U.S. v. Lash

• Decision Date: 26 June 1991
• Docket Number: Nos. 90-1449,s. 90-1449
• Parties: 33 Fed. R. Evid. Serv. 473 UNITED STATES of America, Plaintiff-Appellee, v. Paul LASH (90-1449), Richard Tommasi (90-1450), Lawrence Dresner (90-1451), and Carol Ross (90-1500), Defendants-Appellants. to 90-1451 and 90-1500.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1077

937 F.2d 1077

33 Fed. R. Evid. Serv. 473

UNITED STATES of America, Plaintiff-Appellee, v. Paul LASH (90-1449), Richard Tommasi (90-1450), Lawrence

Dresner (90-1451), and Carol Ross (90-1500),

Defendants-Appellants.

Nos. 90-1449 to 90-1451 and 90-1500.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 28, 1991.

Decided June 26, 1991.

Rehearing and Rehearing En Banc

Denied in Nos. 90-1449 and 90-1450

Sept. 3, 1991.

Keith Corbett, Asst. U.S. Atty., Sheldon Light (argued), Patricia L. Blake, Detroit, Mich., for plaintiff-appellee.

Harold Gurewitz (argued), Dise & Gurewitz, David S. Steingold (argued), Detroit, Mich., Joel Hoffman, William J. Weinstein (argued), Weinstein, Gordon & Hoffman, Southfield, Mich., John R. Minock (argued), Kelley & Cramer, Ann Arbor, Mich., for defendants-appellants.

Before KEITH and KRUPANSKY, Circuit Judges, and WELLFORD, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendants Paul Lash ("Lash"), Richard Tommasi ("Tommasi"), and Lawrence Dresner ("Dresner") appeal from their April 6, 1990, judgments of conviction and sentences for conspiracy to commit wire and mail fraud in violation of 18 U.S.C. Sec. 371. Defendant Carol Ross ("Ross") appeals from her April 26, 1990, judgment of conviction and sentence for conspiracy to commit wire and mail fraud in violation of 18 U.S.C. Sec. 371. (All defendants will be collectively referred to as "defendants.") For the following reasons, we AFFIRM the judgment and sentence of each defendant.

I.

A.

In the early 1980s, the federal Bureau of Land Management ("BLM") leased oil and gas rights on some public lands through a lottery system. The parcels had no known oil reserves. The BLM posted a list of available parcels every other month and accepted applications for fifteen days. After the application period closed, the BLM randomly selected a winner from the valid applications. The winner obtained the right to lease the oil and gas rights on the parcel offered in the lottery.

Entrepreneurs established several private "advisory services" which purported to assist investors to identify and obtain valuable leases in this lottery. In 1982, Seymour Adler ("Adler") purchased an advisory service, U.S. Western Oil & Gas ("USWOG"), from Steven Sawyer ("Sawyer"). USWOG was a small telephone sales operation (known as a "boiler room" operation) in southern Florida. Adler retained Sawyer as a consultant and hired Joe Lenihan ("Lenihan") and Tommasi to run the business. The three managers recruited salespeople, wrote "scripts" for them, and managed the office. Tommasi was a sales manager, primarily responsible for the way in which sales were made and for stepping in to handle difficult customers. Within a couple of months, USWOG had two dozen salespeople. Adler hired Lawrence Dresner ("Dresner"), an accountant, to keep the books. Later Dresner became the business manager, the person in charge when Adler was not in the office. In March 1983, the name of the business was changed to Oil and Gas Properties ("OGP").

The salespeople solicited initial investments of $4,800 and promised to prepare twelve applications for leases on properties which a geologist had advised were likely to contain valuable oil and gas reserves and on which no more than two or three other people were filing. In fact, not even BLM knew how many other applications were filed on a particular parcel until the application period closed and USWOG did not have any reliable advice as to which properties were valuable. The salespeople usually told potential customers that other clients had won leases and stated that USWOG would help negotiate with oil companies. They guaranteed that USWOG would purchase the lease for a minimum of $25,000 if no oil company offered more. However, only a very few clients ever won a drawing and none of those received the guaranteed $25,000.

Once there were a substantial number of investors, Tommasi and Lenihan invented a "load" program to solicit additional investments from those who were already customers. The "load" story usually revolved around a claim that USWOG had inside information.

In 1983, about a year after Adler bought the Florida operation, he opened a branch in Michigan, hiring Reggie Dents ("Dents") and Ross. The Michigan office used basically the same sales pitch, but made only initial sales. The loading of Michigan customers was done in Florida.

