U.S. v. Vogt

Citation910 F.2d 1184
Decision Date16 August 1990
Docket NumberNo. 88-5007,88-5007
Parties30 Fed. R. Evid. Serv. 743 UNITED STATES of America, Plaintiff-Appellee, v. David Jack VOGT, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Harry Martin Solomon, Miami, Fla., for defendant-appellant.

David Bernard Smith, Asst. U.S. Atty., argued (Robert H. Edmunds, Jr., U.S. Atty., Greensboro, N.C., on brief), for plaintiff-appellee.

Before RUSSELL, PHILLIPS, and MURNAGHAN, Circuit Judges.

PHILLIPS, Circuit Judge:

David Jack Vogt, Jr. appeals from a final judgment and commitment order entered on a jury verdict finding him guilty of a RICO violation under 18 U.S.C. Sec. 1962(a), and of conspiring to defraud the government in violation of 18 U.S.C. Sec. 371. We affirm his conviction on both counts.

I

In the light most favorable to the government, the critical facts, in summary, are as follows.

Vogt was a United States Customs Service officer stationed in South Florida from 1971 through early 1979. In May of 1974, Vogt arrested Philip Keidaish III, a member of a drug smuggling ring, for a sojourn violation. Some time later the two men struck a deal under which Keidaish paid Vogt substantial sums of money in return for Vogt's giving Keidaish Customs Service information that facilitated Keidaish's drug smuggling operation. This arrangement was in effect from late 1976 until late 1978 when Keidaish got out of the smuggling business. During this time Vogt was paid between $500,000 and $800,000 for his services, usually in payments of around $100,000 following each smuggling operation for which Vogt gave assistance. Vogt was a member of the Customs Service throughout this period until early 1979 when he was granted a pensioned disability retirement.

At some point in their relationship, Keidaish and Vogt discussed the possibility of using foreign bank accounts and corporate entities as a means of "laundering" Vogt's illegally obtained money. Following up on this, Keidaish introduced Vogt to Burton R. Levey, a Miami attorney, whose firm, by the use of foreign banks and foreign and domestic corporations, had assisted Keidaish in concealing and using funds generated by his smuggling operations. From that point on, Levey assisted Vogt in an elaborate scheme of concealment of the source of the funds while facilitating Vogt's access to and use of those funds and their proceeds for his private purposes.

The basic mode of operation of the scheme was as follows. Vogt's illegally obtained money was deposited in various foreign bank accounts in the Grand Cayman Islands and the Netherlands Antilles. From those accounts it was withdrawn from time to time and funnelled through various trust accounts maintained by Levey's law firm and associated law firms and through several foreign and domestic corporations, some formed by Levey or at his direction, ultimately to be used by Vogt for a variety of investments, loans, and luxury purchases. Five corporations, either formed by or at Levey's direction, or sometime clients of his firm, were utilized: Real Tech International, Ltd., chartered in Grand Cayman, British West Indies; Chardon Company NV, chartered in Curacao, Netherland Antilles; and Silver Realty Corporation, Continental Aero Marine, Inc., and Costalotta, Inc., all chartered in North Carolina, where Vogt maintained his residence and engaged in various ventures following his retirement from the Customs Service in 1979. Also participating in the scheme's functioning, whether or not as culpable principles, were Darryl Myers, a Grand Cayman attorney, William C. Ray, a North Carolina attorney, both of whom were associated from time to time in transactions directed by Levey for Vogt's benefit, and Harvey Mitchell, a Burlington, North Carolina, automobile dealer and entrepreneur, who engaged in a variety of investment, purchase/sale and credit transactions with Vogt.

Some specific examples of the scheme's operation using these corporations, law firm trust accounts, and foreign bank accounts suffice to illustrate its intended and actual function.

__________

In July of 1978, Vogt, having received over $500,000 in bribe money over the preceding two years, was introduced to Mitchell as a prospective purchaser of Mitchell's Colonial Manor apartment complex in Greensboro, North Carolina. Vogt and Mitchell negotiated a purchase price of $125,000 cash plus the assumption of two mortgages. One of the mortgages, with a balance of around $174,000, was held by Planters Bank, which demanded a financial statement from Vogt in connection with the planned assumption of their mortgage. Vogt declined to provide it. During the closing transactions in late 1978, Vogt participated as ostensible representative of Chardon Company NV, the Netherlands Antilles corporation which had just been formed under Levey's direction in late November of 1978. In the closing, Vogt paid $100,000 in cash, another $25,000 was paid from a local attorney's trust account, and the Planters Bank mortgage was not assumed, as originally agreed, but paid off in full by Vogt using a Chardon Company NV check drawn on an account in the Bank of Nova Scotia, Grand Cayman, British West Indies. Chardon Co. took a second mortgage on the property to secure this advance. Some two years later, in late 1980, Vogt sold the Colonial Manor complex for $1,425,000. After payment of the Chardon Co. mortgage and another, this yielded Vogt and his wife a profit of around $653,000. The settlement check to Chardon Co. was returned to Grand Cayman and deposited, over Attorney Myers' endorsement, in the Bank of Nova Scotia, from whence the original advance had come.

