United States v. Neil Russell Seymour

576 F.2d 1345
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 25, 1978
Docket77-1135
StatusPublished
Cited by16 cases

This text of 576 F.2d 1345 (United States v. Neil Russell Seymour) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Neil Russell Seymour, 576 F.2d 1345 (9th Cir. 1978).

Opinions

KILKENNY, Circuit Judge:

Appellant was indicted, tried, and convicted in a jury trial on thirteen counts of mail fraud, 18 U.S.C. § 1341 and seven counts of interstate travel fraud, 18 U.S.C. § 2314. Two counts of the twenty-two count indictment were dismissed at the commencement of the trial. Appellant was committed to the custody of The Attorney General of the United States, or his authorized representative, under 18 U.S.C. § 4082(a) for a term of five years under each count, the sentences to run concurrently. We affirm.

BACKGROUND

Appellant was the founder, president of, and active promoter of the business activities of Trans-World Leasing Corporation [Trans-World], an organization created in mid-September, 1972, for the express purpose of engaging in the business of equipment leasing. Its main office and center of activity was in San Francisco, where appellant resided. During the years 1972 and 1973, Trans-World, for a fixed price of $7,500.00 each, sold exclusive franchises in certain defined territories. The franchise [1346]*1346granted the purchaser the exclusive right to sell equipment leases in the territory. Under the franchises, the leases would be submitted to Trans-World which would, in turn, “fund” the lease, either from its own funds or by borrowing from an external financing source. The franchise required Trans-World to purchase the equipment and have it delivered to the lessee and, additionally, handle all financial and other details with reference to the lease. The profit from the lease, under the plan, over and above the purchase price, plus loan costs, was to be divided equally between the franchised dealer and Trans-World.

Appellant, as part of its overall plan to attract investors in Trans-World, caused advertisements to be placed in the business opportunity section of numerous newspapers throughout the United States. These advertisements were designed to persuade interested persons to purchase a leasing franchise for $7,500.00. The advertisements included representations that the money invested was, in fact, a security deposit and language which clearly meant that the deposits were guaranteed refundable. These advertisements were prepared by or were personally approved by appellant. Each advertisement directed the reader to call a toll free number at appellant’s Trans-World office in San Francisco.

Manifestly, the advertisements were effective. Among the many who responded to the advertisements were seven individuals from various states who invested in the scheme and later testified as government witnesses at the trial. Each of these persons upon calling the toll free number was subsequently called upon by a Trans-World salesman. The seven persons each invested $7,500.00 or more after two or more meetings with the salesman, thereby becoming Trans-World dealers. These persons testified that they were persuaded to part with their money by reason of the advertisements, the representations contained in the prospectus and dealer agreements and the numerous oral representations made by the salesmen. Included in the representations were the following: (1) that the investment would be secured by equipment, (2) that it would be used for leasing equipment, and (3) that it was guaranteed refundable. Each one of the investors testified that in making his decision to invest, he relied particularly on the provision and representation which guaranteed the refund.

The evidence is clear that appellant was personally responsible for the language used in the dealer agreement and prospectus. All Trans-World salesmen reported personally to appellant.

The record is undisputed that in all cases alleged in the indictment, the dealer agreements, the letters of acceptance, and the checks in payment of the franchise license, and other items of communication were transported through the United States mails. From time to time, each dealer traveled interstate in order to attend a two or three day seminar in San Francisco, in which meeting he or she was led to believe they were to be taught the leasing business and receive training to be effective dealers. Although the dealers met with varying amounts of success in securing potential lease transactions, they were uniformly unsuccessful in securing the approval of Trans-World or to finalize a lease. Consequently, each sought a refund from Trans-World. Numerous attempts were made by mail or telephone to personally contact the appellant, but these were unsuccessful. Appellant would either refuse to talk to the dealers or would advise the office secretaries to tell the dealers that he was not available. Occasionally, he instructed the secretaries to tell the dealers their refunds were being processed or were already in the mail, when in truth and in fact no such action had been taken. Additionally, he personally advised some of the dealers that their refunds were on the way. No refunds were made to any of the franchised dealers nor were they given any explanation as to why their investments were not returned.

Time after time during the period under scrutiny, appellant was advised that a Trans-World financial statement was absolutely necessary before outside funding for leasing purposes would be made available. Despite these frequent demands for finan[1347]*1347cial statements, appellant never prepared one. Manifestly, this refusal to submit financial statements effectively prohibited Trans-World from securing any outside financial assistance. Without this assistance, it was utterly impossible for Trans-World to carry on a successful leasing business. On at least one occasion, appellant was advised, in writing, that his failure to provide financial statements had cost Trans-World well in excess of $100,000.00 in lost business. Nonetheless, he made no effort whatsoever to compile such a statement.

During the 1972-73 period, appellant was also president of Chase Chemical Corporation, purportedly selling products known as Ice-O-Magic and Flame-O-Magic. Substantial funds of Trans-World, a greater part of which came from the sale of franchised dealerships were commingled by appellant with funds of Chase Chemical.

Insofar as can be ascertained, no part of the $67,500.00 invested by the seven persons who appeared as witnesses, was used for leasing, nor were the investments secured by equipment. The many requests for refunds were all ignored by the appellant. Additionally, the record exhibits a glaring lack of good faith intent to create a successful leasing business, including a lackadaisical training of Trans-World dealers. Likewise, it shows a failure to oversee proper establishment of a bookkeeping system, a failure to approve the majority of the dealer leases submitted to Trans-World and wholly inadequate provisions for dealer field assistance and promotional advertising. There is substantial evidence in the record supporting the above factual background.

ISSUES ON APPEAL

Appellant assigns three errors:

I. That the court’s instruction on good faith as a defense to the charges was wholly inadequate.

II. That the district court’s pretrial discovery order violated his Fifth Amendment self-incrimination right.

III. That the evidence was insufficient to sustain a verdict of guilty on any one of the counts.

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Bluebook (online)
576 F.2d 1345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-neil-russell-seymour-ca9-1978.