846 F.2d 150 (2nd Cir. 1988), 753, United States v. Wiley
|Docket Nº:||753, 755, 754, Dockets 87-1157, 87-1179, 87-1234.|
|Citation:||846 F.2d 150|
|Party Name:||UNITED STATES of America, Appellee, v. Richard WILEY, Elizabeth Wiley Becht, Brian Bink, Ray Gardner, George Keleshian, Edward Larson, Sherrin Larson, Don Mullaney, William Peterson, Karen Radovanovitch, Delmar Reynolds, Donald Rue, Mitchell Shecter, Erna Shecter Wiley, Defendants, Karen Radovanovitch, Delmar Reynolds, Raymond Gardner, Defendants-A|
|Case Date:||May 06, 1988|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Feb. 8, 1988.
[Copyrighted Material Omitted]
Douglas G. Roberts, Syracuse, N.Y., for defendant-appellant Ray gardner.
G. Robert McAllister, Syracuse, N.Y., filed a brief, for defendant-appellant Karen Radovanovitch.
John R. McDermott, Jr., Syracuse, N.Y., filed a brief, for defendant-appellant Delmar Reynolds.
Thomas E. Booth, Dept. of Justice, Washington, D.C. (Edward R. Broton, Asst. U.S. Atty., Frederick J. Scullin, Jr., U.S. Atty., Northern District of New York, of counsel), for appellee.
Before CARDAMONE and PIERCE, Circuit Judges, and STANTON, District Judge. [*]
CARDAMONE, Circuit Judge:
Karen Radovanovitch, Delmar Reynolds, and Raymond Gardner appeal their convictions for participating in schemes to defraud would-be independent distributors of home security and energy efficiency devices. This professionally orchestrated "scam" bilked scores of gullible individuals across the country of substantial amounts of money. Only six of the 15 charged with "playing a role" in the scheme were convicted. As is usual following a trial involving a number of codefendants, appellants raise a number of issues on appeal. Only a few require extended discussion.
The events leading to the indictment of the three appellants, as well as 12 other defendants (seven of whom entered pleas prior to trial and five of whom proceeded to trial with appellants), centered on plans to attract distributors to sell home energy conservation devices and home security devices. In each case obtaining a distributorship hinged on the interested individual's investing in Advance Technology Systems (ATS) or in Security Control Systems (SCS). This fraudulent enterprise was instigated by Richard Wiley, its admitted mastermind, with the help of Thomas Stone. Together these two defendants formed Suntron, Inc.--the corporate alter ego of ATS and SCS--in early 1981.
Wiley and Stone conducted the ATS and SCS "businesses" along the same lines. Each company advertised for distributors in newspapers across the nation and interviewed applicants by telephone. Those applicants who had a serious interest in becoming distributors travelled to ATS/SCS headquarters in Albany, New York to sign purchase order agreements. These agreements usually obligated the distributor to buy his start-up inventory by paying ATS or SCS approximately $31,000. To attract potential distributors Wiley and Stone made numerous misrepresentations. For example, potential distributors were told that ATS and SCS sold products to their distributors at wholesale prices and that distributors could resell them to retailers. In fact, the price to distributors was the retail price. In addition, Wiley and Stone misrepresented both the history and financial stability of ATS and SCS as well as the two companies' relationships with their suppliers.
Most important for purposes of this appeal, Wiley and Stone represented to potential distributors that other distributors had been successful in selling ATS or SCS products. They hired "references"--including appellant Karen Radovanovitch--who gave false testimonials regarding their own fictitious ATS or SCS distributorships to potential distributors over the telephone and by letter. When in 1982 many distributors complained of difficulty in selling ATS and SCS products, Wiley hired appellants Raymond Gardner and Delmar Reynolds to implement a sales training program that was designed to assist distributors in hiring their own salespeople or "subdistributors." Gardner and Reynolds also worked as bogus telephone references. By March 1983 both ATS and SCS had folded.
The grand jury indictment alleged the existence of two conspiracies--one centering
on ATS and the other on SCS--each of which contained four counts. Wiley pled guilty and became the government's principal witness at trial. Following appellants' six-week jury trial in the United States District Court for the Northern District of New York (Munson, Ch.J.), each was convicted and sentenced as follows: Radovanovitch was convicted for participation in both the ATS (Count I) and SCS (Count V) conspiracies to commit mail, wire, and travel fraud in violation of 18 U.S.C. Sec. 371, and for committing wire fraud with regard to ATS (Count III) and SCS (Count VII) in violation of 18 U.S.C. Sec. 1343. She was sentenced to concurrent prison terms of one year and one day, with sentence suspended, placed on probation for three years, and ordered to pay $800 in restitution.
Reynolds was convicted for participation in the ATS conspiracy to commit mail, wire, and travel fraud (Count I) in violation of 18 U.S.C. Sec. 371, for committing wire fraud with regard to ATS (Count III) in violation of 18 U.S.C. Sec. 1343, and for aiding and abetting the SCS wire fraud scheme (Count VII) in violation of 18 U.S.C. Secs. 2(a), 1343. He was sentenced to six months' imprisonment, with sentence suspended, placed on probation for three years, and ordered to pay $2,500 in restitution. Gardner was convicted for aiding and abetting the ATS wire fraud scheme (Count III) in violation of 18 U.S.C. Secs. 2(a), 1343, and the ATS travel fraud scheme (Count IV) in violation of 18 U.S.C. Secs. 2(a), 2314. He was sentenced to concurrent prison terms of one year and one day, with sentence suspended, put on probation for two years, and ordered to pay $2,000 in restitution.
From the entry of these judgments of conviction Radovanovitch, Gardner, and Reynolds appeal. All present a number of arguments for reversing their convictions, most of which are without merit and may be disposed of summarily. Several warrant discussion: Reynolds raises sufficiency and evidentiary claims; Gardner asserts the district court permitted the government improperly broad redirect of Wiley, one of the principals in the...
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