Appendix — Weardon v. United States

APPENDIX

(1) Judgment and Probation/Commitment Order of

United States District Court:

UNITED STATES

DISTRICT COURT

FOR

DISTRICT OF VERMONT

DOCKET No. 81-00060-01

UNITED STATES OF AMERICA

Vv.

PERRY WEARDON

JUDGMENT AND PROBATION/

COMMITMENT ORDER

COUNSEL

in the presence of the attorney for the

government the defendant appeared in person on this

date - Aprit 13, 1982 with counsel, Leslie C. Pratt.

PLEA

Not Guilty

FINDING AND JUDGMENT

There being a verdict of guilty. Defendant has

aj.

been convicted as charged of the offense of Mail

Fraud, in violation of 18 USC 1341 (Counts 1-6 and

8-13).

SENTENCE OR PROBATION

ORDER

The court asked whether defendant had anything

to say why judgment should not be pronounced,

Because no sufficient cause to the contrary was

shown, or appeared to the court, the court adjudged

the defendant guilty as charged and convicted and

ordered that: That the defendant is hereby committed

to the custody of the Attorney General or his

authorized representative for imprisonment for a period

of two (2) years on Counts 1-6, to run concurrently

with each other. On Counts 8-13, the defendant is

fined the sum of $1,000 on each count, for a total fine

of $6,000. With respect to the penalty of imprisonment

on Counts 8-13, imposition of sentence is suspended

and the defendant placed on five (5) years' probation,

to commence upon release from confinement on Counts

1-6, subject to the following special conditions of

probation.

SPECIAL CONDITIONS OF

"PROBATION —

1, You are not to engage, either as a principal

or as an employee, in any business which involves the

use of the U. S. Mails to solicit customers.

2. You are not to engage in any business,

either as a principal or as an employee, which involves

the sale of herbs or other medicinal substances,

without the express approval of your probation officer.

It is further ordered that Jefendant Perry

Weardon is to surrender !'mself to the institution

designated by the Attorney General on May 11, 1982

by 2:00 p.m.

ADDITIONAL CONDITIONS

In addition to the special conditions of probation

imposed above, it is hereby ordered that the general

conditions of probation set out on the reverse side of

this judgment be imposed. The Court may change the

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conditions of probation, reduce or extend the period of

probation, and at any time during the probation period

or within a maximum probation period of five years

permitted by law, may issue a warrant and revoke

probation for a violation occurring during the

probation period.

COMMITMENT

“RETOMMENDATION

The court orders commitment to the custody of

the Attorney General and recommends,

(blank)

It is ordered that the Clerk deliver a certified

copy of this judgment and commitment to the U. S.

Marshal or other qualified officer.

Signed By Chief Judge James S. Holden

Date: April 13, 1982

U. S. District Court

District of Vermont

Filed

April 14, 1:09 PM '82

Clerk: C. A. Burbank, Deputy Clerk

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(2) Judgment Order and Informal Opinion of the

United States of Appeals:

UNITED STATES COURT

OF APPEALS

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

14th day of October, one thousand nine hundred and

eighty-two.

Present: Honorable Irving R. Kaufman,

Honorable Ellsworth A. Van Graafeiland,

Honorable George C. Pratt,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee,

Vv.

PERRY C. WEARDON,

Appellant. 82-1138

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Appeal from the United States District Court for

the District of Vermont.

This cause came on to be heard on the transcript

of record from the United States District Court for the

District of Vermont, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of

said District Court be and it hereby is affirmed.

1. Appellant argues that Judge Holden erred by

not granting his motion for judgment of acquittal, on

all the mail fraud counts, at the close of the

government's case. He asserts that the opinion

testimony of the prosecution's expert witness, Dr.

McCormack, was insufficient, standing by itself, to

sustain a conviction based largely on

misrepresentations concerning the herbal products.

Contrary to Weardon's argument, however, it is not

necessary for the government to show a "universality

of scientific belief that advertising representations are

wholly insupportable," Reilly v. Pinkus, 338 U.S.

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269, 276 (1949), before such testimony will withstand a

Rule 29(a) motion. Instead, absent such "universal"

belief, the government may use expert opinion

testimony to create an inference of freud, but "the

likelihood of such an inference might be lessened

should cross-examination cause a witness to admit that

the scientific belief was less universal than he had

first testified." Id. When other, independent

evidence is adduced to demonstrate an intent to

defraud, the opinion testimony is perfectly proper,

and will be admitted, and sent to the jury, for what it

is worth. United States v. Andreadis, 366 F.2d 423,

433 (2d Cir. 1966), cert. denied, 385 U.S. 1001

(1967).

