United States v. Norman

• Decision Date: 09 January 2015
• Docket Number: Docket No. 13–2840.
• Parties: UNITED STATES of America, Appellee, v. David NORMAN, a/k/a “Jim Norman,” Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

776 F.3d 67

UNITED STATES of America, Appellee,

v.David NORMAN, a/k/a “Jim Norman,” Defendant–Appellant.

Docket No. 13–2840.

United States Court of Appeals,Second Circuit.

Submitted: Oct. 16, 2014.

Decided: Jan. 9, 2015.

Preet Bharara, United States Attorney for the Southern District of New York, New York, New York (Andrea Surratt, Andrew Goldstein, and Karl Metzner, Assistant United States Attorneys, New York, New York, of counsel), for Appellee.

Megan Wolfe Benett, New York, New York, for Defendant–Appellant.

David Norman, Petersburg, VA, Defendant–Appellant, filed a Supplemental Brief pro se.

Before: KEARSE, STRAUB, and WESLEY, Circuit Judges.

KEARSE, Circuit Judge:

Defendant David “Jim” Norman appeals from a judgment entered in the United States District Court for the Southern District of New York following a jury trial before Katherine B. Forrest, Judge, convicting him of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and sentencing him to, inter alia, 20 years' imprisonment, to be followed by a three-year term of supervised release; he was also ordered to pay $1,731,805.34 in restitution and to forfeit $2,197,637.04. On appeal, Norman challenges only the imprisonment component of his sentence, contending chiefly that the district court erred in calculating his offense level under the Sentencing Guidelines (“Guidelines”) by making findings that increased his offense level for his role in the conspiracy, the number of victims of his crime, and the amount of loss they sustained, all principally on the basis of his testimony at trial, while also finding that he committed perjury at trial and increasing his offense level for obstruction of justice. Norman also argues that his sentence is substantively unreasonable. Finding no merit in his contentions, we affirm.

I. BACKGROUND

In mid–2008, Norman, along with two codefendants, Olivia Jeanne Bowen and Noemi Dodakian, was charged in Count One of an indictment alleging conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, from early 2005 through the filing of the indictment. Norman was arrested in Canada in 2009 and was extradited to the United States in 2011. In the meantime, Bowen and Dodakian, who were also charged with a separate wire fraud conspiracy in Count Two of the indictment along with two other defendants but not Norman, were convicted on both of the counts against them—Bowen after a plea of guilty and Dodakian after a jury trial.

Norman was tried alone in a six-day jury trial in 2013. The government's evidence at his trial showed that the conspiracy involved a supposed investment program called the “Jim Norman Program,” which was an advance-fee scheme in which Bowen and Dodakian—whom, along with others, Norman called “facilitators” or his “team” (Trial Transcript (“Tr.”) 837)—communicated with numerous persons and persuaded them to invest. The facilitators ( see Part II.C.3. below), and sometimes Norman himself, told prospective investors various stories as to the needs and purposes of the Jim Norman Program, principally representing that Norman had acquired or inherited many millions of dollars that were tied up overseas, much of it in accounts in his name or in the name of his nonprofit “Espavo Foundation” at the World Bank or the International Monetary Fund (“IMF”). Prospective investors were told that Norman needed relatively modest amounts of money to pay fees and taxes in order to liberate his millions.

Norman and his facilitators offered investors returns that were vastly disproportionate to the money to be invested and told them that their investments would be without risk, as Norman would give them promissory notes. For example, investors were promised that if they sent Norman $10,000, they would receive, within one week, the $10,000 investment plus $750,000. ( See, e.g., Tr. 297, 327, 364, 546, 833.) Cindi Owen, a victim who, with associates, originally sent Norman $50,000, testified that they were promised that they would receive $2 million plus the return of the invested $50,000; Owen and her husband subsequently invested an additional $75,000 (obtained from a line of credit secured by their home), for which they were promised $2,250,000 plus the invested $75,000. ( See id. at 62–63, 113.) Another victim testified that she and her husband invested $30,000 (funded by cash advances on credit cards) and were promised that they would be paid $1.98 million. ( See id. at 320–21.)

No one who contributed to the Jim Norman Program received the promised payout. Few, if any, were even repaid their investments.

