Filed 6/26/14 P. v. Sweeney CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056132

v.                                                                       (Super.Ct.No. RIF150506)

JAMES ALBERT SWEENEY II et al.,                                          OPINION

         Defendants and Appellants.


         APPEAL from the Superior Court of Riverside County. Jeffrey J. Prevost, Judge.

Affirmed with directions.

         Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant, Ryan.

         David McNeil Morse, under appointment by the Court of Appeal, for Defendant

and Appellant, Sweeney.




                                                             1
                                              I

                                     INTRODUCTION

       A jury convicted defendants James Albert Sweeney II and Patrick Michael Ryan

of 65 counts of white-collar crime and found true three special allegations. The court

sentenced Sweeney to 33 years and Ryan to 31 years. The court also imposed restitution

in the amount of $8,266,026 under Penal Code section 1202.4, subdivision (f).1

       The final version of the second amended information alleged 65 criminal counts.2

As to each of the 20 individual victims, it alleged three separate counts: the sale of

unqualified securities (Corp. Code, § 25110); fraud in the offer of a security (Corp. Code,

§§ 25401, 25540, subd. (b)); and grand theft (§ 487). As to all the victims, it alleged

count 67, a fraudulent securities scheme (Corp. Code, §§ 25540, subd. (a), and 25541)

and four counts—68, 69, 70, and 71—involving an endless chain scheme. (§ 327; Corp.

Code, §§ 25110, 25401, 25540, subds. (a) and (b), and 25441. The information further

alleged two special allegations for excessive takings (§§ 1203.045, 12022.6, subd. (a)(3))

and one for aggravated white-collar crime. (§ 186.11, subd. (a)(2)).

       On appeal, both defendants challenge the sufficiency of the evidence on count 68

and the convictions on counts 67, 68, 69, 70, and 71, primarily involving multi-level

       1   Further statutory references are to the Penal Code unless stated otherwise.

       2The trial court dismissed six counts—10, 11, 12, 40, 41, and 42—of the original
71 counts on the People’s motion.




                                              2
marketing programs. Ryan also claims various sentencing errors, including those related

to fines and restitution.3 Sweeney makes similar arguments.

       We have reviewed the record and find sufficient evidence for count 68. We also

uphold the convictions on counts 67 through 71. Defendants were engaged in an endless

chain scheme and the unlawful sale of securities. We affirm the judgment against

defendants, subject to slight modification of their sentences as noted in our disposition.

                                             II

                             STATEMENT OF THE FACTS

A. The Marketing of Big Co-op and EZ2Win

       Sweeney and Ryan operated two related online shopping businesses—Big Co-op,

a Delaware corporation, and its subsidiary, EZ2Win.biz—from an office located on

University Avenue in Riverside. Sweeney was the president of Big Co-op and Ryan

represented he was president of EZ2Win although it was not a corporation. Ryan was not

an officer of Big Co-op. Michael Huskisson, Rick DeLuca, and Andy Boado were

salesman working for the two businesses.

       Defendants were charged with operating an “endless chain” scheme in which

investors paid for the opportunity to receive compensation based on recruiting new

participants. In related charges, they were charged with violating securities registration

requirements based on fraudulent misrepresentations and material omissions. Defendants

       3   Defendants withdraw the argument about sentencing on count 67.



                                             3
contend that the businesses were legitimate multi-level marketing enterprises.

Defendants further argue that memberships in EZ2Win were not securities, that stock in

Big Co-op was exempt from registration, and that the stock was sold with all required

disclosures and without any fraudulent misrepresentations.

       Defendants or their representatives sold interests in Big Co-op and EZ2Win

through sales presentations used to recruit new people. At a typical meeting, defendants

claimed the businesses were debt free and had been generating profits for several years.

A 10-minute video featuring Sweeney talking about his business philosophy was shown

at many meetings. Also used was a PowerPoint presentation describing EZ2Win.

