United States v. Gordon , 335 F. App'x 236 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
7-1-2009
USA v. Gordon
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3934
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 07-3934
_______________
UNITED STATES OF AMERICA
v.
ROBERT P. GORDON,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 05-cr-00698-1)
District Judge: Honorable Jerome B. Simandle
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 24, 2009
_________________
Before: BARRY and SMITH, Circuit Judges, and RESTANI,* Judge
(Opinion filed: July 1, 2009)
_________________
OPINION
_________________
*
Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.
Robert Gordon appeals his conviction for conspiracy to commit securities and wire
fraud and conspiracy to illegally launder the proceeds of the fraud. Gordon argues that the
District Court should have granted his motion for judgment of acquittal under Federal Rule
of Criminal Procedure 29(a) because the Government failed to prove an overt act in
furtherance of the conspiracy was committed within the statute of limitations period. He also
argues that he was denied effective assistance of counsel. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gordon was the founder, CEO, and Chairman of the Board of Directors of
Teleservices Internet Group (“TSIG”), positions he used to operate a scheme whereby he
fraudulently inflated the price of TSIG stock and sold his shares for profit. To inflate the
price of TSIG stock, Gordon bribed his stock broker to purchase large amounts of the stock
for client accounts, entered into fraudulent consulting agreements with co-conspirator stock
promoters to give the appearance of legitimacy to improper transfers of free-trading TSIG
shares to the promoters for fund raising and stock support, and induced investors to purchase
restricted shares in private offerings but delayed making the necessary filings to free those
shares for trade on the open market until the shares were worthless. To profit from the fraud,
Gordon created shell companies in the Cayman Islands and a brokerage account in Canada
so he could sell his restricted stock without having to comply with disclosure rules and free
the stock for trade on the open market. Gordon used the proceeds of the stock sales to make
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loans to TSIG to cover the company’s operating expenses in exchange for improperly issued
free-trading shares. This process enabled Gordon to generate over seven million dollars in
proceeds.
On September 28, 2005, the grand jury returned a two-count indictment, charging
Gordon with conspiracy to commit securities and wire fraud and conspiracy to illegally
launder the proceeds of the fraudulent scheme. On November 1, 2006, the grand jury
returned a superseding indictment that charged Gordon with the same two crimes but
included an additional overt act committed in furtherance of the conspiracy. During trial, at
the close of the Government’s case, Gordon moved for a judgment of acquittal. The District
Court denied the motion, and the jury convicted Gordon on both counts of the superseding
indictment. Gordon appeals his conviction.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review a denial of a motion for
judgment of acquittal de novo. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). We
view the evidence in the light most favorable to the Government and sustain the verdict if
any rational trier of fact could have found the elements of the crime beyond a reasonable
doubt. Id. at 494 (internal citations omitted).
DISCUSSION
I. The evidence presented at trial was sufficient to sustain the conviction.
Gordon argues that the District Court erred in denying his motion for judgment of
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acquittal because the Government failed to prove that an overt act was committed within the
limitations period beyond a reasonable doubt. We disagree.
To establish a claim for conspiracy to commit fraud under 18 U.S.C. § 371, the
Government must prove the following elements beyond a reasonable doubt: “(1) an
agreement to defraud the United States, (2) an overt act by one of the conspirators in
furtherance of that objective, and (3) any conspirator’s commission of at least one overt act
in furtherance of the conspiracy.” United States v. McKee, 506 F.3d 225, 238 (3rd Cir.
2007). The Government must prove that the overt act in furtherance of the conspiracy
occurred within the limitations period. See United States v. Schurr, 794 F.2d 903, 907–08
(3d Cir. 1986). The overt act may be charged or uncharged. Id. at 907 n.4.
