U.S. v. McCrimmon, No. 02-16543.

Citation362 F.3d 725
Decision Date10 March 2004
Docket NumberNo. 02-16543.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thomas L. McCRIMMON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Sarah C. Weinzierl, Steven L. Brannock, A. Brian Albritton, Holland & Knight, LLP, Tampa, FL, for Defendant-Appellant.

Robert G. Davies, Michelle McCain Heldmyer, Nancy J. Hess, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:

Defendant Thomas McCrimmon challenges the district court's denial of his motion for judgment of acquittal following his first trial on charges that he conspired to enlist investors into an illegal Ponzi scheme and conspired to launder the proceeds of that scheme. McCrimmon also appeals his conviction in the second trial on these same charges and, with respect to his sentencing, asserts that the sentencing court misapplied the guidelines in determining that he was responsible for the total amount of money laundered by all of the conspirators. We affirm McCrimmon's conviction in all respects and specifically find that there was sufficient evidence presented by the government in the first trial and second trial with which a reasonable juror could infer that McCrimmon knew the program into which he was enrolling investors was an illegal Ponzi scheme. AFFIRMED.

I.

Defendant Thomas McCrimmon and four codefendants were charged in a two-count, Fourth Superseding Indictment with conspiring to commit wire and securities fraud and conspiring to commit money laundering.1 McCrimmon proceeded to trial on the charges with codefendant William Leon Hurst. In the first trial, held between May 20 and June 6, 2002, the jury was unable to reach a verdict. Following the trial, McCrimmon and codefendant Hurst moved the district court for judgment of acquittal. The court granted Hurst's motion but denied McCrimmon's. McCrimmon was tried alone in July 2002 under the Fifth Superseding Indictment, which was virtually identical to the Fourth. He was convicted of both counts as charged and received a 60-month sentence on Count One and a 79-month sentence on Count Two, to run concurrently. McCrimmon was also ordered to pay $23 million in restitution.

McCrimmon's conviction stems from his involvement in a complex high-yield trading scheme known as the Hammersmith program. Hammersmith, masterminded by an entrepreneurial-type named David Gilliland, at first blush appeared to be an exclusive investor's club that was designed to yield high returns only for the lucky few that could pony up the minimum investment dollars. In late 1997, Gilliland opened a Hammersmith investment "branch" known as Bridgeport Alliance in the high-end community of Bluewater Bay, Florida. Bridgeport's objective was to serve as an administrative office for Hammersmith, but the office was also staffed with company men (including, at times, Gilliland himself) responsible for marketing the program to unwitting investors under the ruse that, with $250,000, they could buy their way into this exotic scheme.

The key selling point of the Hammersmith program was the apparent "security" of the investment, as it was supposedly collateralized in a U.S. Treasury Bill. Investors were told that, once purchased, the Treasury Bill would be leveraged in investments such as the European currency market to generate high returns for little risk. Unfortunately for everyone involved Hammersmith was not an investment program at all, but instead an illegal Ponzi scheme. Investors' principle was simply shuffled through various bank accounts, paid out to other investors as interest payments, and ultimately accumulated in the pockets of Gilliland and his crew. All together, Gilliland extracted over $60 million from investors across the United States by the time the program collapsed in early 1999.

McCrimmon's involvement in the scheme was that of a sales agent. Through his Tampa company Chatham International, McCrimmon began referring clients to the Hammersmith program in mid-1997. From the spring of 1997 through the summer of 1998, McCrimmon — representing that he had expertise with respect to programs like Hammersmith and the Hammersmith program particularly — recruited several investors, generating over $2 million in commissions for him and his company as a result.

II.

Sufficiency of the evidence is reviewed by this Court de novo. United States v. Majors, 196 F.3d 1206, 1210 (11th Cir.1999). On review, this Court views the evidence in the light most favorable to the government, making all reasonable inferences and credibility choices in the government's favor to determine whether a rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Puche, 350 F.3d 1137, 1142 (11th Cir.2003). "The verdict must stand ... `unless no trier of fact could have found guilt beyond a reasonable doubt.'" United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir.1997).

