United States v. Benjamin F. Gay Iii, Roy M. Porter
Opinion
Opinion
Tang, J.
Benjamin Gay III and Roy Porter were officers of National Toll Free Marketing (“NTFM”), a company engaged in direct marketing of products and services. In January 1988, the government charged Gay, Porter, and others with using NTFM to defraud investors through false and misleading representations. In April 1990, a jury convicted Gay of mail fraud, interstate transportation of fraudulently obtained property, and failure to file income tax returns. The same jury found Porter guilty of mail fraud and interstate transportation of fraudulently obtained property. Gay and Porter appeal, alleging various errors in the district court’s conduct of the trial. We affirm.
DISCUSSION
I. Dismissal of Juror
Gay and Porter argue that the district court abused its discretion when it replaced with an alternate a juror who failed to appear for trial. Juror Fry was absent when trial resumed on January 31, 1990, after a two month recess. Contacted at home, juror Fry explained that she thought the trial was to reconvene on Friday, February 2nd. Juror Fry lived approximately three hours away from the courthouse.
The district court polled the attorneys and the jurors about the possibility of delaying…