       Big Co-op was described as a multi-level marketing program. The businesses

listed on the Big Co-op website included companies like Target, Ebay, Apple, Eddie

Bauer, and Nordstrom. The speakers compared Big Co-op to Google and discussed an

upcoming public offering using the same underwriter as Google. The speakers claimed

investors could double, triple, or even quintuple their investments.

       Defendants sold EZ2Win memberships at various levels. Attendees were told

there were nine ways to make money. People could sign up as independent

representatives or recruiters. The memberships provided rebates for online shopping via

portals on the Big Co-op website. Other membership levels offered increased

participation by setting up an individual website for the member. The memberships

required an initial fee of a few hundred dollars and monthly payments. Members were




                                             4
promised discounts and rebates for shopping and travel arrangements and could operate

an individual online business.

       The “founders” category of membership offered special benefits. Founders

received a percentage of all membership sales and admission to annual conferences and

retreats. Founders could sell merchant memberships, a license that would enable a local

merchant to offer products on the Big Co-op website. The founders memberships cost

$2,500 and a monthly payment of $99.

       Members also received commissions based on recruiting additional people to join.

The more members the victim recruited, the more money he or she would make as

compensation. Victims were encouraged to purchase multiple memberships, assigning

them either to family members or even fictitious people.

       There was no discussion at the meetings about risk. It was not disclosed that Big

Co-op was not registered, that the company had sustained consecutive losses over the five

years with liabilities exceeding assets by $2.8 million or $3.4 million, and that there was

no actual plan to take Big Co-op public.

B. The Desist and Refrain Orders

        The Department of Corporations issued a Desist and Refrain Order (DRO)

against Big Co-op in October 2006 and EZ2Win in May 2007. About 1,000 people had

invested beginning in 2005 and about 250 responded to a questionnaire. Many of the

investors were Filipino immigrants who lived in Northern California. Twenty-two of the

investors had purchased Big Co-op stock certificates owned by Sweeney. The first DRO

                                             5
ordered compliance with sections of the Corporations Code dealing with the offer of

unqualified securities and the offer of securities by means of misstatement or omission of

material fact about the stock offering. The second DRO was directed at the multi-level

marketing program memberships.

      The Department of Justice seized business records, banking records, computers,

and other financial and marketing materials from the homes of defendants and others who

were involved. Additional records were obtained from two banks. Among the

documents seized were thousands of stock certificates for Big Co-op stock.

C. Forensic Accounting

      Carl Richard, an investigative auditor with the Department of Justice, reviewed

financial records for the period from June 2005 through December 2006. Revenues for

the 18-month period for EZ2Win were about $1.207 million, derived from membership

fees and monthly payments, and represented 14 percent of monies coming into the

account. Income from the rebates and rewards program and travel commissions was

about $91,000. In comparison, income from stock sales and the founders program was

about $7.059 million and 85 percent of the money coming into the company. The

company lost an average of $100,000 per month during the 18-month period.

      The amount paid to Ryan from January 2005 to December 2006 was about

$775,000. The amount paid to Sweeney was about $773,000. Additional expenses paid

for the benefit of defendants from the proceeds of stock sales was about $2.039 million.




                                            6
The money went toward cars, Tennessee property, cash, an engagement ring for Ryan,

and other expenses related to Ryan’s wedding.

       The total amount of theft and security fraud charged in this case consisted of $7

million in stock sales plus $1.2 million in EZ2Win income, the amount received from the

named victims. No significant funds were returned to the victims.

D. Ryan’s statement

       Ryan gave a voluntary statement to a DOJ investigator. Ryan initially said that the

EZ2Win sales and membership fees brought in hundreds of thousands of dollars per

month, and the company was profitable. After he was shown the financial statements that

indicated otherwise, Ryan said that he felt that it would be profitable in the future. He

denied having told people that the company was profitable. He denied selling any stock

except for some of Sweeney’s stock to a few people. He also denied a plan for a public

offering.

