kept sodium cyanide in his basement several months earlier for experiments.
 
Investigators searched his apartment and found five guns and ammunition, two one-way tickets to Thailand, and a book with instructions on how to stuff poison into capsules as a method for murder. They also turned up a suspicious-looking plastic bag of white powder, but a lab test later found the powder to be a harmless carbonate.
 
 

Items confiscated during search of Roger Arnold's home

 

 

Evidence confiscated included survivalist magazines, unconventional warfare manuals, The Anarchist Cookbook, five handguns, one bolt-action rifle, ammunition, chemistry and chemical agent manuals, chemicals - some that could be used to make bombs, laboratory equipment and a manual with instructions for filling capsules with cyanide.

 
NBC News reported that Arnold's Attorney, Thomas Royce, met with Fahner over the weekend. The network quoted an unidentified high-ranking investigator as saying Royce was "trying to make a deal for Arnold." NBC quoted Royce as saying he only met with Fahner to try to find out why investigators are interested in Arnold.
 
After Arnold was questioned by investigators, Royce told the press that his client should either be charged with the murders or the police should back off.
 
I guess the police decided to "back off." Arnold was later charged with five counts of failure to register a firearm and one count of aggravated assault stemming from an earlier incident at a tavern, but he was never charged in the Tylenol murders.
 
 

Arnold was never charged in the Tylenol murders. 

 

Roger Arnold admitted to buying and using cyanide for unspecified projects, he worked at the Jewel Foods loading dock from where the poisoned Tylenol had been shipped to the retail stores, he kept 5 unlicensed guns in his home, he had chemicals commonly used to make bombs, he had bomb-making manuals and manuals that explained how to encapsulate cyanide. He'd recently assualted someone, and six months after the murders Arnold shot and killed a man he mistakenly thought had fingered him as a suspect. Illinois State Police investigator Richard Tetyk wrote up a nine-page synopsis of the probe in which he wrote:

(Roger Arnold) worked at a Jewel warehouse in Melrose Park, where he reportedly told his supervisor he was "mad at people and wanted to throw acid at them or poison them."

Yet Attorney General, Tyrone Fahner, insisted that Arnold was not a viable suspect.

 

 
 
Roger Arnold - October 25, 1982
 
 
 
On June 18, 1983, a man who Arnold believed was Marty Sinclair walked out of a Lincoln Park tavern. Sinclair had given information to the Chicago police that caused Arnold to be considered a suspect in the Tylenol murders. When the man walked out of the tavern, Arnold ran up to him, pulled out a gun, and shot him dead.
 

As it turned out, Arnold had killed the wrong man. Arnold shot and killed John Stanisha, a man he reportedly mistook for Marty Sinclair. 

 

In January 1984 Arnold was convicted for the murder of Stanisha, and sentenced to 15 to 30 years in prison. Prosecutors said Stanisha, 46, resembled Martin Sinclair, an informer who had told police that Arnold kept cyanide in his home.

 

Arnold served 15 years of his term, and was released in 1999. Roger Arnold died in June 2008.

 

 

 

 

 

 

Secondary Suspects

 
 
 
Jerome Howard
 
FBI spokesman Anthony DiLorenzo said a letter found on a receptionist's desk at Gottlieb Memorial Hospital in the western suburb of Melrose Park warned that patients would be poisoned with cyanide-laced Extra-Strength Tylenol unless Jerome Howard, 20, was paid $8,000. Howard was picked up near the hospital's maternity ward, where a ransom packet containing the money had been placed.
 
The extortion letter, left at the reception desk Wednesday, October 7, was suspect because of the little money demanded and because it did not clearly specify when the ransom payment was to be made, Fahner said.
 
The letter said, "Me and my gang put cyanide in every bottle of Extra-Strength Tylenol to see what it will do. ... Like seven deaths isn't funny, but eight more will be."
 
Although Howard allegedly claimed he was responsible for the seven deaths, Tyrone Fahner said the Howard case was "unrelated totally" to the Tylenol deaths, though he said Howard once had been one of the "main suspects."
 
 
Map of Jewel foods distribution ctr., Louis Zahn Drug warehouse, and Gottlieb Memorial Hospital
 
 
 
 
Kevin Masterson
 

The father of a man wanted for questioning In seven Tylenol-cyanide deaths worked for a chemical company that stocks cyanide, the Chicago Tribune reported on November 5, 1982. The newspaper also quoted anonymous investigators as saying the man, Kevin J. Masterson of suburban Lombard, told friends before the deaths that he planned to settle a grudge against two stores where the poisoned pain reliever was bought.

 

"Now is the time to even the score" against Jewel Food Stores Inc. and Frank's Finer Foods, the investigators quoted Masterson as saying in early September, the Tribune reported. The report that Masterson harbored ill feelings toward the stores surfaced in an affidavit for a search warrant for his apartment filed in Du Page County Circuit Court.

 

The affidavit was filed by Joseph McQuaid, an Investigator for the task force. It said Masterson's anger toward Jewel arose from an incident in which his former wife, Joann, felt she was mistreated by Jewel security officers. Jewel Vice President, Jane Armstrong, on Thursday confirmed the woman filed a civil suit against Jewel in 1975, and that a settlement was reached four years later.

 

Ms. Armstrong refused to give details about the suit, but the Tribune said Mrs. Masterson accepted an $8,000 settlement. 

The affidavit said Masterson was dissatisfied with the agreement and promised revenge. However, a law enforcement source in Washington, who asked not to be identified, said, "There's still nothing to indicate Masterson Is anything other than a guy with a big mouth. There's some questions to ask him, but it would take a quantum leap from what is known to connect him to the Tylenol killings."

 

 

Jewel VP, Jane Armstrong (March 1982)

 

 

 

 

 

Masterson: suspect or victim? Jan. 3, 1983 - by Burt Constable

 

One of the most dramatic and important news events of 1982 was the Tylenol poisoning case that left seven people dead and a country frightened.

 

When 1982 ended there were still no charges against the person or people responsible for the random murders. But for the family of one Lombard man linked to the Tylenol case for weeks on end, resentment still simmers over coverage of the crime even though the spotlight on him has been turned off. Kevin J. Masterson, 35, made headlines and topped newscasts in 1982 when he was wanted for questioning in connection with the Tylenol murders.

 

HE WAS QUESTIONED by police investigators, later released and the only charge filed against him — possession of marijuana — was dropped Thursday.  Now the attention is off Masterson, but his parents say they don't think their son should have received as much media attention in the first place. "I feel he (Kevin) was used, definitely, by the media and others," John Masterson said in a telephone interview on New Year's Day. Masterson said the country's founding fathers designed a system of  "trial by jury and you are innocent until proven guilty. The way things are today, it's trial by media and your are guilty until proven innocent." Law enforcement officials acting on a tip searched Kevin Masterson's Lombard apartment and found "bizarre writings" and a powdered substance but no Tylenol, Tylenol bottles or cyanide.

 

THEY HELD press conferences that said Masterson had a "history of mental disorders," and "was wanted for questioning" but was probably not a "suspect." John Masterson said the media unfairly picked his son as the tag for newcasts and stories.  Mrs. John Masterson said "the injustice done (by the media while police were looking to question Kevin) was so gross that I think some strong positive statement should be made. "You can't imagine the harm," she said. "Possibly the media could be made aware of the suffering this could cause a family. An individual is really at the mercy of the press." The Mastersons said their son was never a suspect in the murders and said it "was more than coincidental" that daily press conferences were held during the weeks before the Nov. 4 election.

 

KEVIN MASTERSON could not be reached for comment, but his father said when Kevin was arrested he said, "Dad, I'm going to be under a cloud until the killer or killers are caught." John Masterson said Kevin was visiting friends out of state and was trying also to sell his car.  The parents said they weren't sure when he would come back or what he would do then. "I don't know how he feels," Mrs. Masterson said. "I don't think Kevin's made any definite plans. He's done very well to be able to handle it." Masterson said the "hysteria" concerning their son caused pain for Kevin's four grown siblings. And it has also changed their thinking about the news.

 

"A FRIEND told me the 6 o'clock news is entertainment. It's showbiz," John Masterson said. "I guess there's some truth to that. It can certainly play havoc with people's life." Mrs. Masterson said the media is "a Roman circus — anything negative to entertain the public." The Mastersons said they had written letters to Chicago newspapers voicing their anger about the Tylenol coverage. They said they are also going to talk to their lawyer about a possible suit against the media. "One of his (Kevin's) brothers, who is a great kid, refers to it (the coverage of Kevin's case) as Kevingate," John Masterson said.

 
 
 
 
 
 
 
 
 
 
 
Someone killed seven people by putting cyanide in tylenol capsules. When James Lewis was caught for writing an extortion letter, prosecutors appeared to stop looking for the killer. Almost 20 years later no one has been convicted of the murders.
 

By Joy Bergmann

November 3, 2000

 

Life started rough for James Lewis.

 

Born in Memphis in 1946, he was the only son of migrant workers Theodore and Opal Wilson. In 1948, while the family lingered in Waco, Theodore skipped town. Months later Opal left her toddler and two daughters, seven and nine, to fend for themselves in a transient motel outside Joplin, Missouri.

 

After a few days social workers discovered the brood and split up the siblings. Joplin's Big Brothers agency took charge of little Theodore and granted custody of the three-year-old to Floyd and Charlotte Lewis, a childless couple from nearby Cave Junction, who renamed him James William Lewis.

 

The boy known as Jim grew up near a chemical plant that manufactured explosives. While Charlotte toiled in a shirt factory, Floyd sharecropped 20 acres and served as primary caregiver. It was a hardscrabble existence made more difficult by the child's emotional problems.

 

"He was in a lot of trouble, a very mixed-up boy," said Lewis's cousin Lucille Mallatt in a 1982 interview. "He always did things that ordinary people wouldn't. My aunt tried to give him back to Big Brothers because she couldn't handle him, but they wouldn't take him back." Mallatt had always kept her distance, explaining, "You don't play with rattlers."

 

Floyd Lewis died of a stroke when Jim was 12. For the next five years, Charlotte and her son lived alone in the home without plumbing or electricity. In 1964 she married Glenn Nelson, a groundskeeper at the local golf course. But problems with the teenage Jim so frightened Charlotte she slept with a gun under her pillow.