Initially, Gordon argues that the District Court erred in concluding that the
superseding indictment related back to the initial indictment such that the limitations period
commenced five years before the filing of the initial indictment rather than five years before
the filing of the superseding indictment.1 This argument is unavailing. An initial indictment
controls for statute of limitations purposes as long as the superseding indictment does not
“materially broaden or substantially amend” the charges in the initial indictment. United
States v. Oliva, 46 F.3d 320, 324 (3d Cir. 1995) (citing United States v. Friedman, 649 F.2d
199, 203–04 (3d Cir. 1981)). Here, the superseding indictment did not expand the charges
1
The applicable statute of limitations states: “[N]o person shall be prosecuted,
tried, or punished for any offense, not capital, unless the indictment is found or the
information is instituted within five years next after such offense shall have been
committed.” 18 U.S.C. § 3282(a).
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listed in the initial indictment. The charges in both indictments are identical, and the changes
merely involve listing a party as a co-conspirator rather than a defendant, adding the names
of the co-conspirators, and adding an overt act. Although the additional overt act appeared
to extend the period of the conspiracy agreement by thirteen months, the Government did not
limit the period of the conspiracy to specific dates in the initial indictment, and the newly
added overt act merely elaborated on an overt act that was charged in the initial indictment
and fell within the initial limitations period. Because the changes as a whole did not
materially broaden or amend the nature or scope of the charges, the superseding indictment
related back to the initial indictment.
Gordon also argues that even if the superseding indictment related back to the initial
indictment, the limitations period began on September 29, 2000, rather than September 28,
2000, and the Government therefore could not have relied on the September 28, 2000, overt
act in proving the conspiracy. We need not address this argument because other overt acts
that are within the limitations period clearly support the conviction. Specifically, Gordon’s
co-conspirator attorney admitted that on September 29, 2000, he issued a check from his
attorney trust account to the student loan account of another co-conspirator’s daughter, and
that co-conspirator testified that on the same day, the attorney wired proceeds of stock sales
from the attorney trust account to his bank account for having promoted the stock. Investors
testified that Gordon had induced them to purchase restricted stock, promising conversion
to free-trading stock, but delayed making filings for such conversion. Additionally, another
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co-conspirator admitted that in November 2001, he received 6.5 million shares of TSIG stock
to promote the stock and maintain the stock price. Further, contrary to Gordon’s argument,
the Government need not present documentary evidence to corroborate witness testimony,
although we would note that the record indicates the Government did present voluminous
documentary evidence of the fraud. See United States v. Perez, 280 F.3d 318, 344 (3d Cir.
2002) (holding that co-conspirators’ testimony alone can support a conspiracy conviction).
Viewing the evidence in the light most favorable to the Government, a rational jury could
have found that the above overt acts were committed in furtherance of the conspiracy beyond
a reasonable doubt.
II. Gordon cannot make a claim for ineffective assistance of counsel.
Gordon argues that the conviction should be vacated because his trial counsel
provided ineffective assistance by failing to submit certain documents or present certain
expert and non-expert witness testimony into evidence. He further requests that the Court
remand the matter for collateral review under 28 U.S.C. § 2255 if the Court concludes that
the trial record is insufficient to support or disprove the ineffective assistance claim.2 This
Court generally does not review ineffective assistance of counsel claims on direct appeal, as
the proper avenue to pursue such claims is through collateral review, which “allows for
adequate factual development of the claim.” United States v. Morena, 547 F.3d 191, 198 (3d
Cir. 2008). Further, we generally will not second-guess counsel’s discretionary decisions
2
Gordon cites to 18 U.S.C. § 2255, but we assume he is referring to 28 U.S.C.
§ 2255.
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that are “well within the range of professionally reasonable judgments.” Strickland v.
Washington, 466 U.S. 668, 699 (1984). Accordingly, we will deny the ineffective assistance
of counsel claim without prejudice to Gordon’s right to raise the issue in an appropriate
collateral proceeding under 28 U.S.C. § 2255.
CONCLUSION
For the foregoing reasons, we will affirm the District Court’s Judgment and
Conviction Order without prejudice to the Appellant’s pursuing his ineffective assistance
of counsel claim in a proceeding under 28 U.S.C. § 2255.
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