U.S. v. Reddeck, 93-4112

• Decision Date: 26 April 1994
• Docket Number: No. 93-4112,93-4112
• Citation: 22 F.3d 1504
• Parties: 40 Fed. R. Evid. Serv. 900 UNITED STATES of America, Plaintiff-Appellee, v. Edward P. REDDECK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1504

22 F.3d 1504

40 Fed. R. Evid. Serv. 900

UNITED STATES of America, Plaintiff-Appellee, v. Edward P. REDDECK, Defendant-Appellant.

No. 93-4112.

United States Court of Appeals, Tenth Circuit.

April 26, 1994.

Robert C. Lunnen, Special Asst. U.S. Atty. (Scott M. Matheson, Jr., U.S. Atty.; Richard N.W. Lambert, Asst. U.S. Atty., with him on the brief), Salt Lake City, UT, for plaintiff-appellee.

Jerome H. Mooney, III (Wendy M. Lewis with him on the brief) of Mooney & Associates, Salt Lake City, UT, for defendant-appellant.

Before BRORBY and EBEL, Circuit Judges, and COOK, ^* District Judge.

BRORBY, Circuit Judge.

Mr. Edward Reddeck was convicted of multiple counts of mail fraud, under 18 U.S.C. Sec. 1341, and one count of using a fictitious and false name, under 18 U.S.C. Sec. 1342, in connection with his operation of a mail-correspondence university in Salt Lake City, Utah. As part of the sentence, he was ordered to serve forty-three months of imprisonment. Mr. Reddeck appeals both his conviction and sentence. We affirm the conviction, but remand for resentencing.

BACKGROUND

The charges arise from operation of North American University (NAU) in Salt Lake City, Utah, and Westlake Village, California, between 1989 and 1992. Mr. Reddeck has organized numerous nontraditional universities in the past. In the late 1970s, Mr. Reddeck organized American International University in California and was convicted of mail fraud while promoting mail-correspondence universities. American International University moved to Arizona, then to Missouri. While in Missouri, Mr. Reddeck attempted to establish the University of North America but was prevented by a state court injunction issued in 1989. About this time, Mr. Reddeck established NAU in Salt Lake City, Utah. Ultimately, the Utah address was used as a mail drop and Mr. Reddeck ran NAU from his office in California.

NAU attracted prospective students through advertisements in national newspapers and magazines. The advertisements encouraged prospective students to send for a catalog of courses and to submit a record of life experiences. A fundamental tenet of Mr. Reddeck's educational philosophy is that people should receive credit for life experience toward a college degree. If accepted by NAU, a student received a workbook explaining different areas of study and describing classes in each area. Students were encouraged to challenge a class, and thereby receive NAU credit, by writing a paper showing their competence in a particular area drawn from life experience.

The catalog stated NAU was an accredited institution and displayed a copy of the school's certificate of accreditation from the International Accreditation Association (IAA). Mr. Reddeck established IAA solely to "accredit" his universities, and the association has no relation to recognized accreditation institutions. The catalog also listed numerous faculty, many of whom later testified were never offered employment by Mr. Reddeck. NAU did employ at least one faculty member, with training in political science, who was asked to grade life experience papers in such diverse areas as aeronautics, psychology, and engineering. Approximately 458 students were enrolled at NAU between 1989 and 1992. Tuition obligations ranged from over $1,500 for an Associate of Arts & Science degree to over $3,000 for a combined Master's/Doctoral degree.

Mr. Reddeck was indicted by a federal grand jury in Utah in January 1992 and arrested soon after. At his arraignment, Mr. Reddeck initially indicated displeasure with appointed counsel but later proposed and accepted appointment of current counsel. The government moved for an evaluation of defendant's competency to stand trial. Following competency hearing on the results of appointed evaluations, the court found Mr. Reddeck competent. At trial, Mr. Reddeck's primary defenses to the fraud charges were good faith belief and lack of fraudulent intent. In March 1993, the jury convicted Mr. Reddeck of twenty-two counts of mail fraud and one count of fraudulently using a fictitious name. He was sentenced to forty-three months imprisonment, three years of supervised release and was ordered to pay $19,135 restitution and a special assessment fee of $1,100. Mr. Reddeck timely appeals and raises several issues including sufficiency of the evidence, improper admission of Fed.R.Evid. 404(b) evidence, denial of his constitutional right to self-representation, and sentencing error.

I.

