PASADENA, Calif. (CN) — The Ninth Circuit upheld 16 of a former Los Angeles attorney's 17 convictions, and a restitution order, for scamming investors into thinking they were investing in a movie.
Samuel Braslau was convicted of 11 counts of mail fraud, five counts of wire fraud and one count of making false statements to an SEC attorney.
Braslau and his cohorts Rand J. Chortkoff, Robert Matias and Stuart Rawitt raised $1.8 million for a film called "The Smuggler," the SEC said in its February 2014 lawsuit against the men.
Chortkoff and Rawitt were securities recidivists and Braslau oversaw the scam, the SEC said when the men were arrested. Federal prosecutors announced parallel criminal charges after the arrests.
The Ninth Circuit's Oct. 27 ruling involved only Braslau.
Braslau and Chortkoff hired "surveyors" to cold-call people and claim to be doing marketing research for film companies that were seeking investors. After sending sales pitches through the mail, Matias and Rawitt tried to close the deal. But the SEC said the movie was never made, and "probably never could have been made," as the defendants basically just took the money and kept it.
Braslau was convicted and sentenced to 87 months in prison and ordered to pay $1.6 million in restitution.
In a unanimous, unpublished opinion on Thursday, the Ninth Circuit panel upheld all but one of Braslau's convictions. The evidence was sufficient to convict and the jury instructions properly covered his defense theory.
Braslau claimed that the court constructively amended the indictment because it did not instruct the jury that his scheme started sometime around December 2010.
But the evidence presented "did not broaden the relevant time period" and the sixth paragraph of the indictment included information about the relevant dates, the Ninth Circuit ruled.
"The jury also was told: 'You are here only to determine whether or not the defendant is guilty or not guilty of the crimes in the indictment. Defendants are not on trial for any other conduct or offense not charged in the indictment,'" the panel wrote. "We conclude no constructive amendment occurred."
The restitution order was proper and properly calculated based on evidence in the record. Sixty-two victims lost $1,618,697, according to the presentence report, and an FBI agent testified that 68 investors lost $1,715,272
"There was also evidence that all investors received sales literature, including a private placement memorandum, that contained, among other things, false representations concerning what percentage of investor money would be used for film production expenses," the panel wrote.
The panel overturned only Count 20, a wire fraud charge involving a supposed telephone call between Matias and a victim. The government conceded that the evidence was insufficient on that charge. In light of this, the case will be remanded to the district court for resentencing.
Davina Chen, who represented Braslau on appeal, could not be reached for comment. Attorneys with the U.S. Attorney's Office declined comment.
The panel consisted of Ninth Circuit Judges Dorothy Wright Nelson and Richard Paez and Senior District Judge Elaine Bucklo, from the Northern District of Illinois, sitting by designation.
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