 

Schoolmates saw Jim as sensitive and vulnerable. "He was a person whose feelings were rather visible," recalled Jerry Dean, a Cave Junction police officer, to the Kansas City Star. "He was very accepting of other people. Maybe they weren't as accepting of him. Because he was good-natured, people pulled pranks and did things to him that he wouldn't have done to them."

 

A double life was emerging. At school Lewis made good grades, played trombone in the marching band, and worked on the yearbook. At home he raged. When he was 19, Lewis reportedly chased his mother with an ax and was charged with assaulting his stepfather, breaking several ribs in a beating. Lewis overdosed on 36 Anacin tablets and was committed to a Missouri state mental hospital in 1966 with a diagnosis of catatonic schizophrenia. He later tried to explain the apparent suicide attempt and his brutality against his parents as an elaborate plan the family had hatched so he could avoid the Vietnam draft.

 

Lewis liked school. He attended the University of Missouri at Kansas City, where he met LeAnn Miller. The couple married on Thanksgiving Day 1968.

 

LeAnn became Jim's rock. They were social misfits who fit together. A small, plain woman, LeAnn wore glasses like Jim. She too enjoyed working with numbers and discussing politics and technology. She admired the tall, soft-spoken man with piercing blue eyes. LeAnn listened to Jim--and deferred to him. She worked hard to see them through tough financial times.

 

In June 1969, LeAnn gave birth to a daughter, Toni Ann. Their joy was unaffected by the baby's Down's syndrome and health problems. They had each other.

 

Jim and LeAnn started working together as bookkeepers for Haley's Instant Tax Service. They moved into its basement and managed the operation for a couple of years. Then one day Lewis exploded at its owner, Bob Haley. Haley told the Kansas City Star he wanted to take a desk calculator home and Lewis "just blew his stack." Jim and LeAnn left to open their own business, Lewis & Lewis Business Tax Service, in a run-down part of Kansas City. They served their clientele from a storefront office with Toni Ann playing happily alongside them. The toddler would often sit in the window and wave at passersby on Troost Avenue.

 

One day an elderly man named Raymond West waved back. Enchanted by the little girl, West introduced himself to the Lewises and became their client as well as their friend. He tried to comfort them when Toni Ann had to have corrective heart surgery and when she succumbed to complications on December 10, 1974.

 

Grief stricken, the parents continued to talk about their daughter and show off her drawings to clients. But they carried on and in 1975 moved to a bungalow farther up Troost, not far from West's home on Campbell.

 

West, a lifelong bachelor and former truck driver, had lived in the neighborhood with his mother since 1946. By 1977 his mother had died and West retired to a simple life of daily walks, reading the evening paper on his porch swing, and tending his flower garden. That September a freak flood swept away three area houses and West's car, nearly killing the robust 72-year-old. Neighbors threw him a rope while he struggled against the raging waters. He survived and went right to work repairing his property.

 

Folks were used to seeing West. He liked to be helpful. He saved his newspapers and took them to a local florist every Sunday.

On Sunday, July 23, 1978, West went to the florist's as usual. A neighbor said he called her later that evening. He reported feeling a little sick but talked mostly about getting his refrigerator fixed. That was the last anyone heard from him.

 

A longtime friend, Charles Banker, became concerned on Monday when he couldn't reach West by phone. Banker and his wife drove over to West's home to investigate. The couple found the doors locked and West's car in the garage, but their knocks went unanswered. A bedroom shade was raised, revealing an unmade bed. They called police.

 

According to Kansas City police reports, the responding officer found the house secure and asked Banker about other associates of West who might know where he was. Banker mentioned a few neighbors, including the "tax man," Jim Lewis.

 

The officer called Lewis, who reportedly said West had gone to the Ozarks for three or four days with his girlfriend. The information seemed to satisfy the police, but it didn't satisfy Banker: West had never had a romantic involvement during their 30-year friendship and he never went anywhere significant without telling him. Banker filed a missing person's report.

 

Banker returned to West's home on Wednesday and saw a note stuck on the still-locked front door. Written on Lewis & Lewis letterhead, it read, "Ray is out of town until Thursday, for further call Jim." Banker then checked around back and noticed that the previously raised shade was now pulled down. He again called police.

 

The police forced their way in and walked through the house with Banker. Everything appeared to be in order. Then they found a note on the living room coffee table. It said, "Please don't disturb until after 1:00. Sleeping late. Raymond."

Bruce Ivins wrote a similar note before dying from a Tylenol PM overdose; “I'm going to take some Tylenol and sleep in tomorrow. Please let me sleep, Please.”  (Ivins died of liver toxicity caused by the active ingredient in Tylenol, acetaminophen)

Banker told police the handwriting was not West's. He said West never signed anything "Raymond" except checks--he always went by "Ray." Unnerved, Banker bought two new padlocks for the doors and gave police the second set of keys. Officers then left the scene.

 

According to Banker's statement to police, Jim Lewis drove up as he and another friend of West's, Jack Cook, were affixing the new hasps to the front door. Banker said Lewis ran onto the porch, asking, "What the hell are you doing?"

 

"What the hell does it look like I'm doing?" Banker replied. "I'm putting new locks on."

 

Lewis seemed to calm down. The three men talked a bit, and then Lewis left in his car. But Cook and Banker noticed he'd parked again on the street, hidden behind a delivery truck.

 

Ten minutes later, the truck pulled away, leaving Lewis exposed. Banker said Lewis sat in his car for another five minutes before driving off.

 

Banker returned to the home on August 14. An awful smell greeted his arrival. He combed the house again. When he entered the spare bedroom, everything looked as it had two weeks earlier--neat except for a few bed linens and pillows lying on the floor. Banker picked up one pillow and found part of a horse harness that West used as a belt-loop key ring. He kicked the sheet and discovered dried blood. Once again, he called police.

 

It was 95 degrees, West had been missing for 21 days, and cops knew what that odor meant. They found a bloody lawn chair in the basement and a garbage bag containing West's toupee and eyeglasses as well as bloodstained sheets.

 

Upon returning to an upstairs bedroom, officers noticed a foot-long stain running between the ceiling and the wall. They got a ladder and entered the attic.

 

A partially decomposed body was lying facedown, still dressed in a striped polo shirt and tan corduroy pants. Both legs had been severed at the hip joint. The right leg lay near the head on the right side; the other rested farther down on the left. Both feet wore black socks; both legs had been wrapped in sheets. The head was also wrapped with sheets and a cord, and the torso was partially covered with a garbage bag tied on with cotton rope. All the wrappings were saturated with blood and other bodily fluids, which had soaked through the insulation below.

 

In the attic's corner, police found pruning shears, a baseball bat, and a pulleylike device along with more rope. They theorized the body had been hoisted to the rafters.

 

The corpse was so highly decomposed medical examiners were unable to determine the victim's identity, age, or race. Taking fingerprints was out of the question. Hair samples would be tough to come by. Dental records, worse. West was bald and had dentures from a defunct dentist's office.

 

Eventually examiners were able to match the body with a stray hair found in a cap downstairs. It was West, all right, but investigators still didn't have a cause of death. There were no bullet wounds or signs of trauma. What authorities did have was a check for $5,000 drawn on West's account. It was dated July 23, 1978. The payee: James Lewis.

 

Within hours of discovering the body, police went to Lewis's home, handcuffed him, and took him downtown. They relieved him of his property and put him in a holding cell for an hour. He was then taken to an office and questioned for several hours.

 

Lewis explained that the check was a loan West had given him during a morning visit on Sunday, July 23. He also said he put the note on West's front door so folks like Banker wouldn't worry. He told police he didn't know anyone who would want to hurt Ray. He submitted fingerprints and a handwriting sample and was released.

 

The following day police returned to the Lewis home asking again about the check. The bank had refused to honor it when West couldn't be found to confirm its validity. Banker had told police that Ray was extremely tight with his money. He once gave a neighbor five dollars and they joked that he was turning into a big spender. Lewis said the $5,000 was a "business expansion" loan from West and produced a typed promissory note.

 

According to the police report, detectives asked Lewis if he had West's checkbook and a key to his home. "I do not," Lewis told them. He then agreed to sign a consent-to-search form allowing police to survey his home and office as well as his vehicles, saying, "I'll sign it, but I don't have the key and checkbook and I think you guys are fishing."

 

In Lewis's car detectives discovered--among other items--20 feet of knotted white rope, a black attache case with papers bearing West's name, a trash bag, and a bundle of Raymond West's checks.

 

The police again took Lewis into custody. Officers asked if he had killed Raymond West. Lewis said no.

 

In late August the Jackson County grand jury charged Lewis with capital murder. But days before the October 1979 trial date, prosecutor James Bell asked for dismissal of the case. He had no choice. Lewis's defense attorney, Albert Riederer, had done his job well.

 

In pretrial motions, Riederer successfully argued police had no probable cause to arrest Lewis the first time. They also neglected to read him his Miranda warning. Every scrap of evidence collected thereafter fell away as inadmissable. Even the original indictment was ruled defective--it omitted the term "felonious." Bell was left with a bag of bloody circumstantial evidence and a local coroner who couldn't testify to a cause of death, let alone a homicide. Riederer had witnesses lined up to talk about West's high blood pressure and potent medication regimen, which could have caused his demise.

 

"It's one thing to kill somebody, it's another thing to dismember them after they're dead," Riederer told me. "And while dismembering somebody after they're dead is repulsive and repugnant, it's not homicide." He stands by his former client. "It was my impression that he did not do it. There really was no evidence of foul play prior to [West's] death. There were no bullet wounds to indicate he would have died a violent death and had been dismembered."

 

As Lewis left the courtroom a free man, Bell told reporters the case was "one of the most mysterious, confusing, befuddling, complex... and probably one of the most difficult cases I ever handled."

 

The Lewises returned to their accounting practice and launched an additional business venture, Aljeev International, which they'd incorporated in 1975 with an Indian-born pharmacist named Viren Mehta to import industrial pill-making machines manufactured in India.

 

Lewis often bragged about his international business connections and impending deals. In the mid-70s, according to a police report, he even paid a Kansas City cop $50 to serve as a bodyguard during a transaction involving loose gems.

 

Nevertheless, Lewis's sidelines floundered, as did his tax service. "He was reading books, but he wasn't making any money," an ex-employee explained to the Kansas City Star. "He was always doing busywork while his wife was doing the real work....In his mind, he was running the whole show."