E. Defense evidence

       Pravin Mishra, the CEO and founder of Pugmarks, an internet services company,

testified concerning his firm’s work setting up and maintaining a website for Big Co-op.

By 2002, Big Co-op had 50,000 members and Pugmarks fixed the website for the cost of

$315,646. Pugmarks maintained the site until it was shut down in 2007.

       The Big Co-op website allowed people to shop at e-commerce shops and receive a

rebate. Another part was the multi-level marketing where members could recruit

members and receive residual rewards when the recruited members shopped on the

                                             7
recruiter’s personal website. Mishra described it as a unique concept that combined

cooperative and multi-level marketing.

       Compu-Sult, a custom computer software company, that mainly served network

marketing and direct sales companies, was hired to build a compensation software

package for Big Co-op’s multi-level marketing system. In September 2005, it built a

different kind of system for EZ2Win.

                                            III

                     SUFFICIENCY OF EVIDENCE—COUNT 68

       Defendants both argue that insufficient evidence showed that EZ2Win was an

endless chain scheme under section 327. We conclude that, because the victims paid

money for EZ2Win memberships and recruited other people to buy EZ2Win

memberships, the EZ2Win scheme fit the classic paradigm of an endless chain.

       In reviewing a challenge to the sufficiency of the evidence, we examine the whole

record in the light most favorable to the judgment to determine whether it discloses

substantial evidence—that is, evidence that is reasonable, credible, and of solid value—

such that a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt. (People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Johnson (1980) 26

Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the

trier could reasonably deduce from the evidence. (Guerra, at p. 1129.) The conviction

must be affirmed unless appellant clearly shows that there is no substantial evidence




                                             8
whatsoever to support the verdict. (See People v. Martinez (2008) 158 Cal.App.4th 1324,

1329.)

         It is a violation of section 327 to “contrive[], prepare[], set[] up, propose[], or

operate[] any endless chain.” An “endless chain” is “any scheme for the disposal or

distribution of property whereby a participant pays a valuable consideration for the

chance to receive compensation for introducing one or more additional persons into

participation in the scheme or for the chance to receive compensation when a person

introduced by the participant introduces a new participant.”

         EZ2Win indisputably was an endless chain. To become members of EZ2Win,

victims paid an initial fee and then signed up for indefinite monthly automatic deductions

to maintain their memberships. Defendants told victims they earned commissions by

recruiting other people to buy memberships in EZ2Win. The members, in turn, were

instructed to recruit more members in EZ2Win. Commissions were based on a current

member’s sales of memberships to new members whether any of these members actually

used their EZ2Win memberships to sell on their personal web portals. Ample evidence

established this scheme fits squarely within the definition of section 327’s endless chain.

         Defendants argue that EZ2Win was not an “endless chain” because—instead of

focusing on recruiting—the victims could have sold products through their personal Big

Co-op website. The ability to sell products does not convert an endless chain scheme into

a legitimate business. Defendants’ arguments were rejected in Bounds v. Figurettes, Inc.

(1982) 135 Cal.App.3d 1, 17-20, discussing People v. Bestline Products, Inc. (1976) 61

                                                 9
Cal.App.3d 879, and holding a marketing plan under which prospective distributors are

led to believe that they will make large amounts of money by recruiting additional

distributors is illegal.

       Figurettes was a company involving the sales of lingerie by “Counselors.”

Bestline’s business consisted of marketing household cleaning products. Bestline

distributors recruited participants who in turn recruited new participants. The trial and

appellate courts found the Bestline marketing plan constituted an illegal chain scheme

prohibited by Business and Professions Code section 17500 and the scheme was

inherently fraudulent: “The Bestline plan was similar to Figurettes in that Bestline’s

marketing program offered ‘prospective distributors the expectation of a large annual

income as a result of their recruiting additional distributors who would in like fashion

bring in further recruits.’ [Citation.] In Bestline as in the Figurettes plan ‘opportunity

meetings’ were frequently held. The ‘golden opportunities’ flowing from participation in

Bestline programs were described. Bestline like Figurettes was a multilevel sales

scheme. Each had three levels of distributorship. Bestline’s emotional appeal to ‘growth

to greatness’ was not unlike the philosophy expounded at Figurettes meetings.

