United States v. Nelson

988 F.2d 798, 1993 WL 51175
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 2, 1993
DocketNos. 92-1793, 92-1794, 92-1945 and 92-2735
StatusPublished
Cited by44 cases

This text of 988 F.2d 798 (United States v. Nelson) 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. Nelson, 988 F.2d 798, 1993 WL 51175 (8th Cir. 1993).

Opinion

JOHN R. GIBSON, Circuit Judge.

These appeals are from convictions arising from the switching of labels on valuable IBM computer parts called thermoeon-ductor modules or TCMs. Robert August Nelson, Jeffrey Jon Heinen, David Daniel Heinen, and Data Hardware, Inc. appeal from convictions for conspiracy to defraud in violation of 18 U.S.C. § 371 (1988), aiding and abetting mail fraud in violation of 18 U.S.C.A. § 1341 (West Supp.1992) and 18 U.S.C. § 2 (1988), and aiding and abetting the interstate transportation of property taken by fraud in violation of 18 U.S.C. § 2314 (1988) and 18 U.S.C. § 2. For reversal, they argue that there was insufficient evidence to support their convictions, and that the district court made several evidentiary errors, erred in denying severance, and should have granted a mistrial based on remarks the government made in its closing argument. They also claim that their sentencing was unlawful because the district court failed to: correctly calculate the alleged losses involved; recognize a payment made before indictment; acknowledge acceptance of responsibility; and consider the relative roles in the offense or consider the propriety of a combined sentence. David Heinen also appeals from the district court’s modification of sentence, changing a $250,000 fine payable as a condition of supervised release to payable immediately. We affirm the convictions and sentences, but conclude that the district court erred in modifying the payment terms of Heinen’s fine.

A TCM is a six-inch black box that is the heart or brain of IBM’s large mainframe computers. Although TCMs look alike from the outside, their capabilities (and accordingly, their price) vary depending on their microchip circuitry. Each TCM bears an aluminized label stamped with a ten-digit alphanumeric serial number, a seven-digit part number, and a four letter code. The serial numbers are unique and allow IBM to track individual TCMs.

IBM sells new TCMs for $50,000 to $140,-000. In an effort to stand behind its products, IBM allows its customers to exchange failing TCMs for replacement TCMs on a “like-for-like” basis, that is, the same part number for the same part number. Under this program, a customer could return a failing TCM and receive a new one for $17,000. This program was a way for IBM customers to obtain replacement TCMs, not a way to obtain new TCMs. When a customer brought in a failing TCM for replacement, IBM required the customer to sign an exchange contract identifying the TCM by serial number and certifying that the purpose of the exchange was “to meet an immediate maintenance need.”

The transactions giving rise to this case are essentially undisputed. Data Hard[802]*802ware’s business consisted of storing, servicing, and refurbishing computers and computer-related equipment, primarily IBM’s large mainframe computer systems. From July 15, 1988, through December 14, 1988, Data Hardware took advantage of IBM’s exchange program by taking labels from its newer, more expensive TCMs, placing the labels on its older,- lower-value TCMs, and exchanging the “switched label” TCMs for new TCMs. Under this procedure, Data Hardware received new TCMs for $17,000, instead of paying the usual $50,000 to $140,000 sales price. Data Hardware made seventeen “switched label” exchanges and obtained $2,035,000 worth of TCMs.

Data Hardware, David Heinen, its president and sole shareholder, Robert Nelson, its vice president, and Jeffrey Heinen, a computer technician who worked for Data Hardware, were convicted on seventeen counts of aiding and abetting mail fraud, ten counts of aiding and abetting the interstate transportation of goods taken by fraud, and one count of conspiracy to defraud. This appeal followed.

I.

Data Hardware1 first argues that there was insufficient evidence to sustain the convictions because the government failed to prove: (1) criminal intent; (2) that the exchanges deprived IBM of anything of value; (3) that Data Hardware intended to use the mails as part of the alleged fraud; and (4) that the property was obtained by the alleged fraud.

In determining whether the evidence is sufficient to support the convictions, we evaluate the evidence in its entirety and in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). In reviewing guilty verdicts, we give the government the benefit of all reasonable inferences from the evidence. United States v. Long, 952 F.2d 1520, 1524-25 (8th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 298, 121 L.Ed.2d 222 (1992).

Data Hardware argues that the government failed to prove criminal intent. Data Hardware admits that it switched labels from old TCMs to obtain new TCMs for $17,000, but says that it made the exchanges to quickly obtain urgently needed parts. Data Hardware points out that IBM was the only manufacturer of TCMS, and that it experienced long delays in obtaining TCMs from IBM’s marketing department. Data Hardware relies on the IBM exchange agreement which provided that the $17,000 exchange price was provisional pending inspection of the TCM and final billing, and says that it always intended to pay the full price for what it received.

There was ample evidence from which the jury could find criminal intent. Two former employees testified about conversations in which they heard Nelson talk about doing some “magic at IBM.” One former employee overheard Nelson ' talk about “pulling the wool over IBM’s eyes.” There was also testimony that Jeffrey Heinen talked about doing “some magic at IBM.” Data Hardware’s “justification defense” is also refuted by evidence that there were other sources of TCMs. Testimony established that used TCMs were available on the open market, and TCMs could be taken from systems bought or leased. In addition, there was evidence that when Data Hardware made its last exchange on December 15, Data Hardware had four of the same type TCMs in its inventory, as well as 30 high-value TCMs. Evidence that Data Hardware sold one of the “switched label” TCMs to another company for that company’s upgrade work contradicts Data Hardware’s claim that it obtained TCMs to avoid penalty clauses in its dealings with upgrade customers.

The jury could have inferred criminal intent from the timing of the transactions. Data Hardware made its first exchange on July 15, 1988. Data Hardware then made [803]*803a legitimate exchange on July 25. On August 17, IBM sent out the $17,000 invoice for the July 15 exchange, and following receipt of that invoice, Data Hardware made sixteen more "switched label" exchanges.

There was evidence from which the jury could infer that Data Hardware did not intend to pay the full sales price for the TCMs. Until Data Hardware was caught, Data Hardware made no effort to repay the difference between the full sales price and the $17,000 exchange contract price. There was testimony that IBM lab personnel and field engineers trusted labels, and an IBM engineer testified that Data Hardware's scheme would have worked except for a Data Hardware employee informing the FBI and IBM of the plan.

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Cite This Page — Counsel Stack

Bluebook (online)
988 F.2d 798, 1993 WL 51175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-nelson-ca8-1993.