Gerry Grace ("Grace") received training at the Michigan office and joined the Florida office as a salesperson. Within two weeks, Lenihan and Tommasi left and Grace became the manager of the Florida office. Lash, who became a top salesperson, joined the Florida office in the fall of 1982 or January of 1983 and remained there after Grace arrived.

In early October 1983, the government suspended the lease lottery, advising the public that it did not know when it would resume. Nevertheless, OGP continued to sell its services, telling one investor in mid- December that the government was increasing the number of drawings. On November 2, 1983, OGP sent a letter to its Florida customers advising them of a new toll-free telephone number in Michigan and operations in Florida ceased about that time. Grace carefully maintained the operation's records, however, bringing copies of all the information on the Florida customers to Michigan. Grace also trained Ross in Michigan to reassure clients who inquired about the suspension and to say OGP had inside information that the lottery would be resumed. Ross continued to tell customers that the operation was continuing from the Michigan office and in March 1984 told customers that an "executive" lottery would be forthcoming. A drawing was conducted from the September 1983 applications in April 1984.

In December 1983, OGP hired an answering service to answer calls when employees were not available. By January 1984, Ross and most of the other OGP employees had moved into the offices of another Adler "boilerroom", Precious Metals, Inc. ("PMI"). Even after her move to PMI offices, Ross continued to tell OGP customers that her managers were unavailable, but that she had taken over their accounts and could handle their complaints. In February 1984, OGP switched the answering service so that all OGP calls went directly to the answering service and messages were picked up each morning. The answering service was discontinued on June 13, 1984. After June 13, the answering service was requested to reissue a deposit refund check to PMI rather than OGP. Also in May and June 1984, additional funds remaining in the USWOG checking accounts were paid out.

B.

On April 14, 1989, appellants Lash, Tommasi, Dresner, and Ross, along with two others who are not parties to this appeal, were indicted by a federal grand jury in the Eastern District of Michigan on one count of conspiracy to commit wire fraud. A superseding indictment, still charging the same offense, was returned on June 2, 1989. A jury trial commenced on October 24, 1989. The trial ended on December 21, 1989, with guilty verdicts against the four appellants. On April 6, 1990, Lash was sentenced to three years in the custody of the Attorney General, a $5,000 fine, and was ordered to pay $37,000 in restitution. On April 6, 1990, Tommasi was sentenced to sixty months in custody, with no fine or restitution. On April 6, 1990, Dresner was sentenced to one year in custody with no fine or restitution. On April 26, 1990, Ross was sentenced to one year with all but the first ninety days suspended, followed by two years of probation. Each defendant filed a timely notice of appeal.

II.

A.

Many of the issues raised on appeal arise from the constraints of the statute of limitations. The original indictment was returned on April 14, 1989. The applicable statute of limitation is five years. 18 U.S.C. Sec. 3282. The government must show that the conspiracy continued and that at least one overt act in furtherance of the conspiracy occurred after April 14, 1984. Grunewald v. United States, 353 U.S. 391, 397, 77 S.Ct. 963, 970, 1 L.Ed.2d 931 (1957).

1.

Defendants raise several arguments that the statute of limitations was not met in this case. They argue that the government was required to prove an overt act within five years of the June 2, 1989, superseding indictment, not the original April indictment.

It is well settled that a superseding indictment which does not broaden the charges against the defendants relates back to the date of the original indictment. United States v. Saussy, 802 F.2d 849, 852 (6th Cir.1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987). The scope of the superseding indictment is no broader than that of the original. It merely alleges more overt acts performed in furtherance of the conspiracy and provides more detail. The dates of the conspiracy remain the same, as do the names of the conspirators and the nature and offices of the operations alleged. The allegation of additional underlying details in a superseding indictment does not compel a conclusion that the charge had been broadened. United States v. Friedman, 649 F.2d 199, 204 (3d Cir.1981). The original indictment clearly put defendants on notice of the charges against which they were to defend themselves at trial. While supplying different details, both documents described the same conspiracy to defraud investors during the same time frame through the operations of USWOG and OGP. Accordingly, the district court properly determined that the superseding indictment related back to the filing of the original indictment of April 14, 1989.

2.

Defendants also contend that the conspiracy ended in October 1983 when the Florida office of OGP closed or no later than December 1983 or January 1984, when the latest payments from investors were received and the last new solicitations occurred. They contend that after that time, all activity was not part of a conspiracy to commit wire fraud, but merely acts in furtherance of an...