Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 91 CR 297--Thomas J. Curran, Judge.
Before CUMMINGS and RIPPLE, Circuit Judges, and WILL, District Judge. *fn1
Robert L. Allison was convicted by a jury of eight counts of mail and wire fraud and sentenced to 24 months in prison. He appeals his conviction and we affirm.
Allison fleeced investors through two bogus investment schemes which he operated from 1986 to 1991 under the names New Design Financial Services and Northwest Development. In the first scheme, Allison promised investors--in a formal payout letter--a tenfold return on their $3000-$4000 investments. Allison promised to reap these extraordinary yields by investing his clients' money in Japanese yen. The money was "invested" instead in his girlfriend's checking account.
Allison touted his impressive "connections" with large corporations and the Canadian government. He told one investor that "the yen deal" was so big that no bank could handle it. He also claimed to be involved in a multitrillion dollar transaction. He admitted at trial that that figure was more than eight times the United States gross national product. Needless to say, Allison's victims were not sophisticated investors and included a waitress, a homemaker, a paper-mill worker and a seamstress. When the promised payouts did not materialize, Allison would attempt to wheedle more money out his victims "in order for the deal to go through" and would blame delays on attorneys, banks, travel problems and the complexity of the transactions. When all else failed, he would stop returning calls.
In addition to his "yen dealings," Allison promised to provide small business people with long term, low interest, no-collateral loans. After Allison deposited their advance fees in his girlfriend's account, no borrower ever received any loan money.
I. Impeachment of defendant based on his refusal to meet with the FBI
The FBI twice contacted the defendant to discuss his financial dealings. Allison put off these requests and never met with the FBI. At trial, the government questioned Allison about his refusal to meet with the FBI in order to impeach his testimony that his dealings were all on the up and up. On appeal, Allison, relying on Doyle v. Ohio, 426 U.S. 610, argues that the government's references during cross-examination and closing argument to his refusal to meet with the FBI violated due process and require reversal of his conviction.
Doyle and subsequent cases hold that it is fundamentally unfair and violative of due process for the government to comment on a defendant's post-arrest, post-Miranda silence. Allison's reliance on Doyle is misplaced, however, because he was never arrested and "the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a criminal defendant's credibility." Jenkins v. Anderson, 447 U.S. 231, 238. In attempting to salvage his argument, Allison claims, citing United States v. Cummiskey, 728 F.2d 200 (3rd Cir. 1984), that even though he was never arrested, the government still had ...