 

Kansas City law enforcement thought Lewis was running a criminal enterprise, falsifying credit-card applications and in one instance instructing the IRS to direct a client's check to the account of a Lewis corporation. Former assistant U.S. attorney Jeremy Margolis summarizes Lewis's method: "He would invent an address, pound [a mailbox] in the ground, pull [the mailbox] out of the ground, and move on to the next place." It would later come out in federal court that Lewis also faced charges of swindling clients in a land deal in Jackson County.

 

Authorities searched the Lewis home on December 4, 1981, and found typewriter ribbons, mailboxes, credit-card applications, and enough other evidence to issue an arrest warrant for James Lewis. The couple beat it out of Kansas City for Chicago, taking only what their '69 Rambler could carry.

 

Under assumed names--Robert and Nancy Richardson--the couple checked into the Surf Hotel at 555 W. Surf on December 10, 1981. A week later they moved into tiny Apartment 209 in a Lincoln Park rooming house at 549 W. Belden. LeAnn soon found bookkeeping work at Lakeside Travel, owned by Miller Brewing heir Frederick Miller McCahey.

 

According to neighbors, Lewis spent much of his first few months in Chicago studying books on economics, history, and computers. He also spent hours training the building manager's dog, writing, and engaging fellow tenants in highbrow discussions.

 

"I thought he was the smartest man I ever spoke to," said one neighbor. "He always talked about money. Not necessarily having some but...he used to go through the financial sections [of newspapers] all the time, and cut small pieces out."

 

Lewis looked the part of a wayward executive. "It was like he went to the Salvation Army and bought his suits," recalled another tenant. "He wanted to look dressed, to have a tie and coat on."

 

He acted like he had places to go. Each day, he'd walk LeAnn to her bus stop. Sometimes he'd also meet her for lunch or stop by the office to show off a new set of fancy pens (he was proud of his handwriting). And devotedly he'd wait at the bus stop for his wife's return. They'd walk, hands entwined, back to their room.

 

"Bob and Nancy" made friends at the building and through LeAnn's job. They did the normal things: movies, afternoon coffee, bowling, window-shopping, helping each other move. While maintaining their aliases, the two never hesitated to talk about their daughter and how much they missed her.

 

In January 1982, Lewis found work at Chicago Tax Service on Broadway, but the position was short-lived. Lewis's temper flared when the owner found a mistake on a return. Jim didn't take the criticism well and was fired.

 

He then hooked up with the Loftus & O'Meara temporary agency. From April through August of 1982, he worked as a temp in various departments of the First National Bank of Chicago, where he claimed to notice a lack of security.

 

"He told me about how he could walk into any office without anyone asking him questions about what he was doing in there," says Wanda Lu Brown, a friend from upstairs. "And he noticed on one table stacks of documents that contained vital information that could be used to transfer money from one bank account to another by a computer. And he mentioned that it would be something that would be embarrassing for that bank to have found out."

 

That summer Lewis also became obsessed with Frederick Miller McCahey. Since taking over Lakeside Travel a year earlier, McCahey had experienced problems managing the business. LeAnn saw the end coming. Bank accounts were overdrawn, and airlines had pulled the agency's ticketing privileges. In later courtroom testimony LeAnn's supervisor, Barbara Vaitkus, recalled that coworkers gossiped about McCahey putting other enterprises out of business. Vaitkus said she discovered evidence that McCahey had diverted company funds to pay his personal bills and was not properly depositing Lakeside's receipts.

 

Before she quit her job in the spring of 1982, LeAnn stamped a stack of blank envelopes with postage from a Pitney Bowes meter. The postmark said April 15, 1982.

 

The following Friday, Lakeside Travel went belly-up. Vaitkus issued 18 final paychecks, including LeAnn's for $511.33. All the checks bounced.

 

The Lewises had cashed LeAnn's check at a nearby currency exchange. On July 27, 1982, the currency exchange sued them to recover the funds. The exchange's attorney, Anthony Fornelli, recalled the couple's "agitated" demeanor during a subsequent visit to his office: "They appeared to be more upset than [anybody] else....They were very adamant in their position that they didn't owe the money, that they had worked for it, and that McCahey was a crook...and should be made to pay."

 

Jim Lewis had been working on an attack plan. He'd hit the law books and encouraged other disgruntled employees to file complaints with the Illinois Department of Labor's wage-claim board. LeAnn called Vaitkus looking for a list of McCahey's bank account numbers. Jim got on the line and took down the information.

 

Armed with a thick packet of documentation, Jim and LeAnn marched into the August 3 wage-claim hearing surrounded by several supportive, relief-seeking coworkers. McCahey didn't attend, sending his attorney instead. Longtime Lakeside employee Evelyn Gold witnessed the meeting:

 

"We all sat around a big conference table and the...officer asked us how much we were each claiming for....Then McCahey's lawyer said that there wasn't any money in the account. All the accounts had been frozen by one of the banks because McCahey had owed them money....He passed around copies of the bank statements to show there was no money....All of us were arguing about it because our claim was, well, the salaries should have gone through before they were allowed to freeze."

 

Jim Lewis served as the group's principal advocate. "He was one of those who was most outspoken about it. He and Nancy had a full file full of papers....Jim said that there were accounts, personal accounts that McCahey had, that he thought that he had taken money out of Lakeside Travel to put in his personal account. Why don't we look at the personal accounts as well? But the wage-claim officer said that was not part of his job."

 

The officer rebuffed Lewis. "He asked Jim what he was doing there. He said, 'You are not one of the employees, are you? Or a lawyer?' And Jim said, no, he was the husband and he was concerned. So the wage-claim officer said, well, he shouldn't be taking that active a part in it, and Jim got up.... He went and sat at another chair sort of by the wall."

 

About 45 minutes later, the ruling came down. "[The officer] said there was nothing really that he could do about it because there was no money available to lay a claim against. And that was it."

 

McCahey walked in as the meeting broke up. Jim and LeAnn confronted him, and a five-minute shouting match ensued. According to Barbara Vaitkus, the exchange ended with McCahey threatening LeAnn.

 

Determined, the Lewises convened a strategy lunch with other ex-employees a week later at the Loophole Restaurant on Randolph.

 

Jim told the group he'd sent his files on McCahey to the Illinois attorney general and to the U.S. attorney, calling for an investigation into the Winnetka resident. (Officials would later testify they'd never received anything.) But while Jim and LeAnn were still fired up, the others' enthusiasm had waned. Many had moved on to other jobs and didn't hold out much hope for reparations. The group soon disbanded.

 

After paying back just $50 of the funds owed the currency exchange, Jim and LeAnn packed up and left 549 W. Belden on September 3, 1982, with three suitcases, one tote bag, a cardboard box, and a briefcase. How or where they spent that evening is unknown.

 

On September 4, 1982, using the aliases Karen and William Wagner, the couple paid $221 cash for one-way tickets on an Amtrak train headed for New York City. Two days later, they checked into the fleabag Rutledge Hotel in midtown Manhattan as Robert and Nancy Richardson, and paid $95 for a week's rent.

 

On the morning of September 29, 1982, 12-year-old Mary Kellerman awoke with a sore throat. The Elk Grove Village girl opened the bathroom medicine cabinet and took two Extra-Strength Tylenol capsules. In seconds she collapsed to the floor. Paramedics thought her symptoms indicated a stroke or heart attack. Nothing they tried would bring her back.

 

That same day, Adam Janus, 27, stayed home from his postal job suffering from a chest cold. The Arlington Heights man reached for a Tylenol and fell into a coma at 11:54 AM.

 

That afternoon, Mary Reiner, 27, stopped in at Frank's Finer Foods in Winfield to buy a bottle of Tylenol. She had recently delivered her fourth child and complained of aches. Forty-five minutes later, she too became comatose.

 

A hectic day at the Illinois Bell Phone Center in Lombard sent Mary McFarland, 31, looking for migraine relief. After a trip to the ladies' room, she walked back into the office and, to the horror of her coworkers, dropped to the floor.

 

Around 5 PM the confused, bereaved family of Adam Janus gathered in his home to console each other and discuss funeral arrangements. Grief stricken, his younger brother, Stanley, and his sister-in-law, Theresa, both complained of headaches. Someone mentioned seeing a bottle of Tylenol in the bathroom.

 

Minutes later Stanley collapsed in the living room. As paramedics loaded him onto a stretcher, Theresa fell to the floor. Authorities evacuated the house and put the family and medical workers under quarantine, suspecting some sort of contagion or toxic gas.

 

That evening Paula Prince, a 35-year-old Chicago flight attendant, was exhausted after arriving late from a Las Vegas run. She drove to the Old Town Walgreens near her LaSalle Street apartment. An ATM surveillance camera captured her buying some Extra-Strength Tylenol around 9 PM.

 

Prince went home, put on a flowery nightgown, took some capsules, and collapsed shortly thereafter. Her body was discovered two days later, her face still half smeared with cold cream.

 

While Paula Prince was making her deadly purchase, two suburban firefighters--Richard Keyworth of Elk Grove Village and Phillip Cappitelli of Arlington Heights--were on the phone talking about the strange calls their departments had received that day.

 

Cappitelli said that his mother-in-law worked with Mary Kellerman's mother at United Airlines, where everyone was upset by the mysteriousness of the girl's death. Keyworth pulled the incident report and described it to him. Cappitelli remarked on its similarities to the three Janus deaths.

 

Keyworth then noticed a mention of Tylenol in the Kellerman document and said to his friend, "This is a wild stab, but maybe it's the Tylenol."

 

Following a mad series of phone calls, police officers found the Kellerman bottle tossed in a station desk drawer. Sirens screaming, they delivered it to Northwest Community Hospital, where doctors had already started to suspect that the Janus family had been poisoned.

 

As soon as investigators opened the capsules, the distinctive cyanide scent of bitter almonds confirmed the worst.

 

"It was just nuts," remembers Richard Brzeczek, Chicago Police superintendent at the time.

 

Within 72 hours of Mary Kellerman's death, an unprecedented army of federal, state, and local law enforcement agents were on the case. Product tampering had happened before, but never with such random, deadly results. An official Tylenol Task Force convened at a command post in Des Plaines while Brzeczek maintained his own crew out of Chicago Police Department headquarters.

