U.S. v. Thirion

Citation813 F.2d 146
Decision Date05 March 1987
Docket NumberNos. 86-5026,s. 86-5026
Parties22 Fed. R. Evid. Serv. 1223 UNITED STATES of America, Appellee, v. Norman Bernard THIRION a/k/a Norman Tyrone a/k/a Dr. Thirion, Appellant. UNITED STATES of America, Appellee, v. Ronald A. SABLOSKY, Appellant. UNITED STATES of America, Appellee, v. Jack CASPERSON, Appellant. to 86-5028.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Roger Wayne Hunt, Sioux Falls, S.D., for Thirion.

Patrick J. Kane, Sioux Falls, S.D., for Sablosky.

Richard Braithwaite, Sioux Falls, S.D., for Casperson.

David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HUNTER, Senior District Judge. *

HENLEY, Senior Circuit Judge.

Defendants Norman Bernard Thirion, Ronald A. Sablosky and Jack Casperson appeal from their convictions for their parts in an advance-fee loan scheme. A jury found Thirion guilty on four counts of mail fraud, 18 U.S.C. Sec. 1341, nine counts of inducing interstate travel to defraud, 18 U.S.C. Sec. 2314, and three counts of wire fraud, 18 U.S.C. Sec. 1343. The district court 1 sentenced Thirion to seven concurrent five-year terms of imprisonment followed by a five-year period of probation on the remaining counts. Thirion was also ordered to make restitution of $330,000.00. Casperson was convicted on the same counts as Thirion, with an additional conspiracy conviction under 18 U.S.C. Sec. 371. Casperson was sentenced to eight concurrent thirteen-month terms of imprisonment followed by a five-year period of probation on the remaining counts. He was also ordered to make restitution of $10,000.00. Sablosky was convicted of one count of conspiracy and one count of mail fraud. He was acquitted by the jury of the remaining six counts against him (three for mail fraud and three for wire fraud). Sablosky was sentenced to one year of imprisonment on the conspiracy conviction followed by a five-year term of probation on his mail fraud conviction.

The defendants raise numerous, sometimes overlapping, issues on appeal. This court previously overturned the convictions of defendants Casperson and Sablosky and this is the second time they have been tried for these offenses. United States v. Casperson, 773 F.2d 216 (8th Cir.1985). Thirion was not a defendant in the first trial as he had secreted himself outside the United States. Only defendant Sablosky challenges the sufficiency of the evidence to sustain his conviction. Accordingly, we will limit our factual discussion to providing a background for the issues preserved in the appeals now before us. 2

I.

In January, 1982 Casperson first met Thirion in Newport Beach, California. At that time Casperson was seeking financial backing for a business venture he was interested in pursuing. Thirion indicated that he could obtain a low interest block loan of $250 million from overseas sources. In order to secure the loan, however, Thirion required an advance fee of $160,000.00 to cover costs and expenses.

Casperson, however, did not then possess financial resources from which he could readily pay the advance fee. He therefore set out to attract other investors interested in low interest loans in order to raise the advance fee. Investors were to pay an advance fee of $20,000.00 for a $1 million loan. The loan was to be obtained in six to eight weeks at which time the investor would receive a refund of his advance fee together with the loan. Casperson further guaranteed the return of the investor's advance fee by a commission he was to receive from another venture involving the sale of Mexican tuna fish.

By April, Casperson had collected over $400,000.00 in advance fees from investors. This money was forwarded to Thirion's company, International Banking Services (IBS). Although the loans were originally to be forthcoming by the end of April, that date passed with no results. The investors were placated by numerous plausible excuses given for the delay.

Meanwhile, defendant Sablosky (corporate counsel for IBS) was in Hawaii on behalf of another Thirion corporation, United States Resource Conversion Systems (USRCS). 3 During the month of May Sablosky became aware of the advance-fee loan transactions. Sablosky determined that the tuna fish commissions were of speculative value; in any event, the advance fees paid by the investors exceeded the maximum possible value of the commission.