Mr. Reddeck initially argues the government offered insufficient evidence of fraudulent intent necessary for a mail fraud To evaluate a sufficiency of the evidence challenge to a jury verdict against the defendant, we consider the evidence and all reasonable inferences in the light most favorable to the government. United States v. Mann, 884 F.2d 532, 535 (10th Cir.1989). Given this favorable light, the relevant question is whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Hollis, 971 F.2d 1441, 1447 (10th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)), cert. denied, --- U.S. ----, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993). "We accept the jury's resolution of conflicting evidence and its assessment of the credibility of witnesses." United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993).

                conviction under 18 U.S.C. Sec. 1341. 1  He presented testimony from former colleagues of his good faith belief in a religious mission and in the validity of nontraditional education.  He contends this testimony and expert testimony that his actions were the result of delusional disorders show he lacked the intent to defraud
                

In an 18 U.S.C. Sec. 1341 mail fraud offense, the government must prove (1) a scheme to defraud, and (2) the mailing of a letter or other relevant item for the purpose of executing the scheme. Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954); United States v. Gamble, 737 F.2d 853, 855 (10th Cir.1984). Mr. Reddeck only challenges proof of the first element and we hold the jury had sufficient evidence to find a scheme to defraud. A scheme to defraud is conduct that is " 'intended to or is reasonably calculated to deceive' " ordinary people. Mann, 884 F.2d at 535 (quoting United States v. Washita Constr. Co., 789 F.2d 809, 817 (10th Cir.1986)). The schemer's indifference to the truth of statements can amount to fraudulent intent "[a]nd even though a defendant may firmly believe in his plan, his belief will not justify baseless or reckless representations." United States v. Themy, 624 F.2d 963, 965 (10th Cir.1980) (citations omitted).

The government showed NAU catalogs listed faculty who had no association with the enterprise, and NAU employees testified Mr. Reddeck mislead them to believe faculty existed in another site. The government also demonstrated NAU catalogs erroneously referred to a Salt Lake City address for the university when the enterprise was actually run from California. A former employee testified Mr. Reddeck advised her not to tell prospective students of the California office because "[i]t sounds fishy." Third, the government elicited admissions from Mr. Reddeck that the source of accreditation for NAU was a corporation controlled by Mr. Reddeck with essentially no employees. Students who inquired further about the accrediting corporation were directed to a Washington D.C. phone number staffed solely by a receptionist provided to Mr. Reddeck as part of his commercial lease. In response to Mr. Reddeck's good faith defense, the government referred to a prior injunction against Mr. Reddeck in connection with his operation of a similar university in Missouri. Mr. Reddeck testified he was aware of the injunction while he solicited students for his Utah operations.

Despite evidence of Mr. Reddeck's mental state and beliefs, the jury heard testimony, at times from Mr. Reddeck personally, that NAU students were misinformed as to the location of NAU, its accreditation, and its faculty. A reasonable juror could have inferred Mr. Reddeck held at least a reckless indifference to accurately presenting his university

as an accredited, well-staffed university. The jury's verdict does not lack sufficient evidence.

II.

Mr. Reddeck next argues the trial court improperly admitted "other acts" evidence in violation of Fed.R.Evid. 403 and 404(b). The trial court has broad discretion to examine whether the probative value of evidence substantially outweighs the danger of unfair prejudice. United States v. Poole, 929 F.2d 1476, 1482 (10th Cir.1991). We review challenges to admissibility of evidence solely for abuse of discretion. United States v. Joe, 8 F.3d 1488, 1495 (10th Cir.1993) (Rule 404(b) evidence), cert. denied, --- U.S. ----, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1944); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir.1991) (Rule 403 evidence).

In a pretrial hearing, the government proffered two documents intended to show Mr. Reddeck had prior awareness of the illegality of his conduct in running similar universities. The first document, a default Missouri state court injunction, was entered against Mr. Reddeck after he attempted to open a university in that state. The government contended the Missouri injunction served as notice to Mr. Reddeck that a similar university operation--also lacking faculty and accreditation--violated the law. Counsel for Mr. Reddeck objected and claimed the default nature of the injunction left his client unable to challenge prejudicial statements found in the documents. The trial court thus conditioned admission on a showing that Mr. Reddeck actually knew of the injunction while operating NAU.

At trial, Mr. Reddeck admitted on cross-examination he was aware of the Missouri injunction while operating NAU. He attempted to open the Missouri university a...