Thus, there is simply no other conclusion but that defendant was using funds invested by subsequent investors to meet his prior obligations. Investors who wished to withdraw funds from the plan were paid from funds supplied by incoming investors. Hence, defendant's ability to fulfill his promises was premised solely on the illegal continuation and expansion of receiving increased investment funds, which continuation was in jeopardy from the inception. The finding that defendant was conducting a fraudulent scheme rather than a legitimate investment program is further bolstered by his boast to associate that if his conduct became known, the Ponzi scheme would thereafter be known as the scheme.
Further evidence of defendant's fraudulent intent may be inferred from his actions after the arrest of one of his Nassau County agents. When the scheme began to fall apart, defendant fled to New Jersey, stating that he did not want to be bothered by the District Attorney. He destroyed his records relating to the plan and instructed his agents to do likewise. Defendant hoped that by raising the funds necessary to pay back investors he would be able to stave off any larceny charges.
And, of course, defendant's voluntary statements after his arrest in Sweden destroy any claim that he was merely an overly optimistic investment advisor whose fortunes plunged due to an unexpected downturn in the market.
It is true that defendant's operations assumed some of the forms of a legitimate business venture. Nevertheless, beneath it all the manner in which he obtained possession of the money of his victims was by means of false promise. No other conclusion can be drawn from the record but that defendant plainly intended from the inception, and at every stage of his operation, to obtain the money of others by means of fraudulent devices and then appropriate that money to his own use. In sum, the evidence in these cases is wholly consistent with guilty intent and excludes to a moral certainty every hypothesis except that the criminal defendant intended to perform.
As an additional ground for reversal, defendant maintains that principles of both statutory and constitutional double jeopardy precluded his trial in Nassau County in connection with drug charges arising out of the same plan which was the predicate for his prior Suffolk County convictions. The flaw in these arguments lies in the fact that each larceny was an independent criminal transaction which can be prosecuted independently. Inasmuch as none of the victims named in the Suffolk County indictment were subjects of the subsequent Nassau County prosecution, there was no bar to the second trial.