On May 25, 1982 Sablosky had Casperson execute promissory notes in favor of each investor for the amount of the advance fee paid by each investor. The promissory notes were payable on September 15, 1982. Thirion, on behalf of IBS, signed a guaranty for each of Casperson's notes. In turn, Casperson assigned his tuna fish commissions to IBS. Armed with these documents, Sablosky sent letters dated June 10, 1982 (the letters were actually mailed sometime later) to each investor. Sablosky enclosed the documents with each letter and further wrote:

I have received from I.B.S., to be held in trust in my attorney account, securities which I believe to be good and of significant value to cover all indebtedness for which I.B.S. has seen fit to guarantee. Additionally, I have received from I.B.S. an assignment of Mr. Casperson's commissions in the Mexican Tuna sales. This assignment was in and of itself good enough consideration to induce I.B.S. to serve as guarantor.

The securities referred to were certificates of stock in USRCS, stock with no market value in a corporation with only speculative worth. The attorney account in which the securities were held in trust was a locked portion of Sablosky's desk.

On September 14, the day before Casperson's note came due, Sablosky again wrote the investors to explain why the loans continued to be delayed. Investors were further advised that they could cancel their loans and receive a refund. Investors who responded in October did receive the refund; however, those responding later did not. IBS refunded less than $100,000.00.

Eventually, a federal grand jury began investigating the advance-fee loan arrangement. In December, 1983 the grand jury indicted nine persons including the three appellants. While Thirion did appear before the grand jury, he had left the country before the indictment was handed down. Following the first jury trial in 1984, Sablosky and Casperson were convicted on various counts of the indictment. They appealed their convictions and during the pendency of that appeal Thirion was extradited from Monaco. Sablosky and Casperson were granted a new trial as a result of their appeals and their second trial was joined with Thirion's. Upon retrial, Casperson was again convicted on all counts against him and Sablosky was convicted on only two of the remaining counts against him (Sablosky had been acquitted on several counts in the first trial). Thirion was also convicted on every count against him presented to the jury. These appeals followed.

II.

During the pendency of Casperson and Sablosky's first appeal, Thirion was apprehended by authorities in Monaco. The United States had entered into an extradition treaty with Monaco, Treaty Respecting Extradition, Feb. 15, 1939, United States-Monaco, 54 Stat. 1780, T.S. No. 959 (hereinafter Treaty), and requested that Thirion be returned to the United States to stand trial. Monaco agreed to extradite Thirion on all the charges against him in the indictment except for the conspiracy count. 4

Prior to trial Thirion moved that the conspiracy count be dismissed as he could not be tried for conspiracy under the terms of his extradition. Thirion's motion was denied, but the district court instructed the jury not to return a verdict on that count of the indictment against Thirion. At the close of trial Thirion objected to the district court's instructing the jury on coconspirator liability under Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). The district court overruled the objection and so instructed the jury. Although these two conspiracy issues appear distinct, they are somewhat interwoven.

Under the doctrine of speciality a defendant may be tried only for the offense for which he was delivered up by the asylum country. United States v. Rauscher, 119 U.S. 407, 422-23, 7 S.Ct. 234, 242, 30 L.Ed. 425 (1886); United States v. Jetter, 722 F.2d 371, 373 (8th Cir.1983). The doctrine is based on the principle of international comity. Jetter, 722 F.2d at 373. While the asylum country may consent to extradite the defendant for offenses other than those expressly enumerated in the treaty, United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.1986), it did not do so here. See n. 4, supra. Thirion, therefore, may raise whatever objections to his prosecution that Monaco might have. Rauscher, 119 U.S. at 419, 7 S.Ct. at 240. 5

The treaty between the United States and Monaco contains the following provision:

No person surrendered ... shall be prosecuted, judged or punished for any crime or offense committed prior to his extradition, other than the offense for which his surrender was accorded, and no person shall be arrested or detained by civil process for a cause prior to the extradition, unless, in either case, he has been at liberty for one month to leave the country, after having been tried, or, in case of conviction, after having either served his sentence or obtained pardon.

Treaty, supra, 54 Stat. at 1786.

The district court correctly determined that Thirion could not be convicted on the conspiracy count. The district court, however, refused to dismiss that count of the indictment. This decision was not necessarily in conflict with the doctrine of speciality since, although Thirion could not then be convicted on the conspiracy count, the Treaty permits subsequent conviction should Thirion remain in the country after having been at liberty for one month to leave. Id. The more difficult question remains. While...

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