 

In the 18 years since the murders, key investigators have come to disagree about how well coordinated and cooperative the effort really was.

 

Tyrone Fahner, then the Illinois attorney general, became the primary spokesman for the investigation. He held twice-daily press briefings and received plenty of TV time. He needed it--he was lagging behind in the polls in a run for reelection against Neil Hartigan.

 

"I was on TV every night," Fahner says. "People who didn't know who I was all of a sudden did." He still bristles at accusations that political posturing had an adverse effect on the task force's efficacy.

 

"I wasn't the only one who had true jurisdiction," he says.

"You don't tell the feds what to do and they don't like to be told what to do, OK? And the same is true of the local police chiefs out there."

All in all, Fahner concludes, "It was truly a decent and very good and fine effort."

 

"Everybody fought for a little place in the sun," remembers Jeremy Margolis, then assistant U.S. attorney. "You had literally hundreds of people working sometimes together and sometimes at odds under very difficult circumstances because nobody really knew what the heck was going on."

 

Brzeczek adds, "People will withhold information so they can be the ones who solve the case. They want their names up on the marquee." He recalls "some cooperation among a few chosen people, but the largesse did not extend to all participants."

 

Particularly prickly was the relationship between local cops and the FBI.

"There is a general feeling of antagonism among local law enforcement against the FBI," says Brzeczek. "We call them the one-way street: They want you to provide information but refuse to divulge their own."

 

Monday morning quarterbacking aside, everyone agrees that no resource was spared in the hunt for the "madman" responsible for the poisonings.

 

Officials focused first on removing Tylenol from store shelves and recalling bottles from buyers. Mayor Jane Byrne called for the removal of all Tylenol products from Chicago during a dramatic press conference late on the night Paula Prince was discovered dead. The briefing, beamed nationwide, stoked a panic that soon became global.

 

Tylenol's makers, Johnson & Johnson, reportedly didn't want a total recall at first. But bowing to prudence and pressure, it asked the public to return their bottles and offered a $100,000 reward for information on the killings. The company then set up labs and began the painstaking process of testing capsules for contamination.

 

Law enforcement agents were pursuing the usual strategy: find the motive, get the killer. Multiple theories got play early on.

 

Investigators probed a possible manipulation of Johnson & Johnson stock prices by an imagined white-collar crime syndicate. They examined the Puerto Rican terrorist group FALN. Every disgruntled employee at every place where the contaminated Tylenol was manufactured, stored, or sold was interviewed and evaluated. Shoplifters arrested at these retailers got a second going-over. Investigators even picked over sales routes and custodial service rosters, seeking a common face.

 

Recently released inmates and mental patients in the vicinity were profiled and interrogated. Taking a page from the Son of Sam crime-solving book, police ran checks on every car receiving a citation in the areas around the poisoned stores during the week of September 29, looking for links. Agents listened to psychics and crackpots calling the task force hot line with tips about clues found in olive jars and messages about the murderer written with magic pens. They questioned every family member and intimate of each victim, thinking the killer may have had one intended target and camouflaged the crime with the other deaths.

 

To psych-out the killer, police used the media. They publicized and monitored funeral arrangements, hoping the murderer might attend or visit the grave sites. Task force members asked Mike Royko to write a heart-wrenching column about little Mary Kellerman, hoping to draw the perpetrator to her home. Royko refused; Bob Greene did the deed instead, to no avail.

 

By the end of the first week, officials' optimism was beginning to dim. They had anticipated that physical evidence would emerge. It didn't.

 

The recall effort provided an excess of ten million capsules, which were tested for cyanide. More than 50 adulterated capsules were found in eight bottles--five from the victims' bottles, two from consumers' returns, and one recovered from a store shelf--all from the Chicago area. Yet none of the boxes, bottles, or capsules yielded usable fingerprints.

 

The theory remains that the killer visited each store and paid for the Tylenol, not wanting to risk a shoplifting arrest. He or she then emptied a handful of capsules, replaced the acetaminophen with potassium cyanide, recapped the capsules, sprinkled a few on top of each bottle to insure quick ingestion, and returned the box to its shelf sometime around September 28, the day before the first death. In 1982 store surveillance cameras and scanner databases weren't as prevalent as today. There were no pictures, no debit card records, no witnesses, no evidence.

 

More infuriating was the missing motive. People kill for love or want of love, for money or lack of it, for power or its destruction. But who murders indiscriminately?

 

"One of the most sensational murder cases this century has gone unsolved because the person who did it randomly killed seven people," says Dan Webb, the U.S. attorney during the investigation. "If you have no motive, if all you're doing is killing people for no reason whatsoever, then that is likely to be the most perfect murder because there won't be any ties back to you."

 

For Webb, the Tylenol case was a crime unlike any other. "Human nature says that people will engage in acts of violence. We can't change that--there's almost always a motive of some type. This was a calculated murder where someone in a very smart, wise, preconceived way knew that he or she was going to kill God knows how many people--at random."

 

While investigators spun their wheels in frustration, the press demanded to be fed.

 

"It really got to be almost laughable," remembers Brzeczek. "Fahner would hold a press conference and then they'd all come running down to my place and say, 'Fahner said this--what do you think about that?'

 

"There was so much pressure on the media people from the local networks, they were just going nuts," he says, calling the Tylenol "circus" a precursor to the O.J. and Jon-Benet melees. "The station managers were tightening the screws, saying, 'Get a scoop, get a scoop.'"

 

Despite filling more airtime with the Tylenol murders than with any other story since the end of the Vietnam war, reporters were also unsuccessful in their attempts to break the case.

 

In New York City, James Lewis was following the first week's coverage and devising a plan to capitalize on the tragedy.

 

On the morning of October 6, 1982, photocopies of an unsigned letter got passed around an internal Johnson & Johnson strategy meeting. Handwritten in block printing it read:

 

JOHNSON & JOHNSON

 

PARENT OF

 

McNEIL LABORATORIES

 

GENTLEMEN:

 

AS YOU CAN SEE, IT IS EASY TO PLACE CYANIDE (BOTH POTASSIUM & SODIUM) INTO CAPSULES SITTING ON STORE SHELVES. AND SINCE THE CYANIDE IS INSIDE THE GELATIN, IT IS EASY TO GET BUYERS TO SWALLOW THE BITTER PILL. ANOTHER BEAUTY IS THAT CYANIDE OPERATES QUICKLY. IT TAKES SO VERY LITTLE. AND THERE WILL BE NO TIME TO TAKE COUNTER MEASURES.

 

IF YOU DON'T MIND THE PUBLICITY OF THESE LITTLE CAPSULES, THEN DO NOTHING. SO FAR, I HAVE SPENT LESS THAN FIFTY DOLLARS AND IT TAKES ME LESS THAN 10-MINUTES PER BOTTLE.

 

IF YOU WANT TO STOP THE KILLING THEN WIRE $1,000,000.00 TO BANK ACCOUNT # 84-49-597 AT CONTINENTAL ILLINOIS BANK CHICAGO, ILL.

 

DON'T ATTEMPT TO INVOLVE THE FBI OR LOCAL CHICAGO AUTHORITIES WITH THIS LETTER. A COUPLE OF PHONE CALLS BY ME WILL UNDO ANYTHING YOU CAN POSSIBLY DO.

 

Within hours, the FBI had lifted fingerprints from the original document, duly noting the envelope's New York City postmark. Scratching away the postmark, investigators found metered postage with an identifying Pitney Bowes number and an old date: the meter was owned by Lakeside Travel, the envelope was stamped April 15, 1982. They then discovered the bank account belonged to Lakeside's owner, Frederick Miller McCahey.

 

"See, he fancied himself a really brilliant guy," Margolis says of James Lewis.

"He said he knows how law enforcement works and he decided to wait and take advantage of the next natural catastrophe. It could have been a plane crash, a train wreck, whatever. It just happened to be the Tylenol killings.

 

"He left Chicago with these envelopes in his possession and the bank account number, knowing that something bad would happen someplace, and he would take advantage of it and put the heat on McCahey.

 

"He knew that the bureau would eventually figure out that McCahey hadn't done whatever it was that he was claiming to have done in the letter--plane crash, train wreck, Tylenol killings, whatever. But during the course of the bureau's investigation of McCahey, knowing as much as he claimed to know about how the bureau works, they'd work [McCahey] up one side and down the other and figure out what a horrible white-collar criminal he was and he would suffer his just desserts for the bouncing of the checks on employees. That was Lewis's theory."

 

Chicago authorities did grill McCahey. When he denied any involvement, they asked about possible grudge holders. Robert and Nancy Richardson, he replied. A quick check of employment records led the cops to Chicago Tax Service, where Bob Richardson's old job application lay. With one look, agents knew who'd written the extortion note.

 

A little further digging into Richardson's past revealed he'd published a freelance column in the Chicago Tribune back in July, complete with a bearded, bespectacled photograph. The "Point of View" column, titled "A slice of Chicago life," inventories ten minutes spent "people-watching at State and Madison," with the observations written in verse:

 

One well-dressed evangelist, bull horn blast-

ing promises of salvation....

 

A one-legged man, walking proud and alone....

 

One information booth in the middle of the 

sidewalk, ignored....  

 

One blue-and-white police car sitting empty,

windows open....

 

Four pairs of white shoes, one left shoe untied....

 

 

The task force went public with the letter on October 7, but Fahner downplayed its importance, saying, "It will not be relevant in solving the cyanide murders," calling the extortion attempt "a side issue...a hoax." It was, however, the first tangible development in the grinding investigation.

 

A week later, the FBI issued an arrest warrant and published the Richardson head shot. Kansas City police recognized the suspect and clued in the Chicago cops. The man they were after was really Jim Lewis, a suspect in the murder of Raymond West and an alleged tax-fraud schemer.

 

Suddenly Fahner changed his tune. He said, "Yes, this has great significance."

 

Police had another suspect under close scrutiny: a 48-year-old dockhand named Roger Arnold.

 

A luckless laborer, Arnold liked to frequent Lincoln Park taverns and pontificate. One evening he made some barroom chatter about the Tylenol murders that gave observers pause. Someone dropped a dime.

 

Officers arrested Arnold on a four-month-old assault complaint brought by a bartender and used the opportunity to interrogate him about the poisonings. A series of coincidences raised eyebrows.

