Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^* 

Appellants Maria Brockway, Jeffrey Seemayer and Katherine Alexander, appealing their respective convictions on 11, 3, and 4 counts, respectively, of mail and wire fraud, argue that the evidence was insufficient to support their convictions. Further, Brockway and Alexander argue that the prosecutor's closing argument contained two prejudicial statements. Finally, Alexander claims that the district court erred in refusing to give five of her proposed jury instructions. We affirm.

In reviewing the sufficiency of the evidence in a criminal case, appellate courts must ask "whether, after reviewing the evidence in the light most favorable to the prosecution, 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 (1979) (emphasis original); see also United States v. Kaplan, 895 F.2d 618, 620 (9th Cir. 1990). Further, the prosecution is "entitled to all reasonable inferences which may be drawn" from the evidence. United States v. Cuevas, 847 F.2d 1417, 1421 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989).

Appellant Brockway does not deny the existence of the fraudulent "New Ribbon Plan," in which inflated bills for telex machine ribbons were sent to customers who had never ordered any merchandise in hopes that they would mistakenly pay. Instead, she insists that she did not possess the intent necessary to support a conviction for mail or wire fraud in connection with the scheme. She notes that both these crimes require proof of a specific intent to defraud, California Architectural Building Products, Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1469 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988), which must be proven beyond a reasonable doubt. Baumann v. United States, 692 F.2d 565, 570 (9th Cir. 1982). She attempts to argue that this case presents a parallel to United States v. Piepgrass, 425 F.2d 194 (9th Cir. 1970), where codefendant Hofhines' conviction was overturned because at most he could have been aware of a rather free interchange of funds, from which he might have inferred that investors were being deceived. Id. at 199. There was no "rational basis" for the link between what he "could have known and a specific intent" to defraud. Id. at 200 (emphasis original).

Such a comparison is unavailing, for the evidence showed here that Brockway clearly knew of and participated in the fraud. While Hofhines might possibly have inferred illegality in the mere five transactions over eight months with which he was dealing, Brockway supervised the transmission of thousands of fraudulent invoices. Two witnesses testified that she was the overall sales manager for the plan. She was the one to total up the sales made by each salesperson under the plan, thus allowing her to observe the tenfold increase of order forms during the brief existence of the plan. Further, not only did she supervise the actions of others, but she herself participated in marking the false invoices. Her fictitious name "Maria Brandy" appears in her handwriting in the "verified by" box of a dozen order forms that the government submitted into evidence, though she never called any "customers" to verify sales that she knew had never even been made. In addition, she wrote in price increases from $138.85 to $251.40 on the order forms and crossed out supposed original prices despite the fact that she had never discussed price with those to whom she talked. While she may well not have masterminded this scheme, appellant's direct participation and supervisory role over others' fraudulent actions are sufficient to indicate that she possessed the requisite intent to defraud.

Appellant Seemayer makes a similar argument, namely that he, too, did not possess the requisite intent to defraud. While he does not deny either that the scheme took place or that he took part in it, he does argue that he was a mere salesman and did not intend to defraud anyone. He claims that he took no part in the billing or shipping and had no role in the formulation of the business strategy. He asks that we distinguish between telephone salespersons and managerial or supervisorial personnel.

Though we might readily concede that Seemayer and other salespersons were less culpable than someone such as Sutherland, who masterminded and introduced the New Ribbon Plan, or Brockway, who was a supervisor, this has no bearing on whether salespersons were culpable at all. To the contrary, the evidence against Seemayer is formidable, certainly enough to convince a rational trier of fact of his guilt beyond a reasonable doubt.

To begin with, Seemayer did not act as merely a "lead caller," whose purpose was to garner names and addresses of potential customers and to set up contacts for "verifiers," who would discuss prices and confirm orders. As order forms introduced into evidence make manifest, Seemayer wrote his own name in the "ordered by" box and his fictitious name, Jeff Dean, in the "verified by" box. He also noted the inflated price of $138.50 on the form. Though he was aware that no order had been placed, no price had been discussed, and no verifier had called back, Seemayer filled in the appropriate boxes as if all these requirements had been met. This evidence alone would seem sufficient, yet it is bolstered by two other telling points. First, the Postal Inspector's examination of the record indicated that Seemayer made over 1200 "sales" in the five-week existence of the New Ribbon Plan, a fact that would counter any notion of reluctance or tangential involvement on the appellant's part. Second is the evidence that Seemayer not only acted in a sales capacity during the duration of the plan, but that he also worked in customer service, where he fielded numerous complaints from "customers," who vented their ire at unordered goods foisted on them. As a service representative, Seemayer told callers about computer errors or other glitches that supposedly had caused the fraudulent orders to be sent.

