United States v. Anderskow ( 1996 )

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
7-9-1996
United States v. Anderskow
Precedential or Non-Precedential:
Docket 95-5093,95-5094
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 95-5093
______________
UNITED STATES OF AMERICA
v.
RALPH A. ANDERSKOW,
Appellant
______________
No. 95-5094
______________
UNITED STATES OF AMERICA
v.
DONALD ANCHORS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Nos. 93-cr-00300-02 &
93-cr-00300-03)
_______________
Argued January 25, 1996
Before: COWEN and SAROKIN, Circuit Judges, and
POLLAK, District Judge
(Filed July 9, l996)
_______________
Richard F. X. Regan, Esq. (ARGUED)
Hayden, Perle and Silber
1500 Harbor Boulevard
Weehawken, New Jersey 07087
COUNSEL FOR APPELLANT ANDERSKOW
Michael M. Mustokoff, Esq. (ARGUED)
Teresa N, Cavenagh, Esq.
Judith E. Baylinson, Esq.
Duane, Morris & Heckscher
One Liberty Place
Philadelphia, PA 19103
COUNSEL FOR APPELLANT ANCHORS
Allan Tananbaum (ARGUED)
Faith Hochberg
United States Attorney
970 Broad Street
Newark, New Jersey 07102
COUNSEL FOR APPELLEE
_______________
OPINION OF THE COURT
_______________
COWEN, Circuit Judge.
Ralph Anderskow and Donald Anchors appeal from judgments
of conviction and sentence entered by the District Court for the
District of New Jersey. The convictions arise out of their
participation, along with several other coconspirators, in the
Euro-American Money Fund Trust (the "Trust"), an entity that was
used to perpetrate a pernicious advance-fee scheme. Over a three-
year period, the Trust bilked unsuspecting loan applicants and
investors out of over eighteen million dollars. Both defendants
raise evidentiary and legal sufficiency challenges. We will affirm
the judgments of conviction.
I.
John Voigt was the mastermind of a scheme to obtain fees
from loan applicants and potential investors for nonexistent loans
and investments. At the heart of this scheme was the Trust. Voigt
fabricated a fictitious genealogy for the Trust, claiming that it
was a long-established European financial institution affiliated
with the Catholic Church and the Knights of Malta, and that it had
access to billions of dollars. For two and one-half years brokers
for the Trust would recount this false genealogy to unsuspecting
loan applicants and investors, who would part with substantial fees
in return for "self-liquidating" loans (loans that repaid
themselves) and "Master Collateral Commitments" ("MCCs"), allegedly
a special form of commercial paper available only to banks.
Voigt benefitted from the cooperation of several
coconspirators, including Anderskow, a partner at a Chicago law
firm who also was a certified public accountant. He was hired as
the Trust's lawyer in the Chicago area, and his credentials helped
provide the Trust with an appearance of legitimacy, which
facilitated its attempts to lure loan applicants and potential
investors. Anderskow's primary responsibility was providing
guarantees to borrowers on behalf of the Trust and maintaining a
client escrow account into which advance fees were deposited.
Anderskow would immediately distribute fees that had been deposited
into his escrow account according to Voigt's instructions, which
violated the terms of contracts entered into with the loan
applicants and investors. For his role in the Trust Anderskow
received $995,000 in compensation.
In January of 1991 appellant Anchors was hired for the
position of "loan oversight officer." Somewhat akin to a customer
relations manager, Anchors was primarily responsible for responding
to questions and complaints from customers of the Trust. Over
time, Anchors devoted much of his time to placating loan applicants
who had paid advance fees and were calling with increasing
frequency to inquire as to the status of their loans. Anchors
eventually responded to several hundred calls each month, assuring
disgruntled borrowers that their loans were about to be funded.
Eventually, Anchors began to tell some applicants that other loans
had been funded, which he knew was untrue. Anchors received
$325,000 for his participation in the Trust.
In June of 1993, a federal grand jury issued a twenty-
six-count indictment against Anderskow, Anchors, and their three
coconspirators--Voigt, Mercedes Travis, and Solis Alevy. Alevy
entered a plea of guilty and became a government witness.