 

Arnold worked at a Jewel warehouse with the father of victim Mary Reiner. And according to the New York Times, police received a tip that Arnold's ex-wife had been committed to the psychiatric ward of a hospital located across the street from the Winfield store where Mary Reiner purchased her Tylenol. In his apartment Arnold kept a stash of soldier-of-fortune magazines and how-to crime manuals. He took annual trips to Thailand. A skull and crossbones were tattooed on his forearm. And he was a closet chemist.

 

A search of his home revealed several unlicensed guns, a bag of chemical powder, and beakers and funnels. The powder turned out to be potassium carbonate, not cyanide. Arnold told reporters, "I'm not saying what the chemicals were used for, but it was nothing illegal."

 

Arnold refused polygraph examinations, was charged with assault and weapons violations, and released on $6,000 bond, a very angry man. For months he fumed. He had allegedly told his interrogators, "I'd like to be in on the homicide of the guy that turned me in for what he did to me."

 

Forty-six-year-old computer consultant John Stanisha probably knew nothing of the vengeful Arnold. He just happened to be leaving a Lincoln Avenue bar after last call on the morning of June 18, 1983. The heavyset Stanisha resembled the man Arnold believed had implicated him in the Tylenol case. Arnold had been stalking that man, and in a deadly case of mistaken identity, he approached Stanisha and yelled, "You turned me in," shooting him at point-blank range.

 

Later tried, convicted, and sentenced to 30 years for the murder, Arnold is now out on parole. Investigators never charged Arnold with the Tylenol tamperings, nor do they mention his name today as a person of interest.

 

Not so, James Lewis.

 

Shortly after arriving in Manhattan, LeAnn found temp work as "Nancy Richardson" at a real estate firm called Abrams, Benesch & Riker. She showed up every weekday from September 20 through Thursday, October 14. But on Friday, October 15, she called in sick and disappeared, never returning to pick up the four days' pay she was owed.

 

James Lewis didn't hold a job in New York. He did, however, have regular contact with people at the Rutledge Hotel.

 

On Thursday, October 14, one of the hotel's owners, Moshe Siri, encountered a bearded Lewis in the lobby. Lewis said hello, and Siri greeted him with questions: "Do I know you from someplace? Did you live maybe in another building of mine? 94th Street? 84th Street? 99th? 17th Street?" Lewis replied, "No, I am new. I'm from Missouri." Siri left it at that. Only later did he realize where he'd seen Lewis's face before--Nightline.

 

The couple didn't wait for Siri to make the connection. LeAnn dropped off the key to Room 200, and Robert and Nancy Richardson ceased to exist.

 

By mid-October 1982, photographs of the Lewises were on television screens and front pages nationwide. On October 18, someone from LeAnn's temp job notified the New York Police Department.

 

Buoyed by the tip, over a hundred cops and FBI agents combed Manhattan for days, block by block, but came up empty. The couple eluded the dragnet, which was surprising given their habit of boarding at transient hotels.

 

On October 18, a clean-shaven "Edward Scott" and wife "Carol" checked into another Siri establishment, Hotel 17, just 13 blocks from the Rutledge. An even more squalid accommodation--roach infested, shared bathroom, meals from a greasy electric frying pan--Room 169 slipped under authorities' radar.

 

Much of the Tylenol coverage now focused on the fugitive's character, and friends and acquaintances began to pop off to the press.

 

Some were of the opinion that James Lewis was a charming--if mischievous--genius:

 

"He could talk to you on any subject and convince you that no matter how much you knew, he knew more," a Kansas City neighbor told reporters, saying Lewis's interests included psychology, sociology, law, civil rights, and gay rights.

 

"He seemed to have a good heart," remarked a resident of 549 W. Belden. That building's manager told the Sun-Times, "He'll be getting the kick of his life reading about himself and he'll be five steps ahead of everybody. He's that smart."

 

Others had more sinister impressions.

 

The man who gave Lewis his first job in Kansas City said, "He has the most bizarre personality I've ever met in my life, and I've met thousands of them."

 

A Chicago coworker remarked on Lewis's strange manner and obsessive rants about impending economic ruin due to runaway inflation.

 

"He'd glare," a former employee of Lewis & Lewis told the Kansas City Star. "He'd stare at you and not say anything." The woman said that after a minor disagreement Lewis refused to talk to her for three months.

 

A ten-year acquaintance concluded, "He has ice in his veins."

 

Jim Lewis's plan wasn't going well. When he sent the extortion note to Johnson & Johnson, he hoped Frederick Miller McCahey would get investigated. But by late October Lewis found himself prized prey instead of praised whistle-blower. To ensure swift justice, he had allegedly sent a death threat to President Reagan, hoping to lead authorities to his enemy's Winnetka doorstep.

 

Though the exact contents of the presidential correspondence were never released, press reports said that its writer demanded changes in federal tax policy or else, one, the Tylenol killings would continue and, two, the White House would be bombarded with remote-control model airplanes that would jam Secret Service radio transmissions.

 

Increasingly desperate, Lewis began corresponding with newspaper editors. On October 27 the Chicago Tribune received a thick packet of documentation of the McCahey payroll affair along with a note written in cursive:

 

"As you have probably guessed, my wife and I have not committed the Chicago area Tylenol murders. We do not go around killing people. We never have and we never shall.

 

"Contrary to reports we are not armed, unless one means in the anatomical paraplegic sense. We shall never carry weapons no matter how bizarre the police & FBI reports.

 

"Domestically, weapons are for two quite similar types of mentalities: (1) Criminals & (2) Police.

 

"We are neither.

 

"Robert Richardson"

 

The week before Thanksgiving, Lewis sent the Kansas City Star a seven-page letter titled "A Moral Dilemma." The letter, while never mentioning Tylenol, offered a series of ethical questions as well as some personal reflection.

 

"I grew up as a southern Missouri hillbilly. Then life was relatively simple. Values of right and wrong were clear cut black and white. The law was to be obeyed. The sheriff was to be obeyed and respected," he wrote, segueing into a paragraph about Watergate felon John Mitchell and other corrupt government officials.

 

Lewis also used the correspondence to taunt Kansas City authorities who were trying to resurrect the charges against him for West's death. "Reopen the Raymond West case? That sounds like a splendid idea!" he wrote. "Why have the police taken so long to come to their senses?"

 

Kansas City police had sent representatives to Chicago with boxes of West evidence for reexamination by the FBI. A November 16, 1982, FBI memo to the Kansas City Police Department reported an interesting finding: "One latent fingerprint present on a lift on card #7, marked 'item 34 Pulleys and Rope in attic,' has been identified as an impression of the right thumb of James William Lewis."

 

During Thanksgiving week, Lewis sent yet another letter to the Tribune (and copies of it to the FBI and Department of Justice) taking on his Tylenol accusers while explaining his rationale for the extortion attempt: to bring the bare-bulb light of truth upon McCahey:

"It is my hope that by sending the information to the press, those powers which have prevented an investigation will acquiesce, so that the matter can be properly examined."

 

"I also remind you that these are the same investigators who engineered the placing of my wife's name and my name on prime suspect lists without bothering to determine that we had both moved from the Chicago area nearly a month before the Tylenol poisonings began. After hearing those people on the news and reading the reports, it sounded like they already had us convicted and of something we could not have possibly done. We continue to respect the law as an institution and a concept....

 

"I have attempted to act as an informant, to act on the side of the law. But the FBI and their state associates have used their precious resources to terrorize, humiliate, ridicule, and speculate in public about the private lives of my family and me. Is this what a person who attempts to be a good citizen should expect from the United States Department of Justice?"

 

Lewis signed his real name and slapped a right thumbprint to the documents. He later talked about this period in a televised interview with WBBM's Mike Parker.

PARKER: "What was it like to be on the run knowing every law enforcement agency in the country was looking for you?"

 

LEWIS: "It is terrifying, absolutely terrifying. Can you imagine trying to tell your wife, 'Honey, I wrote a letter.' Oh yeah? 'There's something else I need to tell ya, they're talking about it on the radio and on TV.' Just trying to explain that to your wife."

 

PARKER: "How did she take that?"

 

LEWIS: "She just sat and stared at the wall for a while. 'How could you have done such a thing?'"

 

PARKER: "So then you found yourselves running from the law."

 

LEWIS: "Didn't really run that much. We just moved to another hotel just a few blocks away. Didn't really hide. We were out on the streets in New York every day. For example the Thanksgiving Day parade, the Macy's parade at Herald Square, there were about 400 policemen standing around waiting to get their orders about where they were going to be stationed. My wife and I walked hand and hand through all of those people at the time this big manhunt was going on. We did not hide."

 

The day before Thanksgiving 1982--Jim and LeAnn's 14th wedding anniversary--LeAnn signed for a $140 money order from her father at a Manhattan Western Union office. Surveillance cameras captured the couple's meek movements and the FBI inched closer.

 

They couldn't afford to hunker down in Hotel 17 for long--they were broke. LeAnn ventured out and landed an $8.50 an hour bookkeeping job as "Carol Scott" at a luggage manufacturer.

 

Knowing James Lewis had been monitoring Chicago and Kansas City newspapers, FBI agents blanketed every newsstand and public library with wanted posters. On the afternoon of December 13, 1982, special agent Vincent Piazza got the call.

 

A reference librarian at a New York Public Library annex at 40th and Fifth had just handed Lewis two volumes: Newspapers of the Southwest and Largest Corporations in America. Piazza and partner Mike Falcone raced uptown. New York police covered the exits and Piazza proceeded to the fourth floor.

 

The librarian pointed to a man hunched over in a study carrel, his back turned. Piazza approached and tapped the man on the shoulder. The man rose, put on his glasses, and stood silent and still as the cuffs went on.

 

Following the arrest, Tylenol investigators played it both ways. Some called Lewis a prime suspect in the poisonings. Others stuck to the facts: Lewis was only charged with the extortion attempt; additional leads were still being pursued.

 

But after 100 days of fruitless legwork, the task force showed signs of capitulation. In January 1983--with Lewis awaiting trial in the Loop's Metropolitan Correctional Facility--the team cut back its ranks to about 20 agents. By March, the tipster hot line had been disconnected.

