United States District Court, S.D. New York
December 15, 2004.
UNITED STATES OF AMERICA,
ROBERTA DUPRE and BEVERLY STAMBAUGH, a/k/a "Sue Stambaugh," Defendants.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On October 20, 2004, the defendants Roberta Dupre ("Dupre") and
Beverly Stambaugh ("Stambaugh") were convicted by a jury of wire fraud, 18 U.S.C. § 1343, and conspiracy to commit wire
fraud, 18 U.S.C. § 371. The defendants now seek judgments of
acquittal pursuant to Rule 29, Fed.R.Crim.P., on the ground
that the evidence was insufficient as a matter of law to sustain
a conviction for either defendant on each of the two counts in
the indictment. For the reasons set forth below, the defendants'
motions are denied.
Viewed in the light most favorable to the Government, a
rational juror could have found the following facts. From before
October 2002 through February 2004, Dupre and Stambaugh induced
more than one thousand victims from across the United States to
pay "advance fees" in order to secure the release and
distribution of what they described as approximately $9 billion
in frozen funds from an account at Citibank in New York City
belonging to the family of former Filipino president Ferdinand
Marcos. Dupre and Stambaugh promised investors returns ranging
from $500,000 to $1 million for each $1,000 invested in the
scheme. Dupre and Stambaugh, using interstate telephone calls,
faxes, and e-mails, told potential investors that the advance
fees were necessary to cover administrative expenses and fees
associated with gaining access to the accounts, including the
travel expenses of Filipino dignitaries and Marcos family members such as "Elena Romauldez," the individual Dupre and Stambaugh
told investors was the niece of Imelda Marcos and the signatory
on the Citibank account. The scheme ran for over nine years,
during which time Dupre continually invented excuses for why they
had not gained access to the account, including suggesting that
Elena Romauldez had been taken hostage. Dupre and Stambaugh also
asserted to investors that high-ranking United States Government
officials, including an unnamed United States Senator, were
involved in the project to help secure the release of the funds.
The Government elicited testimony from a Citibank official
indicating that the Marcos account did not exist, as well as
testimony from a nephew of Imelda Marcos indicating that neither
the account, nor a relative named Elena Romauldez, existed.
Stambaugh worked out of her home in Colorado, operating as an
initial contact point for investors, sending out weekly e-mail
"updates" to investors to keep them apprized of the "progress" of
the scheme, and collecting funds from investors, frequently
wiring funds to accounts held by Dupre. Dupre lived in a hotel
room in the Park Central Hotel in New York City, paid for by
funds from defrauded victims, and represented to victims that she
was in New York for the purpose of coordinating the fund
transfers from the account at Citibank. Dupre's bills at the Park
Central Hotel alone totaled approximately one quarter of a
million dollars. Dupre and Stambaugh also wired large sums of money gathered from victims to Dupre and Stambaugh's family
The scheme was imbued heavily with Christian religious
sentiments and language, and Dupre and Stambaugh represented to
potential victims that the scheme was motivated by their faith.
Many of the victims were individuals of deep religious faith who
were vulnerable to the type of manipulation employed by Dupre and
Stambaugh throughout the course of the fraud. Once Dupre and
Stambaugh had an initial commitment of funds from a victim, they
would periodically return to that individual to request
additional funds, usually on the pretext that an additional
bureaucratic hurdle in securing the liquidation of the Marcos
account had been encountered, but sometimes employing more
personal pleas, such as announcing that relatives of Dupre had
contracted cancer and needed financial help. All in all, Dupre
and Stambaugh defrauded victims out of well over one million
Dupre's motion states that there was insufficient evidence at
trial to "disprove" that she acted in good faith in operating the
scheme. Stambaugh's motion reiterates this argument, and also
asserts that the Government's evidence was insufficient to
establish Stambaugh's intent to commit the crimes charged, the
existence of the conspiracy, Stambaugh's knowledge and membership
in the conspiracy, and the particular wire transfer charged in the substantive count in the indictment. Stambaugh's application
also asserts that the Government never proved that Stambaugh was
actually the defendant Stambaugh.