       “The Bestline court concluded (after review of out-of-state decisions): ‘The vice

of the chain system aspect of the Bestline marketing system upon which the first cause of

action was in part based was the inherent deceptiveness . . . . Since the promised rewards

can only result to any level of participants in the pyramid in the event it grows to another




                                             10
level, it is obvious that ultimately the point will be reached where the necessary further

recruitment is impossible.’ [Citation.]

         “The Bestline court pointed out that the plan ‘offered compensation for

recruitment based upon sales to the recruits. This element of the Bestline plan, which is

what makes it a chain scheme under California law, serves to increase the certainty of

deception by diverting the efforts of all distributors from retail sales to the sales of

distributorships.’ [Citation.] The court held that the Bestline program was thereby

rendered per se deceptive under the policies embodied in the law of this state. [Citation.]

[¶] . . . [¶]

         “Figurettes also attempts to distinguish Bestline by pointing to the importance of

retail sales to Figurettes. Extensive evidence and testimony was offered by Figurettes as

to retail sales volume and the training offered to counselors for retail sales techniques

including product fitting and care. However, retail sales do not legalize the pyramid

marketing scheme which violates Penal Code section 327. The plan becomes illegal

because it is part of the overall marketing plan which depends upon an endless chain of

middlemen. As the Bestline court carefully pointed out [citation]: ‘A pyramid sales plan

under which the compensation for recruitment is limited to “payment based upon sales

made to persons who are not participants in the scheme and who are not purchasing in

order to participate in the scheme,” does not come within the definition of endless chain

schemes set forth in Penal Code section 327. The section, however, declares the policy of

this state that such schemes are deceptive when compensation is offered “for introducing

                                              11
one or more additional persons into participation in the scheme” based upon sale to the

person introduced. It is on the basis of this policy that participation in such schemes is

made criminal.’

       “As the Amway decision (infra) states: ‘[T]he fact that some retail sales occur

does not mitigate the unlawful nature of the method of recruiting. [Citation].’ (In the

Matter of Amway Corporation (June 23, 1978) Federal Trade Commission Docket No.

9023, Initial Decision, p. 107.)” (Bounds v. Figurettes, Inc., supra, 135 Cal.App.3d at pp.

18-19.)

       As in Figurettes and Bestline, whether the victims here could have sold—or even

did sell—products on the Big Co-op personal websites is immaterial. (Bounds v.

Figurettes, Inc., supra, 135 Cal.App.3d at p. 19.) The question is whether the focus of

EZ2Win—rather than the product sales themselves—was the recruitment of more

members to buy into the scheme. Numerous victims testified that the overwhelming

emphasis was on recruiting, not on product sales. The companies’ leaders and presenters

did not spend their time selling products; instead, they expended their energy solely on

recruiting.

       Defendants’ presentations focused nearly exclusively on how members earned

money by recruiting with no emphasis at all on product sales. Slide 10 in defendants’

PowerPoint presentation trumpeted, “You Get Paid 5 Times Per Month” and “9 Ways

You Can Make Big Money.” Slide 11 pictured “You” recruiting Team A and Team B

and promised $40 for each personal recruit. Slide 12 illustrated a “binary pay plan” with

                                             12
payments increasing to a maximum of $25,000 per week, according to the number of

recruits. In addition, slide 13 showed matching bonuses of 40 percent for all recruits.

Slide 14 illustrated eight levels of recruits for the “Uni-level Pay Plan,” earning about

$76,000 monthly. Slide 23 focused wholly on the building of teams of recruits.

       Only one quarter of one percent of the companies’ funding came from actual sale

of products. Defendants’ scheme “depend[ed] upon an endless chain of middlemen.”