Although findings as to the amount of loss from a money laundering offense are reviewed for clear error, whether the district court misapplied U.S.S.G. § 1B1.3 is a purely legal question that we review de novo. United States v. Mullens, 65 F.3d 1560, 1563 (11th Cir. 1995); United States v. Reese, 67 F.3d 902, 908 (11th Cir.1995).

III.

The central theme of the government's argument, both during the first trial, the second trial, and now here on appeal, is that McCrimmon's perpetuation of the conspiracy manifested itself in a pattern of misrepresentations to potential clients that the Hammersmith program was working like clockwork and that his other clients were pleased with their returns, even though he knew that most of his investors were not getting paid monthly as promised, and were often paid short if they did receive a payment. Throughout the first trial, the government put on testimony from investors who lamented that the program never consistently produced the 30 to 40 percent monthly returns they were guaranteed. Through the testimony of McCrimmon's recruits, including Dr. Arun Dosaj, Arthur Magsamen, Thomas Spear, John Graden, Claudio Antonini and A.J. Glenn, the government painted a picture of McCrimmon's aggressive efforts to continue placing new investors into the program while his own clients failed to receive timely payments.

Some significant evidence included investor Art Magsamen's testimony that he was told by McCrimmon in late 1997 that the program was very successful although, at the time, Hammersmith was already behind, and short, on payments to McCrimmon's first client, Leon Hurst. In early 1998, when at least five of McCrimmon's clients' payments had fallen late or were short, investor Claudio Antonini testified that he was told by McCrimmon that the "program was working like clockwork" and that the "investors were getting paid regularly," convincing Antonini to invest in April 1998.

Investor John Graden testified that he was told by McCrimmon in January 1998 that McCrimmon's other clients were very happy with the program, enticing Graden to invest $300,000. Dr. Arun Dosaj testified that he also invested in Hammersmith in April 1998 based upon McCrimmon's recommendation that it was a "successful program." By this time, several of McCrimmon's clients had complained, either to him or directly to Bridgeport, that their payments were late and short. Indeed, in this same month, an entity acting on behalf of McCrimmon's client Bithynia, sent a letter to Bridgeport, copying Chatham, which detailed an "ongoing, problematic situation," that is, that it had not received payments from Hammersmith for three months in a row.

Chatham client A.J. Glenn testified that as late as June 1998 he was recruited by McCrimmon, and McCrimmon did not indicate to him that there were any problems with the program. Mr. Magsamen also testified that in July 1998 McCrimmon was positively touting the program. Mr. Magsamen told McCrimmon, after Hammersmith had fallen behind on payments, that he was very concerned about his investment and he wanted out of the program. McCrimmon reassured him that the program was viable and the investors were getting paid, and even purchased $50,000 of Magsamen's investment to keep him in the program.

As suggested by this brief summation, the government undoubtedly put forth an extensive amount of circumstantial evidence to suggest that McCrimmon was being less-than-truthful in recruiting new investors into Hammersmith. However, equally significant testimony elicited in defense counsel's cross examination of these investors suggests that some, if not most, were indeed "happy" with their participation in Hammersmith in early- to mid-1998, the time frame in which McCrimmon brought most of his new clients into the program. For example, Mr. Graden testified that he was pleased with the program after receiving his first payment in April 1998. Mr. Graden, in fact, actually received enough payments throughout mid-1998 that put him over his initial investment. Mr. Glenn, though he too received payments that were both late and short, suggested that he was also content with the program, and admitted that "everything was on track," as late as September 1998. Dr. Dosaj and Mr. Magsamen both testified that they actually reinvested their "interest payments" into the program in mid-1998.

As such, this Court is not convinced that this evidence, taken alone, permits an inference that McCrimmon knew the Hammersmith program was a fraud. The fact that McCrimmon failed to be completely honest about the timeliness of payments to his clients does not, in and of itself, suggest that he knew he was recruiting investors into a Ponzi scheme.

Viewing the record in its entirety, however, two things strike us. First, we are troubled by the very nature of the Hammersmith program. The fact alone that Hammersmith was promising returns...

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