A defendant who challenges her conviction for lack of
sufficient evidence bears a "very heavy burden." United States
v. Amato, 15 F.3d 230, 235 (2d Cir. 1994) (citations omitted).
The evidence at trial must be viewed "in the light most favorable
to the government and all permissible inferences drawn in its
favor." United States v. Valenti, 60 F.3d 941, 945 (2d Cir.
1995) (citation omitted). The verdict must be sustained if any
rational trier of fact could have found the defendants guilty
beyond a reasonable doubt. United States v. Martinez,
54 F.3d 1040, 1042 (2d Cir. 1995). The jury's verdict may be based
entirely on circumstantial evidence. Id. at 1043.
Under 18 U.S.C. § 1343, to convict the defendants of wire
fraud, the Government had to establish that there existed (i) a
scheme to defraud, (ii) to get money or property, (iii) furthered
by the use of interstate wires. See United States v. Autuori,
212 F.3d 105, 115 (2d Cir. 2000). Proof of fraudulent intent is
an essential component of the scheme to defraud. Id. Under
18 U.S.C. § 371, to convict a defendant of conspiracy to commit wire
fraud, the Government had to establish that the defendant entered into an unlawful agreement with another person, that she
knowingly and willfully became a member of the conspiracy, and
that at least one overt act in furtherance of the conspiracy and
during the life of the conspiracy was committed. See United
States v. Maldonado-Rivera, 922 F.2d 934, 961-62 (2d Cir. 1990).
Based on the evidence adduced by the Government at trial, a
rational trier of fact would have found the defendants guilty
beyond a reasonable doubt. First, it was clear that the
defendants knowingly participated in a scheme to defraud, and
conspired to do so with each other. For example, the Government
introduced a tape recorded telephone call between Dupre and
Detective Sergeant Keith Caddy of the Montrose Police Department
in Montrose, Colorado, that took place on February 12, 2003. In
that conversation, which took place the day after a similar
conversation between Det. Caddy and Stambaugh, Det. Caddy
inquired about the investment scheme, and Dupre indicated that
she knew the detective was going to call her because Stambaugh
had tipped her off the previous evening. Similarly, the
Government introduced a series of tape recorded conversations
between an undercover FBI agent posing as a potential investor,
and Dupre and Stambaugh, that clarified the way that Stambaugh
and Dupre operated the fraud together. When the agent first
contacted Stambaugh on September 30, 2003, she described the
scheme to him and informed him that she was working with Dupre in New York. Later that day, Stambaugh gave the agent Dupre's hotel
room phone number. The agent then contacted Dupre, who described
the program and explained that she would instruct Stambaugh to
fax various forms to the agent. On October 2, the agent spoke to
Stambaugh, who confirmed that he was supposed to wire money to an
account in the name of Roberta Dupre. Although the agent and the
defendants had spoken about the possibility of him wiring
$10,000, he wired $1,000, and on October 6, the agent had a
conversation with Dupre where Dupre expressed surprise at the
fact that the agent had wired a smaller amount of money than she
Second, the Government clearly established that the defendants
gained substantial sums of money from the scheme. The Government
offered bank record evidence for accounts held by the defendants,
and demonstrated the existence both of wire transfers into the
accounts from victims, as well as withdrawals from the accounts
by Dupre and Stambaugh for purchases of merchandise and services,
as well as money transfers to family members. Evidence also
indicated money transfers between Dupre and Stambaugh. The
Government offered the testimony of a hotel administrator who
demonstrated the hundreds of thousands of dollars of expenses
racked up by Dupre during her multi-year hotel stay, as well as
the testimony of a salon owner who demonstrated the thousands of
dollars of hair treatment expenses Dupre enjoyed at her victims' expense.
