16-3861-cr
United States v. Weaver
16-3861-cr
United States v. Weaver

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of June, two thousand seventeen.

PRESENT:            JON O. NEWMAN,
                    JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                                 Circuit Judges.


UNITED STATES OF AMERICA,

                           Appellee,

                           v.                                             16-3861-cr

EDWARD MORRIS WEAVER, AKA NED,

                           Defendant-Appellant.*


FOR DEFENDANT-APPELLANT:                                      GEORGE W. HICKS, JR. (C. Harker
                                                              Rhodes IV and Michael D. Lieberman, on
                                                              the brief) Kirkland & Ellis LLP,
                                                              Washington D.C.

FOR APPELLEE:                                                 DOUGLAS N. LETTER (William E.
                                                              Havemann and Scott R. McIntosh,


     *
         The Clerk of Court is directed to amend the official caption as set forth above.

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United States v. Weaver
                                                           Appellate Staff, on the brief) for Chad A.
                                                           Readler, Acting Assistant Attorney
                                                           General, Civil Division, Washington D.C.;
                                                           Robert L. Capers, United States Attorney
                                                           for the Eastern District of New York,
                                                           Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Joan M. Azrack, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the November 9, 2016 judgment of the District Court is
AFFIRMED.

        Defendant-appellant Edward Weaver was the Chief Executive Officer of Vendstar, a
company accused of selling candy-vending machines using fraudulent sales tactics and
misrepresentations. Weaver appeals from a judgment of conviction dated November 9, 2016, after a
jury found him guilty of mail fraud, wire fraud, conspiracy to commit mail and wire fraud, and
making false statements to government officials. The District Court sentenced Weaver to sixty
months’ imprisonment.

         On appeal, Weaver argues that he is entitled to: (1) a judgment of acquittal on the fraud and
conspiracy charges because the alleged misrepresentations were immaterial as a matter of law; (2) a
judgment of acquittal on the fraud and conspiracy charges because there was insufficient evidence of
his fraudulent intent; (3) a judgment of acquittal or, in the alternative, a new trial on his false
statements charge because the two allegedly false statements were actually true or, alternatively,
fundamentally ambiguous; (4) a new trial on all charges because the government made an improper
argument during its rebuttal summation; and (5) resentencing because the District Court’s loss
calculations were not supported by adequate evidence. The first issue concerning materiality is
resolved in an opinion issued simultaneously with this summary order. We assume the parties’
familiarity with the underlying facts and the procedural history of the case.

   1. There Was Sufficient Evidence of Weaver’s Fraudulent Intent.

        Weaver argues that there was insufficient evidence for a jury to conclude that he acted with
fraudulent intent. We will overturn a conviction based on insufficient evidence only if we determine
that “no rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998) (internal quotation marks
omitted). “We defer to the jury’s determination of the weight of the evidence and the credibility of
the witnesses, and to the jury’s choice of the competing inferences that can be drawn from the
evidence.” Id.



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United States v. Weaver
         An individual is guilty of mail and wire fraud if he “use[s] the mail or wires in furtherance of
a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises.” United States v. Dinome, 86 F.3d 277, 283 (2d Cir. 1996)
(internal quotation marks omitted). Accordingly, “[t]he essential elements of a mail [or wire] fraud
violation are (1) a scheme to defraud, (2) money or property [as the object of the scheme], and
(3) use of the mails [or wires] to further the scheme.” Id. (internal quotation marks omitted and
alterations in original). Among other elements, the government must prove that the defendant acted
with fraudulent intent. Id. In other words, the government “must show that some actual harm or
injury was contemplated by the schemer.” Id. (internal quotation marks and emphasis omitted).

        Weaver’s argument that there was insufficient evidence of his specific intent to defraud
Vendstar customers fails. After careful review of the record, we conclude that there was sufficient
evidence at trial to permit a rational jury to infer that Weaver intended to defraud Vendstar
customers, including evidence that Weaver approved lies in Vendstar’s promotional materials and
instructed his employees to use inflated revenue estimates on sales calls. That trial evidence
sufficiently supported the conviction. Although there was some evidence suggesting that Weaver
purported to discourage fraudulent sales tactics, the jury heard and rejected that evidence.

    2. Weaver is Not Entitled to a Judgment of Acquittal or a New Trial on The False
       Statements Charge.

          It is well settled that, in a prosecution for perjury or false statement, “[a]bsent fundamental
ambiguity or impreciseness in the questioning, the meaning and truthfulness of appellant’s answer
[is] for the jury.” United States v. Bonacorsa, 528 F.2d 1218, 1221 (2d Cir. 1976). Moreover,
“circumstantial evidence, including proof of a motive to falsify, often may serve to convince a
reasonable juror beyond a reasonable doubt of a witness’[s] criminal intent.” United States v. Lighte,
782 F.2d 367, 373 (2d Cir. 1986). A court is “hard pressed to overturn the fact finders’
determination especially since the evidence must be viewed in a light most favorable to the
government.” Id. at 374.