__________

In April 1979, Levey opened a new law firm trust account in the name of Silver Realty Corporation. In May 1979, such a corporation was chartered, by Levey's direction, in North Carolina, where Vogt was by then settled. It thereafter served as the conduit for purchases and as the nominal holder of title to a number of vehicles, essentially luxury and recreational types, which were bought by Vogt for cash and delivered to him personally. Immediately after its formation, Vogt transferred to this corporation the title to an FMC motor home which he had purchased for $32,000 cash in August 1978. A month later, in June 1979, Vogt bought a new Jeep for over $8,000 cash and titled it to this corporation. The next year, 1980, he traded the 1979 Jeep, which had been damaged on a coastal fishing expedition, for a new 1980 Dodge Omni which was titled by Vogt's direction to the friend who had introduced Vogt to Mitchell. Silver Realty received nothing in exchange for the 1979 Jeep, but in February 1980, Vogt bought and took delivery of a new 1980 Jeep which by Vogt's direction was billed and titled to Silver Realty. (As an aside to these recreational vehicle purchases, it may be noted that in March of 1980, Vogt purchased for cash a Cadillac De Ville, which eight months later, in November 1980, he traded in on a new 1981 Cadillac, for which boot of $14,000 was paid by a check on the Colonial Manor account, with title being put in the name of Vogt's parents in Florida.)

__________

In August of 1979, Vogt arranged a loan of $50,000 to Mitchell, to be secured by a second mortgage on Mitchell's Greensboro residence. The loan proceeds were provided by a $50,000 Chardon Co. check drawn on its Nova Scotia Bank account, payable to Mitchell, which was deposited in the Levey firm trust account, from which the net loan proceeds of some $48,500 were then disbursed to Mitchell. Chardon Co.'s advance was secured by a second mortgage on the residence.

Some three months later, in November 1979, Mitchell transferred this residence, in a deal personally negotiated and handled through closing by Vogt, for $175,000 cash plus assumption of mortgages. A part of the cash component of the purchase price was provided out of a check for $115,000, payable to Mitchell, from a Levey law firm trust account (the balance going for the purchase of two Mercedes automobiles from Mitchell). By Vogt's direction, titles to the Mitchell residence and the two Mercedes were put in the name of Real Tech International, one of Levey's off-shore corporate clients. Thereafter Vogt had free use of the vehicles, one of which was kept at the Mitchell residence.

After this sale, Mitchell remained in occupancy of the residence under an agreement with Vogt by which Mitchell continued to pay the taxes, utilities, insurance and the mortgage payments to Chardon Co. and the Federal Land Bank, holder of the first mortgage, as a form of rent. In April 1981, Mitchell and Vogt entered into a written agreement giving Mitchell a one-year option to repurchase the residence. Vogt signed this option agreement in his individual capacity, and at the same time directed Mitchell to deliver to William C. Ray, Vogt's local attorney, a 1981 Cadillac Eldorado in discharge of accrued interest of $16,000 that Mitchell then owed on the Chardon Co. second mortgage on the property.

Mitchell did not exercise the option and in July of 1982, was pressed by Ray, Vogt's attorney, for payment of his share of the annual installment on the Federal Land Bank mortgage. After an unsuccessful effort to negotiate with Vogt, through Ray, a repurchase of the residence for $100,000 in South African kruggerands in August or September of 1982, Mitchell made a payment to Ray for his share of the mortgage installment due the Federal Land Bank, then vacated the residence in October 1982. Ray remitted the payment then due to the Federal Land Bank and directed that the billing be changed to Real Tech International, which would assume the mortgage. When the Federal Land Bank declined to recognize a formal assumption of the mortgage by Real Tech International, Ray directed that future billings be made in the name of Ray and Mitchell, care of Ray. The Federal Land Bank had not earlier...

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