United States v. Keiser

578 F.3d 897, 2009 U.S. App. LEXIS 19303, 2009 WL 2615752
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 27, 2009
Docket07-3878, 08-3800
StatusPublished
Cited by14 cases

This text of 578 F.3d 897 (United States v. Keiser) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Keiser, 578 F.3d 897, 2009 U.S. App. LEXIS 19303, 2009 WL 2615752 (8th Cir. 2009).

Opinion

SMITH, Circuit Judge.

Frederick W. Reiser Jr. was convicted of 22 counts of wire fraud, money laundering, conspiracy to commit money laundering, and conspiracy to defraud the United States for conduct related to his promotion of two fraudulent “bank trading programs.” The district court 2 sentenced Reiser to 144 months’ imprisonment. On appeal, Reiser argues that the district court erred in (1) denying his motion to continue sentencing, (2) determining that he validly waived his right to counsel, (3) allowing the admission of expert testimony about the fiduciary duties of commodities brokers, and (4) applying certain sentencing enhancements. We reject Reiser’s arguments and affirm the judgment of the district court.

*900 I. Background

Reiser, a North Dakota farmer and licensed commodities broker, solicited investors for the Grenada corporation Preferred Trust and Management (PTM). In October 1999, Reiser purchased a lease company in PTM that enabled him to receive higher bonuses and commissions on the funds he solicited for PTM. PTM purported to operate a prime bank debenture trading program that provided investors the opportunity to participate with the world’s leading banks in purchasing high-yield bank instruments at substantial discounts and selling them at higher prices. Reiser concedes that such programs are fictitious and that the funds solicited for PTM were used, in part, to pay high commissions to promoters. Reiser solicited more than $2 million from over 200 investors on behalf of PTM, but the majority of investors received nothing in return. In a one-year period from approximately January 2000 to January 2001, Reiser received nearly $950,000 in bonuses from PTM. The record indicates that the total loss associated with the PTM scheme exceeded $14.5 million.

Reiser concedes that he promoted the “bank trading program as a legitimate investment” although “[h]e had information by which he could have reasonably concluded the program was fictitious and had no factual or legal basis.” In December 1999, Reiser downloaded a magazine article detailing the rise in prime bank schemes and stating that the Securities and Exchange Commission had warned that prime bank investments do not exist. He also downloaded a warning from the International Chamber of Commerce (ICC) concerning “inaccurate references to nonexistent ICC instruments,” including bank debentures.

In December 2000, Reiser solicited an undercover investigator from the North Dakota Securities Commission (NDSC) to invest in PTM. Reiser explained to the investigator that the investment posed no risk and could garner a return as high as 300 percent. In January 2001, the NDSC issued a cease and desist order prohibiting Reiser from engaging in any scheme to defraud investors by offering for sale any PTM investments. In October 2001, Reiser entered into a civil settlement with the NDSC, agreeing to pay $500,000 to the NDSC Investor Restitution Fund and the North Dakota Securities Protection Fund.

In September 2001, Reiser and a group of potential investors met with Neville Solomon, the head of Mid-China Capital Management (“Mid-China”). At this meeting, Solomon described a number of investment opportunities available through Mid-China, including a bank trading program and a rock quarry. Reiser promoted Mid-China to investors, receiving at least $150,000 in return for his services. For example, in November 2002, Reiser and Solomon promoted Mid-China’s bank trading program to Jeff Devine, assuring him that it was a safe investment. Devine ultimately invested $100,000 in the program. Reiser regularly emailed investors updates about the progress of Mid-China’s bank trading program. Reiser concedes that he generated investments in Mid-China totaling approximately $500,000 and that none of the individuals who invested in Mid-China as a result of his solicitations received any return on their investments.

Reiser failed to file tax returns for the years 2000 to 2005. In 2003, Reiser informed an Internal Revenue Service agent that he had denounced his United States citizenship and was not required to file federal income tax returns.

On June 8, 2005, Reiser was charged with ten counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; three counts of money laundering, in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2; six counts *901 of money laundering, in violation of 18 U.S.C. §§ 1957 and 2; two counts of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); and one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. Reiser brought a motion to proceed pro se, which the district court granted upon finding that Reiser had voluntarily, intelligently, and knowingly waived his right to counsel.

The jury convicted Reiser of all charged counts on March 16, 2007, and the district court appointed a federal public defender to represent Reiser at sentencing. The court calculated a base offense level of 7 and a criminal history category of I. But the court calculated Reiser’s total offense level as 39 based, in part, on its application of (1) an 18-level enhancement pursuant to U.S.S.G. § 2Bl.l(b)(l)(J) for causing loss in excess of $2.5 million; (2) a two-level enhancement pursuant to U.S.S.G. § 3B1.3 for using a special skill to facilitate the commission of the offense; and (3) a two-level enhancement pursuant to U.S.S.G. § 3Bl.l(c) for serving as an organizer, leader, manager, or supervisor in the criminal activity. The court calculated Reiser’s Guidelines range to be 262-327 months, but taking into account the 18 U.S.C. § 3553(a) factors, it sentenced Reiser to 144 months’ imprisonment, followed by three years of supervised release, and ordered him to pay more than $2 million in restitution.

II. Discussion

A. Denial of Continuance Motion

Reiser first argues that the district court abused its discretion in denying his October 23, 2007 motion to continue sentencing. The district court originally scheduled sentencing for May 29, 2007, but successively rescheduled sentencing for June 11, 2007, August 10, 2007, and August 31, 2007. Following its appointment of the federal public defender to represent Reiser, the court again rescheduled sentencing for October 19, 2007. The public defender filed his notice of appearance on August 14, 2007, and moved for a continuance on September 5, 2007. The court granted the motion and rescheduled sentencing for November 2, 2007.

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Bluebook (online)
578 F.3d 897, 2009 U.S. App. LEXIS 19303, 2009 WL 2615752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-keiser-ca8-2009.