 

Johnson & Johnson returned triple-sealed Tylenol to store shelves. An entire "tamper-evident packaging" industry sprang up in the wake of the poisonings, $100 million losses were suffered by Johnson & Johnson, and new regulations were instituted by the U.S. Food and Drug Administration. Before 1982, only moisture and temperature-sensitive medications had protective seals. The Tylenol killer changed all that.

 

Lewis pleaded not guilty at his extortion arraignment and federal prosecutors geared up for the trial.

 

LeAnn refused to assist them. She surrendered to authorities the day after her husband's arrest, but declined to answer investigators' questions. Federal prosecutors then charged LeAnn with misappropriating the social security number she used to become "Nancy Richardson" while working in Chicago. Despite the charge's misdemeanor status, prosecutors asked for a $5 million bond. LeAnn spent that Christmas in jail, awaiting a bond reduction hearing.

 

Officials invited LeAnn to cooperate with the government's investigation into any of the troubling circumstances surrounding her husband--the letter to Johnson & Johnson, the Reagan letter, the West death, and the Tylenol poisonings. LeAnn said nothing.

 

"Jim wrote the letter," Michael Monico told jurors during opening arguments. Lewis's defense attorney knew how to pick his battles. He didn't quibble with the authorship of the extortion note, calling it a "vile and stupid letter." Monico instead put the spotlight on Lewis's intention when sending it.

 

The defense argument went like this: Jim Lewis had a pitiful start in life, but he and LeAnn developed an extremely close marriage. The death of their five-year-old daughter cemented, rather than tore apart, their lifelong bond. Jim Lewis became enraged at Frederick Miller McCahey's treatment of LeAnn and other Lakeside Travel employees. He learned at the wage-claim hearing that McCahey's bank accounts had been frozen, so he received no satisfaction. Despite his best efforts, no one in law enforcement would listen to his allegations against McCahey.

 

The defense maintained that Jim Lewis was the kind of man who became inordinately upset with real or perceived enemies. His personality and behavior patterns were admittedly bizarre. But when he wrote the letter to Johnson & Johnson, Lewis never intended for the company to pay the $1,000,000. They couldn't. The referenced Continental Bank account was closed and Lewis knew that. He intended the letter only to draw authorities to McCahey, nothing more. He didn't expect the money, he didn't receive any funds, and therefore he did not commit attempted extortion--the felony charge against him.

 

"This case is simple and it is strange," concluded Monico. "There is absolutely no question that he did what he did to expose McCahey....You may convict him of being stupid and being foolish and being reckless, but you cannot convict him of this crime on the state of this evidence."

 

In his closing argument U.S. attorney Dan Webb tried to refute that "ridiculous" defense. He also planted the seeds of doubt that surround Lewis today.

 

"When Mr. Lewis found out that he had a warrant out for his arrest for attempted extortion...what did he do? He went underground....He changed his name, they changed the jobs, they did everything they could to avoid detection at that point in time.

 

"Now Mr. Monico said that it is because he read the newspaper, that people were speculating that he might have done the Tylenol murders. By the way, he confesses being the murderer in the letter. I mean, is that our fault that he, in order to play upon a tragedy, confessed to the murder, so somebody said, 'Maybe he did it,' since people who confess to things sometimes do it.

 

"But think about it....Why would you do what he did unless you had guilt on your mind?"

 

In a final, finger-pointing flurry, Webb said, "The man who wrote that letter was a premeditated manipulator of the fear of Johnson & Johnson. And the man who wrote that letter is an evil and depraved opportunist who was trying to turn a tragedy to his own benefit. That man was mean, he was vicious. That man, who was insensitive to human suffering. That man, who was a premeditated manipulator of fear. That man, who was an evil and depraved opportunist for his own benefit, that man is you, James Lewis."

 

After the six-day trial, it took the jury just two and a half hours to find James Lewis, then 37, guilty of attempted extortion on October 27, 1983.

 

That didn't stop him from trying to be helpful.

 

Lewis probably didn't like working in the prison bakery while he awaited sentencing; his fellow inmates always refused to eat his pastries. Besides, he figured he was a man of keen intellect who could actually be of assistance to the Tylenol task force. In November 1983, Lewis called assistant U.S. attorney Jeremy Margolis, who had helped to put him in the pokey.

 

"He volunteered his services because he had time on his hands and was very smart," remembers Margolis. Lewis told him "he'd love to sit and talk with me and solve the Tylenol killings. I accepted his offer."

 

Margolis and Lewis subsequently met several times in Margolis's office for "hours and hours and hours" of discussions and theorizing. According to Margolis, Lewis arrived armed with "probably hundreds of pages of manuscripts, diagrams, and theories...as to how these killings might have happened."

 

Margolis still keeps one of Lewis's drawings on display in his office. "The one on my wall is the 'Drilled Board Method: Drawn on speculation at request of Assistant U.S. Attorney Jeremy D. Margolis' so nobody could say it was his confession of what he did."

 

 

 

In that drawing, Lewis delineates in great detail how the killer might have used an ordinary breadboard to turn an ordinary pain reliever into an agent of death. The poisoner could drill holes in the board; place separated, emptied capsule halves into the holes; fill them with cyanide and scrape off the excess with a knife; recap the capsules and put them back into their original containers. The entire process could be performed in a car at the store's parking lot, allowing the killer to buy the Tylenol, contaminate the capsules, and return the bottle to the shelf minutes later. Nothing would appear out of the ordinary because the bottle would still bear the price tags and other identifying marks of that particular store.

 

During these meetings, FBI agents and state policemen took notes, hoping Lewis would get rolling and slip up. It didn't happen. Lewis refused to submit to a polygraph.

 

"I wasn't capable of generating a germ of information that could be corroborated to provide the physical evidence that would have been needed to build a case on him," says Margolis.

 

Does he have a gut feeling about Lewis?

 

"I've never discussed that publicly and I won't now. But I have strongly held views on the subject."

 

James Lewis had strongly held views regarding defense attorney Michael Monico and the judge who convicted him, Frank McGarr. (Monico did not respond to numerous requests to be interviewed for this article.) By March of 1984, Lewis was demanding Monico's case files in anticipation of representing himself at his upcoming sentencing hearing. Monico withdrew his representation after learning that Lewis had filed a pro se motion for disqualification of Judge McGarr.

 

In his pleading, Lewis asserted that Judge McGarr would be prejudicial in his sentencing judgment due to McGarr's alleged relationships with corrupt Teamsters, affiliations with the same attorney general's office that refused to investigate McCahey, and statements to the Federal Bar Association calling prisoners who acted as their own attorneys "psychopaths." The motion was denied.

 

On June 14, 1984, Lewis argued before Judge McGarr why he shouldn't receive a hammering sentence:

 

"I come before this tribunal this day convicted of a crime that I did not commit. In fact, convicted of three crimes that I did not commit. I do not lie, cheat, or steal. I am indicted and convicted solely because I am uncompromisingly honest."

 

Lewis maintained he was a "political prisoner," a "scapegoat," and an "all-purpose monster...fathered by the wild-eyed hyperventilated imaginations of two brutal men, Tyrone Fahner and Daniel K. Webb," who simply "blew" the Tylenol investigation thanks to "bureaucratic blundering incompetence."

 

McGarr had already listened to Dan Webb reiterate Lewis's biography: the violence toward his parents, the mental hospital commitment, the Raymond West murder charge, the Kansas City fraud schemes for which he was convicted in May of 1983 and sentenced to ten years, the fugitive flight, the extortion conviction, the breadboard schematic, the grandiose and quick-to-explode temperament, the innumerable aliases and deceptions.

 

"It is difficult for me to imagine anyone who would present, if released, a greater danger than Mr. Lewis based on his background and his history," said Webb, characterizing him as a "walking crime wave."

 

The government had a psychiatric report prepared for sentencing. Lewis asked for and got his own psychiatric evaluation from a doctor of his choice, who then drew conclusions and wrote a report as well. But Lewis instructed his doctor not to submit the report to the judge, and in the interest of fairness neither psychiatric opinion was admitted as evidence.

 

McGarr passed judgment: ten years in the federal penitentiary to run consecutively with the ten-year Missouri sentences for tax and mail fraud.

 

Lewis moved among different prisons, weathering three years of inmate taunts of "Hey, Tylenol Man!" In 1987 he filed a request for sentence reduction.

 

In his "Defendant's Motion Under Rule 35," Lewis wrote, among other claims: "Lewis was convicted, not because he committed any crime, but because the U.S. Attorney, Daniel K. Webb, in open court, threatened to kill the jurors with poison and with a gun. The defendant will never forget the fear in the jurors' eyes. Mr. Webb committed the crime of extortion in open court, an act that amounted to extortionate jury tampering. No one can blame the poor jurors, when they themselves were the victims of such acts of terrorism."

 

Lewis's motion was denied.

 

During his incarceration, Lewis tried to be a model prisoner. He garnered exemplary ratings as a GED tutor; he painted murals with sports themes; he taught himself Latin while improving his French and Spanish skills by reading classics in the original languages; and he received no misconduct reports.

 

He tried to get paroled at every opportunity. But as he told WBBM's Mike Parker in 1989, he wasn't optimistic after his first eligibility hearing: "In their meeting here, two examiners indicated that they will extend my time in prison by construing the Tylenol letter as if it were a confession. The United States Parole Commission will, in effect, be accusing me of being the Tylenol murderer....

 

"Margolis and [then U.S. attorney Anton] Valukas have no more interest in protecting the public in this case than the Tylenol murderer himself did. They have become, with their actions, the best friend that the Tylenol murderer could ever have. By taking the actions that they've taken here, they've done the same thing as pinning the Congressional Medal of Honor, in absentia, on the Tylenol murderer's chest."

 

During another Parker broadcast, Dan Webb responded, "First of all, he's the one that sent the extortion note, which would immediately at least raise into question whether or not he's the one who committed the murders."

 

Lewis remained defiant. "I could send a letter to the Roman senate saying give me one million gold pieces and I will stop the killing of Caesar, but that doesn't mean that I killed Caesar."

 

On October 13, 1995, Lewis walked out of the federal penitentiary at El Reno, Oklahoma, and went straight back to loyal LeAnn.

 

"Most of us thought he'd never see the light of day because of his mental instability," says Tyrone Fahner. "We were surprised he was let out."

 

He remains on supervised release until 2002.

