Federal prosecutor disputes recommended federal sentence for Clay Waller

Friday, December 2, 2011
Volunteers searched for Jacque Waller in an area near the Jackson city limits on Saturday, Oct. 1, 2011. (Fred Lynch)

An initial presentence report on Clay Waller's federal conviction suggests he spends six to 10 months in a penitentiary for threatening his sister-in-law on an online message board, but the prosecution argues his sentence range should be higher.

Clay Waller

Waller pleaded guilty Oct. 3 in federal court to a charge of making a threat against Cheryl Brennecke, his missing wife's sister and guardian of his children, on the online message board Topix. He faces up to five years in prison and up to a $250,000 fine for a charge of transmitting through interstate commerce a threat to injure.

But a presentence report that uses the United States' sentencing guidelines recommends he spend up to 10 months in prison. The guidelines assess the seriousness of the crime and other factors in determining a federal sentence. While Clay Waller and his attorney, Scott Tilsen, have accepted the report, federal prosecutor Larry Ferrell believes the guidelines have suggested a sentence without considering other factors.

The report is preliminary, and the defense and prosecution have the opportunity to raise issues with the report before the final one is made, Ferrell said. Waller will be sentenced Dec. 19.

In his objection to the presentence report, Ferrell writes that the suggested sentencing range should be 10 to 16 months and that departures from the guidelines are applicable.

The report assigns levels to offenses based on a suspect's criminal background and the seriousness of the offense, Ferrell said. Clay Waller's final offense level on the preliminary report is 10, which constitutes six to 10 months in a federal penitentiary as a starting point for sentencing.

Ferrell writes that the final offense level should be 12 because Brennecke is considered a vulnerable victim. A total offense level 12 carries 10 to 16 months as a sentence.

On Topix, Waller threatened to kill Brenneke if she hurt his three children. Brennecke gained custody of the children after her sister, Jacque Waller, went missing June 1 and Clay Waller was taken into custody on state charges for theft and harassment.

Clay Waller was the last person to see his wife before she disappeared, and Cape Girardeau County Prosecuting Attorney Morley Swingle anticipates filing a murder charge against him. Clay Waller has denied involvement in his wife's disappearance.

The report did not take into account that Brennecke was vulnerable when the crime occurred, and that should raise the final offense level two intervals, Ferrell wrote.

In addition to raising the offense level to 12, Ferrell suggest that departures from the guidelines are necessary because Clay Waller's criminal history "substantially underrepresents" the likelihood that he will commit other crimes, Ferrell wrote.

Thursday marked the six-month anniversary of Jacque Waller's disappearance, and friends, family and volunteers continue to their efforts to find her. Jacque Waller has been missing since June 1.

Searchers from the Scott County Search and Rescue K-9 unit, as well as volunteer searchers, will scour four properties near Fruitland identified by law enforcement as areas of interest Saturday. Two of the areas are private property near Interstate 55 where Jacque Waller's car was discovered June 2 and where her purse and other personal items were found in early November.

A message left for Cape Girardeau County Sheriff's Department spokesman Lt. David James for an updated on the investigation wasn't returned Thursday.

"We're going to be searching a couple hundred acres that haven't been searched yet," said Bobby Sherrill, one of Jacque Waller's childhood friends who heads the volunteer searches.

Volunteer searchers are encouraged to meet at 8 a.m. at the Rhodes 101 in Fruitland.

psullivan@semissourian.com

388-3635

Pertinent address:

499 Independence St., Cape Girardeau, MO

5040 US Highway 61, Jackson, MO

Map of pertinent addresses

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