United States v. Moore ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4380
DONALD RAY MOORE,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-94-30-5)
Submitted: October 14, 1997
Decided: November 18, 1997
Before HALL, HAMILTON, and
MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Lawrence W. Hewitt, Richard B. Fennell, JAMES, McELROY &
DIEHL, P.A., Charlotte, North Carolina, for Appellant. Mark T. Cal-
loway, United States Attorney, Brian L. Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Donald Ray Moore appeals from his convictions on seven counts
of conspiracy, mail fraud, and wire fraud, 18 U.S.C.§§ 371, 1341,
1343 (1994), for which he was sentenced to fifty months on each
count, to run concurrently. Moore claims that the district court abused
its discretion by permitting cross-examination regarding his prior
instances of misconduct and that the evidence was insufficient to sus-
tain the guilty verdicts. Finding no error, we affirm.
Moore was indicted along with George Landen for operating a
fraudulent investment and loan scheme in North Carolina. Viewed in
the light most favorable to the Government, see Glasser v. United
States, 315 U.S. 60, 80 (1942), the facts are as follows. Moore created
an organization known as the International Society of Investors (ISI)
through which he mailed a large number of promotional packages to
individuals with poor credit histories. The materials offered recipients
the opportunity to join ISI for $1500. In return, they were promised
100 free shares in a non-existent international bank, along with low
interest loans and high interest rates on checking and savings
accounts. ISI members wishing to obtain a loan were required to first
deposit $250 with the "bank." Potential investors were assured that
their accounts were insured by the "Fidelity Assurance Guaranty,
Inc.," a non-existent entity devised by Moore and Landen. The pro-
motional materials included an audio cassette tape which represented
(falsely) that Moore was a millionaire and that Landen was a success-
ful financial publisher.
Moore and Landen also published a monthly newsletter entitled
"The Society Investor" which misrepresented that the "bank" was
based in the Republic of Nauru and managed from an office in Cal-
gary, Alberta, by a John Shannon, Vice President of Pioneer Interna-
tional Holdings. The "bank" did not exist and"John Shannon" was a
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fictional character which Moore admitted to devising. The Calgary
address was actually a mail drop where mail was picked up and for-
warded, via Federal Express, to Moore in North Carolina. Telephone
calls to the Calgary "office" were automatically forwarded to Moore's
office as well. In 1991, after Canadian authorities seized ISI's Calgary
bank account, Moore relocated the "bank" to Grenada, West Indies.
More than 270 individuals responded to the promotional materials
by submitting their $1500 membership fee. Payments from potential
borrowers and investors totaled over $1.1 million, which Moore and
Landen deposited into bank accounts for their personal use.
At Moore's trial, the government gave notice of its intent to intro-
duce evidence of cease and desist orders issued by the Kansas Securi-
ties Commission (1986) and the United States Postal Service (1987).*
The district court allowed the government to cross-examine Moore
about these prior instances but did not allow admission of any evi-
dence pertaining to either incident. Moore claims that this testimony
"gave the impression that previous judicial bodies had found defen-
dant guilty" of the prior conduct at issue. (Brief of Appellant at 4).
This court reviews the district court's evidentiary rulings for abuse
of discretion. United States v. Hassan-El, 5 F.3d 726, 731 (4th Cir.
1993). Federal Rule of Evidence 608(b) prescribes the manner of
cross-examining a witness by showing his "prior bad acts," and pro-
vides, in part:
Specific instances of the conduct of a witness, for the pur-
pose of attacking or supporting his credibility, other than
conviction of crime as provided in Rule 609, may not be
proved by extrinsic evidence. They may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning his character for truthfulness or
untruthfulness.
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*The 1986 order arose from Moore's activities selling securities in his
"Business Opportunity Club." The 1987 order issued by the Postal Ser-
vice related to a scheme in which Moore was offering, by mail, low
interest loans of up to $1 million.
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The rule recognizes that the trial court must have discretion to apply
the overriding safeguards of Rule 403 (excluding evidence if its pro-
bative value is substantially outweighed by dangers of prejudice, con-
fusion, or delay). Rule 608 authorizes inquiry into instances of
misconduct which are "clearly probative of truthfulness or untruthful-
ness," such as perjury, fraud, swindling, forgery, bribery, and embez-
zlement. See United States v. Leake, 642 F.2d 715, 718 (4th Cir.
1981). Applying these standards, we find that the district court did not
abuse its discretion by allowing the government to cross-examine
Moore regarding his past similar fraudulent conduct.
Second, Moore claims that the evidence was insufficient to support
the guilty verdict as to any of the charges. A conviction must be
affirmed if there is substantial evidence, viewed in the light most
favorable to the government, to support a finding of guilt. See
Glasser, 315 U.S. at 80. Circumstantial and direct evidence are both
considered, and the government is given the benefit of all reasonable
inferences from the facts proven to the facts sought to be established.
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
To prove mail fraud, 18 U.S.C. § 1341, the government had to
show, beyond a reasonable doubt, that Moore (1) engaged in a
scheme to defraud, (2) by using the mails, (3) in furtherance of the
scheme. See United States v. Locklear, 829 F.2d 1314, 1318 (4th Cir.
1987). To prove wire fraud, 18 U.S.C. § 1343, the government had to
show (1) the existence of a scheme to defraud, and (2) the use of
interstate wire communications to facilitate the scheme. See United
States v. ReBrook, 58 F.3d 961, 966 (4th Cir. 1995), cert. denied, ___
U.S. ___, 64 U.S.L.W. 3332 (Nov. 6, 1995) (No. 95-6317). The term
"scheme to defraud" means "any scheme to deprive another of money
or property by means of false or fraudulent pretenses, misrepresenta-
tions or promises." See Carpenter v. United States, 484 U.S. 19, 27
(1987). The evidence presented at Moore's trial as summarized above
clearly establishes his guilt as to each of these elements.
Finally, Moore claims that the evidence was insufficient to support
the conspiracy conviction because Landen's testimony failed to show
that he and Moore "had the common purpose alleged in the indict-
ment." Rather, he claims that "the evidence showed at most an associ-
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ation between Landen and [Moore]." (Brief of Appellant at 6). We
disagree.
To sustain a conspiracy conviction under 18 U.S.C.§ 371, the gov-
ernment must prove (1) an agreement between two or more people
to commit a crime, and (2) an overt act in furtherance of the conspir-
acy. See United States v. Chorman, 910 F.2d 102, 109 (4th Cir. 1990).
The existence of a "tacit or mutual understanding" between conspira-
tors is sufficient evidence of a conspiratorial agreement. Id. Such
proof need not be direct, but may be inferred from circumstantial evi-
dence. See United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996)
(en banc), cert. denied, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 3586 (Feb. 24,
1997) (No. 96-6868).
Landen's testimony established that he knowingly participated in
the promotional scheme along with Moore. The government pres-
ented promotional tapes of conversations between Moore and Landen
in which they discussed various aspects of the off-shore banking
scheme. Landen testified that he had pled guilty to conspiracy and
that he knew that certain representations on the tapes were inaccurate
and "wrong to do." Accordingly, the evidence was sufficient for a jury
to find that Moore and Landen conspired in violation of § 371.
Moore's conviction is therefore affirmed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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