Subsequently, the grand jury issued a twenty-eight-count
superseding indictment against the remaining four defendants,
charging Anderskow and Anchors with conspiracy to commit wire
fraud, wire fraud, and money laundering, and bringing criminal
money laundering forfeiture allegations against them.
After a three-month trial, a jury convicted Anderskow on
all charges except two counts of wire fraud. Anchors was convicted
of conspiracy and seven counts of wire fraud, but was acquitted of
seven other counts of wire fraud and two counts of money
laundering. Anderskow and Anchors were sentenced, respectively,
to terms of imprisonment of seventy-eight and thirty-two months.
This appeal followed.
II.
The district court had original jurisdiction over these
criminal actions pursuant to 18 U.S.C. 3231. We exercise
appellate jurisdiction to review final judgments of conviction
under 28 U.S.C. 1291.
III.
Both Anderskow and Anchors contest the district court's
decision to allow coconspirator Alevy, who pled guilty prior to
trial and testified for the government, to give lay opinion
testimony under Rule 701 of the Federal Rules of Evidence. Alevy's
testimony tended to show that Anderskow and Anchors had knowledge
of the Trust's fraudulent scheme. Contending that Alevy's
allegedly improper testimony provided the government with its only
evidence concerning their knowledge that the Trust was a fraud,
both defendants claim that this alleged error was so prejudicial as
to warrant a new trial. We disagree.
A. Anderskow
1.
During its case in chief, the government called Alevy to
testify about the workings of the Trust and its various components.
Specifically, Alevy was asked to explain why in late 1991 he had
drafted letters containing false information for Anderskow to sign
and send to a victim of the Trust who had paid a substantial
advance fee for an MCC, and was becoming angry at not having
received it. Anderskow assigns error to the following exchanges
between the government and Alevy:
Q. How is it that you, on the one hand, passed false
information to Mr. Anderskow but did not intend to
deceive him?
A. Mr. Anderskow was a daily participant in the same
fraud that I was. I can't get into his mind, I
have no way of knowing what he knew inside his
mind, but it was obvious to me and told to me by
Mr. Voigt that [Anderskow] will do anything we ask
him to.
. . .
Q. When you passed on that false information to Mr.
Anderskow, did you do it to deceive him?
A. No, sir.
Q. Why then did you pass on information if it wasn't
true?
A. It was part of the job I was doing, and he was
doing the part of the job that he was doing, and
some information was necessary for his part.
. . .
Q. Did you ever directly or specifically discuss this
fraud with Mr. Anderskow?
A. No, sir.
Q. Why not?
A. There was no reason to. We were both doing the
same thing for the same ends every day.
App. at 1786, 1799.
2.
Anderskow's complaint is twofold. First, he claims that
Alevy lacked sufficient personal knowledge to form an opinion as to
whether Anderskow knew the Trust was a fraud and, therefore, that
Alevy's testimony failed to meet Rule 701(a)'s "rational basis"
requirement as a matter of law. Second, Anderskow appears to argue
that even if Alevy's opinion was rationally based on his
perceptions, to the extent it suggested that Anderskow had guilty
knowledge it was tantamount to an opinion on the ultimate issue of
Anderskow's guilt. Alevy's opinion testimony, according to
Anderskow, failed to meet Rule 701(b)'s "helpfulness" requirement
as a matter of law.
We normally review alleged evidentiary errors for abuse
of discretion. Government of Virgin Islands v. Knight, 989 F.2d
619, 629 (3d Cir.), cert. denied, 114 S. Ct. 556 (1993); Eisenberg
v. Gagnon, 766 F.2d 770, 780 (3d Cir.), cert. denied, 474 U.S. 946,
106 S. Ct. 346 (1985). Anderskow, however, failed to object
contemporaneously to any of the testimony about which he now
complains. As a result, we review his contention for "'plain
error,' that is, 'egregious error or a manifest miscarriage of
justice.'" United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996)
(quoting United States v. Thame, 846 F.2d 200, 204 (3d Cir.), cert.
denied, 488 U.S. 928, 109 S. Ct. 314 (1988)). See Fed. R. Crim. P.52(b).
