United States v. Fry, No. 13-3502 (8th Cir. 2015)
Annotate this CaseFry solicited funds from investors for promissory notes issued by Petters, stating that the notes would finance purchases of merchandise that would be resold at a profit. In fact, the notes were part of a Ponzi scheme orchestrated by Petters, who was convicted separately. The transactions were fictitious, documentation was fabricated, and early investors were paid purported profits with money raised from the sale of notes to later investors. From 1999-2008, Fry and his recruits raised more than $500 million. Fry continued to misrepresent the investments and to solicit investments after the scheme began to unravel, causing $130 million in losses for 44 victims, while he collected tens of millions of dollars in fees. Fry made false statements to the SEC during its investigation. He was convicted of securities fraud, 15 U.S.C. 77q(a), 77x ,18 U.S.C. 2; wire fraud, 18 U.S.C. 1343; and making false statements to the SEC, 18 U.S.C. 1001(a)(2). The district court sentenced Fry to 210 months’ imprisonment. Other participants in the Petters scheme pleaded guilty to various charges and were sentenced by the same judge. The Eighth Circuit affirmed Fry’s conviction and sentence, rejecting an argument that it should presume that the court sentenced him vindictively, in retaliation for his exercise of the right to a jury trial, because Fry’s sentence was longer than sentences imposed on defendants who pleaded guilty.
Court Description: Colloton, Author, with Bright and Shepherd, Circuit Judges] Criminal case - Sentencing. No presumption of vindictiveness is warranted in the class of cases where a defendant who is convicted after trial alleges that "similarly situated" defendants who pleaded guilty were sentenced to lesser punishment; the district court explicitly considered the issue of unwarranted sentencing disparities at defendant's sentencing; the district court's explanation for its sentencing decision was not plainly inadequate; 220-month sentence, which represented a substantial downward variance from defendant's 1440-month advisory guidelines sentence, was not substantively unreasonable; any disparities between defendant's sentence and those of his co-conspirators were warranted by their dissimilar situations, such as cooperation and acceptance of responsibility, the seriousness of defendant's conduct, his prior record, his efforts to obstruct the investigation and his role in the offense. Judge Bright, dissenting.
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