Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 CR 62-Nicholas Bua, Judge.
Before WOOD, CUDAHY, and FLAUM, Circuit Judges.
WOOD, Circuit Judge. Appellant Walter Dewey Pritchard, a.k.a. Wally-the-Wiretapper, see United States v. Pritchard, 745 F.2d 1112, 1117 (7th Cir. 1984), was convicted in a bench trial of five counts of wire fraud in violation of 18 U.S.C. § 1342 and one count of possession of electronic eavesdropping equipment in violation of 18 U.S.C. § 2112(a)(b). Judge Bua sentenced Pritchard to two years imprisonment on the each of the mail fraud counts, the sentences to run concurrently with each other, and two years probation on the illegal possession count provided the defendant make restitution to the defrauded companies for merchandise delivered, and participate in an alcohol treatment program. Pritchard appeals, contending that the evidence presented at trial is insufficient to support his conviction on any of the six counts.
On January 9, 1984, undaunted by his recent convictions for possession of firearms and surreptitious listening devices, see Pritchard, 745 F.2d 1112 (7th Cir. 1984), and while his appeal of those convictions was pending in this court, Pritchard called Buffalo Medical Specialists Manufacturing, Inc. ("BMS"), a medical supply wholesaler located in St. Petersburg, Florida. Using the alias K. O'Brien, Pritchard told Marshal Brewer, a supervisor at BMS, that he wanted to purchase an electric stethoscope to use on doors, windows, and safes. Since BMS does not make retail sales, Brewer referred Pritchard to Metro Medical Home Care, Inc. ("MMHC"), a Chicago retailer selling BMS products.
In accordance with Brewer's suggestion Pritchard telephoned MMHC. Identifying himself as Mr. Pritchard, a representative from the Special Investigations Unit of the State of Illinois, Pritchard told Store Manager Greg Skelly that he needed an electric stethoscope in order to listen through walls. Mr. Skelly informed Pritchard that MMHS did not have the stethoscope in stock, but that he could order it for Pritchard from the wholesaler, BMS. Concerned about the delay ordering from the wholesaler might occasion, Pritchard explained the urgency of his need for the stethoscope and asked Skelly if there was any way delivery could be expedited. Skelly offered to have the wholesaler ship the stethoscope directly to Pritchard. Satisfied, Pritchard ordered the stethoscope. Pritchard gave Skelly a purchase order number and special reference number and directed him to ship the stethoscope to K. O'Brien, 188 West Randolph, Chicago, Illinois, 60601, Special Investigations. Pritchard also gave Skelly his Marietta Answering Service number-994-7365.
BMS shipped the stethoscope the following day by UPS next day air service. The shipment was addressed to Karen O'Brien, 188 West Randolph, Chicago, Il. 60601, Attn: Spc. Inv. UPS failed to make the delivery, however, because it was unable to locate a K. O'Brien at 188 West Randolph St., the address of a large office building with many offices. When BMS called Pritchard to explain the difficulty with delivery Pritchard told BMS to try reshipping, this time to room 1226 at 188 Randolph and without abbreviating "Special Investigations."
Room 1226 is the address of a law office in the building at 188 Randolph. The lawyers are not affiliated with the State or the Illinois Division of Criminal Investigations. Although Pritchard is permitted to receive mail at the law office, he does not work or have an office or phone there. BMS reshipped the stethoscope on January 25 and successfully made delivery to room 1226.
On January 11, two days after placing the order with MMHC, Pritchard called Edmund Scientific, a New Jersey mail order company, to order more tools: a deluxe parabolic mike, a bug detector, a bionic car, a pocket size electronic stethoscope, a subliminal memory tape, an auto induction relaxation cassette, a relaxation training program, a micro-cassette and recorder, and some electric surveillance equipment. Pritchard gave Edmund a purchase order number and asked that the merchandise be shipped to: State of Illinois Building, 188 West Randolph Street, Chicago, Il. 60601. Since the account was new the order form was routed to Dilip Pandya, Edmund's financial administrative controller, for a credit check. Seeking to verify the credit information on the new account, Pandya called Pritchard at the number given on the order form. The person answering used the identifier "State of Illinois." Pandya asked to speak with Mr. Pritchard and Pritchard answered. Pandya explained to Pritchard that State orders are usually followed up by confirming purchase order. Without bothering to correct Pandya's mistaken belief that the order was for the State, Pritchard assured Pandya that a confirming purchase order would be sent as soon as the tools were received. When Pandya expressed surprise that the government would order these "consumer items" Pritchard explained that he was placing the order for his "bosses." Convinced of the legitimacy of Pritchard's order, Pandya released the order for shipping. Edmund shipped part of the order on January 12, and the remaining portion on January 16. The two shipments were delivered to room 1226 on January 13 and 23, respectively.
On January 17 Pritchard placed under another telephone order with Edmund for a variety of other tools. Soon thereafter Pandya called Pritchard, once again to ask for the confirming purchase order. Again Pritchard assured Pandya that he would send the confirming purchase order as soon as he had received the merchandise. On January 19 Pritchard placed yet another order with Edmund on the State of Illinois account.
Meanwhile, back at the Illinois Division of Criminal Investigations ("IDCI") Pritchard's first invoice with Edmund arrived. Perplexed by the fact that there was no Illinois Office of Special Investigation, a representative of IDCI, Roger Shiel, called Edmund to inquire about the invoice. Shiel informed Edmund that Pritchard was not an employee of the State of Illinois and that there was no Office of Special Investigations. On to Pritchard's scam, Edmund and the Illinois Division of Criminal Investigations began plotting to snare Wally, our wiley tapper.
Pandya called Pritchard to inform him that Edmund would have to back order some of the items. At Shiel's direction, Pandya also told Pritchard that to get the items on back order Pritchard must speak with Edmund's Midwest representative, Roger Tanner. Pandya then gave Pritchard the phone number for Shiel.
Pritchard, unaware of the trap, called Tanner (really Shiel). Later the same day Tanner (Shiel) called Pritchard at 944-7365 and asked for State of Illinois, Office of Special Investigations, Mr. Pritchard. He was connected with Pritchard. The next day Shiel and Pritchard spoke again over the phone and arranged for Pritchard ...