We find no plain error because none of the disputed
testimony actually contains a "lay opinion" by Alevy as to
Anderskow's knowledge. Although it is readily apparent that in
questioning why Anderskow would know that the information in the
letters was false the government was attempting to elicit an
opinion from Alevy, he never explicitly opined on direct
examination that Anderskow possessed guilty knowledge. Instead,
Alevy provided several reasons to support the unstated conclusion
that Anderskow had guilty knowledge. For instance, Alevy testified
that he did not believe that Anderskow would be deceived since
Anderskow and Alevy were part of the same organization working
toward a common goal, and because Voigt had told him that Anderskow
would do anything they asked. This simply furnished the basis for
an inference, based on circumstantial evidence, that Anderskow had
guilty knowledge which the government was free to suggest during
its closing argument and which the jury was free to accept or
reject. Accordingly, since Alevy's testimony did not implicate
Rule 701, there clearly was no plain error in its admission.
B. Anchors
Anchors advances a similar claim with respect to Alevy's
testimony. Because Anchors preserved this claim for appellate
review by raising a contemporaneous objection, we review the
admission of Alevy's opinion testimony under Rule 701 for abuse of
discretion. Knight, 989 F.2d at 629; Eisenberg, 766 F.2d at 780.
1.
During its case in chief, the government questioned Alevy
about certain documents he had sent to Anchors to be passed along
to borrowers who had paid advance fees and were becoming angry at
not having seen any results. Anchors assigns error to the
following exchanges between the government and Alevy:
Q. Now, when you were providing this information
concerning schedules and projects to Mr. Anchors,
did you intend to deceive him by that information?
A. No, sir.
Q. How so?
A. I was doing my job, he was doing his job.
Q. Did you believe that Donald Anchors would be
deceived by the information that you were sending
him?
. . .
A. Personally, I did not believe that.
Q. Why not?
A. Donald Anchors had probably 20 or 30 borrowers,
maybe more for all I know, who had been promised
millions of dollars for a long time, some as long
as a year. He had never seen one dime funded or
loaned, and he kept on with the business at hand.
I had no reason to believe that he wasn't fully
aware of what was occurring, as long as he was
getting paid.
Q. Did you ever specifically discuss fraud, the fraud
in which you believed you were involved with Donald
Anchors?
A. No, sir.
Q. Why not?
A. There was no reason to discuss this, we were doing
it.
App. at 503-04.
2.
Anchors first complains that he had insufficient contact
with Alevy for his opinion to be "rationally based" on his
perceptions. We disagree. We have held that lay opinion testimony
can be based upon a witness' "knowledge and participation in the
day-to-day affairs of his business," Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1175 (3d Cir. 1993), and upon a witness' review
of written documents. United States v. Leo, 941 F.2d 181, 193 (3d
Cir. 1991); Teen-Ed, Inc. v. Kimball Int'l, Inc., 620 F.2d 399,
403-04 (3d Cir. 1980). Alevy's testimony revealed that he had
contact with Anchors by telephone and via facsimile on a weekly
basis in the fall of 1991. Most of this correspondence concerned
loan schedules that had been promised to borrowers. In explaining
the workings of the Trust and the roles of its various members,
Alevy testified that he would provide schedules containing false
information to Anchors so that he could pass them along to the
borrowers. We think that in light of the weekly correspondence by
telephone and facsimile between Alevy and Anchors, Alevy had
sufficient first-hand knowledge such that his opinion was
"rationally based" on his perceptions. Lightning Lube, Inc., 4
F.3d at 1175; Leo, 941 F.2d at 193; Teen-Ed, Inc., 620 F.2d at 403-
04.
