United States v. Tomey
United States v. Tomey
Opinion of the Court
ORDER
Gary R. Tomey, II (“Tomey”) was convicted by a jury of one count of conspiracy to commit mail or wire fraud, in violation of 18 U.S.C. § 1349, and seven counts of mail fraud, in violation of 18 U.S.C. § 1341.
Tomey argues that the evidence presented at trial was insufficient for a jury to convict him of conspiracy to commit mail and wire fraud. More specifically, Tomey argues that the Government failed to prove: (1) that he and any other person “in some way or manner agreed to try to accomplish a common and unlawful plan to commit mail fraud,” or (2) that any other person knew of and voluntarily participated in the alleged scheme to commit mail fraud. ECF No. 84 at 4. The Government responds that it introduced sufficient evidence from which the jury could infer that Tomey conspired with at least one other person to commit mail and wire fraud. ECF No. 86 at 3. Having presided over the trial and having carefully reviewed the record, pertinent law, and the parties’ arguments, the court agrees.
Federal Rule of Criminal Procedure 29 directs the court, on a defendant’s motion, to “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). The Rule also provides that the “court may reserve decision on the motion, proceed with the trial..., submit the case to the jury, and decide the motion... after [the jury] returns a verdict of guilty.” Fed. R. Crim. P. 29(b). Where the court has reserved decision, “it must decide the motion on the basis of the evidence at the time the ruling was reserved.” Id. The legal standard, however, is the same, regardless of when the defendant makes his motion. United States v. Burns, 597 F.2d 939, 941 (5th Cir. 1979) (“The test.. .when a trial court rules on a motion for judgment of acquittal challenging the sufficiency of evidence applies to such motions whether made at the close of the Government’s case, at the close of all the evidence, or after the return of a guilty verdict.”).
The elements of conspiracy to commit mail or wire fraud are: (1) the existence of an agreement or common purpose to execute a scheme to defraud, and (2) use of the mail or wire systems to further the scheme. United States v. Smith, 934 F.2d 270, 274 (11th Cir. 1991). Although an agreement may be shown by direct evidence, “[t]he very nature of conspiracy frequently requires that [it] be proved by inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.” United States v. Toll, 804 F.3d 1344, 1355 (11th Cir. 2015).
The court concludes that the Government presented sufficient evidence during its case-in-chief from which a rational jury could find that Tomey conspired with at least one other person, namely, co-defendant Eakes, to commit mail and wire fraud. The essence of the conspiracy charged is that, between August 2008 and May 2012, Tomey and others conspired to use deceptive and misleading telemarketing tactics to solicit charitable contributions under the pretext that the contributions would be used to furnish services for abused women and needy children. The Government presented evidence that the nerve center of the conspiracy was an office located in Milton, Florida, where To-mey employed numerous telemarketers. Several former employees testified that the telemarketers were paid minimum wage, plus a small commission on eonsum-mated “sales” (ie., gross receipts actually collected as a result of a telemarketer’s solicitations). The Government’s evidence showed that Eakes was the office administrator, having previously worked with and for Tomey in various for-profit telemarketing enterprises. FBI Agent Joseph T. Ki-nard testified, based on statements made to him by Eakes during a prearrest interview, that Eakes trained the telemarketers on' how to procure donations and supplied marketing scripts to guide them in responding to prospective donors’ questions and concerns regarding the solicitations. Eakes told Agent Kinard that he personally developed the marketing scripts and training materials using his own experience in the telemarketing industry, as well as from input and guidance from Tomey. These scripts contained deceptive and misleading information, which Eakes knew at the time to be false.
Nothing presented during the defendants’ case-in-chief changes the court’s view that a rational trier of fact could find evidentiary support for the conspiracy charge beyond a reasonable doubt. As a preliminary matter, the court rejects the notion that Tomey’s conspiracy conviction should be vacated merely because the co-conspirator named in the indictment, Eakes, was acquitted of conspiracy.
More specifically, the evidence showed that Eakes was responsible for staffing and managing the call center in Milton, FL, receiving and sorting mail, training telemarketers, monitoring sales calls, and tracking incoming donations. Eakes testified that he and Tomey developed the sales pitches together, by modifying the language from their former, for-profit telemarketing scripts to fit their new, ostensibly non-profit purpose. The evidence showed that the scripts contained deceptive and misleading information,
The court finds that a rational jury could also find that Tomey knowingly and willfully conspired with an unindicted co-conspirator, Anthony DiLoreto, to commit mail and wire fraud.