The cases Seemayer cites in his support neither contain like fact patterns nor provide any succor to his cause. In United States v. McDonald, 576 F.2d 1350 (9th Cir.), cert. denied sub nom. Stewart v. United States, 439 U.S. 830 (1978), the government's strongest contention was that the defendant "displayed a willful disregard of the truth in his business activities and that such disregard was tantamount to actual knowledge of the fraud." Id. at 1358. We reversed his conviction because " 'the logical relationship between what he could have known and a specific intent has no rational basis.' " Id. at 1359 (quoting Piepgrass, 425 F.2d at 199-200) (emphasis in Piepgrass) . There is a vast gulf between inferring ongoing fraud and actively participating in it as Seemayer did. A similar chasm yawns between Seemayer's conduct and that of the defendants in United States v. Pearlstein, 576 F.2d 531 (3rd Cir. 1978), also cited by the appellant. The court reversed the convictions of salesmen there because the record indicated neither knowledge of the illicit scheme nor intent to defraud on the part of the defendants. Id. at 541. The salesmen there did not prepare any of the fraudulent promotional material and were strictly prohibited from reading company material or looking through files. Id. Seemayer, in contrast, knew of the scheme, prepared fraudulent order forms, and headed customer service as complaints began pouring in. While Seemayer may cite Pearlstein for the proposition that the defendants there were salesmen, too, that is all he may cite it for.

We hold that the evidence is sufficient to support his conviction.

The evidence against Katherine Alexander is similar to that against Seemayer, excepting that she never worked in customer service. Appellant, like her co-appellants, does not deny the existence of the scheme or her role in it; rather, she protests her alleged knowledge of the illegal plan and intent to defraud. Claiming that all she did was fill out company order forms, she states that the jury could have, at most, believed that she might have inferred fraud because her supervisors ordered her to sign internal order forms in an irregular fashion. Therefore, she likens her involvement to defendant Hofhines in Piepgrass, whose conviction was overturned since "mere 'involvement in an unsavory, high-pressure, fly-by-night scheme' is not sufficient to establish 'knowing participation in a scheme to defraud." Id. at 199 (quoting Windsor v. United States, 384 F.2d 535 & 536 (9th Cir. 1967)). Another parallel she offers is to Pearlstein, which required that the salesmen's "knowledge of [the scheme's] fraudulent purpose also can be demonstrated." Id. at 542.

We find it difficult to comprehend how the appellant can argue lack of knowledge where her actions so belie this contention. The Postal Inspector testified that Alexander had made 1250 of the 7,000 sales during the New Ribbon Plan, more than any other salesperson. A dozen order forms were introduced into evidence as examples of her role, most showing that appellant had written her name in either the "sold by" or "verified by" box and then her fictitious name, Katherine Dunn, in the other, along with the price of $138.50. She knew that the people to whom she spoke had not ordered ribbons, she knew that no one had verified the order, she knew that Katherine Dunn was a fake name, and she knew that no price had been agreed upon or even mentioned. To argue that she had no knowledge that this was fraudulent strains credulity.

She was not simply a lead caller who had no idea what higher-ups were doing with order forms she prepared. As noted above, Alexander had knowledge of the fraudulent scheme. In addition, we believe that such a plethora of counterfeit orders could not have been prepared without intent to defraud. As we noted in United States v. Laykin, 886 F.2d 1534, 1540 (9th Cir. 1989), "It is axiomatic that intent can be inferred from conduct." The invoices were not innocent documents that were later twisted into fraudulent form by supervisors; to the contrary, these forms were the essence of the fraud. Indeed, unlike in Pearlstein, Alexander's misrepresentations and fraudulent dealings were quite consistent with the overall scheme. In maintaining our commitment to "respect the exclusive province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts ..." United States v. Gillock, 886 F.2d 220, 223 (9th Cir. 1989) (internal quotation and citation omitted), we cannot say that the jury was irrational in finding Alexander guilty.

Two standards of review exist for alleged prosecutorial misconduct in closing arguments, one when the defense timely objects and the other when it does not. Where the defense objects, we review the conduct of the trial judge for an abuse of discretion. United States v. Patel, 762 F.2d 784, 794 (9th Cir. 1985). Where the defense does not object, we will reverse only if the district court's permitting the statement constituted plain error. United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989). Under plain error, " [r]eversal is appropriate if necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process." Id.

Appellants Brockway and Alexander object to the following comment in the prosecutor's closing argument:

You're the only ones who can say that telemarketing business --'Hey, it can be legitimate. But if you lie, if you deceive, if you make certain misrepresentations, you're going to be held accountable' ... You represent everyone in this country who has been defrauded by these people.