Third, the Government clearly established the joint efforts by
Dupre and Stambaugh to use interstate wires to gather money from
unwitting victims across the country. Victims from Pennsylvania,
Texas, Colorado, and other states testified that they had
numerous long distance telephone calls with Dupre and Stambaugh,
received and responded to a substantial number of e-mails from
Stambaugh, received wiring instructions and bank account forms
via e-mail and fax, and wired money to Dupre and Stambaugh across
Moreover, based on the fantastic assertions made by Dupre and
Stambaugh regarding the fraud, such as the involvement of
high-ranking U.S. government officials, the amount of money in
the bank account, the participation of members of the Marcos
family, and the astronomical rate of return offered to
participants, it was certainly rational for the jury to conclude
beyond a reasonable doubt that the defendants did not have a good
faith belief in the legitimacy of their scheme. Whenever the
defendants were confronted with skeptical questions from
potential investors about such preposterous claims, recorded
telephone conversations as well as e-mails indicated that the
defendants would hide behind a supposed "nondisclosure agreement"
that would prevent them from giving out any more details than
they had already provided. Therefore, the Government offered more than sufficient evidence
at trial to lead a rational juror to conclude beyond a reasonable
doubt that the defendants did not act in good faith in operating
the scheme. This evidence was also sufficient to establish
Stambaugh's intent to commit the crimes charged, the existence of
the conspiracy, and Stambaugh's knowledge and membership in the
With respect to Stambaugh's argument that the Government never
proved the existence of the particular wire transfer charged in
the substantive count in the indictment, for the reasons this
Court detailed on the record during the charging conference on
October 20, 2004, the fact that the Government did not
specifically establish the existence of the charged wire
transfer, but demonstrated thousands of similar wire transfers,
does not constitute a constructive amendment of the indictment,
nor does it constitute a variance for which the defendants could
show substantial prejudice.
Finally, with respect to Stambaugh's argument that the
Government never proved that Stambaugh was the same Stambaugh
charged in the indictment, circuit courts in the United States
agree that an in-court identification of a defendant by a witness
is not required for a conviction. See United States v.
Alexander, 48 F.3d 1477, 1490 (9th Cir. 1995); United States v.
Morrow, 925 F.2d 779, 781 (4th Cir. 1991); United States v. Doherty, 867 F.2d 47, 67 (1st Cir. 1989); United States v.
Capozzi, 883 F.2d 608, 617 (8th Cir. 1989); United States v.
Royals, 777 F.2d 1089, 1091 (5th Cir. 1985); United States v.
Green, 757 F.2d 116, 119 (7th Cir. 1985); United States v.
Cooper, 733 F.2d 91, 92 (11th Cir. 1984); Walker v. United
States, 254 F.2d 509, 509 (6th Cir. 1958). As long as the
evidence is "sufficient to permit the inference that the person
on trial was the person who committed the crime," a witness "need
not physically point out a defendant." United States v.
Darrell, 629 F.2d 1089, 1091 (5th Cir. 1980). Indeed, if
witnesses who have met the defendant and could potentially
identify her in court fail to point out that the wrong person has
been brought to trial, this can constitute "eloquent and
sufficient proof of identity." United States v. Weed,
689 F.2d 752, 755 (7th Cir. 1982).
The Government clearly established the identity of Stambaugh as
the defendant Stambaugh. Detective Caddy, as well as Emmanuel
Farnese, both witnesses who had met Stambaugh during the course
of the fraud, did not suggest that the wrong Stambaugh was
sitting at the defense table. Stambaugh also stipulated that
Government Exhibit 88, a list of victims, had been obtained from
her by subpoena, and that Government Exhibits 30, 35, 40, 45, and
50 were the bank records for her and Dupre. These exhibits all
tied Stambaugh specifically to the crime, and serve to establish her identity. Moreover, Stambaugh offered her own evidence of
wire transfers to the Philippines that was corroborated by Mr.
Farnese's testimony that Stambaugh personally requested that he
wire money to the Philippines on her behalf, further supporting
the conclusion that Farnese was referring to the Stambaugh on
trial when he was testifying. The conclusion that Stambaugh was
the Stambaugh charged in the indictment is not in doubt.
The defendants' motions for judgments of acquittal pursuant to
Rule 29, Fed.R.Crim.P., are denied.
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