United States v. William Marr

760 F.3d 733, 94 Fed. R. Serv. 1462, 2014 WL 3720256, 2014 U.S. App. LEXIS 14610
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 29, 2014
Docket13-2204
StatusPublished
Cited by23 cases

This text of 760 F.3d 733 (United States v. William Marr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. William Marr, 760 F.3d 733, 94 Fed. R. Serv. 1462, 2014 WL 3720256, 2014 U.S. App. LEXIS 14610 (7th Cir. 2014).

Opinion

BAUER, Circuit Judge.

A jury found William P. Marr, also known as Bill Marr, Jr. (“Marr”), guilty of six counts of wire fraud. Marr appeals his conviction, arguing that he did not receive a fair trial because the government relied upon improper propensity evidence to convict him, and that three jury instructions incorrectly explained the law. He also contends that the district court lacked the authority to order restitution. For the reasons that follow, we affirm.

I. BACKGROUND

In July 2000, William C. Marr, the defendant’s father, founded Equipment Source USA, LLC (“Equipment Source”), which sold used forklifts. The defendant Marr managed forklift sales and daily operations for the family business. Man-advertised forklifts for sale online and sold them online or over the phone.

In April 2001, the defendant’s father opened a checking account for Equipment Source at Palos Bank and Trust 1 (“Palos Bank”) and named Marr as a signatory. In January 2002, the defendant’s father opened a second account at Palos Bank, a merchant account, which allowed Equipment Source to process credit card transactions. Marr was a signatory on the merchant account as well. Checks withdrawn from these accounts are at the heart of Marr’s propensity argument.

From 2001 to 2003, Marr used Equipment Source to sell forklifts that he never actually owned or possessed. Marr’s mo-dus operandi was to advertise forklifts for sale online, collect credit card payments from out-of-state customers, and then purport to deliver the product without ever doing so. When customers did not receive the forklifts they ordered, they would contact Marr. Typically, a customer w.ould complain that he received an invoice and a notice of shipment, and that Equipment Source charged his credit card, but that he never actually received the forklift he ordered. While Marr gave varying explanations to his unhappy customers, he rarely refunded their money or delivered the forklifts. Instead, his customers were forced to contact their credit card companies to dispute the charges. A customer’s credit card company would then send notice of the dispute to Palos Bank, where the customer’s payment was sent. Next, Palos Bank would notify Equipment Source that a customer disputed a charge and would request a response. Sandra Lecik handled all of the credit card disputes at Palos Bank, and she dealt exclusively with Marr when there were issues raised by Equipment Source customers. If Marr did not respond or the inquiry was resolved in the customer’s favor, Palos Bank refunded the amount of the original charge back to the customer’s credit card account by debiting Equipment Source’s merchant account. When this occurred, it was called a “chargeback.”

In 2002, Thomas Hullinger, Senior Vice President at Palos Bank, noticed a high incidence of chargebacks on Equipment Source’s merchant account. Hullinger estimated that forty percent of Equipment Source’s credit card transactions in 2002 *738 resulted in chargebacks. The other 300-350 merchant accounts at Palos Bank had chargeback rates of less than two percent the same year.

In June 2002, Mr. Hullinger met with Marr to discuss the excessive chargebacks on the Equipment Source merchant account. The two men discussed Palos Bank’s requirement that Equipment Source ship its products prior to charging its customers’ credit cards. Marr said he would comply with Palos Bank’s requirement, but the high rate of chargebacks continued. From July through October 2002, the chargebacks on Equipment Source’s merchant account totaled almost $200,000. At the end of October, Mr. Hul-linger called a second meeting, this time with both Marr and his father. He informed them that they must maintain a reserve of over $90,000 in their merchant account to cover any overdrafts and must provide proof of delivery before Palos Bank would release funds from the credit card sales into their account.

Equipment Source failed to maintain the required reserve, so Palos Bank froze the company’s accounts a few days after the second meeting. Nevertheless, charge-backs from customers continued to be debited from the merchant account.

In November, twenty-eight chargebacks occurred, totaling $153,930. Palos Bank applied the approximately $40,000 remaining in the merchant account to the balance. In December, another twenty-eight chargebacks occurred, totaling $172,697; Palos Bank applied the approximately $13,000 remaining in Equipment Source’s checking account to the negative balance. The final balance of Equipment Source’s checking account was zero and the final negative balance of Equipment Source’s merchant account was $328,881.89 — a loss that Palos Bank paid to Equipment Source customers. Palos Bank mailed Marr a letter requesting payment for the loss, but no payment was remitted.

Although the record does not fully describe how, the government was informed of the suspicious activity at Equipment Source. In January 2003, the FBI executed a search warrant at Equipment Source’s offices and seized documents and office equipment. Equipment Source ceased doing business shortly thereafter.

Eight years later, the government filed an information charging Marr with six counts of wire fraud related to his fraudulent forklift sales.

A. The Trial Proceedings

At trial, the government presented testimony from fourteen Equipment Source customers who paid for forklifts but never received them. One of the defrauded customers testified that he went to Equipment Source’s office to get his money back and met with Marr. Marr told him that he would refund the money, but needed to talk to his lawyer first. Marr never sent a refund. The customer identified Marr in the courtroom as the person he talked with during the visit. The government then called Ms. Lecik and Mr. Hullinger, the two employees from Palos Bank, who explained the chargebacks on the merchant account and identified Marr as having a significant role in the management of Equipment Source’s bank accounts. As its final witness, the government called its financial expert witness, Bruce Killian, who analyzed the Equipment Source merchant account and confirmed the $328,881.89 loss to Palos Bank. The government introduced no evidence that Marr wrote checks from the Equipment Source accounts to “cash” or to the “Four Seasons Currency Exchange.”

Marr then presented his case and called Lee Williams, a former IRS agent, to testify as an expert witness. He stated that he *739 had reviewed Equipment Source’s financial records and calculated that Marr and his wife had loaned Equipment Source over $1.1 million, but had been reimbursed less than $900,000. Williams explained that the personal funds in the company accounts mainly came from Marr and his wife’s home equity line of credit account and their personal money market account. Williams concluded that Marr deposited over $200,000 more into the Equipment Source accounts than he withdrew. Williams also described checks written from the Equipment Source account to cash or a currency exchange in October 2002. For example, Williams said one check was written to “cash” in the amount of $266 for “office supplies,” another was written to a “currency exchange” for “license and permits,” and another was written to “cash” in the amount of $2,450, this time for “cost of goods sold.”

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Cite This Page — Counsel Stack

Bluebook (online)
760 F.3d 733, 94 Fed. R. Serv. 1462, 2014 WL 3720256, 2014 U.S. App. LEXIS 14610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-marr-ca7-2014.