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United States Court of Appeals for the Second Circuit
July 6, 2009, Argued; July 1, 2010, Decided
Docket No. 07-2365-cr
[*559] POOLER, [**2] Circuit Judge:
Mark P. Kaiser ("Kaiser") appeals from a judgment of conviction and sentence entered on May 18, 2007, following a jury trial in the United States District Court for the Southern District of New York (Griesa, J.). The government alleged at trial that Kaiser, a high-level executive at [*560] U.S. Food Services ("USF"), made fraudulent misrepresentations regarding the financial condition of USF, and ultimately, the financial condition of Royal Ahold N.V. ("Ahold"), which acquired USF in April 2000.
Count One of the indictment alleged that from April 2000 to February 2003, Kaiser participated in a conspiracy to commit securities fraud, to make false filings with the Securities and Exchange Commission ("SEC"), and to falsify books and records, in violation of 18 U.S.C. § 371. Count Two charged that Kaiser committed securities fraud in violation of 15 U.S.C. §§ 78j(b) & 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. § 2. Counts Three, Four, Five, and Six charged that Kaiser made or caused to be made a false filing to the SEC on behalf of Ahold, in violation of 15 U.S.C. §§ 78m(a) & 78ff, 17 C.F.R. § 240.13a-1, and 18 U.S.C. § 2.
The jury returned a verdict convicting Kaiser on all five [**3] counts of the indictment. With respect to Count One, the conspiracy count, the jury found that the objectives of the conspiracy included making false filings and falsifying books and records, but not committing securities fraud. Judge Griesa sentenced Kaiser principally to a term of 84 months' imprisonment and imposed a $ 50,000 fine. Kaiser has been released on bail pending resolution of this appeal.
Kaiser argues that there were two errors in the district court's jury instructions, three erroneous evidentiary rulings, and two errors in sentencing. With regard to the jury instructions, Kaiser contends that the district court made errors on the conscious avoidance theory and the "willfulness" element of securities fraud. Kaiser argues that the district court also erred in admitting 1) evidence of his fraudulent dealings before the charged securities fraud began in April 2000, 2) certain business planners under the business records exception to the hearsay rule, and 3) a hearsay statement that USF's General Counsel wanted to report Kaiser to the SEC. Finally, Kaiser argues that the district court improperly calculated his sentence.
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609 F.3d 556 *; 2010 U.S. App. LEXIS 13463 **; Fed. Sec. L. Rep. (CCH) P95,789
UNITED STATES, Appellee, -v- MARK P. KAISER, Defendant-Appellant.
Subsequent History: As Amended July 8, 2010.
Prior History: [**1] Mark P. Kaiser appeals from a judgment of conviction and sentence entered on May 18, 2007, following a jury trial in the United States District Court for the Southern District of New York (Griesa, J.). Kaiser argues that there were two errors in the district court's jury instructions, three erroneous evidentiary rulings, and two errors in sentencing. We conclude that the district court erred in its instruction with respect to the conscious avoidance theory and in admitting the statement of U.S. Food Service's General Counsel, but we reject Kaiser's other claims on appeal. We do not reach Kaiser's sentencing claims. Accordingly, the judgment of the district court is VACATED and the matter is REMANDED to the district court for a new trial.
United States v. Kaiser, 2010 U.S. Dist. LEXIS 1771 (S.D.N.Y., Jan. 11, 2010)
conscious, prepayment, argues, vendors, conspiracy, planners, district court, auditors, willfulness, fraudulent, securities fraud, confirmation, inflated, convicted, recorded, hearsay, letters, contracts, audit, high probability, conversations, knowingly, willfully, hide, business records exception, trustworthiness, instructions, allowances, sentencing, pre-April
Criminal Law & Procedure, Acts & Mental States, Mens Rea, Knowledge, Standards of Review, Plain Error, General Overview, Fraud, Securities Fraud, Elements, Securities Law, Regulators, US Securities & Exchange Commission, Penalties for Knowing & Willful Violations, Evidence, Admissibility, Conduct Evidence, Prior Acts, Crimes & Wrongs, Types of Evidence, Circumstantial Evidence, Demonstrative Evidence, Procedural Matters, Curative Admissibility, Exceptions, State of Mind, Hearsay, Rule Components, Statements as Evidence, Truth of Matter Asserted, Harmless & Invited Error, Burdens of Proof, Initial Burden of Persuasion, Ultimate Burden of Persuasion, Business Records, Normal Course of Business, Weight & Sufficiency