(Bounds v. Figurettes, Inc., supra, 135 Cal.App.3d at p. 19.) As characterized by

defendants themselves, their program was designed to give members the major incentive

to recruit new people to buy memberships in EZ2Win.

       Finally, the EZ2Win scheme is not like the program In re Amway (1979) 93 F.T.C.

618, which the Federal Trade Commission found was not a pyramid scheme because its

policies prevented inventory loading and encouraged retail sales. (Id. at pp. 715-716.) In

contrast, EZ2Win encouraged members to buy multiple memberships themselves and put

them under fictitious names. Also, in Amway, retail sales were required in order for

participants to earn money. (Id. at p. 716.) With EZ2Win, retail sales were never

required to earn money and almost no one actually tried to sell anything. Amway was

not a pyramid scheme because its policies encouraged retail sales. No policy in EZ2Win

enforced or encouraged retail sales.

                                             IV

                              EZ2WIN WAS A SECURITY

       Defendants contend the EZ2Win memberships were not securities because

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members were not investors in a common venture and were not reliant on the managerial

efforts of others for profit. Corporations Code section 25019 defines a “security”

expansively, and includes “participation in any profit-sharing agreement” or an

“investment contract,” whether or not a written document evidences the investment. An

“investment contract” is “‘“a contract or a transaction in which a person entrusts money

or other capital to another, with the expectation of deriving a profit, income or some

financial benefit from a business enterprise, the failure or success of which is dependent

upon the managerial efforts of other persons.”’” (People v. Frederick (2006) 142

Cal.App.4th 400, 413; People v. Smith (1989) 215 Cal.App.3d 230, 235.) It is a question

for the trier of fact whether a particular investment is a security. (Frederick, at p. 413;

Smith, at p. 236.)

       Because the jury found that EZ2Win was an endless chain scheme under section

327, there was also substantial evidence that EZ2Win memberships were securities.

California’s “endless chain” scheme is “equivalent, if not identical” to federal law’s

“pyramid” scheme. (Webster v. Omnitrition Int’l (9th. Cir. 1996) 79 F.3d 776, 787.)

Under federal case law, investments in a pyramid scheme are “investment contracts” and

thus securities. (Webster, at p. 784.) It is well established that “federal cases construing

federal securities laws are persuasive authority when interpreting our state securities

law.” (Viterbi v. Wasserman (2011) 191 Cal.App.4th 927, 939.) California courts have

also found evidence of memberships in endless chain schemes is sufficient to support




                                              14
convictions under California’s securities law. (People v. Frederick, supra, 142

Cal.App.4th at pp. 413-414.)

       Ultimately the determination about securities was a factual question for the jury to

decide. (People v. Frederick, supra, 142 Cal.App.4th at p. 413; People v. Smith, supra,

215 Cal.App.3d at p. 236.) The jury heard the testimony of Kirk Wallace, an

enforcement attorney with the Department of Corporations, that an endless chain or

pyramid scheme can be a security. Additionally, EZ2Win members testified that they

believed they were investors in EZ2Win. In particular, EZ2Win members were told the

“founders program” gave them an ownership interest in EZ2Win. Victims also joined

EZ2Win because they believed it was an alternative investment in Big Co-op, the parent

company which was about to go public. Defendants treated investments in Big Co-op

stock and EZ2Win memberships as interchangeable—accepting checks for stock

purchases written to “EZ2Win.”

       Furthermore, the success of EZ2Win depended on Big Co-op and defendants’

management of both enterprises, not on the members’ efforts. (People v. Frederick,

supra, 142 Cal.App.4th at p. 414.) As already discussed, it was not significant that

members could earn money through their own efforts selling memberships or products.

(Id. at pp. 413-414; SEC v. Glenn W. Turner Enterprises, Inc. (9th Cir. 1973) 474 F.2d

476, 482.) The EZ2Win member’s most important role was to solicit new recruits. We

hold substantial evidence supports the jury’s finding that EZ2Win memberships were

securities because EZ2Win was an endless chain scheme.