A. Norman's Testimony at Trial

At his trial, Norman testified and offered various explanations as to the means and goals of the scheme, contending that it was a valid investment program. A musician by trade, Norman testified that he initiated his investment program after receiving, in 2001 or 2002 ( see Tr. 861), an email request for money from persons in the Ivory Coast with whom he had had no prior contact: “Desmond” ( see id. at 687–89) and Desmond's mother and sister. Norman testified that Desmond said he and his mother and sister wanted to move to France; but they could not get their money—an “initial sum of 17.4 million”—out of the Ivory Coast because that country lacked a suitable banking system. ( Id. at 687.) They asked that Norman “be the recipient or the beneficiary of these funds and assist them in getting the money out into the Western banking system.” ( Id.) Norman was to retain a portion of that money for getting it out of Africa and was to send the remainder to Desmond and his family when they reached France.

In order to initiate any transfer of the funds belonging to Desmond, his mother, and his sister, however, “the manager of the[ir] bank” (Tr. 690; see id. at 866) requested “hundreds of thousands” of dollars in fees ( id. at 690). Norman himself had no such assets; indeed, from 2001 through 2007 he was on the verge of bankruptcy. ( See id. at 690, 723–26, 830–32, 896 (after the beginning of 2001, Norman was “broke”).) Norman, a Canadian resident, testified that he therefore recruited facilitators, persons who were experienced in raising money in the United States. Among Norman's facilitators were Bowen and Dodakian; Linda Palmer, who worked with Bowen and Dodakian; and John Billingsley, who headed another fundraising group. ( See id. at 697.) Norman testified that the facilitators succeeded in raising money from investors and sending it to accounts at the World Bank and the IMF. ( See, e.g., id. at 698, 700–02, 780–83, 793–95, 812–13, 826.) He testified that they were so successful in raising money for Desmond that Norman was soon engaged to raise money to unlock accounts of others, including Desmond's brother David with $12.4 million, and an asset manager with $68 million, and another portfolio manager with more than $1 billion. ( See, e.g., id. at 695–96, 878–79.)

Norman testified that he had email communications with officials of the World Bank and the IMF who repeatedly warned him that additional fees must be sent to those institutions in order to preserve and unlock accounts established by Norman in his name or that of his Espavo Foundation. ( See, e.g., Tr. 715–16 (“many” such emails from a Teresa Theo—also referred to as “Mrs. T”—whom Norman described as a representative of the IMF with respect to “economic affairs” relating to West Africa); id. at 785–89, 793–807, 812–13, 817–18.) The government, in its case-in-chief, had called as witnesses officials of the World Bank and the IMF, who testified that those institutions had no accounts in the name of either Norman or Espavo Foundation. ( See id. at 400–03, 576–78.) The World Bank official testified that that institution did not maintain any accounts in the names of private individuals or nonprofit foundations; a person cannot wire money to the World Bank. ( See id. at 400–01.) Nor did the World Bank have any record of employing the person Norman claimed to have dealt with at the World Bank. ( See id. at 403.) Norman nonetheless testified that he and his facilitators sent to the World Bank and the IMF moneys demanded by those institutions for Norman's accounts, pointing to emails he claimed to have received containing such warnings and demands from European offices of the World Bank and the IMF. ( See Tr. 785–89, 793–807, 812–13.)

On cross-examination, Norman held fast to his position that the emailed warnings and demands to which he pointed were from the World Bank and the IMF despite the fact that they were written in broken English. ( See, e.g., Tr. 914–15, 946–47.) And he insisted that the emails were from those institutions' European branches despite being confronted with the fact that, to the extent that the emails revealed any place of origin, they showed that they originated on the west coast of the United States. ( See id. at 911–14.)

Also on cross-examination, Norman testified that more than 100 people in the United States had sent him money for investments in the Jim Norman Program. ( See, e.g., Tr. 833, 898.) He testified that, in all, he had collected from those persons between $6 million and $9 million. ( See id. at 840.) He testified that he “wrote promissory notes to the people on the wires coming in” ( id. at 833), each with a specific deadline for payment ( see id. at 915–17, 920–21). Norman admitted that all of the due dates passed without any investor receiving any payout. ( See id. at 920–21; id. at 896 (“Nobody has been paid back.”).)

Norman, however, who had no income of his own ( see id. at 831, 850–51), spent many thousands of the invested dollars on himself. He maintained a bank account in the United States into which his investors wired money for the Jim Norman Program (the “Centura account”). From that account in November 2004 through March 2005, Norman withdrew nearly $87,000 in cash and made purchases totaling more than $168,000 with a debit card. ( See Tr. 617–18; Government Exhibit (“GX”...