U.S. v. Blitz
| Decision Date | 08 July 1998 |
| Docket Number | Nos. 97-50326,97-50432 and 97-50559,97-50410,97-50406,97-50327,s. 97-50326 |
| Citation | 151 F.3d 1002 |
| Parties | , 98 Cal. Daily Op. Serv. 6175 UNITED STATES of America, Plaintiff-Appellee, v. Lori BLITZ, aka Jackie Cross, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jerry Pierre SAINTE MARIE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kristen Leon HALL, aka Leon Hall, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jacob GIFFIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Norman HEFFERAN, aka Bill Edwards; aka Norm Craig, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harold LARSEN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael S. Meza, Santa Ana, California, for defendant-appellant Blitz.
John W. Barton, Newport Beach, California, for defendant-appellant Hefferan.
Dwight B. Moore, Santa Ana, California, for defendant-appellant Ste. Marie.
James L. Waltz, Laguna Hills, California, for defendant-appellant Hall.
Emily S. Uhrig, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant Giffin.
Jerome Goldfein, Westminster, California, for defendant-appellant Larsen.
Ellyn Marcus Lindsay, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.
Appeals from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CR-96-00135-GLT-(2), D.C. No. CR-96-00135-GLT, D.C. No. CR-96-00135-GLT-7, D.C. No. CR-96-00135-GLT-6, D.C. No. CR-96-00135-GLT-1 and D.C. No. CR-96-00135-GLT-5.
Before: FLETCHER, FERNANDEZ, and RYMER, Circuit Judges.
Lori Blitz, Norman Hefferan, Jerry Pierre Ste. Marie, Kristen Leon Hall, Jacob Giffin, and Harold Larsen 1 appeal their convictions and sentences for mail and wire fraud arising from a telemarketing scheme (Nortay Consultants) which defrauded victims into paying retainer fees in exchange for false promises of recovery of the money they had previously lost to other telemarketers. Hall challenges the sufficiency of the evidence to support his jury convictions. Hall and Larsen challenge the admission of two pieces of evidence introduced at trial. Further, all of the Telemarketers challenge their sentences, in particular the district court's calculation of the loss intended to be inflicted upon the victims. Finally, Hefferan challenges his restitution order. We dismiss Hefferan's appeal, and affirm the Telemarketers' convictions and sentences.
Nortay Consultants (Nortay) was formed by Blitz, Hefferan and Larsen in February of 1993 as a business that purported to recover money that individuals, mostly elderly, had lost to fraudulent telemarketing companies. Nortay telemarketers utilized lead lists that identified as prospective customers the victims of other fraudulent telemarketing companies. Those included companies for which most of Nortay's telemarketers had previously In general, the victims who sent Nortay retainer fees received no money back in the form of a recovery of money lost to other telemarketers; nor did they obtain refunds of their retainer fees. Nortay's bank records showed that Nortay obtained approximately $481,868 from the victims, and paid a small portion back to the victims. Many of the victims who received money back had sent Nortay more money than they received back. Nortay defrauded approximately 1,100 victims.
worked. Nortay telemarketers would call the victims, falsely tell them that Nortay had performed research on their cases, and represent that Nortay could help them recover the lost funds. The Nortay telemarketers made misrepresentations that Nortay was a public advocacy company, or that it had a "fraud division." They falsely told the victims that in order for Nortay to represent them legally in retrieving the lost funds, the victims would have to send retainer fees, and that those fees would be applied to Nortay's charge of 25% of all recovered funds. They also falsely promised the victims a refund of their retainer fees if Nortay was unable to recover the lost funds. The customers were sent "guaranteed" service contracts, which also falsely promised a full refund if Nortay did not succeed in making a recovery
Blitz, Hefferan and Larsen were co-owners of Nortay. Larsen eventually left Nortay because of his disagreement with Blitz and Hefferan over ownership responsibilities. Blitz was the only person at Nortay who purportedly handled the recovery of the lost funds, and she was the sole signatory on Nortay's bank account. Hefferan was the sales manager and a closer--a high-pressure salesman who completed the sales. Larsen and Ste. Marie were also closers. Hall worked as a "qualifier," also known as a "dialer." He would identify victims on the lead lists who had lost substantial amounts of money. He would give those names to the closers who would complete the deal. Giffin worked first as a qualifier, and then as a closer. Prior to their employment with Nortay, all of the Telemarketers had a lengthy record of involvement in fraudulent telemarketing schemes. Hefferan, Ste. Marie and Blitz had been arrested for engaging in fraudulent telemarketing, and Hefferan and Ste. Marie had sustained convictions.