Although we conclude that Alevy's testimony was
"rationally based" on his perception of Anchors, we conclude that
Alevy's subjective belief that Anchors "must have known" fails to
meet Rule 701(b)'s "helpfulness" requirement. Anchors' principal
contention is that the reasons supporting Alevy's opinion as to why
Anchors would not be deceived were already before the jury. Since
it was for the jury to determine whether he "must have known" that
the Trust was engaged in a large-scale fraud, Alevy's opinion on
the subject, according to Anchors, essentially turned him into a
thirteenth juror. We agree.
In United States v. Rea, 958 F.2d 1206 (2d Cir. 1992),
the Court of Appeals for the Second Circuit held that where the
jury has before it the same circumstantial evidence of a
defendant's criminal knowledge on which a witness bases an opinion
concerning a defendant's knowledge, testimony from a witness
concluding that the defendant "had to know" usually will not meet
Rule 701(b)'s helpfulness requirement:
[W]hen a witness has fully described what a
defendant was in a position to observe, what
the defendant was told, and what the defendant
said or did, the witness's opinion as to the
defendant's knowledge will often not be
"helpful" within the meaning of Rule 701
because the jury will be in as good a position
as the witness to draw the inference as to
whether or not the defendant knew.
Id. at 1216 (internal citations omitted). The Rea court found that
testimony by a witness that the defendant "had to know" failed to
meet Rule 701's helpfulness requirement, but went on to conclude
that the error was harmless.
In this case, Alevy testified about the number of
complaints Anchors was receiving from customers; Anchors' response
to those complaints; and the sheer passage of time during which
Anchors saw no loans funded. That Alevy "had no reason to believe
that [Anchors] wasn't fully aware of what was occurring, as long as
he was getting paid," App. at 504, simply was not helpful to the
jury's determination of Anchors' criminal knowledge. The
government suggests that because a coconspirator's subjective
belief that a defendant "must have known" simply provides
additional circumstantial evidence as to the defendant's objective
mental state, it is helpful to the jury. We are not persuaded. We
do not understand how a witness' subjective belief that a defendant
"must have known" is helpful to a factfinder that has before it the
very circumstantial evidence upon which the subjective opinion is
based. Furthermore, during its closing argument the government is
free to ask the jury to draw the inference suggested by the
circumstantial evidence: that the defendant must have known.
Accordingly, our holding does nothing to hamper the government's
ability to establish a defendant's criminal knowledge, even where
members of a conspiracy never openly discuss their criminal
activity.
Although we conclude that Alevy's opinion testimony fails
to meet Rule 701(b)'s helpfulness requirement, its admission was
harmless error. As our opinion will demonstrate, see infra IV.B.,
the circumstantial evidence of Anchors' knowledge was overwhelming.
Furthermore, the government did not rely on Alevy's testimony in
its summation, stressing instead the mountain of circumstantial
evidence supporting the inference that Anchors "must have known."
Accordingly, there is no possibility that Alevy's opinion testimony
to the same effect contributed to the verdict.
IV.
At trial the government had no direct proof of a tacit
agreement among Voigt, Alevy, Anderskow and Anchors to engage in an
advance-fee scheme. Accordingly, both defendants filed posttrial
motions for judgments of acquittal contending that the government
had failed to adduce sufficient evidence that they were knowing
participants in a scheme to defraud potential borrowers and/or
investors. They appeal the district court's denial of those
motions.
Our review of the sufficiency of the evidence is
"governed by strict principles of deference to a jury's findings,"
United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.), cert.
denied, 469 U.S. 858, 105 S. Ct. 189 (1984), such that we draw all
reasonable inferences in favor of the jury verdict. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct 2781, 2789 (1979). We will
overturn a verdict only "if no reasonable juror could accept
evidence as sufficient to support the conclusion of the defendant's
guilt beyond a reasonable doubt." United States v. Coleman, 811
F.2d 804, 807 (3d Cir. 1987) (quoting United States v. Campbell,
702 F.2d 262, 264 (D.C. Cir. 1983)). Consequently, a "claim of
insufficiency places a very heavy burden on an appellant." United
States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (quoting
United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied,
457 U.S. 1125, 102 S. Ct. 2945 (1982)), cert. denied, 499 U.S. 982,
111 S. Ct. 1637 (1991).
A. Anderskow
Anderskow was convicted on ten counts of money laundering
arising out of various transfers of funds from his attorney escrow
account to Trust members, pursuant to Voigt's instructions, between
July and October of 1991. He also was convicted on numerous counts
of wire fraud relating to his actions during the same period.
