U.S. v. Anderskow

• Decision Date: 09 July 1996
• Docket Number: 95-5094,Nos. 95-5093,s. 95-5093
• Citation: 88 F.3d 245
• Parties: 45 Fed. R. Evid. Serv. 128 UNITED STATES of America v. Ralph A. ANDERSKOW, Appellant. UNITED STATES of America v. Donald ANCHORS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 245

88 F.3d 245

45 Fed. R. Evid. Serv. 128

UNITED STATES of America v. Ralph A. ANDERSKOW, Appellant.

UNITED STATES of America v. Donald ANCHORS, Appellant.

Nos. 95-5093, 95-5094.

United States Court of Appeals Third Circuit.

Argued Jan. 25, 1996.

Decided July 9, 1996.

Richard F.X. Regan (argued), Hayden, Perle and Silber, Weehawken, New Jersey, for appellant Anderskow.

Michael M. Mustokoff (argued), Teresa N. Cavenagh, Judith E. Baylinson, Duane, Morris & Heckscher, Philadelphia, PA, for appellant Anchors.

Allan Tananbaum (argued), Faith Hochberg, United States Attorney, Newark, New Jersey, for appellee.

Before: COWEN and SAROKIN, Circuit Judges, and POLLAK, District Judge. ^*

OPINION OF THE COURT

COWEN, Circuit Judge.

Ralph Anderskow and Donald Anchors appeal from judgments of conviction and sentence entered by the District Court for the District of New Jersey. The convictions arise out of their participation, along with several other coconspirators, in the Euro-American Money Fund Trust (the "Trust"), an entity that was used to perpetrate a pernicious advance-fee scheme. Over a three-year period, the Trust bilked unsuspecting loan applicants and investors out of over eighteen million dollars. Both defendants raise evidentiary and legal sufficiency challenges. We will affirm the judgments of conviction.

I.

John Voigt was the mastermind of a scheme to obtain fees from loan applicants and potential investors for nonexistent loans and investments. At the heart of this scheme was the Trust. Voigt fabricated a fictitious genealogy for the Trust, claiming that it was a long-established European financial institution affiliated with the Catholic Church and the Knights of Malta, and that it had access to billions of dollars. For two and one-half years brokers for the Trust would recount this false genealogy to unsuspecting loan applicants and investors, who would part with substantial fees in return for "self-liquidating" loans (loans that repaid themselves) and "Master Collateral Commitments" ("MCCs"), allegedly a special form of commercial paper available only to banks.

Voigt benefitted from the cooperation of several coconspirators, including Anderskow, a partner at a Chicago law firm who also was a certified public accountant. He was hired as the Trust's lawyer in the Chicago area, and his credentials helped provide the Trust with an appearance of legitimacy, which facilitated its attempts to lure loan applicants and potential investors. Anderskow's primary responsibility was providing guarantees to borrowers on behalf of the Trust and maintaining a client escrow account into which advance fees were deposited. Anderskow would immediately distribute fees that had been deposited into his escrow account according to Voigt's instructions, which violated the terms of contracts entered into with the loan applicants and investors. For his role in the Trust Anderskow received $995,000 in compensation.

In January of 1991 appellant Anchors was hired for the position of "loan oversight officer." Somewhat akin to a customer relations manager, Anchors was primarily responsible for responding to questions and complaints from customers of the Trust. Over time, Anchors devoted much of his time to placating loan applicants who had paid advance fees and were calling with increasing frequency to inquire as to the status of their loans. Anchors eventually responded to several hundred calls each month, assuring disgruntled borrowers that their loans were about to be funded. Eventually, Anchors began to tell some applicants that other loans had been funded, which he knew was untrue. Anchors received $325,000 for his participation in the Trust.

In June of 1993, a federal grand jury issued a twenty-six-count indictment against Anderskow, Anchors, and their three coconspirators--Voigt, Mercedes Travis, and Solis Alevy. Alevy entered a plea of guilty and became a government witness. Subsequently, the grand jury issued a twenty-eight-count superseding indictment against the remaining four defendants, charging Anderskow and Anchors with conspiracy to commit wire fraud, wire fraud, and money laundering, and bringing criminal money laundering forfeiture allegations against them.

After a three-month trial, a jury convicted Anderskow on all charges except two counts of wire fraud. Anchors was convicted of conspiracy and seven counts of wire fraud, but was acquitted of seven other counts of wire fraud and two counts of money laundering. ¹ Anderskow and Anchors were sentenced, respectively, to terms of imprisonment of seventy-eight and thirty-two months. This appeal followed. ²

II.

