United States v. Squibb, Marietta ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-4040
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARIETTA SQUIBB,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:06cr0086(02) RM—Robert L. Miller, Jr., Chief Judge.
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ARGUED JUNE 11, 2008—DECIDED JULY 17, 2008
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Before MANION, ROVNER, and TINDER, Circuit Judges.
PER CURIAM. A jury found Marietta Squibb guilty of
committing mail and wire fraud, and of conspiring to
defraud the United States. The district court sentenced
her to ninety-six months’ imprisonment. On appeal she
argues that the government presented insufficient evid-
ence to show her knowledge of the conspiracy, and thus,
she contends, her convictions should be overturned.
Sufficient evidence supported the jury’s verdicts; there-
fore, we affirm.
2 No. 07-4040
I. Background
The facts are recounted in the light most favorable to
the government. See United States v. Kelly, 519 F.3d 355,
362 (7th Cir. 2008). Marietta Squibb and her husband,
Thomas, were a well-to-do couple who lived in
Mishawaka, Indiana. The Squibbs were respected mem-
bers of their community, and Thomas1 had a reputation
for being shrewd with investments. Beginning in 1995
Thomas solicited money from individuals to develop two
“projects”: campgrounds in various cities in Michigan and
condominiums in Naples, Florida. Each investor was told
that only eight or nine others were helping with the
enterprise; in fact, over the course of the scheme the
Squibbs took in nearly 200 investors, from whom they
received roughly $15 million.
Contrary to what they told the investors, the Squibbs
did not build campgrounds or condominiums with the
money, but instead used it for personal benefit. Thomas
and Marietta issued promissory notes to the investors
and when the time came for them to send interest checks,
the Squibbs used the money received from later investors
to pay off the earlier investors. The operation ran
smoothly at first, but after several of the Squibbs’ interest
checks bounced, one investor became suspicious, re-
searched the campground’s corporate office, and discov-
ered that company representatives had never heard of
the Squibbs. By this time the Securities and Exchange
Commission (SEC) had also gotten wind of the scheme, and
it ultimately unraveled in early 2006.
1
From here on, we refer to Thomas and Marietta Squibb by
their first names for the sake of clarity.
No. 07-4040 3
In July 2006, Thomas and Marietta were each indicted
on one count of conspiring to defraud the United States, see
18 U.S.C. § 371, four counts of mail fraud, see 18 U.S.C.
§ 1341, and thirteen counts of wire fraud, see 18 U.S.C.
§ 1343.
In May 2007 the Squibbs were tried by a jury. The
government called as witnesses more than twenty
victims of the Ponzi scheme, and several of them testified
to Marietta’s involvement. According to one witness,
she sent all of her correspondence to the Squibbs through
certified mail and Marietta signed for that mail. Marietta
also signed several promissory notes and financial state-
ments. Thomas reassured that victim that in case of an
emergency, Marietta knew “how to take care of things.”
And when the interest payments from the Squibbs were
tardy, the witness primarily contacted Marietta.
Another witness, who invested $300,000 with the
Squibbs, testified that he became concerned after his
first interest check bounced in October 2005. The victim
had had difficulty contacting Thomas, and Marietta
informed him that Thomas had injured his head while
playing basketball. Consequently, Marietta said that she
was “taking over” the investment program in Thomas’s
absence. According to the witness, Marietta reassured
him that he would be paid. Marietta also told him that
she would call him back after she determined in which
property he had invested. By this time, the witness
said, he was highly perturbed and expressed his con-
cerns to Marietta, but she reiterated that “nobody was
going to lose their money.” Marietta asserted that she
had previously traveled to the campgrounds, and she
verified that the development was underway.
Another witness testified that he invested $75,000 but
received only one interest payment. When he called to try
4 No. 07-4040
and recover the rest of his money, Marietta told him that
“there was some discrepancy in the contracts and signa-
tures . . . but it would all be straightened out.” The wit-
ness described Marietta as “very, very knowledgeable”
about the operation and said that her manner of speaking
was “very authoritative.”
Marietta also took the stand. She testified that Thomas
did not explain his business ventures to her and, although
her signature was on several of the promissory notes,
she maintained that her signature had been forged.