Anderskow claims that the evidence is legally insufficient to
sustain those convictions because the government failed to prove
that he knew the funds being transferred represented the proceeds
of unlawful activity, 18 U.S.C. 1956(a)(1), or that the transfers
were intended to promote "the carrying on of specified unlawful
activity." Id. 1956(a)(1)(A)(i). He likewise contends that the
evidence is insufficient to demonstrate that he was a knowing and
willful participant in a scheme to defraud. Id. 1343. Simply
stated, Anderskow argues that the government failed to prove that
he was a member of the conspiracy. We disagree.
The crucial period with respect to Anderskow's legal
sufficiency challenges is July of 1991, the start of his money
laundering activity. Anderskow's position on appeal is that he
joined the Trust believing it to be a bona fide provider of funding
services and that Voigt was a "legitimate, honest international
financier." Anderskow's Br. at 32. He also points to Alevy's
testimony that they never openly discussed the fraudulent nature of
the Trust and the "steady stream of false and deceptive
information" Alevy provided him to be passed on to the Trust's
customers. Id. at 34. Anderskow argues that absent Alevy's
improper opinion testimony as to his knowledge, the government
produced insufficient evidence that he was a knowing and willful
participant in an illegal venture between July and September of
1991.
In rejecting Anderskow's argument, we begin our analysis
by observing that at trial Anderskow asserted a good-faith defense
to the fraud charges. The government, therefore, sought and
obtained from the district court a "willful blindness" instruction.
The district court charged the jury that "[t]he element of
knowledge may be satisfied by inferences drawn from proof that a
defendant may have deliberately closed his or her eyes to what
otherwise had been obvious to him or her." App. at 4287-88. We
think that even if Anderskow were correct that the government
failed to establish that he was aware of the Trust's fraudulent
nature when he first joined in March of 1990, viewed in the light
most favorable to the government, Jackson v. Virginia, 443 U.S. at
319, 99 S. Ct. at 2789, the evidence more than adequately supports
the jury's finding that he knew of the Trust's illegal activities
by July of 1990 and, instead of withdrawing, continued as a willing
participant in return for substantial remuneration.
As the government points out, the Trust Anderskow joined
in March of 1990 had a "strong aura of unreality." Government's
Br. at 77. It purported to sell "self-liquidating" loans; i.e.,
loans that did not have to be repaid. It also claimed to be a
long-established European financial institution affiliated with the
Catholic Church and the Knights of Malta, and that it had access to
billions of dollars. Furthermore, loan applicants were required to
sign bizarre confidentiality agreements that purported to bar
customers from disclosing information about the Trust in this life
and the hereafter. Loan applicants also were required to fill out
peculiar personal questionnaires that asked if they could hold
their breath under water or were flat footed, and they were asked
to provide hair samples and blood tests. Given Anderskow's status
as a partner in a Chicago law firm and a certified public
accountant, and in light of his initial questioning of Trust
brokers as to whether the money was "clean," a rational jury was
entitled to find that Anderskow was suspicious from the outset.
Furthermore, a rational jury could have accepted the government's
argument that Anderskow's credentials provided the Trust with an
appearance of legitimacy.
More significant, however, is that during 1990 no less
than seventeen advance fees, which totaled $1.5 million, were
deposited into Anderskow's escrow account. Despite the fact that
not one loan was funded during that time, Anderskow immediately
would parcel out the money to the various coconspirators. By July
of 1991, moreover, seventeen additional borrowers and investors had
paid Anderskow advance fees totaling $6.5 million dollars, which
Anderskow disbursed to his confederates. Anderskow himself
testified that during 1991 he received approximately twelve
complaints per day from anxious loan applicants and investors
inquiring about their money. Although he knew that not one loan or
MCC had been funded, Anderskow continued to provide a plethora of
false excuses intended to lull customers into believing that their
money was forthcoming.
