Kyle Kimoto was president of Assail, Inc. Assail was a telemarketing firm responsible for marketing a financial package developed by another company that included a pay-as-you-go debit card. Assail employees would use call lists to choose individuals who had recently applied for a credit card and been rejected. The telemarketer would tell these individuals that they were now eligible for a Visa or Mastercard. If the individuals said they were interested, the telemarketer would place the call on hold to obtain "authorization."
After letting a few minutes pass, the telemarketer would get back on the line to tell the individual that he or she had been approved. The telemarketer would tell the individuals that they would be charged a onetime processing fee of $159.95. The call was then transferred to another department to verify payment of the processing fee
While the call was being transferred, the individual listened to a recording that informed him that the card was a pay-as-you-go MasterCard and there would be no credit on the card until a payment was made. However, any questions from the individual were answered in such a way as to support the assumption that this card would function as a typical credit card.
Defendant was indicted on one count of conspiracy, one count of mail fraud, and twelve counts of wire fraud. On appeal, Kimoto contends that as president he was in the business of selling pay-as-you-go credit cards and that the scripts used were not deceptive. Kimoto did not endorse employee statements indicating that the cards were credit cards. How do you think the court of appeals should rule? List the reasons you would use to support your position?