 

With the help of private detective Jim Miller of the Investigative Services Agency, I located Jim and LeAnn Lewis in Cambridge, Massachusetts. Several interview requests mailed to the couple's home on Gore Street went unanswered.

 

This past summer, I discovered the home page for James Lewis's Web consulting firm, www.cyberlewis.com. He describes his quiet condo life, displays his artwork and personal photographs, and writes at length about his latest enthusiasm: artificial intelligence and the coming of a "post human" era when computers and people will become unified superentities.

 

The site also had a banner ad offering confections with the slogan "Chocolates to Die For!"

 

On August 4, 2000, I phoned Jim Lewis and identified myself.

 

"I really don't want to talk to you, ma'am," he said.

 

Not at all?

 

"No, not at all." Click.

 
 
 
 
 
 « up

949 F.2d 325

James W. LEWIS, Petitioner-Appellant,
v.
Art BEELER, Warden; and the United States Parole
Commission, Defendants-Appellees.

 

 

 

 

No. 90-6299.

United States Court of Appeals,
Tenth Circuit.

Nov. 13, 1991.

 

Donald V. Morano, Chicago, Ill., for petitioner-appellant.

 

Michael A. Stover, Gen. Counsel, U.S. Parole Com'n (Kristie K. Stafford, Atty., U.S. Parole Com'n, Chevy Chase, Md., with him, on the brief, Timothy D. Leonard, U.S. Atty., and Ronny D. Pyle, Asst. U.S. Atty., Oklahoma City, Okl., of counsel), for defendants-appellees.

 

Before SEYMOUR and EBEL, Circuit Judges, and MATSCH, District Judge.

EBEL, Circuit Judge.

1

This appeal raises the following four questions:

2

1. Can evidence that was known by investigative agencies but not by the United States Parole Commission ("the Commission") at the time of a prisoner's initial parole determination be considered "new information" sufficient for the Commission to reopen the prisoner's case under 28 C.F.R. § 2.28(f)?

3

2. Once a prisoner's case is reopened, can the Commission consider information in a sentencing transcript where

4

A. the transcript, though previously unseen by the Commission, was not the basis for reopening;B. the information pertains to a crime for which the prisoner was not charged but which was related to the crime for which he was convicted; and

5

C. the district judge declined to consider the information at sentencing?

6

3. Was the district judge's statement during sentencing that there was not a "shred of evidence" that the Petitioner-Appellant (Lewis) committed the Tylenol murders merely a reiteration of his assurance that he was not going to consider any evidence of that crime since Lewis was not so charged, rather than a finding on the merits of such an allegation pursuant to Federal Rule of Criminal Procedure 32(c)(3)(D)(i)?

7

4. Did the Commission act within its discretion in determining that Lewis committed murder by lacing Tylenol capsules with cyanide?

8

We answer all of these questions in the affirmative.

FACTS

9

Following the deaths of seven people from the ingestion of Tylenol capsules laced with cyanide, Lewis mailed a letter to Johnson & Johnson, Inc., the makers of Tylenol, threatening to continue lacing Tylenol with cyanide unless the company wired $1 million to a specified bank account. Although not charged with the killings, Lewis was charged with and convicted of extortion on the basis of that letter. He received a ten year sentence which was to run consecutively to two concurrent ten year sentences that he received for other federal crimes. At sentencing, the prosecutor suggested that Lewis was a suspect in the Tylenol murder case, to which the judge responded that he would not consider that suggestion because Lewis had not been charged for or convicted of the Tylenol murders and there was not "a shred of evidence" before him linking Lewis to the Tylenol murders. Record, Doc. 13, Ex. T at 16, 54 (hereinafter "Tr.").

10

The Parole Commission ultimately received Lewis's case. On January 6, 1988, after an initial hearing, the Commission informed Lewis that it would presumptively grant parole after he had served his minimum sentence of eighty months. Thus, Lewis was due to be released on August 27, 1989. This determination was affirmed by a "no change" notice of March 9, 1989 signed by Victor Reyes, the Regional Commissioner for the South Central Region in Texas.

11

On February 17, 1989, however, one of Lewis's prosecutors, Anton Valukas, sent a letter to the Commission Chairman, Benjamin Baer, in Maryland urging an extension of Lewis's parole date. Attached to Valukas's letter was a letter written by Lewis to President Reagan essentially threatening to kill more people with cyanide-laced Tylenol and to kill Reagan with a radio controlled airplane bomb if income taxes were increased or payroll taxes were not abated. On March 9, 1989, a second of Lewis's prosecutors, Jeremy Margolis, sent a letter to Baer urging an extension of Lewis's parole date. Baer forwarded these letters to Reyes, the Regional Commissioner in Texas. Reyes apparently had no access to these letters prior to his issuance of the March 9, 1989 "no change" notice.

12

Based on these letters, on April 13, 1989, Reyes recommended that the National Commissioners reopen Lewis's case. The National Commissioners ordered the case reopened on the basis of new and adverse information on April 27, 1989, but failed to specify the information to which they referred. On July 20, 1989, the Commission corrected its order to specify the letters from the prosecutors and the letter to Reagan as new and adverse information.

13

At a hearing on August 21, 1989 the Commission acknowledged the delay in correcting its order. The Commission also informed Lewis that it intended to rely on information in the transcript from his sentencing, which had been submitted to the Commission by Lewis, to determine whether he committed the Tylenol murders. For these reasons the Commission offered Lewis the option of asking for a continuance. Both Lewis and his attorney explicitly declined to request a continuance and elected to proceed with the hearing.

14

Following the hearing, the Commission determined that Lewis was indeed the Tylenol murderer and accordingly raised his Offense Severity Level from Category 6 (for extortion) to Category 8 (for murder). Placing Lewis in Category 8 permitted the Commission to deny him parole, forcing him to serve his full sentence.

15

Lewis appealed this decision to the Full Commission, which affirmed it. Subsequently he petitioned the district court for habeas corpus, which was denied. He now appeals the district court's denial of his petition based on four grounds.

16

First, Lewis argues that neither the letters from the prosecutors nor his letter to President Reagan constitute new evidence as required for the Commission to reopen his case. Second, he argues that the Commission, after reopening his case, improperly considered evidence in his sentencing transcript of an uncharged crime. Third, he argues that the Commission was precluded from finding that he was the Tylenol murderer by a statement by the sentencing judge that there was not "a shred of evidence that he is guilty of the Tylenol murders...." Tr. at 54. And Fourth, he argues that the evidence provided an insufficient basis for the Commission's conclusion that he was the Tylenol murderer. We disagree with all of these arguments.

 

DISCUSSION

I.

17

Lewis's threatening letter to President Reagan, which the Commission had not seen prior to its initial determination regarding Lewis, provided a sufficient basis for reopening his case. The Commission can reopen a prisoner's case when it receives "new and significant adverse information." 28 C.F.R. § 2.28(f). Lewis's letter to President Reagan was both new and significant.

18

For purposes of § 2.28(f), information is new if it was not received by the Commissioner prior to the decision that is to be revisited. McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980) (per curiam); Fox v. United States Parole Comm'n, 517 F.Supp. 855, 859 (D.Kan.), aff'd, No. 81-1432, 1981 WL 37344 (10th Cir. Nov. 23, 1981). Lewis does not contradict the Commission's assertion that the Regional Commissioner had not received his letter to President Reagan prior to either the initial decision regarding his parole or the "no change" determination. Thus, the letter can be considered new for purposes of § 2.28(f).

19

Lewis cites Ready v. United States Parole Comm'n, 483 F.Supp. 1273, 1276-77 (M.D.Pa.1980), for the proposition that information cannot be considered new for purposes of reopening a parole decision where the Commission was aware of the allegations that the information is used to support but declined at the time of the initial parole decision to seek such information regarding those allegations. In Ready the Commission was aware during its initial hearing that the prisoner had allegedly engaged in prison misconduct but thought the evidence before it insufficient to support these allegations and did not seek additional information on the matter. The court held that the Commission could not subsequently reopen the case based on new evidence supporting the same allegations. Id.

20

Unlike the situation in Ready, there is no indication in Lewis's case that the Commission knew of allegations that he was the Tylenol murderer at the time it made its initial parole determination. He was convicted only of extortion and neither his presentence report nor the pre-hearing report for his first parole determination made any allegation that he was the Tylenol murderer.

21

Further, even if the Commission were aware of these allegations, we respectfully disagree with the reasoning of Ready. The Commission is not like a court. See Fox, 517 F.Supp. at 859. It does not get only one chance to review allegations against a prisoner. Rather, its function is to make the best possible determination of a prisoner's parole risk based on a continuing evaluation. Because the Commission is not primarily an investigative body and must depend largely on interested parties for relevant information, it will sometimes need to review previously considered allegations in light of newly received information. It is for this reason that the Commission is given the power to reopen cases. Ready, to the extent it gives the Commission only one chance to evaluate any particular allegation, would turn the Commission into both a court and an investigator. We cannot agree that these were its intended functions. Cf. McClanahan, 636 F.2d at 1191 (mistake in parole calculation new when brought to attention of Commissioner).

22

Thus, we hold that information is new for purposes of § 2.28(f) where it has not been considered by the Commissioner who made the decision which the Commission seeks to reopen. Accordingly, Lewis's letter to President Reagan was new. Additionally, it is clear that the extortionate letter was significant to Lewis's case, as he was serving a sentence for extortion. Hence, the Commission was justified in reopening its decision to grant him parole.

II.

23

Lewis next advances three arguments suggesting that the Commission could not consider evidence in his sentencing transcript. First, he argues that the Commission cannot consider the transcript because it was not one of the bases for opening the hearing. Next, he argues that it was improper to consider evidence from the transcript of crimes with which he was not charged. Finally, he argues that the Commission could not consider evidence regarding the Tylenol murder because the sentencing judge declined to consider this information. We disagree with all of these arguments.

24

Section 2.28(f), which authorizes the Commission to reopen a case based on new and significant adverse information, does not limit the Commission's attention to the information that was the basis for the reopening. In fact, § 2.28(f) explicitly requires that the reopened hearing be conducted pursuant to § 2.13, which sets out the procedure for the initial hearing. Thus, we can infer that the procedure at the reopened hearing must be the same as that at the initial hearing, where there is no restriction on the information that the Commission can consider. We have no doubt that at the initial hearing the Commission could have considered the transcript had it been submitted. Here, Lewis cannot argue that the Commission should not have considered the sentencing transcript and the recommendations and information contained therein, especially given the fact that it was Lewis who submitted the transcript to the Commission.