Marietta admitted that she tried to convince several
investors that they would be paid when Thomas sus-
tained the head injury, but, she said, she did so only at
Thomas’s direction. But on cross-examination Marietta
conceded that she had filled out several of the promissory
notes and had signed for certified mail that was sent
from the investors. Additionally, Marietta acknowledged
that she balanced several joint checking accounts and
that some of those accounts contained money from the
investors. The government also highlighted several trans-
actions between Thomas’s business account and Marietta’s
personal account that Marietta could not explain.
At the close of trial, the jury found Marietta guilty on
seventeen of the twenty counts with which she was
charged. Thomas was convicted on all counts. Marietta
was sentenced to ninety-six months’ imprisonment,
which she does not challenge on appeal.
II. Analysis
Marietta contends that the jury’s verdicts should be
set aside because it was not presented with enough evi-
No. 07-4040 5
dence to support its finding that she was an active partici-
pant in the scheme. As a general matter, defendants
“challenging the sufficiency of the evidence face a high
burden.” See United States v. Martinez, 518 F.3d 505, 509
(7th Cir. 2008). We ordinarily would uphold the jury’s
finding so long as “any rational trier of fact could have
found the essential elements of the crime beyond a rea-
sonable doubt.” United States v. Seymour, 519 F.3d 700, 714
(7th Cir. 2008) (internal quotation marks and citation
omitted); see United States v. Hatten-Lubick, 525 F.3d 575,
579 (7th Cir. 2008). But in this case Marietta did not move
for a judgment of acquittal under Rule 29 of the Federal
Rules of Criminal Procedure after the jury returned its
verdicts; therefore, we review her claim for plain error. See
United States v. Miller, 405 F.3d 551, 556 (7th Cir. 2005);
cf. Hatten-Lubick, 525 F.3d at 579. “Under this most de-
manding standard, reversal is warranted only ‘if the rec-
ord is devoid of evidence pointing to guilt, or if the evi-
dence on a key element was so tenuous that a convic-
tion would be shocking.’ ” United States v. Allen, 390 F.3d
944, 948 (7th Cir. 2004) (quoting United States v. Taylor,
226 F.3d 593, 597-98 (7th Cir. 2000)).
Focusing solely on the conspiracy charge, Marietta argues
that the government did not prove that she knew that her
husband’s enterprise was fraudulent. But many witnesses
testified that Thomas told them that Marietta was capable
of running the operation in his stead and that she actually
did so while Thomas was incapacitated. Other witnesses
described telephone conversations with Marietta where she
reassured them in an “authoritative” manner that they
would be paid. Marietta also signed promissory notes and
financial statements, balanced the checking accounts, kept
track of correspondence to the Squibbs, and regularly
answered the investors’ questions. Marietta testified that
6 No. 07-4040
she acted only at her husband’s bidding, but the jury was
entitled to credit the victims’ testimony that she played an
active role in the scheme. See United States v. Bowman, 353
F.3d 546, 552 (7th Cir. 2003).
In similar cases involving a conspiracy between
spouses, we have upheld the finder of fact’s determina-
tion of the scope of each spouse’s involvement in the
conspiracy. For instance in United States v. Zaccagnino,
467 F.3d 1044 (7th Cir. 2006), a husband and wife were
indicted on several counts related to an investment
scheme. Id. at 1044. The wife pleaded guilty to three of the
charges, but at sentencing she argued that she initially
did not know that the scheme was fraudulent and thus
should not be held accountable for the total loss amount.
Id. at 1046. In that case we noted that the finder of fact
specifically chose not to credit her version of events, and
we concluded that it did not err in doing so. Id. at 1048;
see generally United States v. Gunning, 984 F.3d 1476, 1481
(7th Cir. 1993) (upholding jury’s finding that wife know-
ingly joined conspiracy where she traveled with husband
to crime scene carrying handgun). In this case, Marietta
similarly asks us to reweigh the evidence on appeal, which
we will not do. See United States v. Moore, 425 F.3d 1061,
1072 (7th Cir. 2005); United States v. Carter, 410 F.3d 942,
953 (7th Cir. 2005). The jury found that Marietta know-
ingly participated in the conspiracy and nothing in the
record permits us to overturn that determination. See
United States v. de Soto, 885 F.2d 354, 366-67 (7th Cir. 1989).
The record is not devoid of evidence of Marietta’s guilt,
and her convictions are not “shocking.” We therefore
AFFIRM the convictions.
USCA-02-C-0072—7-17-08