(Emphasis added). Appellants argue that "that telemarketing business" means telemarketing in general, and that "these people" similarly refers to all telemarketers. They point out that the government cannot ask the jury to convict appellants merely to send a message to all telemarketers, and that appellants' "guilt may not be proven by associating [them] with unsavory characters." United States v. Dickens, 775 F.2d 1056, 1058 (9th Cir. 1985).

Because a timely objection was raised to this comment, we must decide whether allowing the statement was an abuse of discretion.

First of all, we think that in the quoted excerpt above, which is copied from appellants' briefs, the phrase "that telemarketing business" probably refers to that particular telemarketing business where appellants worked, namely U.S. Telex. If the prosecutor had meant telemarketing in general, he more likely would have used "the" instead of "that." While the transcription obviously omits a word, probably "to," it is still more believable, and certainly not an abuse of discretion, to hold that telemarketing as a whole was not being castigated. "These people" would then also refer to U.S. Telex defendants and not telemarketers in general.

More importantly, appellants have conveniently placed their ellipsis so as to avoid including passages that would convincingly contradict their argument. Directly preceding the final sentence in the excerpt is the following sentence: "That's why what you need to do is sit down and look at the evidence, decide--decide that the evidence has in fact proven beyond a reasonable doubt the guilt of these people, and convict them." (Emphasis added). If we now assess the reference to "these people," it is beyond cavil that the defendants, not all telemarketers, are the antecedents. Therefore, the statement viewed as a whole is not an example of prosecutorial misconduct.

Appellants protest another alleged instance of prosecutorial misconduct in the closing argument. The prosecutor stated: "I will ask you to return a verdict of guilty as to each of these defendants on each of these counts, because, Ladies and Gentlemen, they are guilty." Such a statement, appellants contend, is an example of the impermissible injection of the prosecutor's personal belief into the trial: "The rule that a prosecutor may not express his personal opinion of the defendant's guilt ... is firmly established." United States v. McKoy, 771 F.2d 1207, 1210-11 (9th Cir. 1985). As none of the defense counsel objected to this statement, we review it for plain error.

While ably citing a number of cases that establish the proposition that personal opinion in general is forbidden, appellants can summon no cases to their defense where a statement like this was held prejudicial. The closest case to this, though certainly an example of worse behavior, is Laurins, where the prosecutor stated, among other things, " 'I think the government has established [the defendant's guilt] beyond a reasonable doubt.' " Id. at 539. While remarks such as these "bordered on impropriety," id. at 540, they did not warrant reversal under the plain error standard, even if aggregated with other borderline statements. Since we, too, are employing that standard, we must reach a similar result where the prosecutor simply said that the defendants were guilty. He did not say that they were guilty in his opinion or that he believed that they were guilty; rather, he simply said that they were guilty, instead of uttering the preferable phrase, "the evidence has shown that they were guilty." We do not believe that such a statement requires reversal under the plain error standard.

While "we review de novo the question of whether a jury instruction correctly defines the elements of an offense [,] ... a district court's formulation of the instructions is reviewed for an abuse of discretion." United States v. Belgard, 894 F.2d 1092, 1095 (9th Cir.), cert. denied, 111 S. Ct. 164 (1990) (citations omitted). Since appellant Alexander does not contest that the elements of the offense were contained in the instruction, we review for abuse of discretion. See United States v. Linn, 880 F.2d 209, 217 (9th Cir. 1989) ("Discretion in formulating jury instructions generally lies with the district court.").

Alexander is the only one of the appellants to make the argument that the district court erred by improperly instructing the jury. Specifically, she argues that the court failed to give five of her proposed jury instructions on the issue of intent to defraud. She cites for support the following language in United States v. Unruh, 855 F.2d 1363, 1372 (9th Cir. 1987), cert. denied sub nom. Forde v. United States, 488 U.S. 974 (1988): "the failure to give a requested instruction is reversible error if the defendant's theory of the case is supported by law and has some foundation in the evidence." If the district court had refused to instruct on intent, Alexander would certainly have a claim here. In Unruh the defendant was not complaining about the language or formulation or emphasis of the instructions, but rather that they did not offer his alternative theory of the case. Here, instructions were indeed offered on intent, but they did not contain the colorful language that appellant sought.

In fact, the district court mentioned five times that the jury must find intent to defraud if it wished to convict the appellants. Included was a lengthy definition of "intent to defraud," which distinguished false statements from intentional fraudulent ones. We can certainly understand why appellant desired her instructions, which quote language from Piepgrass and Pearlstein, but we are unable to say that the district court abused its discretion in selecting the ones it did.

We conclude that the evidence was sufficient to convict Brockway, Seemayer, and Alexander; that neither protested comment in the prosecutor's closing argument constituted misconduct; and that the district court did not err in refusing to give Alexander's proposed jury instructions. In all respects, the district court is hereby

AFFIRMED.