907 F.2d 432 (3rd Cir. 1990), 89-5802, United States v. Bagnall
|Docket Nº:||Bagnall, Beverly Jayne, Appellant in No. 89-5802.|
|Citation:||907 F.2d 432|
|Party Name:||UNITED STATES of America, v. BAGNALL, Allan J., Appellant in No. 89-5801, and|
|Case Date:||July 06, 1990|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Argued Jan. 31, 1990.
Rehearing Denied Sept. 20, 1990.
Joshua D. Lock (argued), Harrisburg, Pa., for appellants.
William A. Behe (argued), Sally A. Lied, U.S. Atty's. Office, Harrisburg, Pa., for appellee.
Before STAPLETON and MANSMANN, Circuit Judges, and ACKERMAN, District Judge. [*]
STAPLETON, Circuit Judge:
Appellants Allan J. Bagnall and his wife, Beverly J. Bagnall, were each convicted of two counts of introducing and attempting to introduce imported merchandise into the commerce of the United States by means of false statements, in violation of 18 U.S.C. Sec. 542. Allan Bagnall was additionally convicted of one count of conspiracy in violation of 18 U.S.C. Sec. 371. The Bagnalls appeal from the judgments of sentence, challenging their convictions on sufficiency of the evidence grounds. We conclude that the Bagnalls' automobile purchase scheme did not violate Sec. 542, and therefore the convictions must be reversed.
The "Diplomatic Tourist Order Program" (DTOP) is a promotional program of Mercedes-Benz of North America, Inc. ("Mercedes-Benz") through which foreign diplomats and American citizens holding "official passports" 1 can purchase Mercedes-Benz automobiles for their personal or family use at a ten percent discount off the European delivery price. Eligible DTOP participants can place orders through Mercedes-Benz dealers either in the United States or abroad, and may accept delivery of their cars at either location. However, only those persons currently serving on a foreign assignment, or designated to embark on one, are eligible to participate in the DTOP.
In order to purchase a vehicle through the DTOP, the buyer must submit the following materials: (1) a completed dealer order form and three pre-printed Mercedes-Benz forms; (2) a "Certificate of Status" signed by an authorized representative from the purchaser's place of employment, verifying the purchaser's employment status and passport information; 2 (3) a verification letter signed by an authorized representative from the purchaser's place of employment, attesting to the fact that the purchaser currently enjoys diplomatic privileges and immunities; (4) a "Customs License Plate Application" in order to permit overseas operation of the vehicle; and, (5) a "Shipping and Handling Authorization" authorizing Mercedes-Benz to accept delivery of the vehicle and deliver it to the dealer through which it was ordered. 3 Once a purchaser completes these forms and assembles the requisite documentation, the local Mercedes-Benz dealer forwards the materials to a Mercedes-Benz zone office for review and processing. If approved, the paperwork is sent to the manufacturer in Germany, production of the vehicle is commenced, and a "confirmation of order" and invoice are mailed to the customer. Upon importation of the car, Mercedes-Benz furnishes copies of the "confirmation of order" and invoice to the United States Customs Service to document valuation.
Allan Bagnall's involvement with the DTOP began in May, 1984, when he placed a DTOP order for a Mercedes-Benz model 380 SLCR through Lee Stotsky at the Diehl Motor Company, Inc. ("Diehl"). Bagnall, his wife and son had each been issued official passports several years earlier when Bagnall worked in West Germany as a computer analyst for the National Security Agency ("NSA"). Although still employed by NSA at the time he ordered the car, Bagnall was nonetheless ineligible for DTOP participation since his official passport had expired shortly before he placed his order and he was no longer serving on a foreign assignment nor scheduled to depart on one. He used the number from his expired official passport in completing the requisite order forms, and supplied Stotsky with all of the required paperwork except for the NSA verification letter.
When Bagnall later decided that he could not afford the car, he agreed to permit Stotsky, the car dealer, to use his name and official passport number to proceed with the planned DTOP discount purchase in exchange for a thousand dollars. Stotsky could then sell the car at the American fair market value, realizing the amount of the DTOP discount as profit. Bagnall and Stotsky also discussed the possibility of repeating the scheme with other holders of official passports, among them Bagnall's wife and son.
The order for the first car proceeded using the paperwork that Bagnall had originally prepared when he placed his order for the 380 SL Coupe, although the dealer order forms were altered so that the more expensive 500 SEL model would be ordered instead. The order forms were then forwarded to the zone office for review, and Stotsky was advised that Bagnall would have to provide the NSA verification letter in order to prove his DTOP eligibility. The letter had to be executed by an authorized NSA representative on the agency's stationery, certifying that Bagnall currently enjoyed diplomatic privileges and immunities. Inasmuch as his official passport had expired and he no longer did enjoy diplomatic privileges and immunities, the requested documentation was falsified. NSA employee Carol Giffin testified at trial that Bagnall contacted Candy Jolles, who was Giffin's roommate as well as the Mercedes-Benz Washington, D.C. Zone Coordinator, and that Jolles enlisted Giffin to obtain blank NSA letterhead. A false verification letter was then prepared on this NSA stationery. On September 21, 1984, after manufacture and delivery of the 500 SEL, Diehl Motors issued a check for one thousand dollars payable to Allan Bagnall. In late September, 1984, Stotsky processed DTOP orders for two additional 500 SEL Mercedes-Benz vehicles, one in the name of Beverly Bagnall and one in the name of Scott Bagnall, using...
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