Even more damning was Anderskow's admission under cross-
examination that by dividing up advance fees among the
coconspirators, instead of retaining them in his escrow account, he
knew in June of 1991 that he was violating his contractual and
ethical duty to hold customers' funds until they had received their
loans. The evidence showed that Anderskow also lied to one
borrower in the latter part of 1991, claiming that the Trust had
funded loans in the past when, in fact, Anderskow knew that no such
funding had occurred. Finally, the evidence of Anderskow's
financial motive and willingness to cooperate is not seriously
debatable. In 1990 Anderskow earned $100,000 from the Trust, and
in 1991 he received $437,000, which was more than ten times greater
than his 1989 income. Anderskow mechanically complied with Voigt's
directions as to how to disburse the advance fees in his escrow
account among the various coconspirators.
The government presented an overwhelming circumstantial
case that by July of 1991 Anderskow had willfully blinded himself
to the Trust's fraudulent activities. We have held that there must
be evidence establishing a "'unity of purpose,' the intent to
achieve a common goal, and an agreement to work together toward
that goal." United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir.
1988). See United States v. McGlory, 968 F.2d 309, 321 (3d Cir.
1992), cert. denied, 507 U.S. 962, 113 S. Ct. 1388 (1993). We have
further held that "all of the elements of the government's case,
including the existence of the agreement, may be proven entirely
through circumstantial evidence." United States v. Schramm, 75
F.3d 156, 159 (3d Cir. 1996) (citing United States v. Kapp, 781
F.2d 1008, 1010 (3d Cir.), cert. denied, 475 U.S. 1024, 106 S. Ct.
1220 (1986)). Given Anderskow's lulling of disgruntled customers,
his admitted knowledge that disbursing advance fees among the
coconspirators violated both the Trust's contractual obligations
and his ethical duties, and his financial motive, a rational jury
could have concluded beyond a reasonable doubt that Anderskow was
a knowing and willing participant in a scheme to defraud by July of
1991.
B. Anchors
Anchors likewise contends that there is insufficient
evidence of his knowing and willful participation in a scheme to
defraud loan applicants. The jury acquitted Anchors of counts
three through six, but found him guilty of counts seven through ten
and twelve through fourteen. Accordingly, the jury found that
Anchors had the requisite knowledge as of October 31, 1991, the
date on which he faxed a letter on behalf of Anderskow. Again,
while the government's evidence of Anchors' knowledge was entirely
circumstantial, we think it provides overwhelming proof that
Anchors had willfully blinded himself to the fact that he was
participating in a fraudulent scheme.
Anchors joined the Trust as a "loan officer" in January
of 1991, with thirty years of experience in business, the last
seven of which were as a loan officer. From the moment he joined
the Trust, Anchors was aware that there were loan applicants who
had paid advance fees but had not received their loans. According
to his own testimony, Anchors fielded "between 70 and 80" calls in
January of 1991 alone from concerned customers. App. at 1203. By
February, merely one month into his employment, Anchors informed
Voigt that he was using "every excuse in the world," id. at 1205,
and he raised the possibility of liabilities flowing from the
Trust's failure to fund the loans. All the while, Anchors
continued to provide excuses to angry customers, knowing that not
a single loan had been funded. Anchors testified that by May of
1991 he was fielding approximately 250 calls per week.
Despite the fact that not one loan was funded, Anchors
continued to assuage disgruntled applicants with excuse after
excuse, responding to twenty calls per day from mid-July on.
Furthermore, notwithstanding his attempts to downplay his
significance to the Trust, Anchors clearly understood the
importance of his role. For instance, he wrote Voigt that
"sometimes I amaze myself with [the customers'] resultant
patience," and that "I feel as though I am the [T]rust to those
borrowers under my care." Id. at 181. More significantly, by
September and October of 1991, Anchors had affirmatively lied to
one customer, falsely telling him that eight other loans had been
funded, which provided strong circumstantial evidence of knowledge
and intent. At the same time, however, Anchors wrote to Alevy
about the rising tide of customer complaints and asked for
additional "creative" excuses that he could put in writing.
