A federal appeals court this week, rejecting a judge’s ruling about alleged prosecution errors, has blocked a new trial for a businessman on mail and wire fraud charges.
The U.S. Court of Appeals for the First Circuit on Nov. 25 reversed U.S. District Judge George O’Toole Jr.’s decision in September 2011 to grant Daniel Carpenter a new trial in Massachusetts federal district court.
The appellate panel also reinstated the jury’s 2008 conviction of Carpenter on 14 counts of wire fraud and five counts of mail fraud. The First Circuit remanded the case for “prompt” sentencing.
The prosecution was rooted in tax-deferred real estate exchange deals Carpenter performed through his company, Benistar Property Exchange Trust Co. Inc., between August and December 2000. Prosecutors said Carpenter misused the exchangors’ investment money to trade in high-risk options.
Carpenter did not speak directly with the investors but he did execute many of Benistar’s contracts with them. Also, he did not create the marketing materials, but he approved them.
At issue in the appeal was the propriety of the government’s closing argument in the case against Carpenter.
First Circuit Chief Judge Sandra Lynch said in the court’s ruling that none of the three features of the government’s closing argument—that O’Toole raised on his own—were improper. Judge Jeffrey Howard and Senior Judge Norman Stahl joined Lynch.
O’Toole’s new-trial order recited three alleged improprieties: overstatements of Carpenter’s promises of “safety and security;” arguments that Benistar described its business as “parking” money in “escrows;” and repeated references to Carpenter’s profit motive.
“Because the district court committed an error of law in determining that the closing argument was improper, it necessarily abused its discretion in granting the new trial, and we reverse,” Lynch wrote.
On the issue of Carpenter’s intent, Lynch wrote that “had there been full disclosure, especially after Carpenter knew his risky investment strategy had failed, the exchangors would never have made the investments to begin with or maintained them with Benistar.”
Carpenter claimed the government engaged in excess emphasis on the riskiness of his investment strategy and his losses, mischaracterized some evidence and relied on a prosecutor’s personal opinion that Carpenter had committed fraud.
“Although they may sound like the prosecutor’s opinions in isolation, the comments that Carpenter cites as improper opinions actually came in the context of properly encouraging the jury to evaluate the evidence,” Lynch wrote.
The Boston U.S. Attorney’s Office is “pleased with the appeals court’s ruling in this matter,” spokeswoman Christina DiIorio-Sterling said. Assistant U.S. Attorney Kelly Begg Lawrence argued for the government.
The First Circuit’s ruling marked the latest review by the appeals court.
Carpenter was tried twice on mail and wire fraud charges. He successfully challenged his conviction after the first trial in 2005. The appeals court, divided, upheld a determination that the government’s closing argument was improper in that case.
In 2008, Carpenter was retried—and convicted again. The First Circuit in its ruling this week overturned O’Toole’s decision to grant a new trial.
Carpenter has a pending petition for certiorari at the U.S. Supreme Court that “raises the issue of whether citizens are entitled to have their acquittal issue ruled on along with a new trial order,” said his appellate lawyer, Martin Weinberg, a Boston criminal defense lawyer.
Weinberg said Carpenter is also planning a petition for First Circuit rehearing on its decision about the new trial.
“We believe after almost ten years of litigation that the Sixth Amendment prevents any sentencing at all or any retrial,” Weinberg said.
Contact Sheri Qualters at email@example.com.