         The two false statements at issue are Weaver’s statement that there was “no relationship”
between Vendstar and any locating service and his statement that “Vendstar had not referred
customers to [Jim Ellis] since 2006.” JA 45-46. Weaver argues that there was insufficient evidence
that either of these statements, when taken in context, was false and, alternatively, that both
statements were fundamentally ambiguous. We address both arguments statement by statement.

         Weaver contends that his statement that Vendstar had “no affiliation” with any locating
service was fundamentally ambiguous because he could have meant either that Vendstar had no
formal affiliation, which would have been true, or that Vendstar had no informal affiliation, which
would have been false. Alternatively, Weaver contends that his statement was actually true because
he later told the agent that he referred customers to locating services, showing an informal

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United States v. Weaver
affiliation, and thus he clearly understood the question to be asking about a formal relationship, of
which there was none. We disagree with both arguments.

         First, there was ample evidence from which a rational jury could conclude that Weaver
understood the government agent’s question to be asking about any affiliation between Vendstar and
the locating services. Second, there was evidence that Vendstar had other informal affiliations
pertinent to the alleged fraud that he did not disclose, for example, Vendstar coordinated with
locating services on sales calls to help lure customers into believing that the vending machine
business was more lucrative than it really was. Accordingly, there is no basis for us to overturn the
jury’s finding that Weaver’s “no affiliation” statement was false.

         Weaver similarly contends that his statement explaining that his company had not referred
customers to Ellis since 2006 was either ambiguous or true because Ellis was operating his locating
services under pseudonyms after 2006. Again, we disagree. There was ample evidence from which a
rational jury could conclude that Weaver understood that the agent was asking about Ellis the
person, regardless of any pseudonym Ellis was using at any particular time, and that Weaver knew
that Ellis was the man behind the pseudonyms. For example, there was evidence establishing that
Weaver jokingly referred to Ellis by his assumed names. Thus, Weaver’s argument for an acquittal or
a new trial relating to his second false statement also fails.

    3. Weaver is Not Otherwise Entitled to a New Trial on All Charges.

        A prosecutor is not permitted “to suggest to a jury that the conviction of a testifying co-
conspirator is evidence that a defendant on trial is guilty.” United States v. Louis, 814 F.2d 852, 856
(2d Cir. 1987). Nevertheless, he or she may disclose a co-conspirator’s conviction in order to
disclose “matters damaging to the credibility of a witness and [to] contradict[ ] . . . any inference that
the government is concealing a witness’ bias.” Id. It is also permissible for a prosecutor, in response
to a defendant’s claim that cooperating witnesses are lying, to “invite[ ] the jury to consider the
implausibility of [a defendant’s] claim that the witnesses were all committing perjury.” United States v.
Rodriguez, 587 F.3d 573, 583 (2d Cir. 2009).

        Weaver contends that the government improperly argued to the jury during its rebuttal
summation that the guilty pleas of cooperating witnesses were evidence of Weaver’s guilt. We
disagree. After careful review of the government’s rebuttal and Weaver’s own summation and trial
defense, we conclude the government did not act improperly in referring to the cooperating
witnesses’ convictions. Weaver and his co-defendants repeatedly attacked the credibility of the
government’s cooperating witnesses, arguing that they were lying and cooperating with the
government for their own gain and that they were acting on their own. The government referred to
the cooperating witnesses’ acknowledgement of participation in the scheme to defraud in its rebuttal
summation for at least two reasons. First, the government sought to combat the argument that the
witnesses were lying about their guilt because they did not want to continue to fight the government

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United States v. Weaver
at trial. Second, the government attempted to demonstrate that Weaver’s contention that the eight
cooperating witnesses acted without the involvement of Vendstar’s CEO was implausible. Under the
circumstances presented, both arguments were permissible.

    4.   Weaver’s Sentence Should Not Be Vacated.

         Finally, Weaver asks us to vacate his sentence because, he contends, the District Court’s loss
calculations were not supported by sufficient evidence, and thus the District Court committed a
procedural error in calculating the applicable Guidelines range. Even assuming arguendo that the
District Court erred in calculating the different loss amounts, we find that any such error was
harmless because “the record indicates clearly that the [D]istrict [C]ourt would have imposed the
same sentence in any event.” United States v. Kent, 821 F.3d 362, 367 (2d Cir. 2016) (internal
quotation marks omitted). Specifically, the District Judge explained that “[e]ven if the lower
guidelines range were the applicable range, I would still give the same sentence that I’m about to
pronounce”; that “[t]he parties’ disputes about the loss amount . . . are largely beside the point.
Whatever the appropriate loss calculation is under the guidelines, that does not change the conduct
of the defendant and his coconspirators . . . I’m sentencing here the old fashioned way”; and that
“[i]n determining the appropriate sentence . . . I have focused on the defendant and his conduct, not
the intricacies of calculation loss under the guidelines.” JA 747; see United States v. Binday, 804 F.3d
558, 598 (2d Cir. 2015) (concluding that imperfections in the method of calculating the loss amount
were harmless where the “district court explained that it would ‘calculate the guidelines, consider the
guidelines, and then sentence in the old-fashioned way’”).

                                          CONCLUSION

       We have considered all of the arguments raised by Weaver on appeal and find them to be
without merit. For the foregoing reasons, the November 9, 2016 judgment of the District Court is
AFFIRMED.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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