The evidence was also sufficient to show that DiLoreto knew about the fraudulent nature of Tomey’s scheme and acted in furtherance of it. In 2009, Kim Anderson of the Mississippi Secretary of State’s office began investigating consumer complaints about solicitations by Mississippi Children Services (“MCS”) in Mississippi. Ms. Anderson testified that DiLoreto told her that MCS was a chapter of YAL with a physical office in Columbia, Mississippi that was run by Tomey. DiLoreto also said that YAL was covering all of MCS’s administrative costs, so 100% of the funds raised in Mississippi were used for charitable services. In truth, MCS had no physical facility in Mississippi and only a very small percentage of each Mississippi donation was used for charitable purposes. DiLoreto’s false statements to the Mississippi Secretary of State in 2009 about To-mey’s operation in Mississippi, which are similar to misrepresentations made by To-mey’s employees to prospective donors, support a conclusion that DiLoreto was fully aware of and willfully joined in To-mey’s fraudulent scheme. Taken as a whole, the evidence was sufficient to permit a reasonable jury to find that Tomey and DiLoreto conspired to commit mail and wire fraud.
There is no direct evidence in this case of an explicit agreement between Tomey and any other person to use deceptive and misleading telemarketing tactics to solicit charitable contributions. A conspiracy may be inferred, however, from surrounding circumstantial evidence. Toll, 804 F.3d at 1355 (11th Cir. 2015). Ultimately, the determination of the strength of the evidence and. the credibility of the witnesses is the task of the jury. See U.S. v. Hollifield, 870 F.2d 574, 578 (11th Cir. 1989); U.S. v. Corley, 824 F.2d 931, 937 (11th Cir. 1987); U.S. v. Browning, 723 F.2d 1544, 1546 (11th Cir. 1984). The court concludes that a rational jury could find from the circumstantial evidence presented at trial that a conspiracy to commit mail and wire fraud existed and that Tomey, Eakes, and DiLoreto knew about and willfully participated in it. Therefore, Tomey’s motions for Judgment of Acquittal are due to be denied.
Accordingly, it is ORDERED that To-mey’s Motion for Judgment of Acquittal, ECF No. 84, is DENIED.
SO ORDERED on this 28th day of November, 2016.
. Count One of the Indictment charged both Defendants with conspiring to commit mail and wire fraud by making false representations telephonically to solicit charitable contributions from prospective donors. Counts Two through Eight charged both Defendants with substantive counts of mail fraud.
. The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. For example, Eakes told Agent Kinard that he "felt like it was perfectly okay to say that the employees were volunteers” because "sometimes the employees do come in and volunteer their own time to make calls.” In truth, Eakes admitted to Agent Kinard that he knew that all of the telemarketers were paid employees of Tomey’s organization.
. These organizations include: (1) Youth Achievement League, Inc. doing business as Children Services; (2) Children and Family Services Inc.; (3) Children’s Charitable Services, Inc.; and (4) Mississippi Children Services, Inc.
. During its deliberations, the jury sent a communication to the court with the following question: “Can one defendant be found ‘guilty’ on Count One and one defendant found ‘not guilty’ on Count One?” See ECF No. 75 at 1. The court responded in the affirmative, but in an abundance of caution, instructed the jury that if they did “find one defendant guilty and the other not guilty, [they] must identify on the verdict form next to Count One for that defendant the person or persons with whom [they] have found the defendant conspired.” Id. at 2. On closer review of the Eleventh Circuit case law on this issue, it is clear to the court that the jury was not required to "identify with particularity” the conspirators, as long as "the evidence was sufficient to show that [Tomey] conspired with someone.” See United States v. Martinez, 96 F.3d 473, 477 (11th Cir. 1996). As explained more fully in the body of this Order, the court finds that there was sufficient evidence to show that Tomey conspired with at least two other persons-Eakes and Anthony DiLoreto—to commit mail and wire fraud.
. The court notes that a number of victims testified that, when they were solicited, the telemarketer explicitly stated that 100% of each donation would go directly to needy children or families in their state.
. The court has found sufficient evidence that Tomey and Eakes conspired to commit mail and wire fraud; therefore, on that basis alone, the jury's verdict should not be disturbed. However, the jury’s verdict is also supported by sufficient evidence of a conspiracy between Tomey and DiLoreto, which the court finds appropriate to detail here.
. Tomey testified that these transfers occurred because, at least in the beginning, DiLoreto handled Tomey’s payroll.
Reference
- Full Case Name
- United States v. Gary R. TOMEY, II
- Status
- Published