532 F.3d 746 (8th Cir. 2008), 07-1309, United States v. Whitehill

Docket Nº:07-1309, 07-1311, 07-1312, 07-1318.
Citation:532 F.3d 746
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Zachery T. WHITEHILL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Bradley L. Lovstad, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Monty E. Wanless, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jaime E. Cook, Defendant-Appell
Case Date:July 10, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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532 F.3d 746 (8th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Zachery T. WHITEHILL, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Bradley L. Lovstad, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Monty E. Wanless, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.

Jaime E. Cook, Defendant-Appellant.

Nos. 07-1309, 07-1311, 07-1312, 07-1318.

United States Court of Appeals, Eighth Circuit.

July 10, 2008

Submitted: Oct. 18, 2007.

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Barry V. Voss , Barry V. Voss, P.A., Minneapolis, MN, argued, for appellants Zachery T. Whitehill and Bradley L. Lovstad.

Sean W. Pickett , Kansas City, MO, argued, for appellant Monty E. Wanless.

Ronald E. Partee , Fox, Partee & Nigro, Kansas City, MO, argued, for appellant Jaime E. Cook.

William L. Meiners , Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood , U.S. Atty., on the brief), for appellee.

Before BYE , BOWMAN , and SMITH, Circuit Judges.

BYE , Circuit Judge.

These appeals arise out of a telemarketing scheme to defraud would-be credit card purchasers. Zachary Whitehill, Bradley Lovstad, Monty Wanless, and Jaime Cook were charged with conspiracy to commit Wire and Telemarketing Fraud, 18 U.S.C. § 371 , and Aiding and Abetting Wire and Telemarketing Fraud, 18 U.S.C. §§ 1343 , 2325 , and 2 . In addition, Whitehill was charged with Aiding and Abetting Money Laundering, 18 U.S.C. §§ 1957 and 2 , and Criminal Forfeiture, 18 U.S.C. § 982 . Following a jury trial, Whitehill, Lovstad and Wanless were convicted of conspiracy and aiding and abetting, while Cook was convicted of conspiracy but acquitted of aiding and abetting. Whitehill was also convicted of money laundering and forfeiture.

Each defendant appeals his convictions and sentences arguing the district court 1 erred by 1) instructing the jury on willful blindness, 2) refusing defendants' theory of defense instruction, 3) imposing sentencing enhancements based on a preponderance of the evidence standard, and 4) refusing to grant a new trial based on the government's failure to disclose exculpatory materials in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) . We affirm.

I

The scheme began in 1997 when Christopher Ekeland and Whitehill, among others, started Gecko, a telemarketing company. Lovstad, Wanless, and Cook were hired shortly after the company was formed. Initially, Gecko conducted telemarketing on behalf of charitable organizations. From the beginning, it engaged in questionable business practices. Its employees would solicit contributions from customers who were told the charities were local organizations and eighty percent of the contributions would go to the charity. In reality, the charities were not local and eighty to ninety percent of the contributions went to Gecko.

In August 1999, Gecko moved from charitable telemarketing to working with vendors who sold credit card packages. The vendors assembled offers which included coupons for free merchandise, travel, and applications for major credit cards. Most, if not all, of the materials were

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available to customers free of charge. Nonetheless, the vendors hired telemarketing firms like Gecko to solicit customers at costs ranging between $159.95-$229.95. The vendors supplied Gecko with scripts its telemarketers followed to entice customers into purchasing the packages. The scripts directed telemarketers to tell customers the packages contained actual credit cards, not simply applications for credit cards. The vendors also sold call lists of potential customers to Gecko. The call lists contained the names of people who, because of poor creditworthiness, were unable to obtain unsecured credit cards.

Persons solicited were told 1) Gecko's telemarketer was an employee of the vendor, 2) the customer was pre-approved for a major credit card, 3) the customer's credit had been upgraded, and 4) the caller's company helped people...

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