United States v. Boogades ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5662
GUS JOHN BOOGADES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Richard B. Kellam, Senior District Judge.
(CR-95-34)
Argued: October 28, 1996
Decided: December 6, 1996
Before WILKINSON, Chief Judge, and RUSSELL and HALL,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Andrew Robert Sebok, Norfolk, Virginia, for Appellant.
Charles Philip Rosenberg, Assistant United States Attorney, Norfolk,
Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States
Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gus John Boogades was convicted of nine counts of wire fraud and
seven counts of money laundering in violation of 18 U.S.C. §§ 1343& 1956(a)(1)(A)(i). Boogades appeals his convictions on three
grounds -- that the evidence was insufficient to support his convic-
tions on the wire fraud charges, that the trial judge should have set
aside the verdict when the jury found him guilty of sixteen substan-
tive counts but not of conspiracy, and that the trial judge should not
have sent the jury back for further deliberations when one juror
expressed disagreement with the verdict. Because the evidence is
ample to support the verdict and the trial judge acted properly in send-
ing the jury back and then accepting its final verdict, we affirm the
judgment of the district court.
I.
Boogades' convictions arose out of a telemarketing scheme operat-
ing as "Colonial Distributing, Inc." in Norfolk, Virginia from March
to October 1992. Boogades and two of his employees, Gerald Parady
and David Gabriel, moved to Norfolk from Las Vegas, Nevada, and
hired local employees to act as "telephone solicitors" for Colonial.
Parady and Gabriel reported to Boogades, and the three of them
trained new recruits and drafted scripts for use in the solicitations.
Victims of the marketing scheme -- many of whom were elderly
-- were promised that if they purchased cheap pens, key chains, plas-
tic coffee mugs, calendars or cosmetic kits at exorbitant prices
between $298 and $998, they would automatically win one of four
bonus awards. The four bonus awards were described as: a 1992 Pon-
tiac LeMans automobile (or its cash equivalent); a $2,500 home enter-
tainment center including a stereo, a 27-inch color television, and a
VCR; a $1,500 cashier's check; and a $5,000 home shopping spree.
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In fact, the first three bonus awards never existed and were never
awarded. Every victim "won" the home shopping spree.
The shopping spree consisted of a catalogue from which victims
could purchase merchandise, at grossly inflated prices, with an osten-
sible discount of up to 80%. The "discount" on each purchase was to
be subtracted from their $5000 credit. Thus, victims were required to
spend significant sums of money on catalogue items to benefit from
their $5000 shopping spree. Testimony at trial revealed that even the
"discounted" prices paid by victims for catalogue items was at or
above their retail prices. Boogades himself operated the catalogue
business out of a consumer mail box in Norfolk.
Colonial solicitors promised some victims free airline tickets or
free vacations to Hawaii and Florida. These "prizes" from a travel
company in Florida turned out to be vouchers that required a nonre-
fundable cash deposit and were burdened by so many restrictions that
they were effectively worthless. One Colonial employee called previ-
ous buyers of Colonial products to tell them that if they made an addi-
tional purchase they would be eligible for a $40,000 cash prize (later
increased to $50,000 with Boogades' agreement). The prize never
existed and was never awarded.
Besides descriptions of nonexistent prizes, the sales pitches were
riddled with other misleading statements and outright lies about Colo-
nial, its customers, and its operations. Nine victims at trial testified to
having been lied to, misled, and disappointed or outraged by Colo-
nial's products and "prizes." Three of these victims recalled specifi-
cally talking with Boogades, and a fourth spoke with"Parady's boss,"
who was Boogades.
Boogades, who owned Colonial, oversaw its operations, and con-
trolled the company's finances, also cheated his employees out of sig-
nificant sums of money by withholding wages from their paychecks
and failing to forward the withheld amounts to the IRS.
After a trial lasting one week, the jury found Boogades guilty of
nine counts of wire fraud and seven counts of money laundering. It
was unable to reach a verdict on the conspiracy charge, so the judge
declared a mistrial on that count and the charge was dismissed by the
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government. Boogades was sentenced to 87 months in prison fol-
lowed by three years of supervised release. He was also ordered to
pay $3468.00 in restitution to the nine testifying victims, and a special
assessment of $800.00. Boogades appeals.
II.
A.
Boogades first challenges the sufficiency of the evidence to support
his conviction on the wire fraud counts. He argues that no evidence
was introduced to prove that he knew of the fraud and deception
being perpetrated on Colonial's victims. Boogades claims that
because he was rarely in the "boiler room" where the calls were made,
he was "unaware of the fraudulent path Colonial's operation had
take[n]."
Boogades' assertion is patently false. At least three of the victims
-- Dwight Sours, Wayne Lobo, and Barbara Allran-- specifically
recalled speaking with and receiving false or misleading information
from Boogades himself. Colonial employees testified that Boogades
controlled all aspects of Colonial's operations, and that he partici-
pated in hiring, training, monitoring phone calls, drafting scripts, and
fabricating phony promotions. Colonial's office manager testified that
all customer complaints -- which came at least daily -- were passed
on to Boogades.
B.
Boogades next alleges that the jury's verdict was"a legal impossi-
bility" because they found him guilty of sixteen substantive counts,
but not guilty of conspiracy. Boogades argues that the district court
should have set aside the jury's verdict as inconsistent.
In United States v. Martindale, 790 F.2d 1129, 1133-34 (4th Cir.
1986), this court ruled that a jury may validly convict a defendant for
the offense of conspiracy while acquitting him of the substantive
offenses. The reverse is also true, since:
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It has long been the rule that inconsistency is not a ground
for voiding a verdict of conviction. There may be a number
of reasons why a jury may reach what may appear to be
inconsistent verdicts but, so long as the evidence clearly
supports the guilty verdict, inconsistency is no ground for
invalidating the conviction.
Id. at 1134.
Here, as noted, the evidence supports conviction on the substantive
counts.
C.
Finally, Boogades argues that the judge erred in sending the jury
back for further deliberation after juror Viola Rivers answered "no"
when polled on the original guilty verdict for the conspiracy count.
Boogades claims that the judge should have declared a mistrial
because further deliberations put undue pressure on Ms. Rivers to
change her vote, and led to "bartering of results in order to reach una-
nimity."
A judge acts within his discretion in sending a jury back for further
deliberations when a poll reveals disagreement on the verdict. Rule
31(d) of the Federal Rules of Criminal Procedure instructs, "[i]f upon
the poll there is not unanimous concurrence, the jury may be directed
to retire for further deliberations or may be discharged." In the instant
case, the trial judge followed the rule, simply advising the jury that
"[t]he verdict must be unanimous," and asking it to deliberate further
after Ms. Rivers expressed disagreement with the first verdict. The
court did not question, chastise, or pressure Ms. Rivers. Indeed, the
fact that the jury eventually returned deadlocked in the conspiracy
count suggests that Ms. Rivers' will was not overborne during the fur-
ther deliberations. In any case, courts are not permitted to engage in
conjecture about how the jury eventually reached its verdict. U.S. v.
Blankenship, 707 F.2d 807, 809-10 (4th Cir. 1983). As long as the
judge was within his discretion to send the jury back to deliberations
-- and he was -- we will not disturb the verdict that properly
resulted.
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III.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
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