Sarah Michelle Gellar

The Ninth U.S. Circuit Court of Appeals yesterday upheld the mail fraud conviction of a Rhode Island man for selling memorabilia with counterfeit signatures of celebrities, including Teri Hatcher, Carmen Electra, Arnold Schwarzenegger, Muhammad Ali, Sarah Michelle Gellar and Jerry Garcia.

A jury in San Diego convicted O. Stephen Lyons of 10 counts of mail fraud, including one count based on the sale of four movie posters with forged signatures, and U.S. District Court Judge Jeffrey T. Miller sentenced him to three years imprisonment followed by three years of supervised release.

After Lyons challenged his conviction of the movie poster count on the grounds that the evidence was insufficient to warrant a conviction, the Ninth Circuit found the evidence sufficient, but remanded the case back to Miller for resentencing pursuant to United States v. Booker.

Lyons was the target of a government sting operation where Richard Mitchell, a cooperating defendant and government informant, contacted Lyons on the government’s behalf, posing as a memorabilia wholesaler who wanted to buy fraudulent memorabilia, the evidence showed. Mitchell recorded several telephone conversations with Lyons, the transcripts of which were admitted into evidence.

In one conversation, Lyons agreed to “a small order of movie posters” from Mitchell for “a couple hundred bucks.” Earlier in the conversation, referring to the posters, Mitchell told Lyons: “[T]hese, these posters I have going to a, to a guy.”

Mitchell testified that he sent Lyons four unsigned movie posters-for the movies “Toy Story,” “Braveheart,” “Natural Born Killers,” and “Villa Rides”-along with $200 and a note saying:

“Steve, sorry for the small order. Next time I’ll make it worth your time. I only need eight signatures at $25 each.”

In a subsequent conversation, Lyons asked Mitchell if he knew whether Yul Brynner, who starred in “Villa Rides,” was still alive, and if not, when he died. Mitchell testified that Lyons said he wanted to know because he was choosing which pen to use to forge Brynner’s signature, and wanted to know if Brynner died before Sharpie magic markers were sold. Mitchell told Lyons that “if he signed it in ball point pen, we shouldn’t have any problems.”

In another conversation Mitchell told Lyons that the poster with the forged Yul Brynner signature sold for $700.

San Diego attorney John Lanahan, who represented Lyons on appeal, told the MetNews that Lyons testified that he didn’t know the posters were going to be sold, and that he sent them to Mitchell as samples.

But Judge Ronald M. Gould, writing for the Ninth Circuit, concluded:

“[T]here was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Lyons sent Mitchell several posters bearing forged celebrity signatures fully aware that he would sell the posters as though they were genuine.”

The judge explained:

“While a rational jury viewing this evidence might have accepted Lyons’s argument that he mailed the posters to Mitchell unaware that he planned to resell them, the jury certainly was not required to do so.”

Miller sentenced Lyons based on enhancements arising out of the court’s findings that the amount of loss exceeded $120,000 and involved more than 50 defendants. Gould agreed that Lyons is entitled to remand for possible resentencing, regardless of the strength of the evidence supporting the sentence, because it is not certain that Miller would have imposed the same sentence had he anticipated the Supreme Court’s ruling that the Sentencing Guidelines are advisory rather than mandatory.

Lanahan told the MetNews that Miller’s findings were based on what comparable goods were selling for on eBay, and not the testimony of witnesses who said what they had paid for various items, but called Miller a “very fair judge.”

The case is United States v. Lyons, 04-50157