2. Substantial evidence of such an intent was

presented in this case. Herbal Educational Center was

small, understaffed, and understocked --and Weardon

himself was unreachable by telephone--during its

entire existence. Fictitious names were used, and the

jury could reasonably have inferred HEC was never

intended to be a legitimate, long-term, reputable

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business operation. The government showed that much

of the information in the catalogue published by

Weardon came, verbatim, from already published

sources, despite Weardon's representation that it was,

essentially, based on his own personal knowledge.

Weardon did not include in the catalogue or on the

repackaged herbal products numerous warnings

concerning their use. Neither FDA Inspector Maggio

nor Jean Palmer a temporary HEC employee, saw any

labels in the Weardon home which might have been

used to indicate "for external use only" on certain

products, although Weardon testified at trial that HEC

possessed and used such labels. Representatives of

two of Weardon's suppliers, Karen Junnti of Nature's

Products and Sidney Rich of Phoenix Labs, both

testified: Junnti related Weardon's apparent lack of

concern over changes in the composition of herbal

formulas (changes never, in any event, reflected in

the catalogue), and appellant's remark, when asked

whether the units in the formula recipes were by

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weight or volume, that it did not matter. Rich, in

response to a question posed by Weardon's own

counsel, indicated that the ingredients of bee pollen

listed in the catalogue were not the same as those in

the pollen actually supplied by Phoenix. In sum, the

jury could reasonably have concluded, and Judge

Holden could have been satisfied, even without

reference to McCormack's testimony, that appellant

possessed the requisite intent to deceive.

3. McCormack testified at length, as to thirty

herbs and thirty-five formulas, and concluded that

Weardon's claims, in his catalogue, were

unsubstantiated in twenty and thirty-three cases,

respectively. He further noted that the dosage

escalation schedule recommended in the catalogue was

identical for each of sixty formulas, despite differences

among them, and no provision was made for adjusting

the dosages for children. The jury might reasonably

have concluded that this testimony established

unsubstantiated claims, undisclosed risks, and illogical

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and hazardous dosage schemes, and so decided the

catalogue contained numerous false claims. This

evidence clearly amounted to falsity sufficient to

support a mail fraud conviction.

4, Weardon's reliance on United States v.

Baren, 305 F.2d 527, 528 (2d Cir. 1962) is inapposite.

Proof that a customer was actually defrauded is

necessary only in a mail fraud prosecution when it is

clear that the product is capable of performance as

advertised. Id. at 528; United States v. Andreadis,

supra, 366 F.2d at 431-2.

5. Testimony establishing that customers had

ordered products and received neither goods nor a

refund was properly admitted. In light of the

substantial evidence presented that a fraudulent

scheme preexisted the use of the mails (based,

primarily, on inferences the jury properly drew from

the catalogue itself), any possible confusion between

the Vermont state seizure of Weardon's bank accounts

and the alleged scheme in this case was minimal.

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Further, the jury was permitted to give weight to

evidence establishing that Weardon had successfully

withdrawn a large sum of money from his Woodville,

New Hampshire bank, yet made no effort to recompense

consumers,

6. The government's use of the People's Desk

Reference was for impeachment and was therefore

outside the hearsay rule entirely. Moreover, defense

counsel's failure to object to testimony establishing

Portland as the place of publication precludes attack

on appeal. See United States v. Katz, 601 F.2d 66,

67 (2d Cir. 1979).

7. Appellant's Fifth Amendment argument is

without merit. Judge Holden did not reserve decision

on the Rule 29(a) motion. Rather, he denied it

without prejudice to renewal at the end of the

defendant's case. In any event, Weardon failed to

demand a decision on the motion, which was his

responsibility if he believed it had been denied, and

the absence of such a demand amounts to a waiver of

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any claim regarding sufficiency of the government's

proof. United States v. Rosengarten, 357 F.2d 263,

266 (2d Cir. 1966).

8. The judqment of conviction is affirmed.

/s/ Irving R. Kaufman

/s/Ellsworth A. Van Graafeiland

/s/George C. Pratt, Circuit Judges

United States Court of Appeals

Second Circuit

Filed Oct. 14, 1982

A. Daniel Fusaro, Clerk

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