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                                             V

                                      SECTION 654

       On each of the 20 sets of three companion counts (counts 1 through 60), the trial

court imposed sentence on the principal count and sentences on two additional counts to

be served concurrently or consecutively but stayed under section 654. Defendants claim

that the trial court erred by its oral pronouncement, and the corresponding minute order

was improper because it imposed concurrent or consecutive sentences on counts

involving the same acts and then stayed those sentences pursuant to section 654.

Defendants’ example of how the sentences should have been pronounced seems to be a

distinction without any real difference.

       The procedure followed here is exactly what is contemplated in People v. Duff

(2010) 50 Cal.4th 787, 796: “[W]hen a court determines that a conviction falls within the

meaning of section 654, it is necessary to impose sentence but to stay the execution of the

duplicative sentence.” Duff only prohibits the imposition of concurrent sentences in

place of stays, as “the imposition of concurrent sentences is precluded by section 654 . . .

because [under such a sentence] the defendant is deemed to be subjected to the term of

both sentences although they are served simultaneously.” (Duff, at p. 796.) Accordingly,

the trial court’s oral pronouncement staying the sentences on the counts involving the

same acts fully complied with section 654 and the minute order should not be modified.




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                                               VI

                            FINES, FEES, AND RESTITUTION

       The trial court imposed a $10,000 restitution fine under section 1202.4,

subdivision (b)(1), and then stayed the fine based on its finding that defendants had the

inability to pay. Respondent concedes it may have been improper to impose and then

stay a fine because inability to pay is not a ground for staying a restitution fine, but rather

only a factor a court can consider in setting the restitution fine in the first place.

       We agree the proper remedy is to remand the issue to the trial court, not to modify

the restitution fine on appeal. Inability to pay is one of the factors in setting the amount

of the restitution fine. (§ 1202.4, subd. (d).) Other factors include: “the seriousness and

gravity of the offense and the circumstances of its commission, any economic gain

derived by the defendant as a result of the crime, the extent to which any other person

suffered losses as a result of the crime, and the number of victims involved in the crime.”

While defendants’ inability to pay might weigh against imposition of the statutory

maximum, other factors strongly weigh in favor of doing so. Remand to the trial court to

consider all the factors is the proper remedy.

       Respondent also concedes that only one $10 fee may be imposed on each

defendant. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) On remand, the trial

court is directed to modify defendants’ respective section 1202.5 fines from $200 to $10.

       Defendants also challenge the direct victim restitution award in the amount of

$8,266,026, arguing that its imposition without jury findings violated the Sixth

                                               17
Amendment in light of the United States Supreme Court’s decision in Southern Union

Company v. United States (2012) ___U.S.___ [132 S.Ct. 2344, 183 L.Ed.2d 318].) Our

sister court in the Fourth District rejected this same contention in People v. Pangan

(2013) 213 Cal.App.4th 574, 584-585.) Section 1202.4 imposes victim restitution, not a

“criminal fine,” and therefore is not subject to the Apprendi4 rule.

       Respondent does not oppose correcting the minute orders and abstracts of

judgment to reflect the trial court’s oral pronouncement that defendants be held jointly

and severally liable for the direct victim restitution it ordered in the amount of

$8,266,026. The typographical errors in the abstract of judgment should also be

corrected, replacing “fraud in the office” to “fraud in the offer” and changing the direct

victim restitution amount from “$48,266,026.00” to “$8,266,026.00.” Ryan’s abstract of

judgment also should be corrected as to the direct victim restitution amount.

                                             VII

                                       DISPOSITION

       We affirm the judgment. In the interests of judicial economy, we remand to the

trial court for further proceedings to reconsider the amount of the restitution fee based on

the relevant statutory factors and to make various corrections of the fines, fees, and

typographical errors as discussed above.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

       4   Apprendi v. New Jersey (2000) 530 U.S. 466.



                                             18
                                 CODRINGTON
                                              J.

We concur:


KING
             Acting P. J.


MILLER
                       J.




                            19