25

We also have no doubt that the Commission properly considered evidence relating to a crime with which Lewis was not charged. We have recently upheld the right of the Commission to consider conduct for which a prisoner was not charged so long as there is a connection between the uncharged behavior and the crime with which the prisoner was sentenced. See Fiumara v. O'Brien, 889 F.2d 254, 257-58 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2563, 109 L.Ed.2d 746 (1990). There was clearly such a connection between Lewis's extortion conviction and the Tylenol murders.

But at paragraph 20, the court says: "there is no indication in Lewis's case that the Commission knew of allegations that he was the Tylenol murderer."

 

26

Finally, it is clear that the Commission can consider information that the sentencing judge declined to consider. Id. Thus, to the extent that the sentencing judge declined to consider evidence linking Lewis to the Tylenol murders, the Commission was entitled to draw its own conclusion from that information.

III.

27

Lewis argues that the judge's statement at his sentencing hearing that there was not "a shred of evidence that [Lewis] is guilty of the Tylenol murders," Tr. at 54, precluded the Commission from finding to the contrary. We disagree.

28

This statement by the district court was not a finding under Federal Rule of Criminal Procedure 32(c)(3)(D) as to any allegation in a pre-sentence report that Lewis was the Tylenol murderer. No such allegations appeared in any pre-sentence report and, consequently, Lewis had no occasion to request (nor did he request) a Rule 32(c)(3)(D) determination regarding whether he was, in fact, the Tylenol murderer. Rather, this statement, when considered with other statements made by the sentencing judge, was simply an assurance to Lewis that the court was not going to allow or consider any evidence regarding whether Lewis committed the Tylenol murders. Tr. at 16, 54. This, of course, could not preclude the Commission from considering the matter because the Commission has a broader mission: to consider matters related to the charged offense even though they go beyond the charge itself.

29

Even if we were to treat the "shred of evidence" statement as a Rule 32(c)(3)(D) determination, however, we would conclude that it did not constitute a finding that Lewis did not commit the Tylenol murders. Instead, it would more properly be considered a determination under Rule 32(c)(3)(D)(ii) that the court simply would disregard that evidence for purposes of its sentence. A judge may treat information which is disputed in a pre-sentencing report in one of two ways: The judge can "make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing." Fed.R.Crim.P. 32(c)(3)(D).

30

Whatever may be the impact of a finding of fact under Rule 32(c)(3)(D)(i), the judge's decision not to consider evidence under Rule 32(c)(3)(D)(ii) cannot bind the Commission. "After all, the judge has not found the [Rule 32(c)(3)(D)(ii) ] allegations false; he has simply found them questionable or irrelevant for the purpose of sentencing." Kramer v. Jenkins, 803 F.2d 896, 900 (7th Cir.1986).

31

While this circuit does not yet appear to have decided this issue, at least five other circuits have reached the conclusion that the Commission may consider information that the sentencing judge determined, pursuant to Rule 32(c)(3)(D)(ii), to exclude from his or her sentencing consideration. See Coleman v. Honsted, 908 F.2d 906, 907-08 (11th Cir.1990) (per curiam); Blue v. Lacy, 857 F.2d 479, 481 (8th Cir.1988) (per curiam); Hackett v. United States Parole Comm'n, 851 F.2d 127, 131 (6th Cir.1987) (per curiam); Ochoa v. United States, 819 F.2d 366, 372 (2d Cir.1987); Kramer, 803 F.2d at 900. We find their reasoning persuasive. Further, no circuit appears to take a contrary position.

32

Notwithstanding the strength of the sentencing judge's language, we find that his statement that there was not "a shred of evidence that [Lewis] is guilty of the Tylenol murders," Tr. at 54, was not a finding under Rule 32(c)(3)(D)(i) as to whether Lewis, in fact, committed the Tylenol murders. The statement was made in the context of the Judge's assurance to Lewis that he would not consider this evidence for sentencing.9 Throughout the sentencing hearing, the judge made similar assurances to Lewis, as Lewis contested information that was in the pre-sentence report or offered by the prosecutor. See Tr. at 16, 31, 35, 40, 54, 59. Essentially, the judge was simply assuring Lewis that he was not going to consider, in the proceedings before him, the allegation that Lewis was the Tylenol murderer:

33

I have made a very deliberate effort, both during the trial with the jury and in my own mind, to discount any suggestion that you [Lewis] may be connected with the Tylenol murders. Mr. Webb [the prosecutor] has his own views and his own concerns on the matter. But I regard it as my duty to consider, in this sentencing, only evidence of such crimes as you have been convicted of. Since you have not been charged or convicted of the Tylenol murders I will not consider any suggestion that your possible connection with those is a factor I should consider in this sentencing. So for that reason you can accept my assurance that I won't consider that and need not take time to comment on Mr. Webb's suggestions along those lines.

Webb did clearly suggest during the extortion trial that Lewis was the Tylenol killer.

34

Tr. at 16-17.

35

Thus, the "shred of evidence" statement was not a finding, but rather a further assurance that the judge had declined to take evidence on that issue. Accordingly, the Commission was not precluded by that statement from finding that Lewis was indeed the Tylenol murderer.

IV.

36

Lewis's final argument is that even if the conclusion that he was the Tylenol murderer was not precluded, it was insufficiently supported by the evidence. We disagree.

37

Lewis's sufficiency of evidence argument rests, in large part, on an erroneous conclusion about the appropriate standard of review: Lewis asserts that we must overturn a Commission finding that is not supported by "substantial evidence." For this proposition he cites NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299, 59 S.Ct. 501, 504, 83 L.Ed. 660 (1939) and Dayton Tire & Rubber Co. v. NLRB, 591 F.2d 566, 569 (10th Cir.1979). These cases, however, explain the standard for reviewing findings made by the NLRB--a standard that is prescribed in a statute specific to that agency. The appropriate standard of review for the Parole Commission, in contrast, is "whether the decision is arbitrary and capricious or is an abuse of discretion." Fiumara, 889 F.2d at 257 (citing, among other authorities, Misasi v. United States Parole Comm'n, 835 F.2d 754, 758 (10th Cir.1987)).

38

In Misasi we discussed the appropriate standard for reviewing Commission decisions:

39

A court of review need only determine whether the information relied on by the Commission is sufficient to provide a factual basis for its reasons. The inquiry is not whether the Commission's decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission's conclusions embodied in its statement of reasons.

40

835 F.2d at 758 (quoting Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982)).

41

The record provides a rational basis for the Commission's conclusion that Lewis was the Tylenol murderer. The sentencing transcript indicates that Lewis provided detailed explanations to investigators of how the crime might have been perpetrated, albeit for purposes of aiding their investigation. Tr. at 13-14. Further, his letter to President Reagan constitutes an inferential admission, however suspect, that he was the Tylenol murderer. While we might not have concluded that Lewis was the Tylenol murderer based on this evidence, it provides a rational basis for the Commission's finding to that effect. Thus, the Commission did not abuse its discretion in finding that Lewis was the Tylenol murderer.

42

Accordingly, the district court's denial of Lewis's petition is AFFIRMED.

*

The Honorable Richard P. Matsch, of the United States District Court for the District of Colorado, sitting by designation

1

Lewis has filed a motion to supplement the record. However, we find nothing in his proposed supplement that was before the Commission which is not already in the record. Accordingly, the motion to supplement the record is DENIED

2

Although Lewis wrote the letter to Johnson & Johnson, he signed it in the name of his wife's ex-boss and requested that the money be wired to the ex-boss's account. Lewis claimed that he wrote the letter to get revenge for a bad check that the ex-boss wrote to Lewis's wife. Thus, the prosecutors apparently did not view the letter as a sufficiently clear admission of the Tylenol murders to charge Lewis with those murders

3

Like Lewis's letter to Johnson & Johnson, his letter to President Reagan was signed in the name of his wife's ex-boss

4

Because Lewis explicitly declined to request a continuance, we do not consider his argument on appeal that either the time between the corrected notice and his hearing, which was below the statutory minimum notice time, or the Commission's reliance on information not contained in the notice, violated his due process rights under the Fifth Amendment

5

Because we find that one of the bases on which the Commission relied in reopening Lewis's case (his letter to President Reagan) was sufficient, we do not need to decide whether the other two bases (the letters from the prosecutors) would also suffice

6

Lewis points out that the National Commissioner in Maryland had received Lewis's letter to President Reagan prior to the date on which the Regional Commissioner in Texas issued a "no change" notice. However, the relevant party in this case, for purposes of § 2.28, was not the National Commissioner but the Regional Commissioner. Section 2.28(f) is clearly designed to ensure that parole decisions are based on all available, relevant information. See Fox, 517 F.Supp. at 859. Thus, the relevant party for purposes of that regulation must be the actual decisionmaker. The Regional Commissioner issued the "no change" notice and must therefore be considered the relevant party with respect to that notice. Because he did not see the letter, it was new with respect to the "no change" notice for purposes of § 2.28(f)

Because both the Commission's initial determination and its "no change" determination were made without the benefit of Lewis's letter to President Reagan, we do not need to decide which of these two decisions was the relevant one for purposes of § 2.28(f).

7

At least two other circuits and one district court in this circuit have explicitly rejected Ready 's narrow definition of newness. See Torres-Macias v. United States Parole Comm'n, 730 F.2d 1214, 1216-17 (9th Cir.1984); Fardella v. Garrison, 698 F.2d 208, 211 (4th Cir.1982); Fox, 517 F.Supp. at 858-59. No court besides Ready appears to have adopted its definition

8

Because the sentencing transcript and the information in it that formed the basis for the Commission's decision in Lewis's case was new to the Commission, we do not decide here whether the Commission can revisit or base a new determination on previously considered information after reopening a case on the basis of other new information

9

The entire sentence was:

The emotional associations that go with the word Tylenol in connection with this case cannot be allowed to rub off on Mr. Lewis since there is no shred of evidence that he is guilty of the Tylenol murders and no suggestion along those lines should be allowed to influence my judgment in this matter.

Tr. at 54.

 
 

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