On January 7, 1997, the Telemarketers and Hefferan were indicted on ten counts of mail fraud, nine counts of wire fraud, and eight counts of money laundering. Blitz, Hefferan and Ste. Marie pled guilty to one count of mail fraud and one count of wire fraud. Larsen, Giffin and Hall proceeded to trial. The jury convicted Larsen of one count of mail fraud, and one count of wire fraud, but was unable to reach a verdict as to the remaining two counts. It convicted Giffin of three counts of mail fraud, and six counts of wire fraud, but was unable to reach a verdict as to the remaining two counts. Hall was convicted of two counts of wire fraud, as charged. The Telemarketers and Hefferan were each sentenced to a term of imprisonment and were ordered to pay restitution. This appeal ensued.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 2
The government argues that we should dismiss Hefferan's appeal because he waived the right to appeal his sentence in the plea agreement. We agree. We review de novo whether the defendant has waived his statutory right to appeal. See United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997).
By signing his plea agreement, Hefferan waived the right to appeal his sentence unless it exceeded the maximum provided by law, or unless the sentencing court departed
upward from his sentencing guideline range. He also waived the right to appeal any restitution order not exceeding $481,000. An express waiver of the right to appeal is valid as long as it is knowingly and voluntarily made. See United States v. DeSantiago-Martinez, 38 F.3d 394, 395 (9th Cir.1992). Hefferan makes no argument that his waiver of appeal was invalid; nor is there any indication that his waiver was not knowing and voluntary. Hefferan's sentence does not exceed the maximum provided by law and does not involve a departure. His restitution order does not exceed $481,000. Accordingly, we dismiss Hefferan's appeal. See United States v. Michlin, 34 F.3d 896, 901 (9th Cir.1994).
Hall claims that there was insufficient evidence to support his wire fraud convictions. Because he made a motion for a judgment of acquittal at the close of the government's case and again at the close of all evidence, he preserved this issue for appeal. See United States v. Carpenter, 95 F.3d 773, 775 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1094, 137 L.Ed.2d 227 (1997). We review the sufficiency of the evidence by viewing it in the light most favorable to the prosecution and asking whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also Carpenter, 95 F.3d at 775.
The record of this case contains ample evidence from which a rational jury could find Hall guilty of wire fraud, which is established through the existence of a scheme to defraud and the use of interstate wires in furtherance of that scheme. See United States v. Hubbard, 96 F.3d 1223, 1227-28 (9th Cir.1996); United States v. Lothian, 976 F.2d 1257, 1262 (9th Cir.1992). The government presented overwhelming evidence that the Nortay telemarketers engaged in a scheme to defraud victims of other fraudulent telemarketing schemes, in many of which Nortay telemarketers had themselves been involved. In fact, Hall does not dispute that Nortay was a fraudulent telemarketing company. Rather, he argues that there is no evidence that he either participated in the wire fraud charged in the indictment, or aided others in perpetrating a fraud. We disagree.
The victim named in one of the counts of conviction told the jury that Hall called her and falsely promised to recover the money she had lost to other telemarketers if she sent Nortay a retainer fee. She sent in $500, but never got any money back from Nortay. She told the jury that the fact that Nortay promised a one hundred percent money-back guarantee was important in her decision to send the money, and that had she known that Nortay employees were all former telemarketers, she would have never sent them the money.
Hall did not personally call the victim named in the other count of conviction; she was contacted by another Nortay telemarketer. However, as a knowing participant in a scheme to defraud Nortay customers, Hall is liable for his ...
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