The district court had original jurisdiction over these criminal actions pursuant to 18 U.S.C. § 3231. We exercise appellate jurisdiction to review final judgments of conviction under 28 U.S.C. § 1291.

III.

Both Anderskow and Anchors contest the district court's decision to allow coconspirator Alevy, who pled guilty prior to trial and testified for the government, to give lay opinion testimony under Rule 701 of the Federal Rules of Evidence. ³ Alevy's testimony tended to show that Anderskow and Anchors had knowledge of the Trust's fraudulent scheme. Contending that Alevy's allegedly improper testimony provided the government with its only evidence concerning their knowledge that the Trust was a fraud, both defendants claim that this alleged error was so prejudicial as to warrant a new trial. We disagree.

A. Anderskow

1.

During its case in chief, the government called Alevy to testify about the workings of the Trust and its various components. Specifically, Alevy was asked to explain why in late 1991 he had drafted letters containing false information for Anderskow to sign and send to a victim of the Trust who had paid a substantial advance fee for an MCC, and was becoming angry at not having received it. Anderskow assigns error to the following exchanges between the government and Alevy:

Q. How is it that you, on the one hand, passed false information to Mr. Anderskow but did not intend to deceive him?

A. Mr. Anderskow was a daily participant in the same fraud that I was. I can't get into his mind, I have no way of knowing what he knew inside his mind, but it was obvious to me and told to me by Mr. Voigt that [Anderskow] will do anything we ask him to.

. . . . .

Q. When you passed on that false information to Mr. Anderskow, did you do it to deceive him?

A. No, sir.

Q. Why then did you pass on information if it wasn't true?

A. It was part of the job I was doing, and he was doing the part of the job that he was doing, and some information was necessary for his part.

. . . . .

Q. Did you ever directly or specifically discuss this fraud with Mr. Anderskow?

A. No, sir.

Q. Why not?

A. There was no reason to. We were both doing the same thing for the same ends every day.

App. at 1786, 1799. ⁴

2.

Anderskow's complaint is twofold. First, he claims that Alevy lacked sufficient personal knowledge to form an opinion as to whether Anderskow knew the Trust was a fraud and, therefore, that Alevy's testimony failed to meet Rule 701(a)'s "rational basis" requirement as a matter of law. Second, Anderskow appears to argue that even if Alevy's opinion was rationally based on his perceptions, to the extent it suggested that Anderskow had guilty knowledge it was tantamount to an opinion on the ultimate issue of Anderskow's guilt. Alevy's opinion testimony, according to Anderskow, failed to meet Rule 701(b)' § "helpfulness" requirement as a matter of law.

We normally review alleged evidentiary errors for abuse of discretion. Government of Virgin Islands v. Knight, 989 F.2d 619, 629 (3d Cir.), cert. denied, 510 U.S. 994, 114 S.Ct. 556, 126 L.Ed.2d 457 (1993); Eisenberg v. Gagnon, 766 F.2d 770, 780 (3d Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (1985). Anderskow, however, failed to object contemporaneously to any of the testimony about which he now complains. As a result, we review his contention for " 'plain error,' that is, 'egregious error or a manifest miscarriage of justice.' " United States v. Price, 76 F.3d 526, 530 (3d Cir.1996) (quoting United States v. Thame, 846 F.2d 200, 204 (3d Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988)). See FED.R.CRIM.P. 52(b).

We find no plain error because none of the disputed testimony actually contains a "lay opinion" by Alevy as to Anderskow's knowledge. Although it is readily apparent that in questioning why Anderskow would know that the information in the letters was false the government was attempting to elicit an opinion from Alevy, he never explicitly opined on direct examination that Anderskow possessed guilty knowledge. Instead, Alevy provided several reasons to support the unstated conclusion that Anderskow had guilty knowledge. For instance, Alevy testified that he did not believe that Anderskow would be deceived since Anderskow and Alevy were part of the same organization working toward a common goal, and because Voigt had told him that Anderskow would do anything they asked. This simply furnished the basis for an inference, based on circumstantial evidence, that Anderskow had guilty knowledge which the government was free to suggest during its closing argument and which the jury was free to accept or reject. Accordingly, since Alevy's testimony did not implicate Rule 701, there clearly was no plain error in its admission.

B. Anchors

Anchors advances a similar claim with respect to Alevy's testimony. Because Anchors preserved this claim for appellate review by raising a contemporaneous objection, we review the admission of Alevy's opinion testimony under Rule 701 for abuse of discretion. Knight, 989 F.2d at 629; Eisenberg, 766 F.2d at 780.

1.

During its case in chief, the government questioned Alevy about certain documents he had sent to Anchors to be passed along to borrowers who had paid advance fees and were becoming angry at not having seen...