Finally, Anchors' financial motive was beyond dispute. Although he
earned $25,000 in the year prior to joining the Trust, he received
$200,000 during 1991, his first year with the Trust.
We think that when viewed in the light most favorable to
the government, Jackson v. Virginia, 443 U.S. at 319, 99 S. Ct at
2789, the circumstantial evidence of Anchors' knowledge and willful
participation was overwhelming. Pointing to Alevy's testimony that
they never discussed the fraud in which they were engaged, Anchors'
principal contention is that, absent Alevy's allegedly improper
opinion testimony, the government failed to adduce any direct
evidence of his knowledge of the conspiracy's illicit purpose. As
we noted earlier, however, "all of the elements of the government's
case," including knowledge of the conspiracy's illicit purpose,
"may be proven entirely through circumstantial evidence." Schramm,
75 F.3d at 156 (citing Kapp, 781 F.2d at 1010). If Anchors'
argument were taken at face value, the government could never prove
the existence of a conspiracy where, as here, the coconspirators do
not discuss the fraudulent nature of their actions. United States
v. Klein, 515 F.2d 751, 754 (3d Cir. 1975) ("Circumstantial
evidence is clearly proper . . . especially in a conspiracy case
where direct evidence is likely to be scant.") (footnote omitted).
We refuse to so hold. Ten months passed during which no loan was
ever funded. Given the mounting complaints and Anchors' willingness
to provide both creative and false excuses for the Trust's
nonperformance, which was motivated by the opportunity for
substantial financial remuneration, the jury had ample evidence
with which to conclude that, at a minimum, Anchors had willfully
blinded himself to the fact that the Trust was a fraud and that his
actions were aiding its fraudulent purpose. See United States v.
Ruuska, 883 F.2d 262, 264 (3d Cir. 1989) (lulling defrauded victims
with false excuses is circumstantial evidence of mens rea); United
States v. Shoup, 608 F.2d 950, 958 (3d Cir. 1979) (anticipated
remuneration circumstantial evidence of coconspirator's mens rea).
United States v. Klein, 515 F.2d at 751, cited by
Anchors, is not to the contrary. In Klein we set aside a
defendant's convictions for mail fraud and conspiracy to commit
mail fraud, which arose out of a scheme by owners of a "debt-
ridden" hotel to set their hotel afire and then collect the
proceeds of several fire insurance policies. Id. at 752. Klein
was hired to destroy the hotel for $60,000. After the hotel had
been partially destroyed by fire, codefendant Luick was hired by
another unindicted coconspirator to prepare and submit proofs of
loss forms to the insurance companies. We overturned Luick's
convictions because submission of the proofs of loss forms alone
failed to prove that he knew of the conspiracy's unlawful purpose.
Although Luick had paid Klein a referral fee, and had done so in
the past, we found it significant, if not dispositive, that "[i]t
was not shown that . . . Luick should have been put on notice of
suspicious facts in this case because of his past dealings with
Klein. In fact the nature of Klein's and Luick's past dealings was
left wholly unexplained." Id. at 755 (footnote omitted).
Here, by contrast, the relationship among Voigt, Alevy,
Anderskow and Anchors was fully explored at trial. It is true that
Anchors joined a conspiracy that was already in progress. But
unlike the defendant in Klein, Anchors engaged in numerous
activities over a substantial period of time in furtherance of the
conspiracy. While Klein stands for the unremarkable proposition
that a latecomer to a conspiracy does not automatically acquire
knowledge of the conspiracy's unlawful purpose simply by taking a
one-time action ostensibly in furtherance of its purpose, surely
Klein does not preclude a conviction where, as here, the defendant
provides a steady stream of false excuses in the face of mounting
complaints from disgruntled customers in return for substantial
remuneration. Klein is inapposite.
V.
For the foregoing reasons the judgments of conviction and
sentence will be affirmed in all respects.